Opinion
13937
November 7, 1934.
Before WILLIAM H. GRIMBALL, T.S. SEASE, and C.C. FEATHERSTONE, Judges, Berkeley County. Affirmed.
Action by the Forshur Timber Company against the Santee River Cypress Lumber Company, wherein the defendant filed a demurrer. From a decree of plaintiff, defendant appeals.
The report of Honorable F.K. Myers, Master, and the decree of Circuit Judge William H. Grimball, affirming same, both ordered to be reported, follow:
MASTER'S REPORTThis cause came before me, one of the Masters for Charleston County, under the terms of a consent order submitting all issues for my conclusions thereon.
The evidence adduced at the numerous references held is herewith submitted in minutes, pages 1 to 336, inclusive, and a great number of plats, deeds, and other instruments in writing.
The action is brought, as set out in the complaint, under the provisions of Sections 826 to 832, inclusive, of the Code of Civil Procedure, 1922, Vol. I, providing a special remedy for the determination of adverse claims of title to real estate.
Section 826 reads: "Any person in possession of real property, by himself or his tenant, or any person having or claiming title to vacant or unoccupied real property, may bring an action against any person who claims, or who may or could claim, an estate or interest therein, or a lien thereon, adverse to him for the purpose of determining such adverse claim and the rights of the parties respectively."
The complaint describes the disputed land, in Berkeley County, as timber land, and therefore unoccupied, which the answer admits.
I have had many years' experience in the Courts of this Circuit, and have never seen or heard of a case being prepared and presented with such meticulous care and thoroughness as is evidenced here by counsel for both sides. I am advised by these eminent attorneys that the provisions of Title 15, Vol. I, Code of 1922, embracing the sections invoked, have not been reviewed or construed by our Supreme Court, and am sure that the application is not to be found in our Reports.
The textbooks, however, and leading case law reports, show that the special remedy provided is not novel not unique, but is a recognition that paramount rights may exist, short of perfect title or of holdings sufficient to establish presumption of grant, which may be established against all persons whomsoever perhaps, and certainly against those specifically contesting such rights. And not only is it the clearly stated purpose of this and similar enactments to provide a remedy, presupposing the plaintiff's paramount rights, but there is a method provided by which persons claiming title adversely may maintain an action wherein and whereby the Court may hear and "determine such adverse claims and the rights of the parties, respectively."
Without this statutory provision, one claiming title to real estate would be held, under a proceeding quare clausum fregit, to restrain trespass by establishing and recovering from an adverse claimant on the strength and perfection of one's own title. Experience in that class of cases, on the law side of the Court, must have established the necessity for statutory recognition of rights which could not, for any one of various reasons, be so established, but which should nevertheless be upheld by judicial determination against marauders and mischief-makers, as well as against those under a misapprehension as to the extent of their claims or actual holdings.
Written instruments are for the Court's interpretation. Boundaries and areas intended to be conveyed are capable, within the limits of accuracy and ability, of establishment by the science of survey. A corner thought by the property owners to be here may conceivably be so established there. Old marks may be confused with new marks, or others more recent, which may have been established by mistake, or with wrongful intent. It is even contended here that a coon hollow may be mistaken for an ancient chop of a surveyor. The use of level and rod and transit and chain may be in the nature of an exact science, but one human instrument in the demonstration of this exact science may differ from another as "one star differeth from another in glory." They, the surveyors, are controlled by definite, well-established, and recognized rules, but how much may one differ from another in their application. Mr. A. is sent into the field, employed to find the definite marks, distances, and courses which will establish the claim of his employer. He finds them. So with Mr. B., who is sent by another employer; he finds the marks, distances, and courses which his employer; he finds the marks, to find. And there is no reflection upon either Mr. A. or Mr. B. The marks are there, the distances are there, the course established by human direction of the instrument. The setting up of claims which are adverse is thus inevitable. Time was when the holder of any contested title to real estate must establish and he (the adverse claimant) must assume plaintiff's role and establish perfect title, or be foreclosed of his pretensions. So might either claimant prevail, as between the parties, with a more shadowy showing of vested interest, or perhaps as a mere trespasser.
Not so, says the lawmaking Assembly; and by a provision which I construe as intended to maintain rights established under color or against inferior rights established under color, in favor of either plaintiff or defendant in an action brought thereunder, for determination of "the rights of the parties, respectively", as the case may be. Without an action of this nature, and under its liberal extended method of bringing to a head and disposing of such adverse claim, there might conceivably be in neither claimant the strength and perfection necessary to establish perfect title, and no end to contention. And, if the law provides no method of ending controversy, then, lawlessness. Too often, legal or equitable resort failing, claimants resort to methods which bring into play the criminal statutes, and there no permanent remedy is found.
It is conceivable that, title 15, Vol. I, not being so intended, one with knowledge of a flaw in or cloud upon another's title or real estate might enter thereupon and claim adversely under spurious color of title, in which event an action, or two actions as the law allows, might result, because of deficiencies in, and not of utter failure to show, claim of title, in promoting the spurious or perhaps utterly unfounded claim.
I have not set out my conception of the provisions under which this action is brought because of the legal position assumed by the defendant, and by way of approach to the consideration and construction of the respective claims.
The defendant contends that the plaintiff must recover on the strength of its title and not on any weakness it may seek to find in the evidence offered to support the defendant's claim of both title and possession of the lands in dispute, which is, of course, in conflict with any expressed view of the nature and scope of this proceeding under the provisions of title 15, Vol. I. It is not that plaintiff should recover should defendant's title be insufficient to support an action and recovery at law in trespass to try title or trespass quare clausum fregit, but that, in the absence of other claimants (and there are none here), either by this liberal statutory method may be the moving party for the judicial determination of conflicting claims. In other words, this remedy relieves the plaintiff of the burden of showing perfect title and possession as required in the action to which it was formerly limited.
If, however, the Court should not adopt my view of the construction of the statutes above referred to, but should hold that the plaintiff must recover or prevail on the strength of its own title, and not on the weakness of its adversary, I find from the evidence that this burden has been sustained by the plaintiff and that it has made out perfect title to the property in question, as will hereafter more fully appear.
Defendant moved as for a directed verdict upon the close of plaintiff's case in chief — a proper motion in a jury case. For a proper hearing here, the motion must have been refused. I take it that it is not necessary in this proceeding to determine whether reference to a Master is mandatory, or that consent to the order of reference was necessary for any other purpose than to give jurisdiction to a Master without the County. At all events, the Master to whom referred must hear, and must determine insofar as he may, the conflicting claims.
Jury trials are a short cut to results. An experienced Master often wishes that he might dispose of a controversy by verdict. Confronted in this case by a voluminous record and some 150 pages of briefs and objections, it would be a great relief to find for plaintiff or for defendant. But his proper function is to endeavor at least to narrow the issues and present them properly for review, in such manner that the burden of the trial judge may be limited to a correction of his errors, or approval of his findings, having for consideration on such review the Master's reasons therefor.
As to admissibility of testimony in hearings before a Master, and the many objections urged under stipulation at the close of this case, no ruling is necessary here, but, as in equity practice and procedure, the findings submitted are open to exception and review by the trial Judge on correctness of conclusions, to be concurred in only if supported by admissible evidence.
The lands in dispute lie within the area of Four Holes Swamp, in Berkeley County, and it is admitted that the contested lines are correctly delineated on that plat in evidence made by G.T. Ford, surveyor. Plaintiff's Exhibit 1, which delineates separately the several tracts of land described in Paragraphs 2, 3, 4 and 5 of the complaint, and the alleged encroachments upon each of said tracts of the lines claimed by defendant.
I do not deem it necessary to review in detail the chain of title into plaintiff of these separate tracts. The highland titles are not in dispute. May, if not all, of the deeds describe the lands as lying or abounding to the southwest of Four Holes Swamp. Four Holes Swamp is described by witnesses as an impassable, or almost impassable, area of swamp land, timber, and other growth. with sloughs and lakes, and in some places no well-defined run. Necessarily the lands in dispute have been and are incapable of possession in the ordinary sense, and the testimony of such acts of possession as is possible in the circumstances is the same on both sides — cutting shingles or timber, hunting, fishing, and, of course, entry for purposes of survey. There is evidence of sufficient conveyance to and possession of these several tracts of land by the plaintiff and its predecessors to establish complete title and possession. Possession of any part of any tract so held is possession of the whole, and is too well established to need authority. So, in consideration of plaintiff's claim, the question is narrowed to the inquiry of extent of such holdings under the several deeds, and so to the meaning and extent of the line under the given boundary "on Four Hole Swamp."
In passing upon this question of swamp boundaries, our Supreme Court has well defined its meaning, with recognition, however, of evident intent of parties to the deed. Defendant here does not dispute plaintiff's claim of title under the several deeds to so much of the swamp area as is left by their claimed line within the boundaries of the several tracts.
The Thomas Mimms grant, under which defendant claims, describes the lands granted as lying "on the S.W. side of Four Hole Swamp." If plaintiff is so restricted by words of description, the same rule would apply to both. If claim is sought to be established by adverse possession under color of title, the showing must be of open, notorious, adverse, and continuous possession, and the Courts, in weighing the evidence, must consider the nature of the lands and the possibility of occupation or use amounting to possession. And one in possession of the whole, through open, notorious, continuous adverse possession of any part of a given tract, cannot be ousted by evidence of fugitive occupation, possession, or use by the adverse party to the extent of which the disputed territory is capable, particularly where there is evidence of similar use by both claimants. The theory of the statute of limitations as to land claims ripening into title by adverse possession under color of title, or by presumption of a grant, is notice to the world from the character of the possession, involving the idea of both conspicuousness and continuity. It is not my conception of the application of these provisions, intended to secure one against another who has slept under his rights beyond the legal limits, that vacant lands, unoccupied lands, can be so acquired by fishing, occasional shingling, or timber cutting, and certainly not by establishing lines of survey and by posting, immediately or within a reasonable time disputed, by obliteration of signs and destruction of barriers or wires by other claimants, their servants or agents.
Plaintiff stands or falls on the interpretation of the paper titles by the extent or lines of its acquired title. Since the evidence on behalf of plaintiff shows good title, the burden is shifted to the defendant, which can only prevail by tracing title out of the plaintiff or its predecessors by purchase of the disputed lands, or by such adverse possession as would defeat plaintiff's title under the limitations of the statute.
I am of the opinion that defendant did not acquire title to the disputed lands under the Thomas Mimms grant. The Gavin plat of 1900 (Exhibit No. 15 B in defendant's claim of title), offered to support this claim, does not commend itself to the Master as worthy in its present distorted shape to supplant any part of defendant's chain of title, personal or official. It is true that a judicial sale in one county of lands lying partly within that county and party within another county is sufficient to convey title to all. The statute so provides and the Court in which the action is pending has jurisdiction over the whole. But this doctrine cannot by any stretch of judicial consideration be so extended as to give to the sheriff of one county the power to sell and convey lands other than those covered by the execution from which his authority for sale is derived. The execution is directed to him specifically as an official entirely without extraterritorial jurisdiction. The sale and conveyance are not judicial, but administrative acts. In my opinion, a tax deed from the sheriff of Dorchester, purporting to convey lands in Dorchester County, and based upon an execution against lands in Dorchester, would not only not be a proper matter of record on the mesne conveyance books of Berkeley County, but, if so recorded, would be notice of "nothing to nobody." Equally ineffective would be the return on the tax books of Berkeley County of a specified acreage as a basis for a claim under such tax deed. Defendant's counsel is quite right in his position that evidence of tax payments neither designates the lands claimed nor anything more than the general locality.
Plaintiff does not dispute defendant's claim to lands within Four Holes Swamp, nor that such lands may be held under the Thomas Mimms grant, notwithstanding its location as "on the S.W. side of Four Hole Swamp." It submits rather that none of the boundaries claimed are limited to the edge of the swamp, and, as I understand, offers evidence of tax payments only to refute the idea advanced that any part of its holdings may at any time have been abandoned to, and sold by, the State as vacant lands. It further appears that, should such a conclusion be possible from variance in acreage returned, defendant has no claim under its tax title from the sheriff of Dorchester County to the area now and always in the possession of the plaintiff or its predecessors, under its claim of title to the several contiguous tracts.
And so back to the judicial interpretation in this State of titles calling for swamp boundaries.
In Wheeler v. Wheeler, 111 S.C. 87, 96 S.E., 714, 715, establishing lines under conveyance calling for Pudding Swamp as a boundary, in the showing that there were several runs in Pudding Swamp, and that the intention of the parties to the deed was otherwise evident, the claim was continued to the edge of the swamp. The variance in application of the rule, distinguishing the run of a swamp from a recognized river, as in the case of Edisto Swamp, Santee Swamp, or Great Pee Dee, is also recognized by Mr. Justice Hydrick in the opinion of the Court, as follows:
"In this State small streams having a margin of swamp are frequently called swamps. For instance, Dean Swamp, Bull Swamp, etc., would ordinarily be understood to mean the streams bearing those names. The Courts have taken judicial notice of this custom, and hence the general rule that where such a `swamp' is given as a boundary the parties will be presumed to have intended the middle of the stream as the boundary, in the absence of evidence of a different intention. Felder v. Bonnett, 2 McMul., 44, 37. Am. Dec., 545. That construction is in conformity with the general rule that where a stream is given as a boundary the grant is presumed to extend to the middle of the stream. But, as clearly appears from the decision in that case, the rule is not invariable or inflexible. It may be shown that the parties intended the edge of the swamp rather than the stream as the boundary, and, of course, when that is made to appear by competent evidence, effect will be given to their intention. It may be conceded that parol testimony of a contrary intention is incompetent to vary or control the construction. But, as pointed out in Felder v. Bonnett, it may be done by other competent evidence appearing either upon the face of the deed itself, or on the plat made at the time, and proof of the actual location of a different boundary line on the ground, and possession taken and held to the boundary so located. Especially is this so where the boundary given in the deed is ambiguous or of a doubtful meaning, as it clearly is in this case; for Pudding Swamp as a boundary may be either the edge of the swamp or the run of the stream. Suppose a swamp without a stream — then the edge of the swamp would necessarily be adopted as the boundary. So there is no irreconcilable repugnance between the boundary given in the deed and that shown on the plat."
Volume 4, Civil Code, Section 675, cuts off from Berkeley County and adds to Orangeburg County certain territory: "Beginning at a point located on Four Holes Swamp at the intersection of the boundary lines of Orangeburg, Dorchester and Berkeley Counties, and extending in a south-easterly direction, along Four Holes Swamp, the same being the boundary between Dorchester and Berkeley Counties," etc.
And Section 685 of the same volume gives the boundaries of Dorchester County: "From the intersection of the county line between Colleton and Berkeley Counties with the run of Four Holes Creek a straight line to a point upon Saw Mill Branch one mile northeast of the South Carolina and Georgia Railroad; thence along said branch to the Colleton County line, and thence to the starting point along the line of division between Colleton and Berkeley Counties. And is bounded northeast by Berkeley County, from which it is separated by the Four Holes Swamp from the intersection of said swamp with the old district line (drawn from Nelson's Ferry, on the Santee River, to Matthew's Bluff, on Savannah River) to the intersection of the run of said swamp with the old county line between Colleton and Berkeley Counties."
Also the boundary line between St. James Goose Creek, Berkeley, and Saint George Parish, Dorchester, is fixed in 6 St. at Large, p. 35, as follows: "That the Parish of St. James, Goose Creek, shall thereafter be bounded by a line beginning at the corner of the lower line of the Parish of Saint George, and the upper line of St. Andrew's Parish, where it intersects the parish line of St. James, Goose Creek; from thence a direct northwest course, until it strikes the Four Hole Swamp; from thence taking the channel of the said Four Hole Swamp until it intersects the Orangeburg line in the said swamp or bay."
The plat made by Gavin relied on by the defendant as recorded in Berkeley County shows the run about the middle of the swamp as the county line.
Applying then the rule as to the meaning of boundaries on swamps generally, to Four Holes Swamp, we find that, there being no natural distinction between the run and the edge of the swamp, as Edisto Swamp, Edisto River, Pee Dee Swamp, Pee Dee River, Santee Swamp, Santee River, etc., the run of the Four Holes Swamp would be the recognized boundary here in the absence of controlling evidence of intent. And intent is clearly evidenced throughout plaintiff's title to the several tracts by reference to maps showing lines, not only extending into the swamp, but establishing conclusively the intent to limit the grant or conveyance to the lines shown as in some instances falling short of the swamp run, substantiating plaintiff's claim as made; that is, the lines of the Ford plat.
I have already discussed sufficiently, I think, the failure of the Thomas Mimms grant to encroach upon these lines, stretching its limits under the rules of survey beyond even the run of the swamp, as broadly as may be and is allowed in locating adjoining lands described, and the tax title from the sheriff of Dorchester under which lands are claimed in Berkeley County. Thrower had the tax title when he conveyed to Beidler in 1901, by deed, then recorded in Dorchester, and not recorded in Berkeley County until 1908, reciting that there was some conflicting interests as to the lands here in dispute, described as the southern portions of Tracts E and F as shown on the Gavin plat, and giving the location of all the lands therein conveyed as within the County of Dorchester. The record of the Gavin plat, purporting to show the lands conveyed by Thrower to Beidler, shows that, after recording in Dorchester in 1901, it was changed by adding or altering pencil lines before being recorded in Berkeley County in 1908, and further amended by erasure of the word
"Dorchester" over the county line, which is shown on the Berkeley County record.
The defendant has failed to defeat the paramount title of the plaintiff by the tax title from the sheriff of Dorchester County to Thrower for the reasons already stated; and the claim under the Mimms grant is likewise unavailing, because that grant does not cover the lands in question. Not only do the technical rules of location bar the defendant, but those under whom it claims had no intent to claim the disputed title by virtue of paper title or possession, unless such intent be found in the deed of Thrower to Beidler, and the theory of intent is manifestly an afterthought, unsupported by the idea of such interpretation for the period of seven years. See Pope v. Wilder, 41 S.C. 540, 19 S.E., 996; Hudson v. Schumpert, 80 S.C. 23, 61 S.E., 104; Gardner v. Reedy, 62 S.C. 503, 49 S.E., 947; State v. Morrison, 44 S.C. 470, 22 S.E., 605.
The recent case of Weston v. Morgan et al., 162 S.C. 177, 160 S.E., 436, is of interest in considering defendant's claim of adverse possession and my finding that it has not been established. Theirs is the burden of proof of "open, notorious, exclusive, hostile, continuous and unbroken (adverse possession) for (the) whole period." The testimony here shows that every open, notorious, exclusive, or hostile act of possession, use, or occupation upon which the defendant relies was contested and broken.
I therefore respectfully recommend, that by decree herein the adverse claims of the defendant to the lands in dispute be adjudged invalid, as by verdict finding for plaintiff the lands in dispute with costs.
The Master having failed to rule upon the defendant's objections to various items of evidence offered by the plaintiff, a motion to recommit the case to him was made by the defendant before his Honor, Judge C.J. Ramage; who, by an order dated April 27, 1932, sent the case back to the Master for such rulings; pursuant to which, the Master filed the following:
SUPPLEMENTARY REPORT OF MASTER Dated May 18, 1932Specifically, I am of the opinion that the deed from J. Russell Williams et al. to plaintiff corporation was inadmissible for the purpose of strengthening plaintiff's title to the lands described therein, and upon strict application of the rule, would be stricken from the record. Authority for this objection is hardly necessary, but Moon v. Johnson, 14 S.C. 434, and other cases cited by counsel state the principle clearly.
Defendant's objections to certified copies of records of the Gavin plat evoke the elementary rule that originals are the best evidence. It does not follow, however, that original records, or certification thereof under stipulation, as here, are inadmissible for certain purposes, as in this case, and, as my conclusions generally indicate, these documents were in effect overruled.
Defendant's objections to plaintiff's right to introduce deeds calling for the swamp as a boundary bring up the question of boundary line fully covered in my report on facts and law, and show conclusively that these objections were in effect overruled.
Objections to certain leading questions shown in the minutes of references held as made under stipulations at the close of the references should in my opinion have no weight. The proper time for such objections is when the questions are asked so that they may be reshaped if objection is seriously urged. They should not be permitted to exclude necessary testimony to the case of either party to the controversy, and, unless such questions as might be held to be leading are palpably so phrased, they should be disregarded in the interest of brevity and continuity in hearings before a Master. If, however, the conclusions of the Master are based solely upon testimony improperly adduced, this can be demonstrated and should have its proper influence on the hearing of exceptions. To this extent my ruling is that leading questions are subject to objection which should be sustained if insisted upon, and such objections would have been sustained by me, as they are by any Court, though not so as to exclude essential testimony which may be brought out by other and perfectly proper method of approaching the witness and probably his knowledge and recollection of the facts the witness is expected to testify to. I am not now prepared to make a careful analysis of my report with reference to the objections referred to, but am satisfied that my conclusions stated are amply supported by competent evidence.
All other objections would appear to be disregarded, and thereby overruled.
DECREE OF CIRCUIT JUDGEThe complaint in this case alleges that the plaintiff is the owner in fee simple and in possession of three certain tracts of land situate in Berkeley County, State of South Carolina, and that it is also the owner and in possession of all the timber and trees upon a certain other tract of land in Berkeley County; that these lands form one contiguous body, the lines of which are clearly defined, and well established, and that these lands are timber lands, and therefore unoccupied; and that the defendant owns or claims certain lands in the vicinity of the lands described in the complaint, and that it wrongfully claims that its lines should be so extended as to cover parts of each of the four parcels described in the complaint, and that this action is brought for the purpose of determining such adverse claim of the defendant and the rights of the parties, respectively, pursuant to the provisions of Chapter 1, Title 15, Code of Civil Procedure of South Carolina of 1922. The complaint also contains the statutory clause bringing in all other persons unknown claiming any interest in the premises, but, it appearing that there was no other claimant except the named defendant, there was no publication of the summons as to unknown parties. The answer of the defendant takes issue with all of the material allegations of the complaint, except that it admits that the lands involved are timber lands and therefore unoccupied. The answer also alleges that the defendant is the owner and seized and possessed of a certain tract of land therein described; reference being craved to plats made by J.L. Gavin, surveyor. The answer also sets up title by adverse possession and the presumption of a grant, and especially pleads the statute of limitations relating to tax sales.
All issues of law and fact were by consent of counsel referred to Frank K. Myers, Esq., one of the Masters for Charleston County, before whom evidence was adduced, and who in due course filed his report, dated March 2, 1932, finding in favor of the plaintiff. Numerous exceptions to his report were filed by the defendant. The Master's report did not contain his express rulings as to certain objections to the testimony, so the case was on motion of the defendant recommitted to him for this purpose, and he filed a supplemental report dated May 18, 1932, covering this phase of the case. The exceptions came on for argument before me on December 19, 1932, and the cause was fully presented by the counsel for the respective parties.
There is a great volume of testimony in the case, and the briefs are very long, on account of the numerous points involved, although the area of the land in controversy is not large. This is due mainly to the fact that the land is composed of parts of four tracts, and several separate titles are involved. As stated in the complaint, the action was brought pursuant to Sections 826 to 832, both inclusive, Volume 1, Code Civ. Proc. 1922 (Sections 878 to 884, both inclusive, Code 1932), which provide an appropriate method for determination of adverse claims to real property. Section 826 is as follows: "Any person in possession of real property, by himself or his tenant, or any person having or claiming title to vacant or unoccupied real property, may bring an action against any person who claims, or who may or could claim, an estate or interest therein, or a lien thereon, adverse to him for the purpose of determining such adverse claim and the rights of the parties respectively."
It will be seen that the allegations of the complaint come within the purview of this section. The Master expresses the opinion that these provisions of the Code, which embody the Act of 1916 (29 St. at Large, p. 928), were intended to liberalize the law with reference to quieting titles and the settling of adverse claims to real estate, and would permit the Courts to determine the rights of the parties, respectively, even if the plaintiff were unable to show a perfect or paramount legal title, and his remarks on this subject are of much interest. However, he does not rest his conclusions upon this line of reasoning, but on the contrary definitely holds that, if the rule be that the plaintiff must recover or prevail on the strength of its own title and not on the weakness of that of the adversary, yet the plaintiff has sustained this burden and has made out a perfect title to the property in question. Hence the exceptions of the defendant in reference to the construction of the statute are overruled; the questions they raise being really academic. I have considered the cause as if the statute had in express terms provided that the burden shall be on the plaintiff to establish that he himself has a perfect legal title, regardless of whether the defendant's title is valid or invalid; plaintiff being required to recover on the strength of his own title and not on the weakness of that of his adversary. The defendant's counsel suggested in argument that the Master's report tended to impose the burden of proof upon the defendant rather than the plaintiff, but I do not so construe it. Certainly I have viewed the case in the full light of the elementary principle that, save as to affirmative defenses, the burden is on the plaintiff, and it must establish the material allegations of the complaint by the preponderance of the evidence, and that this includes proof of paramount title.
The map made by G.T. Ford, surveyor, from surveys by E.N. Beaty and himself in 1908 and 1922 (plaintiff's Exhibit 1) shows the location of the lands in question, and there is also delineated thereon the Gavin line to which the defendant claims. After a careful consideration of all the testimony, my conclusion is that plaintiff has made out paramount legal title to the property in question and that the location shown on the Ford map is correct. The several chains of title are not without some missing record links, but, considering the ancient grants out of which the property came they are about as nearly complete as could be expected; one of them being almost entirely so. They are all amply supported and perfected by the undisputed evidence of possession for more than twenty years as to the uplands, besides the testimony tending to show the ordinary use of the swamp land; all of the land in dispute being situate in Four Holes Swamp.
The larger part of the land comes out of the tract known as the Stephen Smith tract; the same being a part of the lands originally granted to James Kennedy, February 5, 1787. The surveyors found on the ground some very ancient marks which were indicated on the grant plat, but the defendant vigorously attacks the location of this tract of land; one of its grounds being that some of the deeds in the chain of title give one of the boundaries as "South by Four Hole Swamp", the contention of the defendant being that this means the edge of the swamp. It seems to me, however, that the references made in these deeds, as well as the acreage given, indicate quite clearly that the parties did not intend to exclude the swamp lands from the description. But the actual location of the lines on the ground is really the best evidence of the intention of the parties, and the marked lines extend far into the swamp, conforming to the plat. It may be that, where a swamp is given as a boundary, there is sometimes doubt as to its meaning, but the construction placed thereon by the parties themselves is entitled to very great weight. Aside from these considerations, and in the absence of contrary evidence of intention, it would be presumed that, where Four Holes Swamp is given as a boundary, the lands would extend to the middle of the main stream of the swamp. It will thus be seen that I am in accord with the views of the Master, which I think are fully sustained by the case cited by him, to wit, Wheeler v. Wheeler, 111 S.C. 87, 96 S.E., 714, as well as the statutes fixing the boundaries of Berkeley County and Dorchester County. It is most significant that Four Holes Swamp is given as the boundary between these counties. Obviously, the main stream or channel is meant and not the edge of the swamp, as otherwise the swamp would be excluded from both counties. The preponderance of the evidence shows that the main run or stream lies a little to the west of the boundary as shown by the Ford map, one corner of the Smith tract being located in this run; and that this run is the county line between Dorchester and Berkeley Counties. This conclusion is corroborated by the Gavin map introduced in evidence by the defendant (defendant's Exhibit 15-B).
The Prince Gaillard tract and the upper part of the E.A. Rudd tract have their source in a grant to Robert Fullwood dated September 3, 1792. The defendant attacks the location of the Fullwood grant as shown by the Ford map, upon the ground that it extends further into the swamp than is indicated by the distances shown on the grant. After careful consideration of the evidence, I think that the location claimed by the plaintiff is correct under the rules of location as established in this State. Connor v. Johnson, 59 S.C. 115, 37 S.E., 240; Sturgeon v. Floyd, 3 Rich., 80; Fullwood v. Graham, 1 Rich., 491. Oddly enough, the two latter cases involve grants which were made to Robert Fullwood, and each of these grants was located beyond the grant distances so as to cover a much larger acreage than that stated in the grant.
The B.G. Russell tract and the lower part of the E.A. Rudd tract are covered by a map by T.J. Mellard July 4, 1845 (plaintiff's Exhibit 32-B), which purports to be a resurvey of lands granted to George Poland May 20, 1785. The evidence shows that these lands are correctly located in accordance with this map and the actual landmarks. This property is also covered by map showing subdivision of the estate of West Williams made by T.J. Mellard January 27, 1871. The latter map or sketch has no courses or distances on the outside lines except one and no distances on the inside lines, but I am satisfied from the testimony of the surveyors on both sides that the location made by Mr. Ford of these tracts is correct and in conformity with both of these maps.
Mr. J.P. Gaillard, one of the surveyors who testified in behalf of the defendant, made a map showing the location of lands lying just north of the lands in controversy and just south thereof, and his location of adjoining lands confirms Mr. Ford's location.
In addition to defendant's very vigorous attack on plaintiff's title and location, it introduced in evidence in its own chain of title, and contends that the grant made to Thomas Mimms in 1820 covers the lands in controversy. This grant shows that the eastern line thereof was never actually run on the ground. The surveyors who testified for the plaintiff are positive in their statements that the eastern line cannot be properly located so as to encroach upon any of the lands claimed by the plaintiff, while the surveyors for the defendant express a contrary opinion. It will be observed, however, that Mr. Gaillard's views are affected at least to some extent by the theory of the defendant that the Stephen Smith tract could not extend beyond the edge of the swamp because of the use of the phrase "Four Hole Swamp" as a boundary in some of the deeds, and this theory has heretofore been shown to be unsound. My conclusion is that the preponderance of the evidence shows that the Master was right in holding that this grant properly located does not cover any of the lands in question. But, in addition to this, there is the very important consideration that the grant is junior to each of the grants under which the plaintiff claims.
The defendant, according to its chain of title, claims under one D.E. Thrower, who held two deeds, one executed to him by Cyrus and Ida F. Mimms, dated May 23, 1900, and the other by John N. Moorer bearing the same date. Both of these deeds describe the property thereby conveyed as being situate in Dorchester County. Indeed, the Mimms deed gives the eastern boundary as the Berkeley County line, and Mrs. Mimms herself testified that their lines adjoined Berkeley County in the swamp.
Very soon after these deeds were executed to Thrower, to wit, on January 1, 1900, the Secretary of State by his agent appears to have served notice on him requiring him to pay the alleged delinquent taxes "upon that lot or parcel of land described as 500 acres, more or less, situate in — Township and Dorchester County, bounded by lands now or formerly of Rich Bell estate, West Williams, D.E. Thrower and others." It will be observed that this notice does not purport to cover any lands outside of Dorchester County, and also shows that it was not intended to encroach upon the West Williams lands from which some of plaintiff's property comes. It further appears that on June 9, 1900, the Secretary of State directed to the sheriff of Dorchester County an execution commanding the collection of taxes on the lands described as above by a sale thereof. Under this execution S.C. Varnadoe, Sheriff of Dorchester County, after advertisement in Dorchester County, sold the property on Sales Day in July, 1900, to D.E. Thrower for $51.00, just $1.00 above the amount specified in the execution. The sheriff made a deed to Thrower describing the property as follows: "All that piece, parcel, or tract of land, lying, being, and situate in Carn Township, Dorchester County, State of South Carolina, containing five hundred (500) acres, more or less, and bounded on the North by lands of G.W. Bell, on the East by lands formerly of the estate of Williams; on the West by lands of W.C. Pearcy. Cyrus Mimms, J.R. Moorer, R.W. Bell, and on the South by lands, of D.E. Thrower, all of which will more specifically appear by reference to a plat of said land made by J.L. Gavin, Surveyor, dated June 6th and 7th, 1900."
The deed was dated July — 1900, recorded in Dorchester County July 3, 1900, and in Berkeley County January 13, 1908. It will be observed that this deed does not purport to cover any lands in Berkeley County, and gives boundary on the east as lands formerly of the estate of Williams. The line shown on the plat by Gavin, to which reference is made, does indicate any old mark in the disputed territory.
The defendant claims that this tax sale, having been made under the Act of the General Assembly, approved December 24, 1892 (21 St. at Large, p. 82), by virtue of an execution issued by the Secretary of State against the land, is in the nature of a grant and conferred good title. It seems apparent, however, that the tax sale was not effective to convey any of the lands in controversy. The Act expressly provides that the execution shall be directed to the sheriff of the county in which the land is situate to satisfy delinquent taxes thereon. The lands in controversy are situate in Berkeley County, and the attempted sale by the sheriff of Dorchester County under the execution issued to him so far as lands in any other county were concerned was an absolute nullity. This provision of the Act is not a mere formality, because, if the Secretary of State had examined the records in Berkeley County, he would have found that the lands in questions were in fact not delinquent, but that the taxes had been paid thereon; and, furthermore, advertisement in Dorchester County constituted no notice to persons owning land in Berkeley County. Besides, the principles laid down by our Court in the case of Pope v. Wilder, 41 S.C. 540, 19 S.E., 996, appear at least to be tangent to the facts in the base at bar; the alleged delinquent. Thrower, being the purchaser at the tax sale. The contention of the defendant that the one-year statute of limitations contained in this Act is sufficient to bar the plaintiff is not well founded, because, in my opinion, the tax sale was null and void and not merely voidable. Hudson v. Schumpert, 80 S.C. 23, 61 S.E., 104. Besides, the Supreme Court has held that the tax title statutes of limitations do not run until the sheriff puts the purchaser into possession after the sale. Gardner v. Reedy, 62 S.C. 503, 40 S.E., 947; State v. Morrison, 44 S.C. 470, 22 S.E., 605.
The defendant contends that it has acquired title to the land in question by adverse possession, but, after careful consideration of all the testimony in any wise relating to this matter, I find myself in full accord with the Master, and do not deem it necessary to add anything to what he has said. Viewing the evidence most favorably to the defendant, it falls far short of constituting such open, notorious, exclusive, hostile, continuous and unbroken possession for the whole period as is required by law to defeat the legal title. Weston v. Morgan, 162 S.C. 177, 100 S.E., 436. And, of course, it is elementary that the burden of proof of adverse possession is upon the one relying thereon.
A number of the exceptions charge that the Master was in error in not directing a verdict in favor of the defendant; its position being that since it denies the title and possession of the plaintiff and claims title and possession in itself, the issues involved are legal, and were therefore referable to the Master only by consent, although the cause in its inception was one in equity. I have adopted the view that the issues mentioned are legal, but, where legal issues are referred to a Master, a motion to direct a verdict is no more than a suggestion that a decision should be rendered in favor of the movant as a matter of law, and, of course, this involves a consideration of the merits of the cause. As already indicated, it is my view that the Master's decision was rightly in favor of the plaintiff.
Counsel for both parties have with admirable diligence and industry presented to the Court, not only all the evidence throwing light on the issues, but every legal proposition that might in anywise be helpful. I have not herein discussed every one of the exceptions, but I have given consideration to them all, and have reached the conclusion that they should be overruled and the report of the Master confirmed; and it is so ordered.
It is further ordered, adjudged, and decreed that the plaintiff, Forshur Timber Company, is seized and possessed in fee simple of the tracts of land described in the complaint as located on the map of G.T. Ford, surveyor, hereinbefore referred to, the same being plaintiff's Exhibit 1, except that as to the B.G. Russell tract its ownership is confined to the timber and trees, including the rights appurtenant thereto, conveyed to it by D.W. Singletary, W.T. Singletary et al., by their deed dated May 31, 1926 (plaintiff's Exhibit 46); and that defendant, Santee River Cypress Lumber Company, has no right, title or interest in or to any of said property; and that the plaintiff recover of the defendant the costs of this action.
Mr. M.W. Seabrook and Mr. S.K. Nash, both of Sumter, S.C. Counsel for Appellant, cite: As to Nature of Remedy provided in Statute under Consideration: 149 F., 555 (U.S.S. Ct); 126 P., 1107, 22 Colo. App., 538; 105 N.E., 311, 263 III., 400; 178 N.Y.S., 689; 138 N.Y.S., 23; 134 P., 383, 38, Okla., 498; 5 R.C.L., 644; 236 S.W., 287, 291 Mo., 180; 67 Kan., 505; 119 Ky., 170, 83 S.W., 522; 228 P., 1057, 68 Cal.App., 270; 111 A., 275, 91 N.J. Eq., 120; 288 P., 191 (Ariz.); 139 So., 383 (Fla.); 99 P., 136, 38 Mont., 128, 16 Ann. Cas., 200; 51 C.J., 137-141. As to Reasons for Enactment of Statute Under Consideration: 76 S.C. 517, 57 S.E., 475; 86 S.C. 1, 67 S.E., 962; 38 L.Ed., 201; 147 A., 4, 109 Conn., 307; 147 A., 7, 109 Conn., 451; 195 Mo., 500, 94 S.W. 520; 55 Ore., 533, 106 P., 1016; 84 P., 906; 9 Ariz., 522; 152 S.C. 108. 117, 149 S.E., 340; 108 So., 679 (Fla.); 166 N.E., 55, 334 III., 347; 86 N.E., 685, 237 III., 55; 75 Ky., 469 (12 Bush); 105 S.W. 964; 85 S.C. 546, 67 S.E., 961. As to Settlement of Boundaries Being a Function of A court of Law: 9 C.J., 266, 267; 243 Mich., 595, 220 N.W., 663; 49 Mich., 567. 14 N.W., 498; 51 Mich., 240, 16 N.W., 390; 58 Mich., 347, 25 N.W., 311, 105 Mich., 557, 63 N.W., 526; 147 Mich., 276, 110 S.W. 932; 188 Mich., 237, 154 N.W., 104; 124 S.E., p. 680, 97 W. Va., 201; 24 S.C. 44. As to Plaintiff's Legal Remedies: 140 S.C. 310, 128 S.E., 821; 261 F., 509; 184 S.W. 494 (Mo.); 195 p., 909; 26 N.W., 575; 5 R.C.L., 637. As to "Conditions Precedent" for Statutory Relief 108 So., 20, 214 Ala., 400; 108 So. (Fla.), 820, 51 A.L.R., 731; 121 A., 435, 94 N.J. Eq., 530: 100 N.E., 641, 213 Mass. 483; 32 Cyc., 1310; 5 R.C.L., 643; 51 C.J., 145; 37 Cyc., 129. As to Proper Construction of Statute Under Consideration: 51 C.J., 138, n.,; 218 P., 1095, 72 Okla. 145; 25 R.D.L., 974. As to Propriety of Motion to Dismiss after Demurrer to Complaint, has been Overruled and Hearing on Merits held: 158 S.C. 537, 155 S.E., 890; 18 C.J., 1187, 1188; 17 S.C. 416; 50 S.C. 310, 27 S.E., 770; 50 S.C. 514, 27 S.E., 952, 50 Am. St. Rep., 846; 18 C.J., 1178; 49 C.J., 821; 49 C.J., 877; Rule 18, Sup. Ct.; 96 S.C. 460, 81 S.E., 144; 52 S.C. 505; 71 S.C. 431; 72 S.C. 24; 40 S.C. 430, 18 S.E., 790; 39 S.C. 369, 17 S.E., 803; 79 S.C. 555, 67 S.E., 202; 14 S.C. 330; 36 S.C. 87, 15 S.E., 350; 155 S.C. 52, 145 S.E., 623; 33 C., J., 1076; 34 S.C. 109, 12 S.E., 1070; 112 S.C. 426, 430, 100 S.E., 169; 34 C.J., pp. 225 to 227; 110 S.C. 253, 96 S.E., 294; 76 S.C. 145, 56 S.E., 673. As to Location of Boundaries: 1 Rich., 491; 9 C.J., 222, 223; 106 S.C. 514, 91 S.E., 864; 100 S.C. 280. 84 S.E., 829; Harper's Law Rep., 454; 82 S.C. 452, 62 S.E., 1108; 64 S.E., 400; 168 S.C. 516, 167 S.E., 833; 123 S.C. 515, 116 S.E., 101; 124 S.C. 346, 117 S.E., 594; 145 S.C. 539, 143 S.E., 269; 15 S.C. 72; 97 S.C. 362, 81 S.E., 677; 104 S.C. 387, 89 S.E., 355; 9 C.J., 222, Sec. 148; 65 S.W. 833, 27 Am. Dec., p. 227; 107 S.C. 517, 93 S.E., 179; 53 S.C. 90, 30 S.E., 833; 2 Speers, 68; 8 Rich., 315; 9 C.J., 225, 226. As to admitting in evidence Instrument that does not Describe Land in question: 1 McC., 584; 19 C.J., 164. As to Ancient Papers: 1 C.J., 248; 63 S.C. 219; 38 Cyc., 1202, 1203; 78 S.C. 155, 59 S.E., 989; 100 S.C. 265, 84 S.E., 826. As to Boundary "by" or "on" a Swamp: 2 McMul. (27 S.C.L.), 47-48; 111 S.C. 94, 96 S.E., 714; 101 S.C. 170, 85 S.E., 312; 25 S.C. 181. As to Statute of Limitations: 158 S.C. 72; 95 S.C. 245, 78 S.E., 982; 82 S.C. 358, 64 S.E., 165; 86 S.C. 285, 68 S.E., 680; 95 S.C. 347, 82 S.E., 274; 105 S.C. 329, 96 S.E., 683; 2 C.J., 96, Sec. 117; 22 S.C. 159; 2 C.J., 54, Sec. 6; 2 C.J., p. 56, Sec. 7; 120 U.S. 534, 7 S.Ct., 667, 30 L.Ed., 759; 2 Nott McC., 310; 2 C.J., 235, 236; 2 C.J., 244, Sec. 530; 140 S.C. 319; 48 S.C. 28; 29 S.C. 372; 16 S.C. 132; 14 S.C. 180; 14 S.C. 587; 2 Brev., 151; Rice, 10; Note 46 to 2 C.J., 86; 3 S.C. 34; 2 C.J., 238, 243; 2 Speers, 450; 108 Va., 612, 62 S.E., 358. As to Tax Title: 57 W. Va., 447, 50 S.E., 828; 61 C.J., 1308; 99 S.C. 172, 82 S.E., 1052; 31 S.C. 547, 10 S.E., 330, 5 L.R.A., 821; 118 S.C. 256, 110 S.E., 390; 40 S.C. 114, 18 S.E., 517; 80 S.C. 146, 61 S.E., 399; 86 S.C. 483, 68 S.E., 664; 37 Cyc. 1377; 71 S.E., 16. 69 W. Va., 146; 44 S.C. 470, 22 S.E., 605; 99 S.C. 172, 82 S.E., 1052; 37 S.C. 395, 16 S.E., 151. As to Best Evidence: 1 Bay, 493, 1. S.C.L., 493; 14 S.C.L. (3 McCord), 318; 12 S.C.L. (1 McCord), 177; 49 S.C. 242, 27 S.E. 49, 113 S.C. 278; 22 S.C. 365. As to Burden of Proof: 51 C.J., 248, par. 224; 115 U.S. 404, 15 S.Ct., 124, 29 L.Ed., 201; 179 Cal., 681; 15 S.C. 72. As to Constitutionality of Statute: 278 P., 252; 52 S.Ct., 107; 219 U.S. 35, 43, 31 S.Ct., 136, 55 L.Ed., 78, 32 L.R.A., (N.S.), 226, Ann. Cas., 1912-A, 463; 219 U.S. 219, 238, 31 S. Ct., 145, 55 L.Ed., 191; 220 U.S. 81, 31 S.Ct., 337; 279 U.S. 1, 49 S.Ct., 215, 73 L.Ed., 575; 279 U.S. 639, 642, 49 S.Ct., 445, 73 L.Ed., 884; 45 F.2d 615; 169 S.C. 41, 287 U.S. 502, 53 S.Ct., 249, 77 L.Ed., — 279 U.S. 639, 49 S.Ct., 445, 73 L.Ed., 884.
Mr. L.D. Lide,, of Marion, S.C. and Mr. W.C. Wolfe, of Orangeburg. S.C. Counsel for respondent, cite; As to Validity of Statute: 153 S.C. 114, 149 S.E., 760; Heslep v. Hy. Dept., (S.C.,), Westbrook Adv. Op., Dec. 9, 1933, p. 4; 141 S.C. 415, 139 S.E., 342; 156 S.C. 299, 152 S.E., 865; 286 U.S. 352-373, 76 L.Ed., 1156. As to Due Process of Law: 131 S.C. 156, 126 S.E., 122; 140 U.S. 316, 11 S.Ct., 825, 35 L.Ed., 419; 184 U.S. 339, 22 S. Ct., 384, 46 L.Ed., 612; 6 R.C.L., 447-452; 79 Am. Dec. (Ind.), 468; 5 R.C.L., 643, 647; 51 C.J., 128. As to Demurrers: 111 S.C. 534, 96 S.E., 532; 158 S.C. 425, 155 S.E., 627; 70 S.C. 572, 50 S.E., 499; 154 S.C. 48, 151 S.E., 109; 148 S.C. 249, 146 S.E., 148; 5 R.C.L., 670; 158 S.C. 537. As to Proof of Title: 156 S.C. 480, 67 S.E., 35; 158 S.C. 435; 82 S.C. 435; 82 S.C. 358; 86 S.C. 358; 249 F., 522. As to Boundaries: 111 S.C. 87; 2 McMul., 44; 59 S.C. 115; 3 Rich., 80; 1 Rich., 491; 18 C.J., 283. As to Tax Title: 41 S.C. 540; 80 S.C. 23; 62 S.C. 503; 44 S.C. 470. As to Adverse Possession: Dudley, 177; 82 S.C. 358; 99 S.C. 172; 160 S.E., 594; 2 C.J., 70; 1 McMul., 444; 2 Rich., 627; 162 S.C. 177.
OPINION
November 7, 1934. The opinion of the Court was delivered by
This action was commenced in the Court of Common Pleas for Berkeley County, by service of summons and complaint, January 25, 1928. Soon after the commencement of the action, the complaint in the cause was amended, and all references in the record are made to the amended complaint instead of to the complaint. It is conceded that the complaint was amended in an immaterial particular.
The plaintiff, according to the allegations of the complaint, is a corporation, created under the laws of South Carolina, as well as the defendant, Santee River Cypress Lumber Company. As a basis for the action, the plaintiff alleges that it is the owner in fee simple and in possession of the following described tracts of land, in the county and State aforesaid:
"All of that piece, parcel or tract of land situate in St. James Goose Creek Township, Berkeley County, S.C. in Four Hole Swamp, containing two hundred ten (210) acres, more or less, bounded North by other lands of Marie H. Singletary, East by lands of John Wright, South by lands of Santee River Cypress Lumber Company, and West by lands of Cook Company, formerly lands of Mrs. C. M. Williams (exclusive of three fishing lakes containing about five acres)."
"All that certain piece, parcel or tract of land containing Two Hundred Sixty-five (265) acres, more or less, situate in St. James Goose Creek Township, Berkeley County, South Carolina, and bounded North by lands of J.E. Singletary; East by lands of W.A. Jeffers, South by lands of W.A. Jeffers and E.A. Rudd and West by lands of Singletary."
"All that certain piece, parcel or tract of land situate in St. James Goose Creek Township, Berkeley County, South Carolina, containing Four Hundred Seventy-three (473) acres, more or less, and bounded North by lands of W.A. Jeffers, East by lands of J.E. Singletary, South by lands of W.D. Singletary and West by lands of John Wright, commonly known as the Pye Place."
"All that certain tract of land in Berkeley County, State of South Carolina, containing 110 acres, more or less, bounded: North by lands of formerly E.A. Rudd, now Forshur Timber Company, West by lands of Cook Co., East by lands of D.W. Singletary and W.T. Singletary, and South by lands of Estate of Cyrus Mimms, this land being that portion in Four Hole Swamp, of the original tract of (410) Four Hundred Ten acres owned by the late E.V. Singletary."
The first tract, above described, is referred to as being a part of the tract known as the Stephen Smith tract, the second tract mentioned is alleged to be known as a part of the Prince Gaillard tract, the third mentioned is alleged to be known as a part of the E.A. Rudd tract; and the fourth tract described is alleged to be known as a part of the B.G. Russell tract.
The plaintiff further alleges:
"6. That the above described lands form one contiguous body, the lines of which are clearly defined and well established, the lines on the Western side thereof having been so established since the grant or grants thereof were made, and the lines on the Eastern side thereof having been so established when the property was purchased by the Plaintiff; that the said lands are timber lands, and, are, therefore unoccupied.
"7. That the Defendant Santee River Cypress Lumber Company owns or claims certain lands in the vicinity of the lands above described, and that it wrongfully claims that its lines should be so extended as to cover parts of each of the four parcels above described, and this action is brought for the purpose of determining such adverse claim of the said Defendant and the rights of the parties, respectively, pursuant to the provisions of Chapter I, Title XV, Code of Civil Procedure of South Carolina, 1922; and pursuant to the said provisions all other persons unknown claiming any right, title, estate, interest in, or lien upon the aforesaid real estate are made parties to this action to the end that any and all adverse claims thereto may be determined and the Plaintiff's title quieted."
Upon these allegations the plaintiff prays that "its title to the real estate above described be quieted; that the adverse claims of the Defendants and any of them be adjudged invalid; and that Plaintiff have such other and further relief as may be just."
To the complaint, as amended, the defendant, Santee River Cypress Lumber Company, demurred, upon the ground that the plaintiff does not allege facts sufficient to constitute a cause of action for the relief demanded, for the reasons the complaint purports to set forth an equitable cause of action "without any allegation that the Plaintiff has no adequate remedy at law, or of the presence of any special equities entitling the Plaintiff to the relief claimed; on the contrary the Plaintiff has a full and adequate remedy at law by action to recover possession or otherwise."
The demurrer was heard by his Honor, Judge T.S. Sease, who, after due consideration, overruled the same.
After the demurrer was overruled, the defendant, Santee River Cypress Lumber Company, filed an answer, admitting the corporate existence of the plaintiff and of this defendant, under the laws of South Carolina, and denied all other material allegations of the complaint. In addition said defendant alleged by way of answer to plaintiff's allegations that it is the owner and is seized of a certain tract of land, described below, and alleges, in effect, that, if any of the lines of said tract of this defendant embrace parts of the said four tracts described in plaintiff's complaint, this defendant, Santee River Cypress Lumber Company, is the owner of same, and is seized and possessed thereof. Further answering the complaint, this defendant admits that the lands involved are timber lands and are unoccupied; that the said tract of land described in the defendant's answer herein is situated in what is known as Four Holes Swamp, subject to the overflow of waters, and is impractical for actual residence or the usual uses of husbandry, and for that reason is unoccupied, but this defendant alleges that it is seized and possessed of the same, "including those portions in conflict with the plaintiff's title, in such manner and to such extent as lands of that character are susceptible of."
The tract of land which this defendant claims to be owner and seized and possessed of is described in defendant's answer as follows: "All of the land situate, lying and being in Four Hole Swamp; bounded North by lands now or formerly of G.W. Bell; East by lands now or formerly of Williams, of Rudd and others; South by lands of Thrower; and West by lands now or formerly of Bell, of Moorer, of Mimms, of Clarke and possibly of others: which lands are more fully shown by plats made by J.L. Gavin, Surveyor, one date June 4th. to 9th., 1900, and the other on June 6th. to 7th., 1900."
Further answering the allegations of the complaint, this defendant further alleges:
"For A Second Defense
"1. This Defendant alleges it entered into the possession of the premises last above described under claim of title, exclusive of any other right, founding such claims upon written instruments, as being conveyances and plats of said land; and there has been by it the continuous, adverse, hostile, and exclusive and uninterrupted possession of the said premises included in said instruments, according to the uses of such lands, for more than ten years next before the commencement of this action such possession having been open, notorious, continuous and adverse to the plaintiff and to all the world.
"For A Third Defense
"1. The Plaintiff alleges that it, together with its predecessors and grantors, has been for more than twenty years next prior to the commencement of this action, in the continuous, exclusive, uninterrupted. undisputed and adverse possession and occupation of all of the land last above described, occupying and possessing the same, according to the uses of such lands, as its and their own, openly, notoriously, continuously and adverse to the Plaintiff, and its grantors and predecessors, founding such claims upon written instruments as being conveyances and plats of said land, exclusive of any other rights; and the Plaintiff alleges that it has good title to said land by adverse possession and the presumption of a grant.
"For a Fourth Defense
"1. (On information and belief) That over twenty years ago the purchaser of a portion of the premises last above described on which the premises described in the complaint overlaps, under a Sheriff's deed made by virtue of a valid sale for defaulted taxes, pursuant to Acts of the Legislature of the State, was put by the Sheriff, or entered into possession of said premises; the said purchaser being a grantor or predecessor in interest of this Defendant through whom it claims one of its titles; and no action for the recovery of said premises, nor for the recovery of the possession thereof, has been brought by the Plaintiff, nor by any one under whom the Plaintiff claims, within two years from the date of such sale, or from the time when the said purchaser was so put, or went into possession as aforesaid; and this Defendant further alleges that all of the taxes and levies for which the lands were so sold with the costs which may have accrued thereon, were not paid prior to the said sale, at the proper time, and to the proper authorized officials, for all of which reasons this action is now barred.
"For a Fifth Defense
"1. This Defendant alleges that the Plaintiff, nor its predecessors, nor grantors, have been in possession of the premises in dispute in this action, nor any part thereof, during the period of ten years next before the commencement of this action; and that therefore this action is barred as against this Defendant."
Counsel for each of the parties consenting, his Honor, Judge William H. Grimball, issued an order referring the case to Frank K. Myers, Esquire, one of the Masters for Charleston County, to take the testimony in the case and report the same to the Court, together with his findings of fact and conclusions of law, with leave to report any special matter.
After taking testimony in the case, the Master made his report, which was adverse to the Defendant's contention and in favor of the plaintiff.
The Master having failed to rule upon the defendant's objections to certain facts of the testimony offered by the plaintiff, on motion of the defendant to recommit the case to him, his Honor, Judge C.J. Ramage, issued an order dated April 27, 1932, sending the case back to the Master for such rulings; and thereafter the Master filed a Supplementary Report, dated May 18, 1932. Thereafter the defendant filed exceptions to the Master's report, and in connection therewith counsel signed a stipulation to the following effect: "* * * On 29th. March, 1932, Counsel stipulated that each objection to evidence, or motion to strike out evidence, made by the Defendant on the face of the Record, or in the Defendant's `Bill of Objections' heretofore made, in accordance with stipulation of Counsel, and overruled by the Master, shall be, and hereby is, specifically excepted to by Exception No. XLII, the same as if a separate exception were made to each and every such objection or motion to strike out; and as if each respective objection or motion to strike out were set out separately therein."
The case was heard, on exceptions to the Master's Report. by his Honor, Judge William H. Grimball, who, after hearing full argument in the case, issued a decree confirming the Master's report. The defendant, Santee River Cypress Lumber Company, gave due notice of intention to appeal to the Supreme Court from the order of his Honor. Judge T.S. Sease, issued in the cause, dated March 21, 1930, and also from the decree of his Honor, Judge William H. Grimball, dated January 3, 1933, and from the Judgment entered, or to be entered, thereon. Before the matter was heard by the Supreme Court, the defendant, Santee River Cypress Lumber Company, served notice of motion to dismiss the complaint to be heard by his Honor, Judge C.C. Featherstone, Presiding in the Ninth Circuit, for an order dismissing the complaint as amended, upon the ground, in effect, that the same did not state facts sufficient to constitute a cause of action, and upon the further ground that the Court had no jurisdiction of the subject in this suit under the statute referred to: "In that the only allegations to an alleged cause of action against the Defendant, Santee River Cypress Lumber Company, are that it owns or claims certain lands in the vicinity of the lands above described, and that it wrongfully claims that its lines should be extended to cover parts of each of the four parcels above described. and this action is brought for the purpose of determining such adverse claim of the said Defendant and the rights of the parties, respectively, pursuant to the provisions of Chapter 1, Title XV, Code of Civil Procedure of South Carolina, 1922."
In said notice the defendant further stated, in effect, that it is apparent upon the face of the said complaint that this is merely a suit to determine the location of boundary lines between adjoining owners brought under and entirely dependent upon the Act of the General Assembly approved March 25, 1916 (29 St. at Large, p. 928), embodied in Chapter 1, Title 15, Code of Procedure of 1922, Sec. 926 et. seq., which does not authorize any proceedings to determine such matters, same being without the purposes, scope, or intent of said Act properly construed. Upon the hearing of this motion by his Honor, Judge Featherstone, his Honor, upon due consideration, issued an order over-ruling and denying the motion. The defendant, Santee River Cypress Lumber Company, pursuant to due notice, has appealed, also, from this order of his Honor, Judge Featherstone, to this Court.
By order of this Court, the appeals from all of the said orders were heard together. After carefully considering the entire record in the case, in connection with the briefs of counsel, it is our opinion that all of the orders appealed from should be affirmed. We agree with the conclusion reached by the lower Court, and it is therefore the judgment of this Court that the exceptions be and are hereby overruled and the judgment of the lower Court affirmed.
Note: Let the report of the Master and the decree of Judge William H. Grimball be incorporated in the report of the case.
MESSRS. ASSOCIATE JUSTICES STABLER and BONHAM, and MESSRS. ACTING ASSOCIATE JUSTICES W.C. COTHRAN and EUGENE S. BLEASE, concur.
[*] (This case, decided in November, 1934, has never been reported in the State Reports.)
(The three following opinions were all filed in November, 1941, but have never appeared in the State Reports.)