Cummings v. Varn

413 S.E.2d 829, 307 S.C. 37

• Court: Supreme Court of South Carolina
• Decided: February 20, 1992
• Docket: 23560
• Status: Published

Opinions

Harwell, Justice:

This is an action of trespass to try title, a suit at law brought to recover real estate in the possession of appellant and claimed to belong in fee to respondents as co-tenants with appellant. The issue is whether respondents proved perfect title to a disputed tract of land and, consequently, met their burden of proof so as to dispossess appellant. We reverse.

I. FACTS

This case involves a dispute over a fifty acre tract of land lying along the Bamberg-Colleton county line (the disputed tract). Appellant W.H. Varn, Jr. claims title to the land by virtue of a deed to his father, W.H. Varn, conveying 106 acres lying in both Colleton and Bamberg counties (the Johnson Deed). The Johnson Deed was recorded in the Office of the Clerk of Court for Colleton County in 1930 but was not recorded in Bamberg County until 1986. W.H. Varn deeded the Johnson tract to appellant in 1958. The deed to appellant was recorded in Colleton County in 1958, but was not recorded in Bamberg County until 1980. Appellant has grazed cattle and harvested timber on the disputed tract for over 30 years.

Respondents Cummings, Stozier, Langford, and Coleman claim title to the disputed tract as co-tenants with appellant by virtue of a 1915 deed conveying fifty acres from George Neal to W.H. Varn and A.E. Varn d/b/a Varn Bros. Co. (the Neal Deed).¹ The Neal Deed was recorded in the Office of the Clerk of Court for Bamberg County in 1915.

The controversy arose when Bamberg County was mapped in the mid-1970s. Bamberg County officials designated a fifty-acre parcel abutting the Colleton County line as the parcel conveyed pursuant to the Neal Deed.² The Bamberg County tax collector discovered the disputed tract had not been returned³ for property taxes in Bamberg County since 1915. Bamberg County thereafter assessed property tax against the heirs of W.H. Varn and A.E. Varn as co-tenants for past due taxes for the years 1968-78. Until they received the tax notice, neither appellant nor respondents were aware of the Neal Deed.

Appellant testified that he has paid taxes in Colleton County for the entire 106 acre tract since 1959, and that the 106 acre tract has been returned for taxes in Colleton County since 1915. Appellant testified it was common practice under the return system to pay taxes on a tract of land intersected by the county line in the county where the bulk of the tract was located.

Respondents brought suit in 1990, alleging ownership of the disputed tract and demanding a portion of profits appellant received from cutting timber. The action was bifurcated, and a trial was held on the sole issue of title. The jury found in favor of respondents.

II. DISCUSSION

There are four ways in which a plaintiff in an action of trespass to try title may acquire title to land sufficient to oust a defendant claiming the same land. First, the plaintiff may show a grant from the state to someone, and then by successive deeds to him. This chain of conveyances is called a perfect legal paper title. Haithcock v. Haithcock, 123 S.C. 61, 69, 115 S.E. 727, 729 (1923). Second, the plaintiff may trace his title to a common source from whom both he and the defendant claim through separate chains of title. Id. If the plaintiff can show an earlier deed deriving from a common source, he may dispossess a defendant in possession. Brown v. Moore, 26 S.C. 160, 2 S.E. 9 (1887). Third, a plaintiff may show that he and those under whom he claims have been in actual, hostile, exclusive, and continuous possession of the land adversely to the defendant for twenty years. Once that fact is established, the law presumes whatever is necessary to give the plaintiff good title. Haithcock, 128 S.C. at 69,115 S.E. at 729. Fourth, the plaintiff can show he alone or with those from whom he has inherited have been in actual, hostile, exclusive, and continuous possession of the land adversely to the defendant for ten years. Id. See also S.C. Code Ann. § 15-67-210, et seq. (1976).

Respondents claim their interest in the disputed tract pursuant to the Neal Deed, which places them within the first category of plaintiffs identified in Haithcock. It therefore is incumbent upon them to prove perfect legal paper title before they are entitled to recover ownership against appellant. Appellant argues the respondents did not make out perfect legal paper title to the disputed tract and, therefore, did not meet their burden of proof so as to dispossess him. We agree.

In an action of trespass to try title, a defendant in actual possession, not obtained by a tortious eviction, is regarded as the rightful owner until the plaintiff proves perfect title. Alston v. McDowall, 26 S.C.L. (1 McMul.) 444 (1840). It is immaterial to inquire whether the defendant’s possession is rightful or under good title. Id. The plaintiff “must make out a complete title, and must recover on the strength of that title, and not upon the weakness of the title of his adversary, and there is no onus whatever upon the defendant. He may fold his arms, and await the complete title of the plaintiff, in default of which has possession cannot be disturbed.” Brown, 26 S.C. at 164, 2 S.E. at 11. A mere prima facie showing of paper title by a plaintiff is not enough. Id.

It is true that a deed valid and regular on its face is clothed with a presumption of validity. Davis v. Monteith, 289 S.C. 176, 345 S.E. (2d) 724 (1986). However, the issue is not whether the Neal Deed is valid; the issue is whether the Neal Deed forms a link in a chain of conveyances establishing perfect legal paper title in respondents so that they may dispossess appellant.

The Neal Deed contains a derivation indicating the land described had belonged to the estate of the grantor’s father, Lewis Neal, and that the grantor had purchased the land at a master’s sale three years earlier. Probate records for the Lewis Neal estate show no title in Lewis Neal to the fifty acres described in the Neal Deed so that the disputed tract could have passed to George Neal by inheritance. Further, no master’s deed of record conveyed the fifty acres described in the Neal Deed to George Neal. No other deed of record conveyed the fifty acres described in the Neal Deed to either George Neal or Lewis Neal. No deed can convey an interest which the grantor does not have in the land described in the deed, even though by its terms the deed may purport to do so. Griggs v. Griggs, 199 S.C. 295, 19 S.E. (2d) 477 (1942). The only deed of record purporting to convey the fifty acre tract described in the Neal Deed is the Neal Deed. An isolated conveyance proves no title. Drayton v. Chandler, 8 S.C.L. (1 Mill) 184 (1817). We hold that respondents did not meet their burden of proof so as to dispossess appellant.

The dissent argues that our holding calls into question ancient deeds in this State. We reiterate that we are simply adhering to settled law that one must establish legal title before he is allowed to dispossess another in possession of land.

A suit of trespass to try title is an action at law. Corley v. Looper, 287 S.C. 618, 340 S.E. (2d) 556 (Ct. App. 1986). The conclusions of fact of the trial court are binding upon this Court unless they are without evidentiary support. Douglass v. Perry, 245 S.C. 486, 141 S.E. (2d) 348 (1965). We can find no facts in the record to support the finding of the jury that respondents met their burden of proving perfect legal paper title to the disputed tract. Furthermore, we find respondents’ additional sustaining ground regarding adverse possession to be without merit. See Haithcock, supra. Accordingly, we reverse.

Reversed.

Gregory, C.J., and Chandler, J., concur. Finney and Toal, JJ., dissenting in separate opinion.

1 W.H. Varn was the father of appellant and respondents Cummings, Lang-ford, and Coleman; grandfather of respondent Stozier; and brother of A.E. Varn. Respondents claim through inheritance as co-tenants of appellant, who also would possess an interest in the disputed tract by inheritance. We note parenthetically that if the Neal Deed and the Johnson Deed refer to the same tract of land, W.H. Varn conveyed whatever interest he had in the disputed tract to appellant. If, as appellant asserts, W.H. Varn possessed the disputed tract pursuant to the Johnson Deed, he conveyed an undivided interest in the disputed tract to appellant. If, as respondents assert, W.H. Varn possessed the disputed tract pursuant to the Neal Deed, he conveyed only a one-half interest in the disputed tract to appellant. Under these facts, W.H. Varn would have retained no interest in the disputed tract which could have passed by inheritance to respondents Coleman, Langford, and Stozier. Thus, only respondent Cummings, claiming solely through A.E. Varn, would have standing to assert a one-half interest in the disputed tract.

2 Bamberg County tax officials currently acknowledge that two chains of title come into the disputed tract. The conflict may have arisen earlier had the Johnson Deed and the deed of W.H. Varn to appellant properly been recorded in Bamberg County contemporaneously with their recordation in Colleton County.

3 Prior to 1979, property owners in Bamberg County paid taxes by informing the county auditor what they owned, and then paying taxes on the property. This was called a “return system.”