Hodge v. Hodge

34 S.E. 517, 56 S.C. 263, 1899 S.C. LEXIS 178

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

The action in this case was brought by the plaintiff (who- seems to> be spoken of in the record, indifferently, as “Annie” E. Hodge and “Anna” E. Hodge) for the recovery of possession of certain real es-state, described in the complaint, situate in Clarendon County, alleged to be in the possession of defendants, and wrongfully and unlawfully withheld by them from t'he plaintiff. The action was commenced on the 8th of February, 1898, and was tried before his Honor, Judge Buchanan, and a jury at October term, 1898, and resulted in a verdict in favor of plaintiff, upon which judgment was duly entered. From this judgment defendants appeal upon the several exceptions set out in the record.

The plaintiff, on the trial, introduced the following evidence: 1st. A certified copy of .a deed from J. Lawrence Nelson to Anna E. Hodge,, dated 15th of October, 1870, which, though spread upon the record on the 17th of October,. 1870, in the proper office, was never probated. 2d. A certified copy of a deed’ from Anna E. Hodge to- Isaac T. Hodge, dated day of December, 1885, and duly recorded on the 18th of January, 1886. 3d. A deed from Isaac T. Hodge to Alice Hodge and children, dated 16th of March, 1887, and recorded 2d of June, 1888. Note — -this deed, though stated in the “Case” to bear date 16th of May, 1887, appears, from the copy set out in the “Case,” to bear date 16th of March, 1887; but this discrepancy does not seem to affect the questions in the case. 4th. Judgment roll in the case of Anna-E. Hodge v. Isaac T. Elodge, which was supplemented by the entries in the journal of the 'Court of Common Pleas for Clarendon County, likewise introduced in evidence, which shows that an action was commenced on the 19th of January, 1889, by said Anna E. Hodge against said Isaac T. Hodge for the purpose of setting aside the deed from Anna E. Hodge to Isaac T. Hodge, -bearing- date day of December, 1885, above referred to, which culminated in a judgment rendered 28th of February, 1891, setting aside said deed for “fraud, deceit and duress,” and also setting aside “the deed of Isaac T. Hodge to Anna E. Hodge, dated the same day of the date of the above deed.” 5th. The oral testimony of the plaintiff and her son, Wm. Drose, as to the possession of the land in dispute, which will hereinafter be more particularly referred to.

At the close of the testimony on behalf of the plaintiff, the defendants moved for a nonsuit upon the ground: “That the plaintiff has not shown any title in herself to the land in question, nor has she shown title in any one else fro-m whom she claims by length of possession or otherwise.” The motion was refused, to which exception was duly taken, and the defendants offering no testimony, the case went to- the jury under the charge of the Circuit' Judge, a copy of which is set out in the “Case,” which with the exceptions filed by the de fendants, should be embraced by the Reporter in his report of the case.

1 The exceptions impute error to the Circuit Judge — first, in refusing the motion for a nonsuit, and second, in sundry of his instructions to the jury. Without following the exceptions seriatim, we propose to consider two general questions: 1st, whether there was error in refusing- the motion for a nonsuit; 2d, whether there was error in any of the instructions, material to the case, given to the jury. This being an action for the 1 eco very of real estate in the possession of another, the rule is too well settled to call for, or warrant, the citation of any authority, that the plaintiff must recover upon the strength of his own title and not upon any defects in that of his adversary. So that, in considering the question as to the nonsuit, the inquiry is whether the plaintiff has failed to offer any testimony tending to show title in herself. The rule is equally well settled that in an action to recover real estate, the plaintiff must show : 1st, either a grant from the State for the land in question to himself, or to’ some one with whom he can connect himself, or he must show such a length of possession— twenty years — in himself, or in some one with whom he can connect himself, as Would authorize the presumption of a grant; 2d, or he must show that both he and his adversary claim from a common source of title, and that he has the better title of the two; or 3d, he must show such an adverse possession in himself or in some one from whom he can trace title, as would give him a title under the provisions of the statote of limitations, which, as we shall see, varied at different times as to the length of such adverse possession as would confer title. Applying these principles to the case under consideration, it is -very obvious that the plaintiff failed to offer any testimony whatever tending to show that she had acquired title in the mode first indicated; for there was no testimony that the land in question had ever been granted either to the plaintiff or to any one under whom she claimed; and no testimony that any one had ever had posses sion for a sufficient length of time to presume a grant. The deed from J. Lawrence Nelson to the plaintiff only tended to show that she acquired whatever title, if any, Nelson had, but there is not a particle of testimony tending to show how or when, if ever, Nelson acquired title. Certainly no paper title was introduced, and the plaintiff, in her testimony, says that she does not know how long Nelson had been in possession, and there was no other testimony tending to show the length of his possession. It is equally obvious that the plaintiff failed to introduce any testimony tending to show that she had acquired title in the mode second above indicated, for there is no testimony whatever tending to show that these parties claimed from a common source of title. Indeed, such a position does not seem to' have been taken in the case, and the Circuit Judge in his charge makes no allusion to any such claim. It only remains to inquire whether the plaintiff introduced any testimony tending to show that she had acquired title in the third mode above indicated, to wit: by adverse possession for a sufficient length of time to give her title under the provisions of the statute of limitar tions, as recognized in the case of Busby v. Railroad Co., 45 S. C., 312. This, it seems from the Judge’s charge, was the main ground upon which the plaintiff relied, and should, therefore, receive careful consideration. The evidence as to the length of plaintiff’s possession of the land is derived from her own testimony, in which she says she was in possession from 1870 to 1885 — a period of about fifteen years. She also says that she last lived on that land “eight years ago,” and as the trial was in October, 1898, when this testimony was given, it would seem that after leaving the land in 1885, when she made the deed to Isaac T. Hodge, she returned to the land, probably, after the deed to Isaac T. Hodge had been set aside, which was on the 28th of February, 1891, and was ejected after staying there about six years; for it is alleged in th'e complaint, and the testimony sustains the allegation, that the defendants were in possession of the land when this action was commenced on the 8th of February, 1898. At all events, the longest continuous period of which there is any evidence that the plaintiff had possession was from 1870 to 1885, a period of about fifteen years. So that the practical question is whether that period was sufficient to confer title under the law as it then stood. In the case of Rehkopf v. Kuhland, 30 S. C., 234, it was held that an adverse possession commencing in 1871 required twenty years to ripen into a right, and though continued after the act of 1873, which limited the time to ten years, it was not affected by that statute. In that case the length of the adverse possession relied on was fourteen years. The same doctrine was reiterated in the subsequent case of Lyles v. Roach, 30 S. C., 291. From these two cases it is quite clear that the plaintiff’s possession commencing on the 15th of October, 1870— the date of her deed from Nelson — could not ripen into a right, and'could confer no title upon her until the expiration of the full period of twenty years; and as such possession continued only until 1885, it afforded no evidence'of any title in her. Any subsequent possession by the plaintiff could not be connected with her previous possession, and it is not pretented that any such subsequent possession continued for a longer period than seven years — not long enough to confer a title even under the law as it now stands. It is obvious, therefore, that the plaintiff failed to introduce any testimony tending to show that she had acquired title to the premises in dispute, in either of the modes recognized by law, arid hence there was error in refusing the motion for a nonsuit.- The Circuit Judge gave no reasons for refusing the motion for a nonsuit, but we suppose from that portion of his charge which is made the basis of the second exception, that he overlooked the cases above cited, which hold that an adverse possession commencing after the adoption of the Code of Procedure, March 1, 1870, and before the act of 1873, amending- the Code, must continue for the frill period of twenty years before it could ripen into a right, and assumed that such a possession would ripen into a right after the expiration of ten years. There was error, therefore, not only in refusing the motion for a nonsuit, but also- in that portion of the charge which is made the 'basis of the second exception.

2 The seventh exception must also be sustained, because in the portion of the charge there excepted to1, it is assumed that Nelson, when he conveyed the land to> plaintiff, had title thereto, when, as we have seen, there was no evidence even tending to show that Nelson had ever, in any way, acquired title to the land.

3 We do not know that it is necessary to consider, specifically, any of the other exceptions. We may say, however, that we are at a loss to perceive how' the record of the case of Anna E. Hodge v. Isaac T. Hodge, is pertinent in this case. Certainly the defendants, neither of them, were parties to that action, and are, therefore, not bound by any judgment therein. In addition to this,' the papers introduced in evidence by the plaintiff herself show that the deed from Isaac T. Hodge to Alice Hodge and her children, which purports to* be in-consideration of the sum of $700, was executed on the 16th of March, 1887, nearly two years before the commencement of the action just referred to, brought by Anna E. Hodge against Isaac T. Hodge, ánd nearly four years before the judgment setting aside the deed from Anna E. Hodge to Isaac T. Hodge, was rendered; and there is not a particle of testimony in this case even tending to show that either of these defendants had any participation in or even any knowledge of the fraud alleged in that case. So that these defenjdants were not only not parties to- that case, but, so far as appears in this case, had no- knowledge of it. The Circuit Judge was, therefore, in error in instructing the jury that the defendants herein were in any way affected by the judgment in that case; and certainly was in error in saying to the jury, “you may consider that, so.far as the defendant here (meaning, as he afterwards explained, H. L. B. Hodge and not Alice Hodge) is concerned, he had knowledge of the fraud determined in this Court;” for there is not only no testimony in this case to- sustain such a state ment, even as to H. L. B. Hodge, but if there had been any such testimony, it would have been for the jury, and not for the Judge, to say what they should “consider” it established. So that, in any aspect of the matter, the thirteenth exception must be sustained.

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