Duren v. Kee

27 S.E. 875, 50 S.C. 444, 1897 S.C. LEXIS 37

• Court: Supreme Court of South Carolina
• Decided: September 27, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

In order to understand fully the questions raised by the exceptions it will be necessary to set forth, in the report of the case, the complaint, the answer, the charge of his Honor, the presiding Judge, and the exceptions.

The exceptions raise practically the following questions: First. Was there error in allowing the defendant to introduce in evidence the plat of the surveyor, when no order of the Court had been made authorizing him to survey the land, and no notice of the time and place of making the survey had been given to the plaintiff? Second. Was there error in charging the jury that it was necessary for the plaintiff to prove possession of the land for twenty, instead of ten years, in order to show a title by adverse possession? Third. Was there error in refusing a motion for a new trial, if the defendant would remit upon the record the land mentioned in the order to that effect?

1 We proceed to a consideration of the first question. The case of Patterson v. Crenshaw, 32 S. C., 534, shows it is not absolutely necessary that there should be a survey made under order of the Court in order to fix the locus in quo. The rule of Court as to survey was not intended to be exclusive of other modes of establishing the location of lands. The exception raising this question is overruled.

2 The second question will next be considered. It is well settled in this State that the statute of limitations is not only a shield of defense, but is capable of being asserted actively. The time necessary for conferring such right is the same in each instance. In the case of Harrelson v. Sarvis, 39 S. C., 14, cited with approval in Busby v. R. R. Co., 45 S. C., 317, it was held that an adverse possession of twelve years was sufficient to entitle the plaintiff to recover the land. Although adverse possession of land for • ten years will confer a good title, still, as the plaintiff must recover upon the strength of his own title, and not upon the weakness of that of his adversary, it is necessary to prove a grant from the State, or facts from which it may be presumed that the State has parted with its title. Busby v. R. R. Co., supra. The charge of the presiding Judge shows that he recognized the right of the plaintiff to recover the land in dispute, if she established to the satisfaction of the jury that she had acquired a title by adverse possession, but he erred in charging that twenty years possession was necessary to confer such right. The exceptions raising the second question are sustained.

3 We come now to a consideration of the third question. After the jury rendered a verdict in favor of the defendant, the plaintiff made a motion for a new trial, upon hearing which the presiding Judge made the following order: “A motion in the case having been made by the plaintiff upon the minutes of the Court for a new trial, and after hearing argument of counsel thereon, it is considered, that unless the defendant shall, within ten days after the raising of the Court, remit upon the record herein so much of the verdict as includes the actual pedis possession or lands in actual possession at the time of the commencement of this action, within the limits of the Brice Miller grant of 299 acres, and also all the other lands in dispute outside of the limits of said grant, the motion for the new trial be granted. ' That upon the remission by the defendant, as above stated, the defendant have leave to enter judgment accordingly upon said verdict as corrected by said remission.”

The defendant entered the following upon the record: “In obedience to, and in compliance with, an order of the Court, signed by Hon. R. C. Watts, presiding Judge, dated October 14, 1896, in the within stated case, I hereby remit to the plaintiff, Matilda A. Duren, so much of the verdict of the jury herein as includes the pedis possessio, or lauds in the actual possession of the plaintiff at the 'time of the commencement' of this action, within the limits of the Brice Miller grant of 299 acres, and also all the other lands in dispute in this action outside the limits of said grant. Witness my hand and seal, at Dan caster, S. C., this October 20th, 1896. Permelia H. Kee.” Signed and sealed in the presence of (two witnesses).

In an action to recover possession of land, the verdict in favor of the plaintiff is quite different in form from that in favor of the defendant. When such verdict is in favor of the defendant, its effect is not to declare that he is entitled to recover possession of the lands in dispute, but simply that the plaintiff has failed to prove his case to the satisfaction of the jury. In one instance it is affirmative, while in the other it is negative in nature. It was, therefore, error to order that the new trial be refused, if the defendant would remit upon the record so much of the verdict as is mentioned in said order, when the record did not show that there was any such verdict.

Furthermore, the order aforesaid shows that the presiding Judge was of the opinion that the plaintiff was entitled to recover possession of a part of said lands; otherwise, he would not have granted the new trial, nisi. Now, if the plaintiff was entitled to recover possession of any part of said lands, then she was also entitled to the costs of the action; yet the practical effect of granting the new trial, nisi, has been to give her possession of part of the land, but forced her to pay the costs of the action, in which there was error, as this is a case on the law side of the Court. The exceptions raising this question are sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.

Mr. Justice Jones did not sit in this case.