Metz v. Metz

26 S.E. 787, 48 S.C. 472, 1897 S.C. LEXIS 118

• Court: Supreme Court of South Carolina
• Decided: March 15, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

The Commercial Bank, a corporation under the laws of this State, having obtained a judgment against its codefendant, Levi Metz, caused the sheriff, under writs of fieri facias, to sell as the property of the said Revi Metz, two tracts of land, one of which contained 1,210 acres, situate in Rexington County, in this State, and the other containing 226 acres, situate in Richland County, in this State, on salesday in November, A. D. 1895, and both of said tracts of land were purchased by the defendant, the Commercial Bank. On the 16th day of November, 1895, an action was commenced in the Court of Common Pleas for Rexington County by the plaintiffs above named against the defendants above named, wherein it was alleged that of the 1,210 acres of land,situate in Rexington County, a tract containing 483 acres, and another tract containing 109 acres, and also the entire tract containing 226 acres, situate in Richland County, were not wholly owned by the said Revi Metz, but that, on the contrary, the said Revi Metz only owned a one-sixth part thereof, because it was alleged that said three parcels of land were owned in fee simple by Elizabeth Metz in her lifetime, and that when she died intestate in-the year 1867, said lands descended to her children, and certain grand-children, as tenants in common, and that said lands remained for partition between such children and grand-children, as owning five-sixths thereof, and the defendant, Commercial Bank, as owning the remaining sixth, which had belonged to Revi Metz. The defendant, Sidlie Gibson, was made a defendant, because it was alleged that she held a mortgage on the Rexington lands, executed by Revi Metz. None of the defendants made answer except the Commercial Bank, and by its answer it denied that Sallie Gibson held any mortgage on the said lands, and also denied that the plaintiffs and the defendant, other than itself, had any interest or estate in said lands whatsoever; but, on the contrary, that when it purchased the same as the property of Levi Metz, in November, 1895, he was the owner of all of said lands in fee simple, pleading the statute of limitations of ten years absolute, exclusive, and adverse holding and ownership by said Levi Metz, and also the presumption of a grant of said lands to said Levi Metz, arising from his posession, open, notorious, and adverse, for the period of twenty years preceding this suit.

The cause came on for trial at the February, 1896, term of the Court of Common Pleas for Lexington County, before his Honor, Judge Ernest Gary, who ordered these issues to be tried before a jury: “1. Was Elizabeth Metz seized of any estate in the lands in question at the time of her death, or in any of them? 2. If so, what estate did she hold? 8. Has the defendant, Levi Metz, acquired title to the lands in question, or any part of them, by purchase, except his distributive share, since the death of Mrs. Elizabeth Metz? 4. Has 'the possession of Levi Metz to the lands in question, or any of them, been adverse to the plaintiffs, or any of them? If so, for what length of time has such adverse possession continued?” Testimony was submitted by both sides, and, on objection, certain testimony was ruled inadmissible. Certain requests to charge were submitted by defendants — one of which was refused. After the Judge’s charge to the jury, a verdict was rendered for the plaintiff on all the issues. The defendant bank moved for a new trial, which was refused. The Circuit Judge then heard the case on the equity side of the Court, rendering a decree in favor of the plaintiff. The defendant bank now appeals, presenting twenty-three exceptions. Let the order denying motion for a new trial, the decree of the Circuit Judge, and the exceptions, be reported.

We will consider these exceptions in this order. So much of the Circuit decree as affects the tract of land lying in Richland County, in this State, is not appealed from, and, therefore, is final. First. Was there reversible error in the rulings of the Circuit Judge as to certain testimony offered by the defendant? Second. Did the Circuit Judge err in refusing a request to charge? Third. Did the Circuit Judge err in his charge to the jury, as complained? Fourth. Did the Circuit Judge err in refusing the motion for a new trial? Fifth. Did the Circuit Judge err in his decree?

1 First, (a) This exception, being the first, relates to the refusal of the Circuit Judge to allow E. T. Rauch to testify as to a conversation between plaintiff, Frank Shelton, and his attorney, Major Meetze, in relation to the lands. We do not understand from the “Case” that the Circuit Judge laid any restriction upon so much of the testimony of this witness as detailed what was said by Frank Shelton; he did refuse to allow him to testify what was said by Major Meetze, and in this particular the Circuit Judge was justified by the law, because whatever Major Meetze may have said, in the connection as detailed by the witness, would have been “hearsay.” No harm, however, resulted from this ruling of the Circuit Judge, for just afterwards this witness stated fully that Frank Shelton told Catherine Juniper in his presence what Major Meetze had said in that conversation.

2 (.b) A more serious question is presented in the second exception: Let us state the facts clustering about this matter. The plaintiffs had introduced the admissions of Levi Metz to several witnesses as to how he held these lands. Catherine Jumper testified that her brother, Levi Metz, soon after the death of their mother, Elizabeth Metz, told her that he would hold the lands for her (Elizabeth Metz) heirs, taking the rents to pay the taxes, as money was scarce, &c., and, also, a year or two after the conversation held in 1867, Metz had repeated this statement. The witness, Caleb Metz, said that not long after the death of Elizabeth Metz, Levi Metz told him that he had seen the heirs; that owing to the scarcity of money and the consequent low price of lands, his mother’s estate lands would not be sold, that he was to stay there and work the lands and pay the taxes. The witness, Paul Lowman, had said, in effect, that he had rented some of these lands from Levi Metz after his mother’s death, and that in the year 1868 or 1869 he had asked Levi Metz to sell him 100 acres of land, but that Metz replied: ‘‘No, I can’t make you good title for it, on account of belonging to the heirs.” The witness, J. TV. B. Lever, had testified that not many years before he had offered to buy timber from Metz where he then lived. He replied: “It belonged to other parties; that other parties were concerned with it, and could not dispose of it.” The witness, J. L. Richardson, had testified that about 1881 or 1882 he had proposed to buy an acre or two from Levi Metz, and Metz told him that he was not able to give good papers for it, that it belonged to his mother’s estate. All this testimony was admitted by the Circuit Judge, upon the ground that it was competent to prove the admissions of a party against his interest. Now, when the defendant opened its case, it was desired to prove the declarations of Levi Metz in connection with his acts and proposed acts of ownership of the land in question, in reply to the testimony of plaintiffs, tending to qualify the character of Levi Metz’s possession of these lands. These declarations of Levi Metz were, admittedly, no part of his admissions as proved by plaintiff’s witnesses. On the contrary, they were entirely distinct therefrom. Nor was this testimony offered to prove bald and naked declarations by said Levi Metz, but were directed to another and very distinct object, namely,- testimony as to declarations accompanying acts or proposed acts of Levi Metz as to these lands. In addition, this testimony was offered in reply to that offered by the plaintiffs.

To bring this issue up squarely, in regard to the testimony of this witness, E. T. Rauch, we quote from the “Case.” Mr. Lyles, as defendant’s attorney, asked: “How about his building a house — in what year was the house built?” Ans. “The latter part of 1877 or the first of 1878. I remember well about his building the house, and a conversation me and him had. He had a lot of lumber in 1875. I wanted to build a barn. He had a lot of lumber that had been there eight or ten years. I wanted to buy that lum'ber to build a barn, and he told me he would not sell it, that he counted on building a house to live in. I said, ‘Squire, the lumber is rotting, and when you get ready to build you can get other. I will pay you what it is worth; and he said’— The Court: That is a declaration of a party-in his favor now. Objection sustained. Exception noted.” Thus it was made manifest that the declaration of Eevi Metz objected to was one accompanying an act or a refusal to act. The Circuit Judge sustained an objection to it. Was this error? The object of all judicial investigations is the ascertainment of the truth of a matter involved in an issue between parties to litigation, and as was said by the Circuit Judge in the case of Ellen v. Ellen, 16 S. C., 135, where an investigation of a man’s possession of land is concerned: “It is difficult to conceive how the character of a man’s possession of land, whether in his own right or in right of another, whether adverse or permissive, could ever be proved unless it be by his acts, and words accompanying such acts, while in possession and occupancy. As explanatory of that possession, we think, as part of the res gestae, they are as admissible for as well as against one claiming under and through the alleged adverse possession.” In the case just cited, the question was squarely presented to this Court, whether in reply such testimony of declarations accompanying acts of ownership while in possession was competent, and the Court answered it in these words: “The third and fourth exceptions question the competency of certain declarations of David Ellen, while he was in possession, sustaining his title to the land. It is a general rule that declarations of persons in possession of land, explanatory of the character of their possession, will be admitted in disparagement of their title as original evidence, and Mr. Greenleaf says: ‘There can be no reason why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title or otherwise qualifying his possesion, if made in good faith, should not be received as part of the res gestae, leaving its effect to be governed by other rules of evidence.’ In Turpin v. Brannon, 3 McC., 361,. such declarations were admitted. In Martin v. Simpson, 4 McC., 262, a case of trespass to try title, such declarations were admitted, on the ground that the character of every act must be determined by the circumstances attending it. The words and actions of the actor constitute a part of a thing done, and is necessary to its explanation, said the Court. The same doctrine is held in several other cases in our own State, not necessary now to be referred to.” But upon a different ground a new trial was granted in the case from which we have just quoted, and will be found in 18 S. C., 489. At page 494, this Court held: “Third. ‘As to the admission of the declarations of Davin Ellen, in reply, rebutting testimony of defendant as to David Ellen’s declaration in disparagement of title by adverse possession.’ This Court held in the former appeal in accordance with the doctrine laid down in 1 Greenleaf Evidence, 109, and in our own cases of Turpin v. Brannon, 3 McC., 266, and Martin v. Simpson, 4 McC., 263, that such declarations were admissible when they accompanied an act and was explanatory thereof.” In Boozer v. Teague, 27 S. C., at page 367, Mr. Justice Mclver, in delivering the judgment of this Court, said: “Again, it is urged that the Circuit Judge erred in permitting respondent to prove declarations of John D. Boozer, under whom she claimed, as to his claim to the land after his mother’s death. It will be observed that these declarations were not offered in support of John D. Boozer’s title to the land, but simply to rebut the testimony offered by defendants that he had never, set up any claim to the land after his return from exile, as well as to explain his acts of taking possession of the land, and for these purposes the testimony was competent.” In Wingo v. Caldwell, 36 S. C., 598, Mr. Justice Pope, as the organ of the Court, said: “There can be no doubt of the correctness of appellant’s claim, that our decisions fully sustain the doctrine that declarations in favor of one’s own title are not admissible in support of such title. As we gather from the ‘Case,’ the defendant not only sought to prove a gift by parol accompanied by possession thereunder, but also by at least three witnesses, to introduce testimony as to declarations made by J. B. Davis subsequent to 1868, the date of the verbal gift. .The plaintiff, in reply, proved by Mrs.Deane other declarations of the said J. B. Davis connected with his acts or proposed acts. This was not error,” citing cases in support thereof. We think the Circuit Judge erred in not admitting this testimony. Surely, when a man of intelligence has been in the uninterrupted possession of lands for twenty-eight years, and when the title of such holder is sold by the sheriff to pay his debts, and his ownership of such lands is assailed by members of his family on the ground of admission, by such apparent owner in disparagement of his title, it is competent to prove declarations accompanied by acts or refusals to act in reply to such proofs by the plaintiffs here. The present Chief Justice pointed out the true line in Boozer v. Teague, supra, when he said: “It will be observed that these declarations are not offered in support of John D. Boozer’s title to the land, but simply to rebut testimony of the defendant.” So in the case at bar, where Devi Metz occupied and enjoyed these lands without molestation from any one, under the law a title — a ■grant — to the land would be presumed, and to negative the presumption of a grant, the plaintiffs, to bolster their alleged titles, offer testimony as to admissions in disparagement of his title by Devi Metz, and now, in reply, '•Ho rebiit the testimony” of these plaintiffs, it is attempted by the defendant bank to show by testimony that Devi Metz made other declarations accompanied by acts utterly inconsistent with those declarations testified to by plaintiffs’ witnesses. This error of the Circuit Judge will necessitate a new trial.

Under the views just presented, exceptions three, six, and seven are sustained.

3 As to the fourth exception, we think the question as to possession of those lands by Uevi Metz, as testified to by the witness, Hyler, was competent. If the witness knew that fact of possession, we do not see why he might not have stated it in his testimony.

4 As to the fifth exception, which complains of error in the Circuit Judge in refusing to allow defendant’s witness, E. A. Bouknight, to testify as to how that land was known in the community as to the ownership thereof, we think the Circuit Judge committed no error. Questions of title to land cannot be tried in any such way.

5 Second. Exception eighteen suggests error in the Circuit Judge for declining to charge defendant’s first request, which was in these words: “That if the jury believe that Uevi Metz was in peaceable and quiet possession of the land in dispute, openly and notoriously for twenty years prior to the commencement of this action, they should presume that he had a good and sufficient title to the land, and should so find.” The Circuit Judge declined to make the charge, as requested,.for the very good reason that the adverse holding for the twenty years was omitted. Without enlarging upon the necessity for the holding for twenty years to be adverse in order to presume a title, we announce that such is the well recognized rule of law in this State. From this it will be readily seen that the Circuit Judge committed no error here.

6 Third. As to the eighth exception. When the Circuit Judge stated the claim of the plaintiff to be that, upon the death of Mrs. Elizabeth Metz, in the year 1867, Uevi Metz agreed with his sister, Catherine Jumper, that it was better not to sell the lands at that time, but for him to hold them for the coming of better times, when the lands would sell for their value, and that she concurred in this view, it seems to us that, unless this status of these tenants in common was altered after that time, the holding was not adverse to Mrs. Catherine Jumper. It would have been a permissive holding as to her. It would have been safer for the Circuit Judge to have limited his remark to Mrs. Catherine Jumper, if there was no testimony that this agreement by Levi Metz extended beyond her. As we will have occasion hereafter to show, it is held under our law that the presumption arising from the adverse possession for twenty years may apply as a bar to one or more tenants in common, and not to other tenants in common. The law requires vigilance, and does not screen or protect indifference in the assertion of one’s right of property.

Now let us examine the fifteenth exception. His Honor, the Circuit Judge, in his charge to the jury, used this language: “To exclude one cotenant is not sufficient, (he) must exclude the whole before your title can ripen into adverse title.” Title to lands are derived in two ways — by purchase or by descent. In the case at bar, the plaintiffs claim title by descent. If one has a valid title to land, it makes no difference, in the eye of the law, by which method— purchase or descent — he attains such title. We mean that one source is esteemed as good as the other. A title to land by descent, as amongst the tenants in common, entitles each one of said tenants in common to go upon the whole of said laud, for, until a partition thereof, each tenant is seized thereof per my et per tout. But if any one of such tenants in common occupies the entire tract of land,for the period of twenty years, adversely, continuously, and openly to the other tenants in common, the law will presume, at the end of twenty years, that he has acquired title from the State and every other person in interest; and such ownership will be referred to the beginning of such possession. Not so, however, in the case of adverse possession of ten years, under the statutes of limitation. Whenever a man, in possession of lands for ten years, is sued for the possession of such land by the true owner, he pleads in bar of the true owner’s right that he has been in the open, notorious, adverse, and continuous possession of such land for ten years just before suit brought, and if these facts are established, then our statute of limitations provide that the true owner is barred of his recovery of such lands. Thus it is seen that the person who invokes the statute of limitations was not the true owner of such lands when he entered upon the same; he was, in fact, a trespasser when he entered, and his possession was a trespass from the entry to the expiration of the ten years; but at the expiration of the ten years the statute provides that the true owner has lost his right of action for the possession of such lands. It is plain that this statute of limitations admits that the title was not in the trespasser; it only denies any right of action against such trespasser after the ten years. So it is when a man pleads the statute against a debt; he owes the debt even after the statutory period, but the law says, although the debt is owing, no right of action for its recovery shall be had after a certain period of time. Now, if any disability, such as coverture, infancy, and such like, can be interposed against the currency of the statute of limitations, even if the statutory period has elapsed, the bar of the statute is arrested. Take, for instance, a tract of land owned by tenants in common, one of whom is a minor or a married woman, if a trespasser should get possession and hold the same openly, continuously, adversely for ten years, such trespasser could not successfully interpose the bar of the statute of limitations when an action was brought against him, and this would allow the tenants in common wh.o were not minors or married women to prevail against the trespasser, because the trespasser never had title to these lands, which were seized per my et per totit by the tenants in common. However, the case is quite different when it is sought, after twenty years of open, notorious, continued, and adverse possession of lands, to recover by persons holding a paper or other title; the man in possession for twenty years, the fact of such possession being open, notorious, continued, and adverse, the law presumes he obtained title at the commencement of his possession. And while this presumption is arrested as to infants or persons under other disability, such as coverture, it does so because it cannot presume that an infant or married woman made a deed. Hence the said presumption arising from the twenty years only operates in favor of the one in possession against such persons as were sui juris. This Court, in the very recent case of Garrett v. Wineburg et al., ante, p. 28, in a carefully considered opinion prepared by Mr. Justice Eugene B. Gary, has set this matter at rest, basing its conclusions upon the cases of Hill v. Saunders, 4 Rich., 531; Wadsworthville v. McCully, 11 Rich., 430, and Trustees v. Jennings, 40 S. C., 183. We think, therefore, when the Circuit Judge failed to point out this distinction between cases under the statute of limitations and presumption arising from twenty years possession, etc., so far as an ouster of one or more of the heirs at law of Elizabeth Metz might affect the rights of the person or persons so ousted, without necessarily preventing a recovery of any one or more of such heirs at law who were not ousted, he committed an error.

As to the other exceptions to the charge of the Circuit Judge, it may, possibly, be better not to discuss them; there must be a new trial here, and this charge of the presiding Judge will not be before the next jury. Besides, the cases we have cited are, at least two of them, recent, and, no doubt, will furnish a guide without our undertaking to say any more at this time.

Fourth. It is useless to discuss the alleged errors of the Circuit Judge in overruling the motion for a new trial. We have held, hereinbefore, that the Circuit Judge was in error as to his refusal to admit certain testimony offered by the defendant bank, and as these matters were presented as a basis of the motion for a new trial, of course the overruling of this motion was error.

Fifth. As to the alleged errors in the decree, we need not discuss them for the same reasons advanced under the fourth division.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, except as to lands in Richland County, and that this cause be remanded to the Circuit Court for a new trial, except as to the tract of land lying in Richland County.