The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action to recover the tract of land described in the complaint.
The facts are thus stated by the appellant’s attorney: “In the year 1820, one Pleasant Saddler conveyed to Hiram Cooley a tract of land lying in Greenville County (then district), and containing two hundred and sixty-six acres more or less. In the j^ear 1859, or 1860, Hiram Cooley measured
off two hundred acres from this tract and allowed his son, John J, Cooley, to occupy the said two hundred acres, but made him no deed. Subsequently Hiram Cooley moved to Anderson, where he died in 1864,. leaving a will whereby he devised,
inter
alia, as follows: ‘8th. I give and bequeath to my son, John J. Cooley, the two hundred acres of land upon which he now lives, being the same I had surveyed for him some two or three years ago, but never executed the title.’
This will is dated February 11th, 1862, and was probated in Anderson in April, 1864, one B. F. Mauldin being appointed executor. By the tenth clause of said will the executor is required to ‘sell and convey the entire residue of my property, both real and personal, not disposed of by this will, and divide the proceeds equally ’among my children,’ as therein named. On July 4th, the executor, B. F. Mauldin, died without having sold the sixty-six acres of the Saddler tract.
“In the meantime John J. Cooley used the said sixty-six acres, 'but repeatedly stated to his children' and others that it was not his land and that he claimed no' title to it.
“In July, 1896, John J. Cooley and his then wife, Stacey Cooley, executed together certain deeds purporting to convey, with other lands, parts of the said sixty-six acres to certain of their children, and, in November of the same year, John J. Cooley executed a will, whereby he undertook to devise the remaining portions of said land to others of his children by said marriage. All these papers were executed while the said John J. Cooley was in a dying condition. On December 13th, 1896, John J. Cooley died. He had been twice married and left children by each marriage.
“In the year 1896, before the death of John J. Cooley, action was commenced in the Court of Common Pleas for the County of Greenville, by the children of the first wife, against John J. Cooley and his children of the second wife, for the recovery of the said sixty-six acres, as the property of their mother, the first wife. In the progress of said
action, this plaintiff, for the first time, received information as to the condition of the title, and that she might have an interest in the land under the tenth clause of the will of Hiram Cooley, she being one of the children of Hiram named in said clause. This plaintiff, thereupon, in the year 1898 instituted an examination of the records, and having ascertained the fact as above set forth, applied, by advice of counsel, to the probate court for Anderson County for appointment as administratrix
de bonis non, cum testamento annexo,
of the will of Hiram Cooley, which appointment was duly made on the 21st day of March, 1902. On the first day of February, 1904, being salesday, said sixty-six acres was, after due advertisement, offered' for sale at public outcry, at Greenville Court House, and duly knocked down to the plaintiff herein, she being the highest bidder therefor. A deed having been duly executed and delivered, this action was commenced on April 17th, 1905, by service of the summons and complaint on the defendants personally. The cause came on for a hearing, for the second time before Hon. R. O. Purdy, Circuit Judge, and a jury, at Greenville, at the June term, 1906. The jury found for the defendants, and judgment having been entered, this appeal is taken upon exceptions to the rulings and charge of the presiding Judge.”
There was testimony also tending to show that John J. Cooley was in the open and notorious possession of the land, exercising acts of ownership, for more than fifty years prior to his death.
The exceptions will be set out in the report of the case, and considered in their regular order.
1
First exception.
The exception fails to specify the transactions, but waiving-this objection it.cannot be sustained. The witness, T. O. Cooley, was allowed to- testify that he bought the land from John J. Cooley and paid him for it. The„deed' which John J. Cooley executed to T. O. Cooley had1 already been introduced in evidence, and it was not contended that there was fraud in its execution. The seal to a deed1 imports- a consideration.
Therefore the amount paid by the witness for the land was wholly immaterial.
2
Second exception.
His Honor, the presiding Judge, allowed the witness, John T. Cooley, to testify that John J. Cooley was in possession of the land when he made the several conveyances to the witness and others. This testimony did not relate to a transaction or communication between John T. Cooley and John J. Cooley, and was not objectionable under section 400 of the Code.
3
Third exception.
There was no objection to the testimony mentioned in this exception.
4
Fourth exception.
The tax receipts are not set out in the record. 'Such receipts are, however, admissible for the purpose of showing that the party paying the taxes claimed the land.
Filen
v.
Filen,
16 S. C., 143'.
5
Fifth exception.
The request mentioned in this exception was refused, on the ground that the proposition contained therein was not applicable to the case. There is no testimony to the effect that John J. Cooley claimed the land as an heir at law of Hiram Cooley. The Circuit Judge, 'however, charged the jury fully upon the question of adverse possession.
6
Sixth exception..
After reading to the jury the request set out in this exception, the presiding Judge said: “I will charge you that, with this modification: Any disclaimer on the part of John J. Cooley, if you believe there was such, would be in derogation of his title, and his title must 'be open, notorious and adverse, must have been continuous; but if he disclaimed his title, and then held it openly, notoriously and adversely for ten years, he would still have a good title. He must have been on the land that length of time prior to 1870. It must have been for a period of ten years. If he claimed it for ten years openly, notoriously and adversely, he would have a good title, and if the period of twenty years was of force, he must have claimed it for a period of twenty years openly, notoriously and adversely, and that would give him good title.” The
request was properly modified for the reason- that it took from the jury the consideration of the question whether John J. Cooley could acquire a title -by adverse possession after admitting,
at any
time, that he was not the owner of the lands.
The request was not in accord with the principle announced in
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The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action to recover the tract of land described in the complaint.
The facts are thus stated by the appellant’s attorney: “In the year 1820, one Pleasant Saddler conveyed to Hiram Cooley a tract of land lying in Greenville County (then district), and containing two hundred and sixty-six acres more or less. In the j^ear 1859, or 1860, Hiram Cooley measured
off two hundred acres from this tract and allowed his son, John J, Cooley, to occupy the said two hundred acres, but made him no deed. Subsequently Hiram Cooley moved to Anderson, where he died in 1864,. leaving a will whereby he devised,
inter
alia, as follows: ‘8th. I give and bequeath to my son, John J. Cooley, the two hundred acres of land upon which he now lives, being the same I had surveyed for him some two or three years ago, but never executed the title.’
This will is dated February 11th, 1862, and was probated in Anderson in April, 1864, one B. F. Mauldin being appointed executor. By the tenth clause of said will the executor is required to ‘sell and convey the entire residue of my property, both real and personal, not disposed of by this will, and divide the proceeds equally ’among my children,’ as therein named. On July 4th, the executor, B. F. Mauldin, died without having sold the sixty-six acres of the Saddler tract.
“In the meantime John J. Cooley used the said sixty-six acres, 'but repeatedly stated to his children' and others that it was not his land and that he claimed no' title to it.
“In July, 1896, John J. Cooley and his then wife, Stacey Cooley, executed together certain deeds purporting to convey, with other lands, parts of the said sixty-six acres to certain of their children, and, in November of the same year, John J. Cooley executed a will, whereby he undertook to devise the remaining portions of said land to others of his children by said marriage. All these papers were executed while the said John J. Cooley was in a dying condition. On December 13th, 1896, John J. Cooley died. He had been twice married and left children by each marriage.
“In the year 1896, before the death of John J. Cooley, action was commenced in the Court of Common Pleas for the County of Greenville, by the children of the first wife, against John J. Cooley and his children of the second wife, for the recovery of the said sixty-six acres, as the property of their mother, the first wife. In the progress of said
action, this plaintiff, for the first time, received information as to the condition of the title, and that she might have an interest in the land under the tenth clause of the will of Hiram Cooley, she being one of the children of Hiram named in said clause. This plaintiff, thereupon, in the year 1898 instituted an examination of the records, and having ascertained the fact as above set forth, applied, by advice of counsel, to the probate court for Anderson County for appointment as administratrix
de bonis non, cum testamento annexo,
of the will of Hiram Cooley, which appointment was duly made on the 21st day of March, 1902. On the first day of February, 1904, being salesday, said sixty-six acres was, after due advertisement, offered' for sale at public outcry, at Greenville Court House, and duly knocked down to the plaintiff herein, she being the highest bidder therefor. A deed having been duly executed and delivered, this action was commenced on April 17th, 1905, by service of the summons and complaint on the defendants personally. The cause came on for a hearing, for the second time before Hon. R. O. Purdy, Circuit Judge, and a jury, at Greenville, at the June term, 1906. The jury found for the defendants, and judgment having been entered, this appeal is taken upon exceptions to the rulings and charge of the presiding Judge.”
There was testimony also tending to show that John J. Cooley was in the open and notorious possession of the land, exercising acts of ownership, for more than fifty years prior to his death.
The exceptions will be set out in the report of the case, and considered in their regular order.
1
First exception.
The exception fails to specify the transactions, but waiving-this objection it.cannot be sustained. The witness, T. O. Cooley, was allowed to- testify that he bought the land from John J. Cooley and paid him for it. The„deed' which John J. Cooley executed to T. O. Cooley had1 already been introduced in evidence, and it was not contended that there was fraud in its execution. The seal to a deed1 imports- a consideration.
Therefore the amount paid by the witness for the land was wholly immaterial.
2
Second exception.
His Honor, the presiding Judge, allowed the witness, John T. Cooley, to testify that John J. Cooley was in possession of the land when he made the several conveyances to the witness and others. This testimony did not relate to a transaction or communication between John T. Cooley and John J. Cooley, and was not objectionable under section 400 of the Code.
3
Third exception.
There was no objection to the testimony mentioned in this exception.
4
Fourth exception.
The tax receipts are not set out in the record. 'Such receipts are, however, admissible for the purpose of showing that the party paying the taxes claimed the land.
Filen
v.
Filen,
16 S. C., 143'.
5
Fifth exception.
The request mentioned in this exception was refused, on the ground that the proposition contained therein was not applicable to the case. There is no testimony to the effect that John J. Cooley claimed the land as an heir at law of Hiram Cooley. The Circuit Judge, 'however, charged the jury fully upon the question of adverse possession.
6
Sixth exception..
After reading to the jury the request set out in this exception, the presiding Judge said: “I will charge you that, with this modification: Any disclaimer on the part of John J. Cooley, if you believe there was such, would be in derogation of his title, and his title must 'be open, notorious and adverse, must have been continuous; but if he disclaimed his title, and then held it openly, notoriously and adversely for ten years, he would still have a good title. He must have been on the land that length of time prior to 1870. It must have been for a period of ten years. If he claimed it for ten years openly, notoriously and adversely, he would have a good title, and if the period of twenty years was of force, he must have claimed it for a period of twenty years openly, notoriously and adversely, and that would give him good title.” The
request was properly modified for the reason- that it took from the jury the consideration of the question whether John J. Cooley could acquire a title -by adverse possession after admitting,
at any
time, that he was not the owner of the lands.
The request was not in accord with the principle announced in
McCutcheon
v.
McCutcheon, 77
S. C., 129.
Seventh exception.
There is no exception by this number.
7
Eighth exception.
In regard to the request mentioned in this exception, the Circuit Judge charged: “Well, gentlemen, I will charge you this in the place of that: If a person is in- possession -of land, and does such acts upon it, and his possession is open, notorious and adverse, and his acts indicate that he is claiming it as his own, and those acts are sufficient -to put other people upon norice that such is the case, then- they- are bound by his possession, and he would have a good title. If his'possession was secret, holding it under some one else, that would never give him title by adverse possession. If he holds it openly, notoriously and adversely, and does such acts upon it as would put other people upon notice that he was claiming it as his own, that would- be sufficient and would give him title to the land, if he held it for a period of ten years, if it was the ten-year period, or for twenty years if it was the twenty-year period. Secret holding would never mature into title, but open, notorious and adverse holding, giving notice to- the world that he was holding it and claiming it as his own, would ripen into title.”
Instead of charging the substitute, the presiding Judge might properly have refused the request altogether, as possession alone is sufficient to raise the presumption that such possession is rightful, and it is incumbent on those .who allege that it is unlawful to establish that fact.
8
Ninth exception.
This request was properly refused for the reason that it ignored the fact, that the answer denied title in the plaintiffs, and the further fact, that the defendants relied upon the presumption' of a grant.
9
Tenth exception.
In ruling upon the request in this exception, the Circuit Judge said: “That is good law, and I so charge you. It is a question of fact for you whether she has shown good title, and if she has shown good title, it is a question of fact for you whether it has been defeated.” The superadded words were merely explanatory, and did not change the proposition of law embodied in the request.
10
Bleventh exception,
to the eighteenth exception, inclusive: We adopt the arrangement of the appellant’s attorney in considering these exceptions together.
There was testimony to which the charge in these exceptions was applicable, but even if there was no such testimony, it has not been made to appear that the rulings were prejudicial to the rights of the appellant.
Vann
v.
Howle,
44 S. C., 548,
22
S. E., 735;
Boggero
v.
Ry.,
64 S. C., 112, 41 S. E., 819.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.