Hopkins v. Oakland Club

111 S.E. 888, 119 S.C. 124, 1922 S.C. LEXIS 56

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

The following statement appears in the record :

“This action was commenced on December 22, 1917. The substance of the complaint is' that the plaintiff and the defendant Filer are the owners of and have and claim title to, and are seized as tenants in common of a tract of 1,895 acres of land in Berkeley County, of which a partition sale is desired; that the premises consist entirely of swamp land, in the deep swamps of Santee River, impracticable for actual residence or the usual uses of husbandry, and is therefore unoccupied real property, although the plaintiff and his cotenant are seized and possessed thereof in such manner, and to such extent .as lands of that character are susceptible of; that plaintiff is informed and believes that the defendants Oakland Club and San-tee Timber Corporation claim some interest therein adverse to the said Hopkins and Filer, and have entered and trespassed on the land, caused surveys tO' be made, and spread upon the public records of the county, instruments purporting to be deeds, plats, etc., affecting the premises, with intent to create a cloud upon their title, and claim an interest adverse to them; and, although such acts of trespass have not been long enough continued or committed in a manner sufficient to ripen into an adverse title, still they are continued and repeated occurrences, and may be continued unless restrained by the Court; otherwise Hopkins and Filer will be subject to constant harassment from the said Oakland Club .and Santee Timber Corporation, who are seeking to embarrass their title, and will lose the same if the acts are permitted to continue for a sufficient length of time longer; and demands judgment for injunction against the acts complained of; that the title of Hopkins and Filer be adjudged valid in fee simple in possession and the claim of Oakland Club and Santee Timber "Corporation null and void and their cloud on Hopkins’ and Filer’s title removed; for damages against Oakland Club and Santee Timber Corporation and for partition with E. Golden Filer.

“Oakland Club and Santee Timber - Corporation raise an issue of title, and set up the statute of limitations for 10 and 20 years, respectively, and adverse.possession.

“E. Golden Filer admits the complaint and joins in its prayer, and sets up against Oakland Club and Santee Timber Corporation for the statute of limitations for 10 and 20 years, respectively, and, after alleging that under a valid sale for defaulted taxes the predecessors of Hopkins and Filer were put or went into possession, sets up the two-year statute of limitations against contesting such tax title,- and that the taxes and levies for which the land was sold were not paid, prior to the sale, to the properly authorized officials.

“The case was tried' before his Honor, S. W. G. Shipp, and a jury. At the conclusion of the plaintiff’s showing, and without any evidence from the defendants, a verdict was directed in favor of the defendants, Oakland Club and Santee Timber Corporation, against the plaintiff George W. Hopkins and the defendant E. Golden Filer.”

After hearing argument, pro and con, and without announcing a decision, the Judge suggested to Mr,. Lide that he could not grant a nonsuit in this case, -being an equitable action, and requesting him to look up certain authority during the .noon recess, whereupon the Court adjourned for dinner. Upon the reconvening of the Court, Mr. Lide produced the authority asked for, and stated that the Court was correct about not being able to grant a non-suit in this case, but asked that it be made a direction of verdict, which his Honor proceeded to do without hearing further from counsel for plaintiff and the defendant, Filer. In directing the verdict his Honor said:

“I have thought about this case very seriously. It has given me some trouble, especially these swamp lands, but it strikes me that a person ought to show something more than merely occasionally going over a place and hunting. Under this recent case, Sprott v. Sprott, the title held by the plaintiff in the case is not a legal title, for the reason that the county treasurer had no authority to issue executions. Therefore the sale was void as far as the tax sale is concerned; it being the duty of the sinking fund commission to make these sales rather than the county treasurer. That has been recently held.

“Therefore, the deed did not convey a legal title; consequently the plaintiff cannot avail himself of the statute which provides that unless the owner of the land brought suit within two years, he could not afterwards contest the title. Therefore, the statute does not apply, and the plaintiff has offered no legal title. The deed is good as color of title. By color of title it is meant that he had a deed or had a plat' or had anything that describes the claim that the person makes and gives a description of the land he sets up a claim to.

“Where a person has that kind of paper, he has color of title, and where no one is upon the land, and he takes actual possession of the land and occupies it, and commits and continues acts of owenership on it, holds domain over it to the exclusion of everybody else, hold it notoriously, openly, for a continuous period of 10 years, he acquires a legal title.

“The only evidence of ownership • that has been shown in this case is that the claimants, who lived in the cities, had an agent down there, who occasionally went over there and hunted on the land, and who once or twice put up notices along the river, on one side of it, towards the river, forbidding anybody to trespass on it. That agent ceased to go over there after 1909, I believe, and nobody was in possession of it at all; because sometimes a person gets a title by adverse possession, the law does not presume he is in possession. Where a person has a legal title, the law presumes he had possession of it, but there is no proof.

“Counsel has offered some scintilla of evidence, but a more recent decision of our Supreme Court says the ■scintilla of evidence must be something from which you can draw a reasonable inference that the person was in actual possession of the land.

“That being my view about it, I do not see any use of going further into the case. If I am wrong, the Supreme Court will correct me about it.

“That being my view of it, I direct the jury to write out the following verdict: ‘We find for the defendants Oakland Club and Santee Timber Corporation against the plaintiff George W. Hopkins and the defendant E. Golden Filer.’ ”

The plaintiff George W. Hopkins and the defendant E. Golden Filer appealed upon exceptions, which will be reported.

There is a preliminary question to be determined. On application of the plaintiff’s attorneys, this Court granted permission to review the case of Sprott v. Sprott, 114 S. C. 62, 96 S. E. 617. After due consideration, the Court adheres to its ruling in that case.

The only question in the case, practically, is whether there was error on the part of his Honor, the presiding Judge, in directing a verdict in favor of the two corporations. Our conclusion is that there was more than a scintilla of evidence to sustain the allegations of the complaint, and that his Honor, the Circuit Judge, erred in directing a verdict. We do not deem it advisable to discuss the testimony in detail, as there must be a new trial, and the rights of either the plaintiff or the defendants might, thereby, be prejudiced.

Reversed and remanded for a new trial.