Davis v. Duncan

12 S.C.L. 213

• Court: Supreme Court of South Carolina
• Decided: May 15, 1821
• Status: Published

Opinion

Mr. Justice Nott

delivered the opinion of the court.

If the only evidence of conversion in this case had been the refusal to deliver up the property when demanded, the motion for a non-suit would have been entitled to some consideration. But a demand is not necessary when the taking is tortious and unlawful. The manner of taking the property in this case, famished sufficient evidence of a conversion to authorize the plaintiffs to maintain an action.

Bausket, for the motion. O'Neal, contra.

, The motion for a non-suit therefore, cannot prevail.

The decisions which have so long prevailed in this state, that permitting property to go into the possession of a son or daughter, upon their marriage, and continuing with them, should be construed into a gift, is not to be controverted. And even when it is originally expressed to be a loan, it may, by lapse of time, be considered as having ripened into an absolute gift. But then there must be a continued possession, accompanied with continued acts, of ownership. If the first husband had accepted of the property, and kept it during his life, it might perhaps have admitted of that construction. But he refused to accept it, and never had the possession, except on one occasion, and that for a temporary purpose. The present defendant never pretended to any right in himself.

The motion for a new trial, must therefore be refused.

Justices Colcock, Johnson, Richardson, Huger and Gantt, concurred.