The opinion of the court was delivered by
Mr. Justice McGowan.
This action was brought for the [441]*441recovery of a tract of land, stated in the complaint to contain 900 acres, and damages for its detention. It has been before this court several times. In its different phases it has been tried already four times on the Circuit, and three times in this court. See 13 S. C., 160; 14 Id., 630; 27 Id., 472, and 34 Id., 388. 1 The evidence, except what, was documentary, copies of deeds, &c., has not been printed in the Brief; but, in accordance with what we regard as the proper practice in a law case, the parties have “stated” the points of law involved for the consideration and decision of the court.
The plaintiff’s title, as shown, rested on the judgment of John Fox vs. Robert Garvin et al., obtained at Lexington, on April 3, 1868. This judgment had been transferred by transcript to Aiken County in August, 1875, and the land in dispute was sold under it as the property of Robert Garvin, the defendant in execution, and bought by the plaintiff, the owner of the judgment, on January 7, 1878, to whom the sheriff of Aiken County executed a deed. The right of the plaintiff to sell under the execution in the sheriff’s office, and to refer said sale to the Fox judgment of 1868, had already been settled in the former appeals herein. The defendant, in making out his case, relied upon a deed made to him by his father, Robert Garvin, for valuable consideration, dated April 15, 1874, conveying 500 acres; and upon adverse possession under that deed, and also as color of title under a plat of 4,000 acres, including the said 500 acres conveyed to the defendant, but which said plat had no mark on it indicating the exact boundaries of the 500 acres claimed by defendant.
The defendant offered evidence tending to prove that he paid a valuable consideration for the laud described in the deed to him (500 acres), and the plaintiff offered testimony tending to prove that said deed was made without, consideration, and for the purpose of hindering and delaying the creditors of Robert Garvin. The defendant also offered evidence which tended to prove that he held a plat of the land described in the complaint, to wit: a plat of 4,000 acres, including the 500 acres described in the deed of Robert Garvin, to the defendant, R. C. Garvin, [442]*442adversely for the statutory period. Plaintiff also put in testimony which tended to prove that the defendant did not hold the land in dispute adversely for the statutory period.
Plaintiff requested the judge to charge the jury as follows: “That if the jury find from the evidence that the deed from Robert Garvin to R. C. Garvin was intended to delay, hinder, and defeat the creditors of Robert Garvin, or any of them, and that both the grantor and grantee, Robert and R. 0. Garvin, took part in such fraud, then R. 0. Garvin can gain no advantage from said deed, for it is void, and can not be used even as color of title, for no man can take advantage of his own wrong. The defendant requested the judge to charge: ‘ ‘That if the jury believe from the evidence that the deed of Robert Garvin to R. 0. Garvin, the defendant, under which the defendant claims title, was made with intent to hinder and delay creditors, and with fraudulent intent, yet, notwithstanding such fraud, if such deed on.its face purports to convey the lands in dispute, such deed is color of title sufficient for the purpose of the statute of limitations, and if the defendant held the lands adversely for the period of ten years under such fraudulent deed, the plaintiff can not recover,” &c.
After a very full and clear charge of the judge (which should appear in the report of the case), the jury found for the plaintiff the land in dispute, and the defendant appeals to this court for a new trial on three exceptions, which are in the record, merely giving extracts from the judge’s charge; and we think the points made may be fully considered, under the questions stated in the case, as follows: (1) Does the statute of limitations run against the creditor of the grantor, in favor of one who knowingly takes land under a fraudulent deed, from the date of the deed, or only from the time when such creditors have notice of the fraud; or can the party in possession avail himself of such as color of title? (2) Can one who is in possession of land use as a color of title a plat of 4,000 acres, when he claims only 500 acres of the land covered by the plat. There being no resurvey or subdivision line ou such plat to indicate the extent of the claim?
[443]*4431 [442]*442First. In the view that the conveyance to R. G. Garviu was [443]*443fraudulent, and void, we think the statute of limitations did not commence to run in his favor until the discovery by the aggrieved party “of the facts constituting the fraud.” It can not be necessary to do more than cite the latest authority upon the subject. See Beatie v. Pool, 13 S. C., 383; Hart v. Bates, 17 Id., 35, and Richardson v. Mounce, 19 Id., 477. In the case of Hart v. Bates, it was held in terms that “A recorded deed from an embarrassed father to his son, expressed to be for valuable consideration, is not notice to parties in interest of secret fraud in the conveyance. * * * Adversé possession is not complete until full ten years have expired, and .the statute does not begin to run in favor of a fraudulent deed until the discovery of the facts constituting the fraud.” But it is urged that the judge should have charged as requested: “If the jury believe from the evidence that the deed to R. C. Garvin was made with the intent to defeat creditors, yet, notwithstanding such fraud, if such deed on its face purports to convey the land in dispute, such deed is color of title sufficient for the purpose of the statute of limitations; and if the defendant held the land adversely for the period of ten years under that fraudulent deed, the plaintiff can not recover,” &c. We can not accept this view. It seems to us that when the conveyance is declared fraudulent and void, it is entirely wiped out; and we can not understand how the bare boundaries can remain as color of title to a possession which has been declared to be not adverse. “An invalid conveyance may operate as color of title, but it does not draw with it constructive possession, and does not of itself tend to prove adverse possession.” Childress v. Calloway, 76 Ala., 130. Color of title amounts to nothing, unless in connection with adverse possession; and we have already determined that the possession of R. C. Garvin, for the want of notice to the parties, was not adverse in the sense of putting the statute in operation. “As a general rule, the claim of color of title must be prima facie valid, or what purports to be valid.” That is to say, if the claim of the party was invalid upon its face, or the act or deed under which he claims is void, it can not be the foundation of an adverse possession. Tyler on Ejectment, &c., 870. We concur with the Circuit Judge [444]*444when he said: “In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as color of title, until in some way or other the judgment creditor was affected with notice of that fraud,” &c.
2 Second.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Mr. Justice McGowan.
This action was brought for the [441]*441recovery of a tract of land, stated in the complaint to contain 900 acres, and damages for its detention. It has been before this court several times. In its different phases it has been tried already four times on the Circuit, and three times in this court. See 13 S. C., 160; 14 Id., 630; 27 Id., 472, and 34 Id., 388. 1 The evidence, except what, was documentary, copies of deeds, &c., has not been printed in the Brief; but, in accordance with what we regard as the proper practice in a law case, the parties have “stated” the points of law involved for the consideration and decision of the court.
The plaintiff’s title, as shown, rested on the judgment of John Fox vs. Robert Garvin et al., obtained at Lexington, on April 3, 1868. This judgment had been transferred by transcript to Aiken County in August, 1875, and the land in dispute was sold under it as the property of Robert Garvin, the defendant in execution, and bought by the plaintiff, the owner of the judgment, on January 7, 1878, to whom the sheriff of Aiken County executed a deed. The right of the plaintiff to sell under the execution in the sheriff’s office, and to refer said sale to the Fox judgment of 1868, had already been settled in the former appeals herein. The defendant, in making out his case, relied upon a deed made to him by his father, Robert Garvin, for valuable consideration, dated April 15, 1874, conveying 500 acres; and upon adverse possession under that deed, and also as color of title under a plat of 4,000 acres, including the said 500 acres conveyed to the defendant, but which said plat had no mark on it indicating the exact boundaries of the 500 acres claimed by defendant.
The defendant offered evidence tending to prove that he paid a valuable consideration for the laud described in the deed to him (500 acres), and the plaintiff offered testimony tending to prove that said deed was made without, consideration, and for the purpose of hindering and delaying the creditors of Robert Garvin. The defendant also offered evidence which tended to prove that he held a plat of the land described in the complaint, to wit: a plat of 4,000 acres, including the 500 acres described in the deed of Robert Garvin, to the defendant, R. C. Garvin, [442]*442adversely for the statutory period. Plaintiff also put in testimony which tended to prove that the defendant did not hold the land in dispute adversely for the statutory period.
Plaintiff requested the judge to charge the jury as follows: “That if the jury find from the evidence that the deed from Robert Garvin to R. C. Garvin was intended to delay, hinder, and defeat the creditors of Robert Garvin, or any of them, and that both the grantor and grantee, Robert and R. 0. Garvin, took part in such fraud, then R. 0. Garvin can gain no advantage from said deed, for it is void, and can not be used even as color of title, for no man can take advantage of his own wrong. The defendant requested the judge to charge: ‘ ‘That if the jury believe from the evidence that the deed of Robert Garvin to R. 0. Garvin, the defendant, under which the defendant claims title, was made with intent to hinder and delay creditors, and with fraudulent intent, yet, notwithstanding such fraud, if such deed on.its face purports to convey the lands in dispute, such deed is color of title sufficient for the purpose of the statute of limitations, and if the defendant held the lands adversely for the period of ten years under such fraudulent deed, the plaintiff can not recover,” &c.
After a very full and clear charge of the judge (which should appear in the report of the case), the jury found for the plaintiff the land in dispute, and the defendant appeals to this court for a new trial on three exceptions, which are in the record, merely giving extracts from the judge’s charge; and we think the points made may be fully considered, under the questions stated in the case, as follows: (1) Does the statute of limitations run against the creditor of the grantor, in favor of one who knowingly takes land under a fraudulent deed, from the date of the deed, or only from the time when such creditors have notice of the fraud; or can the party in possession avail himself of such as color of title? (2) Can one who is in possession of land use as a color of title a plat of 4,000 acres, when he claims only 500 acres of the land covered by the plat. There being no resurvey or subdivision line ou such plat to indicate the extent of the claim?
[443]*4431 [442]*442First. In the view that the conveyance to R. G. Garviu was [443]*443fraudulent, and void, we think the statute of limitations did not commence to run in his favor until the discovery by the aggrieved party “of the facts constituting the fraud.” It can not be necessary to do more than cite the latest authority upon the subject. See Beatie v. Pool, 13 S. C., 383; Hart v. Bates, 17 Id., 35, and Richardson v. Mounce, 19 Id., 477. In the case of Hart v. Bates, it was held in terms that “A recorded deed from an embarrassed father to his son, expressed to be for valuable consideration, is not notice to parties in interest of secret fraud in the conveyance. * * * Adversé possession is not complete until full ten years have expired, and .the statute does not begin to run in favor of a fraudulent deed until the discovery of the facts constituting the fraud.” But it is urged that the judge should have charged as requested: “If the jury believe from the evidence that the deed to R. C. Garvin was made with the intent to defeat creditors, yet, notwithstanding such fraud, if such deed on its face purports to convey the land in dispute, such deed is color of title sufficient for the purpose of the statute of limitations; and if the defendant held the land adversely for the period of ten years under that fraudulent deed, the plaintiff can not recover,” &c. We can not accept this view. It seems to us that when the conveyance is declared fraudulent and void, it is entirely wiped out; and we can not understand how the bare boundaries can remain as color of title to a possession which has been declared to be not adverse. “An invalid conveyance may operate as color of title, but it does not draw with it constructive possession, and does not of itself tend to prove adverse possession.” Childress v. Calloway, 76 Ala., 130. Color of title amounts to nothing, unless in connection with adverse possession; and we have already determined that the possession of R. C. Garvin, for the want of notice to the parties, was not adverse in the sense of putting the statute in operation. “As a general rule, the claim of color of title must be prima facie valid, or what purports to be valid.” That is to say, if the claim of the party was invalid upon its face, or the act or deed under which he claims is void, it can not be the foundation of an adverse possession. Tyler on Ejectment, &c., 870. We concur with the Circuit Judge [444]*444when he said: “In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as color of title, until in some way or other the judgment creditor was affected with notice of that fraud,” &c.
2 Second. The defendant further set up as “color of title,” showing the extent of his constructive possession, a plat covering 4,000 acres, including the 500 which he claims; but without any line or mark upon its face, indicating the location of the particular 500 acres conveyed to him, and of which he was in possession. Upon this subject the judge charged: “Now, the rule is, every paper showing the extent of a man’s boundaries, under which he claims, is made color of title, and if the defendant had claimed the whole of that land, and set up that as his color of title, then he could have recovered so much of it as other people did not have a better title to. But when a man goes into possession of a part of a tract — say 4,000 acres — claiming only 500 acres of it, then the question is, does that color of title indicate at all what his boundaries are? I think not,” &c. In this we concur. That the instrument under which a party holds adversely by color of title must define the extent of the claim, is perfectly well settled. “He who enters under a claim or color of title may hold to the boundaries described in the instrument under which he claims. But if the boundaries described in the deed are ambiguous or incorrect, the party claiming under it cannot acquire title by constructive possession, but is limited to the land actually occupied,” &c. 1 Am. & Eng. Enc. Law, 290, and numerous notes, among which it is stated that a grantee, whose lands are by his deed bounded by a definite line, cannot be said to claim under that instrument lands outside of that line, but he may acquire title to such lands by actual occupancy, &c. “By adverse possession for the statutory period, the occupant may establish a right to the land within his enclosure or actual occupation. But if he claims possession beyond the lands thus occupied, the extent and limits of that possession must be defined by reference to some colorable title, as a deed or plat, or by visible marked lines, reputed boundaries or other equivalent [445]*445evidence. No right can be founded on an undefined possession ; for the jury can not find a verdict for the claimant without evidence which may enable them to locate the lands by metes and bounds.” Golson v. Hook, 4 Strob., 23; Gray v. Bates, 3 Id., 504.
The judgment of this court is, that the judgment of the. Circuit Court be affirmed.