Opinion
13249
September 29, 1931.
Before Mauldin, J., Greenville, August, 1928. Affirmed.
Action by R.F. Weston against J.E. Morgan and others. Judgment for plaintiff and defendants appeal.
The report of the Master and the decree of the Circuit Court, requested to be reported, follow:
MASTER'S REPORTThis action was commenced in November, 1926, for partition of two tracts lying contiguous to each other — 292 acres being in Greenville County and 147 acres in Spartanburg County. The case was referred to me by general order of reference.
By amendment of the complaint, the action took on the nature of an action for the recovery of a one-half interest in these lands, it being alleged that the lands had been conveyed to W.T. Weston and were owned by him at the time of his death, intestate, in 1898, and that the paper titles of W.T. Weston had been fraudulently and unlawfully changed and altered by changing the grantee from W. "T." Weston to W. "G." Weston. Plaintiff's claim is that W.T. Weston's widow died in 1899, and a daughter in 1915, leaving him and his brother, W.G. Weston, as the owners of the lands, and W.G. Weston has conveyed his title to the defendants. The lands in Greenville County and Spartanburg County have come to the present owners through entirely different chains, and some of the facts about the title are entirely different. It is a fact that the plaintiff has never been in actual possession or occupancy of any of these lands, and that W.G. Weston transferred possession along with his transfer of title to all of the lands, some by deed and some by mortgages, which were foreclosed, and that from him possession has gone down through successive occupants to the present owners — the defendants. W.G. Weston had all of the land surveyed and platted as a single tract in May, 1905, and sold off different parcels at different times thereafter over a period of several years. The principal issue of the case is made about the deeds — one from Lipscomb covering the Greenville lands, and one from McMakin covering the Spartanburg lands, the records of which deeds purport to show conveyance to W.G. Weston. The deeds themselves were produced in Court very much mutilated. The deed from Lipscomb for the lands in Greenville was made in 1886 and recorded in 1887 in Book TT, page 141. The deed itself has been so mutilated that it is not convincing evidence as to whom it was originally made, and the record book shows that the middle initial of the grantee appearing "G" is written where something had been rubbed out. Of course, the record does not disclose what was rubbed out, whether "T" or another "G" or some other letter. Plaintiff testified that he saw the deed when he was a boy, prior to 1898, and that it was made to W.T. Weston. He produced testimony that neighbors understood about 1892, or a little sooner or a little later, that the land was supposed to belong to W.T. Weston. He testified himself that he saw W.G. Weston scrubbing these deeds at Hendersonville, N.C., in 1926, and that W.G. Weston had told him that he had changed the deeds to himself and was then changing them back, and there is other testimony in support of this contention. The testimony does not convince me that there was any unlawful or fraudulent alteration or change of these deeds. On the other hand, the indications as to the Lipscomb lands are that the record was made to appear to be the record of deed to W.G. Weston at or near the time of the original recording of the deed. The change is in the handwriting of the copyist who recorded the deed, which handwriting disappears from the books in the Register's office within a few years. The natural presumption would be that the recording officer inserting the "G," regardless of when it was inserted, had some good reason for doing so, and that his so doing was a clerical correction rather than a fraudulent alteration.
The defendants, at considerable effort, sought by subpoena to bring W.G. Weston into Court, the reference being adjourned from time to time to give them opportunity to serve him. The constables were unable to find W.G. Weston, although the plaintiff was evidently in communication with him from time to time and knew that he was wanted as a witness. The plaintiff himself, on cross examination, testified that, between two of the references, he had seen his brother, W.G. Weston, and had a conversation with him about the case; that he had told his brother what he had testified to with reference to the alteration of the deeds, and that his brother had denied having told him any such thing.
The defendants set up and the evidence sustains the defense of adverse possession, presumption of a grant, the statute of limitations and laches. The testimony shows unmistakably that the plaintiff has never exercised any of the functions of ownership or possession of any of these lands, and that the lands have been in the possession, occupancy, control and management, exclusively, of W.G. Weston from 1898 until the several tracts were sold off and in the successors from W.G. Weston on down to the present time, a period of 38 years, and R.F. Weston has testified that during that time he has never taken any steps whatever to get any benefits from or interest in these lands until the commencement of this action.
The testimony is convincing that W.G. Weston was claiming these lands as his own, certainly for more than 20 years prior to the commencement of this action, if not indeed for the entire period from 1898. He had the lands surveyed as his own and a plat made on which the lands were designated as his own in 1905, at which time and before he was exercising the ordinary functions of ownership cultivated part of the land, selling timber and cross ties and getting wood. His declaration to the magistrate in 1907 that he owned that land and his giving mortgages purporting to convey the whole title in 1908 and 1909, as well as the making of the survey and plat, all bespeak that the character of his possession was as the owner of the whole title. It is a very significant fact that B.M. Shuman, a very experienced and careful attorney of Greenville, investigated title to these lands for the purpose of making a loan, and did make the loan as appears by mortgage of W.G. Weston to B.M. Shuman, attorney, recorded in Mortgage Book 15, at page 160, which subsequently was foreclosed.
It does not make a great deal of difference when ouster of R.F. Weston may have been; it was certainly complete in 1905, and regardless of what interest he may have had in the lands, the presumption of title from 20 years possession excludes him, as well as everybody else. The testimony convinces me that he knew W.G. Weston was claiming this land as his own prior to 1905. In addition to the above conclusion, the circumstances shown by the testimony are such that it would be inequitable for the plaintiff to have from the defendants, the present owners of the land, any interest in this land. The lands lie pretty close to the town of Landrum, and for all these years, certainly beginning as early as 1905, W.G. Weston had been transferring parts of the land from time to time, selling off small tracts at different times, and giving mortgages. If R.F. Weston had owned any interest in these lands, the most casual concern about his ownership would have observed the necessity of taking steps to prevent the lands getting into the hands of innocent purchasers, paying the purchase price therefor, being led by the records to believe that they were getting good title. This failure to observe and act under the circumstances constitutes laches and sustains the plea of estoppel.
Assuming that the deed was made out of W.T. Weston, the evidence (as already stated) fails to establish fraudulent alteration; the presumption is that to correct error or to conform to the agreement, the alteration occurred before delivery; the law will not readily presume fraud and the proof of the alleged fraud must be so clear as to be inconsistent with any other conclusion. This presumption is strengthened by the evidence that W.G. Weston paid the purchase money and is therefore the equitable owner of the land, the defendant Morgan having amended his answer so as to allege constructive trust. And it is also strengthened by the further evidence tending to show that W.G. Weston cared for the father and mother and there seems to have been a family undertaking that the lands were to be his without question and that R.F. Weston was to get the personal property, which he did get, and leave the county.
In addition to the general finding above made, the testimony showed certain additional facts as to the lands in Spartanburg County containing 147 acres. These lands were claimed both by plaintiff and defendants under a deed from James McMakin to Weston on July 20, 1887.
The original deed was introduced in evidence and upon a careful examination, under a magnifying glass, shows that the name of the grantee had been tampered with, but that it had been originally written William G. Weston. In addition to this, Mr. T.G. Davis, Cashier of the Peoples National Bank of Greenville, S.C. was offered as an expert, and, after careful examination, under a magnifying glass, testified that in his opinion the letter tampered with was a "G" and not a "T." Plaintiffs, although having on account of the adjournments of the reference had ample opportunity to reply to this testimony, made no effort to do so.
Another significant fact is that the McMakin deed to the Spartanburg lands was recorded in Spartanburg County on February 14, 1906, in Book 4-B, page 689. The testimony conclusively shows that there was never any alteration of this record and the fact that the record was never altered is most strongly corroborative of the fact that the deed was originally to William G. Weston. I, therefore, find as a matter of fact that the McMakin deed to the lands in Spartanburg County was originally made to William "G." Weston and not William "T." Weston, and was so recorded. It must follow, therefore, necessarily as a conclusion of law that the defendants who claim the Spartanburg lands have a perfect record title to the lands as against plaintiff's or anyone else, and that they are the fee-simple owners of the same and neither the plaintiff nor William G. Weston has any interest therein.
There are other reasons, however, why the defendants claiming title to the Spartanburg lands must prevail in this action. Defendants claim through William G. Weston under a mortgage executed by him to J.C. Wall on the 8th of March, 1910, recorded in Spartanburg County in Book 72, page 156. This mortgage covers the entire tract of 147 acres and in the description refers to a plat of Edwards, recorded in Plat Book 2, page 36, which plat has been referred to above. Subsequently, an action was brought in the Court of Common Pleas for Spartanburg County to foreclose this mortgage, in which action default was made by William G. Weston and a decree of foreclosure and sale was signed by the Court on November 11, 1912. Under this decree, deeds were made by the master to parties under whom these defendants now claiming title to the Spartanburg lands claim. These deeds were made on December 7, 1912, January 15, 1913, and June 6, 1916. The grantees immediately went into possession of the lands which were conveyed to them and either they or their successors are now in such possession. It will be seen that the last deed — that of Lanham to Gentry on June 6, 1916 — was made more than ten years prior to the commencement of this action and the testimony shows that the grantees, and those under whom they claim, have occupied the land in open, adverse and hostile possession, claiming it as their own for more than ten years prior to the commencement of this action.
From the facts as found in this report, even if the deed had been originally executed to William T. Weston and there had been a fraudulent alteration so as to change the name to William G. Weston, this would not entitle the plaintiffs to prevail in this action for the following reasons:
(1) As previously found in this report, the evidence shows that William G. Weston has occupied this land adversely certainly since 1905, more than twenty years prior to the commencement of this action. After twenty years' possession, there is presumption of ouster and presumption of a grant. Burnett v. Crawford, 50 S.C. 161, 27 S.E., 645; Powers v. Smith, 80 S.C. 110, 61 S.E., 222.
(2) William G. Weston having held adversely, certainly as the part of the lands, for the full period of ten years, obtained himself a good title by adverse possession, which inured to the benefit of the successors in title, thereby perfecting their title. Green v. Cannady, 71 S.C. 317, 51 S.E., 92.
(3) Regardless of the possession of William G. Weston, certainly when he executed the mortgage to Wall, which mortgage was foreclosed and the purchasers thereunder took possession, this constituted ouster. Sudduth v. Sumeral, 61 S.C. 276, 39 S.E., 534, 85 Am. St. Rep., 883; McIntosh v. Kolb, 112 S.C. 1, 99 S.E., 356.
This being true, the purchasers, under such sale, having held adversely for more than ten years thereafter, took title in fee by such adverse possession.
(4) The purchasers, at the master's sale, had the right to tack their possession to that of William G. Weston to make up the twenty year possession, which creates the presumption of a grant. Lewis v. Pope, 86 S.C. 285, 68 S.E., 680; Miller v. Cramer, 48 S.C. 291, 26 S.E., 657.
I, therefore, find that there was no fraudulent alteration in the original deed from McMakin to Weston, and that the defendants claiming the Spartanburg lands have a good record title to those lands, and, further, that even though the deed does contain a fraudulent alteration, their title is good in fee by adverse possession and the Statute of Limitations.
I, therefore, recommend that the complaint be dismissed as to all the defendants, with costs.
DECREEThe above-stated cause comes before me on approval by the plaintiff from the report of the master for Greenville County. The complaint, as originally filed, was one for partition of two tracts of land, one containing two hundred ninety-two (292) acres and located in Greenville County, the other containing one hundred forty-seven (147) acres, located in Spartanburg County. The plaintiff claims a one-half undivided interest in these two tracts of land by reason of the following facts:
In July, 1898, plaintiff's father, W.T. Weston, died intestate, leaving as his sole heirs-at-law, his widow, Mrs. J.J. Weston, and three children, W.G. Weston, R.F. Weston and Maggie Weston. During the year 1899, the widow, Mrs. J.J. Weston, died intestate, and left the three children above named as her sole heirs-at-law. In 1915, Maggie Weston died intestate and left as her sole heirs-at-law her two brothers, W.G. Weston and R.F. Weston. The entire interest of W.T. Weston, deceased, was thereby lodged in his two surviving sons, W.G. Weston and R.F. Weston. The plaintiff, R.F. Weston, claimed an undivided one-half interest in said property and upon investigation learned that the defendants above named claimed title and ownership of the entire interest in said land by reason of certain deeds and transfers made to them by and through W.G. Weston. The defendants answered the complaint and claimed title in themselves and set up the defense of adverse possession against the plaintiff, for twenty years and for ten years under color of title. They claimed ouster and some of them offered the defenses of estoppel and laches, family agreement and resulting trust.
Although the action was commenced as a suit in partition, it very promptly developed into a suit to try title and no testimony was taken on the partition issue other than as was necessary to try the action of title and ownership between the plaintiff and the various defendants.
A mass of testimony was taken and many exhibits offered, all of which were transmitted to this Court by the Master in making his report. It is well to state at this stage that the defendant Edward L. Henderson has established to the satisfaction of all parties his claim to sixteen and two-thirds acres of the Spartanburg tract of land now standing in his name, and the plaintiff concedes the validity of his title.
The Master reported against the interest of the plaintiff throughout and sustained the defenses of the various defendants. He therefore recommended that the complaint be dismissed, and this appeal is from his report.
The testimony abundantly satisfies me that both tracts of land were originally owned by and stood in the name of W. T. Weston, who acquired these lands by deeds in 1886 and 1887. After his death, the original deeds were in the possession of W.G. Weston, one of which, that for the Spartanburg County tract, had not been recorded. By a close inspection of the original deeds, and especially by the use of a magnifying glass which I have used, it appears conclusively that the deeds to both tracts of land have been tampered with and that the "T," the middle initial of the grantee, W. T. Weston, was changed to a "G," making the deeds read to the son, W.G. Weston. It further appears that the original deed to the Greenville County land was recorded shortly after its execution and before W.T. Weston's death, in the Register's office, and an inspection of the record of this deed likewise shows that the middle initial has been changed. The party who made the change did not, however, change the index, and the index of the Greenville County property still stands in the name of W.T. Weston. The record in Spartanburg is regular and stands in the name of W.G. Weston, both as to index and record. However, the Spartanburg deed was not recorded until long after its execution and after it had fallen into the hands of W.G. Weston, and the original Spartanburg deed shows that it also has been tampered with. I therefore conclude that the middle initial in the deed to the Spartanburg tract was changed from "T" to "G," and was recorded in the name of W.G. Weston after the unlawful change had been made.
I am convinced and find that W.T. Weston was the owner of the lands in question at the date of his death, and that the original deeds were fraudulently altered by W.G. Weston or someone else so as to change the middle initial "T" to "G." Numerous circumstances support this finding, including not only plaintiff's testimony but that of defendant's witnesses, and the documentary evidence, including the original tax receipts offered in evidence showing that W.T. Weston and the estate of W.T. Weston paid taxes on these lands in both counties for many years.
It further appears that at the request of W.G. Weston a plat of both tracts of land which adjoin was made by the surveyor and was recorded in Spartanburg County only. This fact, along with other facts such as the giving of mortgages by W.G. Weston, was relied upon by the defendants in order to show that the plaintiff R.F. Weston was ousted of his possession by his brother, W.G. Weston. I find that all of these facts under the circumstances shown are totally insufficient to prove ouster and that the defense of the defendants fails both on the question of law and the question of fact. In addition to this, the title under which the defendants claim is traced back to the deeds originally standing in the name of W.T. Weston, and which, as before stated, were altered and tampered with by the erasure of the middle initial and the insertion of a "G" instead of the original "T." The defendants, therefore, cannot claim that these fraudulent deeds constituted either a basis of ouster or color of title, but if they did constitute such a basis, sufficient time did not elapse, and the nature of defendant's possession was not sufficient to give defendants good title.
The defendants endeavor to show a family agreement by which W.G. Weston was to take the real estate and R.F. Weston was to take the personal property. This testimony fails utterly to establish any such agreement, and this defense is not considered as valid.
Some of the defendants further claim, by a proposed amendment to their answers, which amendment was not offered until the close of the case before the Master, that W. G. Weston paid the purchase price for the land in question, and that even though the deeds were taken in the name of W.T. Weston, yet a resulting trust arose thereby in favor of W.G. Weston and that W.T. Weston held the property in trust for his son, W.G. Weston. This proposed amendment was treated as allowed by the Master in his report, but the testimony shows no such trust. In fact, it shows the contrary of the question. The testimony of witnesses offered by the defendants themselves defeats this claim. I find that the evidence does not sustain this defense.
Several of the defendants endeavor to show twenty years adverse possession against the plaintiff. None of the defendants made out this affirmative defense by the required weight of the testimony. The necessary elements of such defense is actual possession or occupancy, and I find that all of the defendants have failed in their defense of twenty years adverse possession. The testimony shows that the plaintiff left these wild mountain lands in charge of his brother, W.G. Weston, who did not reside thereon, with permission to cut wood off of them, and W.G. Weston therefore had the right to exercise ownership over the lands in keeping with his interests therein, and I find that no act of his constituted ouster, or that he held said lands adversely to the interests of his brother, R.F. Weston.
Further, all of the defendants have set up the defense of ten years adverse possession and under color of title. The close investigation of all the testimony and evidence does not show that any of the defendants have made out this defense by the required weight of the testimony except the defendant Ed. L. Henderson, and the plaintiff concedes that as to the 16 2/3 acre tract acquired by him from W. G. Weston, he has acquired title by possession. None of the other defendants have shown ten years continuous possession in themselves or those through whom they claim back to and including W.G. Weston.
The defendant J.J. Gentry endeavored to show that he went into possession prior to the date of his deed and thereby claimed ten years possession prior to the commencement of this action. The evidence indicates that it was a year after the execution of Gentry's deed before he exercised any material rights of ownership over the lands in question, or any part thereof. The evidence shows that he resided on the adjoining tract, and I find that he failed to make out the defense of ten years possession by the weight of the testimony required. In fact, the proof offered by him on this point is too weak to be conclusive or to even be persuasive, and I find as a matter of fact that this defense has failed.
Certain authorities are referred to now in support of the positions taken in this decree and they are set out under proper headings which follow:
AS TO FRAUDULENT DEEDSIn the case of Garvin v. Garvin, 40 S.C. 435, 19 S.E., 79, 84, the Court approved a portion of the charge, dealing with a fraudulent deed, which was given as follows: "In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as `color of title,' until in some way or other the judgment creditor was affected with notice of that fraud."
See, also, Powell v. Pearlstine, 43 S.C. 403, 21 S.E., 328.
AS TO ADVERSE POSSESSION"There are numerous instances wherein the occupancy of land with no original intent to claim adversely subsequently became, in fact, hostile; but their existence does not affect the principle that an adverse possession must be hostile from the beginning; because where the original entry is not adverse, it does not become so, nor does the statute begin to run against the rightful owner, until the adverse claimant disavows the idea of holding for, or in subserviency to, another, and actually sets up an exclusive right in himself, by some clear, positive and unequivocal act. Mere declarations will not suffice. Nor, in such cases, is the mere intent to hold adversely of any consequence. The character of the possession must become hostile in order that it may be deemed to be adverse. And this hostility must continue for the full statutory period either by the original disseisor or those who claim to hold under him." 1 R.C.L., 704.
Section 320 of the Code of Volume 1, Code of 1922, reads as follows: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for ten years before the commencement of such action."
In the case of Love v. Turner, 71 S.C. 322, 51 S.E., 101, 104, the Court laid down the following rule: "If plaintiff had the legal title, he was presumed to be possessed of the land within the 10 years, and it was necessary to rebut this presumption by proof of continuous adverse possession of some other person for 10 years. Code Civ. Proc., 1902, §§ 99, 101; Garrett v. Weinberg, 48 S.C. 28, 26 S.E., 3."
In the case of Lewis v. Pope, 86 S.C. 285, 68 S.E., 680, the Court said, on page 683: "Before one can succeed in holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely. He cannot succeed in such claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years."
Two or more unrelated holdings cannot be united in the last occupant to make up a holding of ten years possession. Goings v. Mitchell, 110 S.C. 380, 96 S.E., 612; Turpin v. Sudduth, 53 S.C. 295, 31 S.E., 245, 306; Epperson v. Stansill, 64 S.C. 485, 42 S.E., 426.
The plaintiff claiming title by adverse possession must show the extent of his possession. Cantey v. Platt, 2 McCord, 260.
The burden of proof of adverse possession is on the one relying thereon. Gourdine v. Fludd, Harp., 232.
Occasional and temporary use or occupation does not constitute adverse possession. Atlantic Coast Line v. Searson, 137 S.C. 468, 135 S.E., 567.
"Adverse possession is an affirmative defense." Suber v. Chandler, 36 S.C. 344, 15 S.E., 426, 429.
And to constitute adverse possession it must be open, notorious, exclusive, hostile, continuous, and unbroken for the whole period. Hill v. Saunders, 6 Rich., 62; Ouzts v. McKnight, 114 S.C. 303, 103 S.E., 561; Clary v. Bonnett, 114 S.C. 459, 103 S.E., 779, 1 R.C.L., 700-716.
Where the testimony as to adverse possession is susceptible of but one inference, the question is one of law for the Court. McIntosh v. Kolb, 112 S.C. 2, 99 S.E., 356.
Successive possessions for less than the statutory period cannot be tacked, unless by descent cast. King v. Smith, Rice, 10; Porter v. Kennedy, 1 McMul., 354; Garrett v. Weinberg, 48 S.C. 28, 26 S.E., 3.
Occasional or temporary use or occupation is not sufficient. Jackson v. Lewis, Cheves, 259; McCullough v. Wall, 4 Rich., 68, 53 Am. Dec., 715.
In an action to recover land where plaintiffs have proven a good legal title in themselves from their ancestor under the direct provisions of Code of Civil Procedure, 1912, § 126, it will be presumed that they had possession within the period of limitations, and the possession of defendants was in subordination to the legal title, casting the burden on the defendants to show their possession was adverse. Stokes v. Murray, 102 S.C. 395, 87 S.E., 71. To the same effect, Love v. Love, 57 S.C. 530, 35 S.E., 398.
A party claiming title to land by adverse possession must show clearly, not only that his possession was adverse, but that it was for the full statutory period. If there be doubt on either of these points, the possessory claim must yield to the legal title. Abel v. Hutto, 8 Rich., 42.
AS TO OUSTERIn the case of Whitaker v. Jeffcoat, 128 S.C. 406, 122 S.E., 495, on page 496, the Court said: "The presumption is that the possession of a tenant in common is for the benefit of all, and before the statute can begin to run it must appear that the holding tenant claimed the property as his own and has in unequivocal terms so notified the others." Villard v. Robert, 1 Strob. Eq., 393; Gray v. Givens, 2 Hill Eq., 511; Burnett v. Crawford, 50 S.C. 161, 27 S.E., 645; McGee v. Hal, 26 S.C. 179, 1 S.E., 711; Jefcoat v. Knotts, 13 Rich., 50; Gray v. Bates, 3 Strob., 498; Metz v. Metz, 48 S.C. 472, 26 S.E., 787; Coleman v. Coleman, 71 S.C. 518, 51 S.E., 250; Powers v. Smith, 80 S.C. 110, 61 S.E., 222.
In the case of Harman v. Gartman, Harp., 430, 18 Am. Dec., 659, the giving of a lease by one joint tenant was held to be no evidence of ouster against the other tenant. In Jefcoat v. Knotts, 13 Rich., 50, the Court approves the following definition: "Ouster is defined as the actual turning out or keeping excluded a party entitled to possession of any real property."
The other defenses interposed by the defendants have been hereinbefore disposed of and should not require any citation of authority.
The exceptions of the Master's report are sustained and the plaintiff, R.F. Weston, is declared to be the owner in fee-simple of a one-half undivided interest in and to the lands described in the complaint, except the tract of land of 16 2/3 acres owned by Ed L. Henderson, above mentioned.
The issue of title having been decided in favor of the plaintiff, which gives him a one-half interest with the various defendants in said lands, it is proper that the lands be sold and the proceeds paid to the parties in interest as their respective rights have been adjudicated in this decree, after first paying the costs and expenses in this action, which shall be proportionately borne. I find from the testimony that the 38.93 acres, more or less, of the Greenville tract is owned jointly by the plaintiff and the defendant Julian Calhoun, and the remaining portion of the Greenville tract, which contains 292 acres, more or less, is owned jointly by the plaintiff and the defendant J.E. Morgan. That as to the Spartanburg tract, I find that 89.43 acres thereof is owned jointly by the plaintiff and the defendant B.W. Montgomery; that nine-tenths of an acre, with certain water rights, is owned jointly by the plaintiff and the Commissioners of Public Works of the Town of Landrum, S.C. and that the remaining portion of said tract of land, which contains 147 acres, more or less, is owned jointly by the plaintiff and the defendant J.J. Gentry, except the 16 2/3 acre tract which is owned by the defendant Ed L. Henderson, he having established title thereto.
It is therefore ordered, adjudged and decreed that the exceptions to the Master's Report be and the same are hereby sustained.
It is further ordered, adjudged and decreed that the plaintiff, R.F. Weston, be and he is hereby declared to be the owner in fee-simple of a one-half undivided interest in the lands described in the complaint, except the Henderson tract of 16 2/3 acres, which have been adjudicated above.
It is further ordered, adjudged and decreed that the premises described in the complaint, with the exception of the Henderson tract, be sold by the Master for Greenville County on sales day in October, 1928, or on some convenient sales day thereafter, within the legal hours of sale and after due advertisement, at public outcry to the highest bidder for cash; that each tract in which the plaintiff and the various defendants are interested be sold separately. That the proceeds arising from said sale be applied by the Master: First, to the payment of the costs and expenses of this suit, and the remaining portion to be divided equally between the plaintiff herein and the various defendants as set forth in this decree, who are adjudged to be the owners of the other one-half undivided interest.
Messrs. B.F. Martin and Jesse W. Boyd, for J.E. Morgan, appellant, cite: Deed with fraudulent alterations would be ample as color of title: 86 S.C. 499; 68 S.E., 664; 2 McMul., 495; 1 R.C.L. 711; 129 S.C. 536; 125 S.E., 134; 94 S.C. 78; 87 S.C. 388; 2 C.J., 168, 169; 110 S.C. 438. Unrecorded instrument will show color of title: 2 C.J., 181-2; 1 Bailey, 37. Adverse possession: 2 Hill, 173. Declarations of sole ownership admissible to show intent to hold adversely: 70 A.S.R., 190; 138 S.E., 824; 61 S.C. 291; 3 McCord, 162; 3 Strob. Law, 498. Sufficiency of plat as color of title: 3 Strob. Law, 498; 93 S.C. 193; 138 S.C. 41; 136 S.E., 17. Twenty years silence after recording of papers raises presumption of acquiescence: 9 Rich. Eq., 155; 32 S.C. 249; 148 S.E., 704; 26 S.C. 247; 61 S.C. 276; 112 S.C. 1. When ouster may be presumed: 2 Rich., 447. Alterations in deed does not raise presumption of fraud: 2 Cyc., 233, 234; 12 Rich., 387; 14 S.C. 358; 58 S.C. 178. Alterations on the record: 2 Cyc., 242; 113 S.C. 280. Adverse possession: 80 S.C. 110; 88 S.C. 184 123 S.C. 61; 128 S.C. 406; 137 S.C. 468; 134 S.E., 867. Ouster: 38 Cyc., 25, 23, 24, 26 S.C. 247; 61 S.C. 291; 112 S.C. 1; 70 A.S.R., 190; 138 S.E., 824; 81 S.C. 347; 50 S.C. 168; 93 S.C. 190; 135 S.E., 573. Color of title: 148 S.E., 190.
Messrs. J.B. Jester, Blythe Bonham and Lyles, Daniels Drummond, for appellants, J.J. Gentry et al., as Commissioners of Public Works, and B.W. Montgomery, cite: When possession may be tacked: 86 S.C. 395; 48 S.C. 291. Presumption of ouster and of grant: 50 S.C. 161; 80 S.C. 110; 1 Hill Chancery, 376. Purchaser from grantor who had acquired good title will be protected: 718 S.C. 317. Messrs. Mann Plyler and Dean, Cothran Wyche, for respondent, cite: Supreme Court will not review facts in law cases: 23 S.C. 24; 41 S.C. 50; 19 S.E., 125; 45 S.C. 107; 22 S.E., 730; 45 S.C. 494; 23 S.E., 515; 78 S.C. 457; 59 S.E., 70; 82 S.C. 40; 62 S.E., 254; 85 S.C. 296; 67 S.E., 306; 114 S.C. 494; 104 S.C. 184. Fraudulent deed will not constitute color of title: 40 S.C. 435; 19 S.E., 79. Possession of one tenant in common is possession of all: 128 S.C. 406; 122 S.E., 495; 26 S.C. 179; 1 S.E., 711; 80 S.C. 110; 150 S.C. 351; 148 S.E., 190; 1 R.C.L., 704. No adverse possession shown: 78 S.C. 513; 71 S.C. 322; 51 S.E., 101; 86 S.C. 285; 68 S.E., 680. Unrelated holdings cannot be united to make up adverse possession: 110 S.E., 380; 86 S.E., 612; 53 S.C. 295; 31 S.E., 245; 64 S.C. 485; 42 S.E., 426. Burden of proof on party asserting adverse possession: 2 McCord, 260; Harper, 232; 36 S.C. 344; 15 S.E., 426. Adverse possession must be hostile, continuous and unbroken: 6 Rich., 62; 114 S.C. 303; 103 S.E., 779; 1 R.C.L. 700-716; Rice, 10; 1 McMul., 354; 48 S.C. 28; 26 S.E., 3; Chev., 259; 4 Rich., 68; 102 S.C. 395; 87 S.E., 71; 57 S.C. 530; 35 S.E., 398; 8 Rich., 42; 86 S.C. 285 68 S.E., 680.
September 29, 1931. The opinion of the Court was delivered by
This cause was first heard in this Court at the October, 1929, term. The judgment of the lower Court was affirmed, the opinion being rendered by the late Mr. Chief Justice Watts.
The appellants, in a very strong petition for rehearing, so earnestly insisted that the judgment of this Court was erroneous, that the Court, with the desire to decide the case justly under the law, granted the petition. The case was accordingly reargued at the June, 1930, term.
We have given the record in the case long and careful study. We cannot get away from the conclusion that the case is one at law. Under the provisions of the Constitution, we cannot reverse the findings of fact of a Circuit Judge in a case at law if he had before him any evidence whatever to support his findings. There was evidence to support the findings of Judge Mauldin, and we cannot reverse the judgment he rendered.
We approve and adopt the opinion of the late distinguished Chief Justice as the opinion of this Court, which was as follows:
"Mr. Chief Justice Watts: An action was commenced by the plaintiff against the defendants in the Court of Common Pleas for Greenville County in November, 1926, for the partition of two tracts of land, one containing 292 acres and being situate wholly in Greenville County, the other containing 147 acres and being situate wholly in Spartanburg County. These lands were contiguous, the 292 acres in Greenville County being known as the Earle lands and passed from a conveyance recorded in Greenville County in Book TT, at page 141; the 147 acres in Spartanburg County being known as the McMakin lands and being described in a deed recorded in Spartanburg County in Book 4-B, at page 689.
"While only one action is brought, there are in fact two separate titles and two separate sets of claimants so far as defendants are concerned. Most of the Greenville County lands are claimed by the defendants J.E. Morgan, and most of the Spartanburg County lands are claimed by the defendants J.J. Gentry and B.W. Montgomery. The remaining portion of the Greenville County lands were claimed by some of the defendants, but they have not appealed, and part of the Spartanburg County lands were claimed by the defendant, J.E. Henderson, and the plaintiff admitted that he had established good title, and hence this appeal does not involve the portion claimed by him.
"The defendants filed separate answers asserting title in themselves. The defendant Gentry acquired his title from the Master in a foreclosure, the deed to him being executed June 6, 1916, which was a foreclosure against W.G. Weston of a mortgage made by him to J.C. Wall, the mortgage being dated March 8, 1910, and covering the entire 147 acres of land. The defendant Morgan acquired his title by deed from J.W. Norwood, November 1, 1919; Norwood having bought at Master's sale in 1913, which sale was in foreclosure of a mortgage made by W.G. Weston to B.M. Shuman, attorney, April 3, 1911. The Norwood title covers 203 acres; Morgan acquired the balance of the tract by deed from R.J. McClure, dated March 9, 1919, McClure having acquired title deed from W.G. Weston, dated July 2, 1908, and recorded January 18, 1912. All these deeds and mortgages purported to convey the entire title to the lands described herein in fee-simple, with general warranty clauses.
"W.T. Weston died intestate in July, 1898, leaving as his sole heirs at law his widow and three children. His widow died intestate in 1899, leaving as her heirs at law three children, and one of the children, a daughter, died intestate in 1915, leaving as her heirs at law her two brothers, R. F. Weston and W.G. Weston. Plaintiff seeks recovery of an undivided one-half interest in these lands by inheritance from his father, mother, and sister.
"The case was by a consent general order of reference referred to the Master of Greenville County, who after holding numerous references filed his report on. April 7, 1928, finding that the defendants were the owners in fee of both the Greenville and the Spartanburg lands; that plaintiff had no interest therein and recommended that the complaint be dismissed with costs.
"To this report plaintiff filed exceptions, and on August 2, 1928, the Circuit Judge filed his decree overruling the Master's report and finding that the plaintiff is the owner of a one-half interest in the lands described in the complaint and is entitled to partition of the said lands. In due time notice of appeal was served and exceptions taken.
"Judge Mauldin's decree states the facts and will be reported.
"The suit was for partition, but the appellants and respondents each claimed title in themselves and agreed to refer the case to the Master. On coming in of his report the Circuit Judge heard the case, neither side asked for a jury. His Honor committed no error when he tried the title for the suit resolved itself into a trial of title. This Court has repeatedly held in a law case that we will not disturb a finding of fact by a Circuit Judge if there is any testimony to sustain it.
"The constitutional provision, Article 5, § 4, Constitution 1895, is as follows: "The Supreme Court shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus and other original and remedial writs. And said Court shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law, except in chancery cases where the facts are settled by a jury and the verdict not set aside, and shall constitute a Court for the correction of errors at law under such regulations as the General Assembly may by law prescribe.'
"In the case of Metze v. Charlotte, Columbia Augusta R.R. Co., 23 S.C. 1, 24, the Supreme Court of our state lays down unqualifiedly the rule that where a law case has been passed on by a trial Judge, the Supreme Court will not review the facts. The Supreme Court bases its holding on the constitutional provision relating to its powers in law cases. The Court has the following to say: `If the jurisdiction of the Supreme Court in appeals was defined only in the sections of the code which we have cited, unaffected by the provisions of the Constitution, as is the case with reference to the jurisdiction of the Circuit Court to review the report of a referee, then such jurisdiction would not be limited to the correction of errors of law only, but would extend to the correction of errors of fact also by the express terms of those sections; but as the Constitution, which is of superior authority, does place such a limitation upon the jurisdiction of the Supreme Court, the comprehensive language of those sections, when applied to the Supreme Court, must necessarily be narrowed down to the limits fixed by such superior authority.'
"`A finding of fact by a Circuit Judge concerning an occurrence in his presence will not be disturbed on appeal.' Younger v. Massey, 41 S.C. 50, 19 S.E., 125.
"`Findings of fact by the Court without a jury are not subject to exception or review.' Peeples v. Cummings, 45 S.C. 107, 22 S.E., 730; Holtzclaw v. Green, 45 S.C. 494, 23 S.E., 515.
"`An action to recover possession of a tract of land being an action at law, and the issue of title having been submitted to the Court without a jury, questions of fact must be accepted as finally settled, since the Supreme Court has no jurisdiction to review issues of fact in a law case.' Gunter v. Fallaw, 78 S.C. 457, 59 S.E., 70.
"The foregoing case is very similar to the case at bar. The issue of title was submitted to the trial Court without a jury and the Supreme Court refused to review the findings on the facts.
"`On appeal from the Probate Court to the Circuit Court on probate of a will, the cause must be regarded as a law case, the issue of will or no will, both as to real and personal property, being legal in its nature, and the Circuit Court's findings of fact are not reviewable by the Supreme Court.' Thames v. Rouse, 82 S.C. 40, 62 S.E., 254.
"In the case of Vlasservitch v. Railway Co., 85 S.C. 296, 67 S.E., 306, the Circuit Judge modified the appeal from the Magistrate's Court and made certain findings on facts. On the appeal to the Supreme Court this Court stated at page 296 of 85 S.C. 67 S.E., 306, 308:
"`This is an action at law, and this Court has not the power to review the facts, except for the purpose of determining whether there is any testimony whatever to sustain the findings of the Circuit Judge. Jenkins v. Ry., 73 S.C. 289, 53 S.E., 480, 481.
"`If, therefore, the facts in this case are susceptible of more than one inference, the conclusion of the Circuit Judge necessarily involves the finding of such facts in favor of the plaintiff, and they cannot be reviewed.'
"`In an action at law, though tried by the Court, the appellate Court cannot review the evidence, unless it was susceptible of but one inference, or unless the decision of questions of fact was influenced or controlled by an error of law.' Dillon County v. Lane, 114 S.C. 494, 104 S.E., 184.
"The defendants' exceptions complaining of error as to the trial Court's findings on the facts should be overruled; this being a case at law, and the only contested issue being that of title or no title. Practically all of the defendants' exceptions came within this classification. In short, the defendants are asking the Court to review and alter the findings of the trial Court on the facts. Under the foregoing authorities defendants are not entitled to demand of this Court a departure from this well-established rule of law.
"We agree with the Circuit Judge that there is no evidence of ouster. The Circuit Judge found that there was forgery and material alteration in the deed.
"In the case of Garvin v. Garvin, 40 S.C. 435, 19 S.E., 79, 84, the Court approved a portion of the charge, dealing with a fraudulent deed which was given, as follows: `In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as "color of title," until in some way or other the judgment creditor was affected with notice of that fraud.'
See, also, Powell v. Pearlstine, 43 S.C. 403, 21 S.E., 328.
"There is a very recent case by our Supreme Court dealing with the question of possession and ouster; it is conclusive of any argument on these questions under the facts in this case. This case of Whitaker v. Jeffcoat, 128 S.C. 406, 122 S.E., 495, reconciles the various other cases in this State on the subject and lays down the rule in simple language applicable to tenants in common. On page 496, of 122 S.E., the Court says:
"`The presumption is that the possession of a tenant in common is for the benefit of all, and before the statute can begin to run it must appear that the holding tenant claimed the property as his own and has in unequivocal terms so notified the others.
"` Villard v. Robert, 1 Strob. Eq., 393; Gray v. Givens, 2 Hill Ek., 511; Burnett v. Crawford, 50 S.C. 161, 27 S.E., 645; McGee v. Hall, 26 S.C. 179, 1 S.E., 711; Jefcoat v. Knotts, 13 Rich., 50; Gray v. Bates, 3 Strob., 498; Metz v. Metz, 48 S.C. 472, 26 S.E., 787; Coleman v. Coleman, 71 S.C. 518, 51 S.E., 250; Powers v. Smith, 80 S.C. 110, 61 S.E., 222.'
"On the same page it will be observed that the defendant had had possession of the lands in question for more than twenty years, but it was of such nature that the Court did not recognize it as such adverse possession as is necessary to establish title. The Court says: 'His possession for more than 20 years is marked by only the slightest evidence of proprietorship. He cultivated the land, it is true, and used the proceeds; but, beyond the erection of a small cotton house, his expenditures on improvements or other acts indicative of ownership are nil.'
"At the bottom of page 495 of 122 S.E., the Court said: 'His only defense against the claims of his own brothers and sisters and their children is that he acquired title by adverse possession; an unconscionable claim, that the Court should not sustain, except upon a clear preponderance of the evidence.'
"In the case of McGee v. Hall, 26 S.C. 179, 1 S.E., 711, on page 716 of the S.E. Reporter it will be observed that sixteen years of adverse possession was not regarded as sufficient by one tenant in common to enable the defense of ouster to be interposed, and the case of Gray v. Givens is cited. The defendants have cited this case, and a close reading will show that it conforms to our conclusions.
"Further the defendants have freely cited Powers v. Smith, 80 S.C. 110, 61 S.E., 222, the syllabus to that is as follows: 'In action by tenants in common possession for twenty years in face of notorious and exclusive possession by other tenants with the use and exercise of authority incident to exclusive and adverse ownership presumes ouster, and to acquire such possession heir may tack his possession to that of ancetor.'
"This case is not at variance with plaintiff's contention that there was no ouster in the Weston case since in the Powers case the Court said: `The possession must be openly and notoriously hostile and adverse.'
"The very recent case of Clarke v. Johnson, 150 S.C. 351, 148 S.E., 190, decided by the Supreme Court of this State on May 13, 1929, deals with the question of ouster and adverse possession where there is tenancy in common, a state of facts very similar to those in the case at bar. We shall refer more fully to the Johnson case under the head of adverse possession, hereinafter discussed. The Johnson case was a unanimous opinion, and the syllabus on ouster is as follows: 'Possession of cotenant can never ripen into adverse title without clear evidence of ouster, since presumption is that such possession is for benefit of all.'
"In the case of Love v. Turner, 71 S.C. 322, 51 S.E., 101, 104, the Court laid down the following rule: `If plaintiff had the legal title, he was presumed to be possessed of the land within the 10 years, and it was necessary to rebut this presumption by proof of continuous adverse possession of some other person for 10 years. Code Civ. Proc., 1902, §§ 99, 101; Garrett v. Weinberg, 48 S.C. 28, 26 S.E., 3.'
"In the case of Lewis v. Pope, 86 S.C. 285, 68 S.E., 680, the Court said on page 683: 'Before one can succeed in holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely. He cannot succeed in such claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years.'
"Two or more unrelated holdings cannot be united in the last occupant to make up a holding of ten years possession. Goings v. Mitchell, 110 S.C. 380, 96 S.E., 612; Turpin v. Sudduth, 53 S.C. 295, 31 S.E., 245, 306; Epperson v. Stansill, 64 S.C. 485, 42 S.E., 426.
"A plaintiff claiming title by adverse possession must show the extent of his possession. Cantey v. Platt, 2 McCord, 260.
"The burden of the proof of adverse possession is on the one relying thereon. Gourdine v. Fludd, Harp., 232.
"Occasional and temporary use or occupation does not constitute adverse possession. A.C.L.R. Co. v. Searson, 137 S.C. 468, 135 S.E., 567.
"`Adverse possession is an affirmative defense.' Suber v. Chandler, 36 S.C. 344, 15 S.E., 426.
"And to constitute adverse possession it must be open, notorious, exclusive, hostile, continuous, and unbroken for the whole period. Hill v. Saunders, 6 Rich. 62; Ouzts v. McKnight, 114 S.C. 303, 103 S.E., 561; Clary v. Bonnett, 114 S.C. 459, 103 S.E., 779; 1 R.C.L., 700-716.
"Successive possessions for less than the statutory period cannot be tacked, unless by descent cast. King v. Smith, Rice, 10; Porter v. Kennedy, 1 McMul., 354; Garrett v. Weinberg, 48 S.C. 28, 26 S.E., 3.
"Occasional or temporary use or occupation is not sufficient. Jackson v. Lewis, Cheves, 259; McCullough v. Wall, 4 Rich., 68, 53 Am. Dec., 715.
"`In an action to recover land, where plaintiffs have proved a good legal title in themselves from their ancestor, under the direct provisions of Code Civ. Proc., 1912, § 126, it will be presumed that they had possession within the period of limitations, and the possession of defendants was in subordination to the legal title, casting the burden on defendants to show that their possession was adverse.' Stokes v. Murray, 102 S.C. 395, 87 S.E., 71.
"To the same effect, Love v. Love, 57 S.C. 530, 35 S.E., 398.
"`A party claiming title to land by adverse possession, must show clearly, not only that his possession was adverse, but that it was for the full statutory period. If there be doubt on either of those points, the possessory claim must yield to the legal title.' Abel v. Hutto, 8 Rich., 42.
" Lewis v. Pope, 86 S.C. 285, 68 S.E., 680, 683, wherein the Court states: `Before one can succeed in holding lands under a claim of adverse possession, he must prove that he has been in possession for 10 consecutive years, claiming it openly, notoriously, and adversely. He cannot succeed in such claim by living on another tract and cultivating for a few years a small patch on the tract he claims, or by going on such tract and sometimes cutting wood or timber, and hauling it off for use on the tract on which he lives, but he must show that he has been doing that for 10 consecutive years.'
"In Bradley v. Calhoun, 125 S.C. 82, 117 S.E., 811, 815, the Court said: "The principle is just and well-established that, where one's possession was begun in privity with or in subservience to the title of another, a quasi fiduciary relation is established, and, before a foundation can be laid for the operations of the statute of limitations or the defense of adverse possession by the acquisition of an outstanding title, a clear, positive, and continued disclaimer of the title under which he entered and the assertion of an adverse claim must be brought home to the other party. Until the trust is openly repudiated, the cestui que trust may rely upon the integrity of the trustee without endangering his right by lapse of time.'
"In Sudduth v. Sumeral, 61 S.C. 288, 39 S.E., 534, 539, 85 Am. St. Rep., 883, the Court said: `It is quite true that, if a person goes into possession of a tract of land as a tenant in common with another, no length of such possession can give him a title by the statute of limitations against his co-tenant, for the very obvious reason that his possession cannot be adverse to his co-tenant until an ouster is established.'"
The judgment of this Court is that the judgment below be, and the same is hereby, affirmed.
MESSRS. JUSTICES STABLER and CARTER concur.
This action was instituted in November, 1926, by the plaintiff R.F. Weston, a son of one W.T. Weston, against the defendants, who claim title under one W.G. Weston, another son of W.T. Weston, for the partition of two tracts of land alleged to have belonged to W.T. Weston at the time of his death in 1898. One of the tracts containing 292 acres lies in Greenville County and is claimed by the defendant J.E. Morgan; the other tract containing 147 acres lies in Spartanburg County and is claimed by the defendant J.J. Gentry.
It becomes necessary to treat these two tracts separately, as the issue of title was raised as to each in the suit for partition.
All issues of law and fact were referred to E. Inman, Esq., Master of Greenville County, who filed a report dated April 7, 1928, holding that the plaintiff had failed to establish the title asserted by him and recommending a dismissal of the complaint.
Upon exceptions to the Master's report, his Honor, Judge Mauldin, filed a decree dated August 2, 1928, reversing the Master's conclusions and decreeing a sale of both tracts for partition. From this decree the defendants have appealed.
THE SPARTANBURG TRACT
The defendant Gentry claims title to this tract under a deed from the Master of Spartanburg County, dated June 6, 1916 the sale having been made under a decree foreclosing a mortgage executed by W.G. Weston to J.C. Ward on March 8, 1910. He claims that W.G. Weston held title to the property under a deed from James McMakin to him, dated July 20, 1887, recorded in R.M.C. office of Spartanburg County, February 14, 1906, nineteen years after its execution, and eight years after the death of W.T. Weston, the father of W.G. Weston, the supposed grantee.
The plaintiff, R.F. Weston, brother of W.G. Weston and son of W.T. Weston, claims that the deed from McMakin to W.G. Weston is a forgery; that it was made to his father, W.T. Weston, and was fraudulently altered before its record by W.G. Weston, erasing the middle initial "T" in the name of the grantee wherever it appeared in the deed, and inserting the letter "G" in place of it.
An inspection of the original deed, which was before the Circuit Judge and has been submitted to this Court, convinced the Circuit Judge who so found, and has convinced me, that the charge of forgery has been sustained. It is not necessary to detail the unmistakable evidences of the alterations in the deed, as the fact has been so found by the Circuit Judge and it is the same as a finding of a jury in a law issue, not reviewable by this Court. While the case was originally one for partition, an equitable proceeding, it turned upon the issue of title which was asserted by both sides.
The basic conclusion of fact, therefore, is that the deed was executed and delivered to W.T. Weston. Upon his death intestate in 1898, he left as his heirs at law, the widow and three children, R.F. Weston, W.G. Weston, and a daughter who, with her mother, has since died intestate, casting the descent of the whole title upon the two sons, R.F. and W. G., one undivided half-interest each. The question is whether the defendant Gentry has acquired the interest of R.F. Weston; there is no question as to his acquisition of the interest of W.G. Weston.
So far as Gentry's claim to title, as a successor of W.G. Weston, is concerned, it cannot be sustained for the reason that the title of W.G. Weston originated in the alleged deed of McMakin which is shown to have been a forgery. Nor, for the same reason, can that deed be deemed color of title in W.G. Weston to give him constructive possession of the entire tract which could be tacked to the possession of Gentry in making out adverse possession under the statute; the stream is polluted at its source.
In Garvin v. Garvin, 40 S.C. 435, 19 S.E., 79, 84, the following charge by the Circuit Judge was approved by this Court: "In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as 'color of title,' until in some way or other the judgment creditor was affected with notice of that fraud."
The principle is thus clearly stated in the case of Livingston v. Peru Iron Co., 9 Wend. (N.Y.), 511: "A disseisin, it is said, may commence by force or fraud; an adverse possession may commence by force, but, I apprehend, not by fraud, as, for instance, under a deed obtained by fraud or by forgery. The person guilty of the fraud or forgery cannot rely upon such a deed as conveying a valid title; and the arguments which have gone the greatest length in favor of adverse possession, have proceeded on the ground that the possessor relied on his title, and believed the property which he possessed to be his own. A man may think himself the true owner of property in the possession of another, and may take forceable possession under claim of title; that is an adverse possession; but if, with a full knowledge that such property belongs to another, a person procures a forged deed, and enters under that, what is the quo animo? Is it an intent to enjoy his own, or to defraud another? And it has been often said and decided that the fact of possession and the quo animo the possession was taken, are the only tests. If the quo animo is a bona fide intention to enjoy his own property, that intent can never exist where the possessor knows the property is not his own. If by the quo animo is meant an intention to appropriate the property to his own use, right or wrong, then, indeed, is the possession of almost all intruders adverse."
See, also, 2 C.J., 190, citing Parker v. Waycross F.R. Co., 81 Ga. 387, 8 S.E., 871; Hunt v. Drunn, 74 Ga. 120; Hussey v. Moser, 70 Tex., 42, 7 S.W. 606.
As regards the Spartanburg tract, however, the claim of Gentry does not depend upon the validity of the title of W. G. Weston, nor upon the efficiency of that deed as color of title, nor upon the efficiency of certain acts of W.G. Weston alleged to constitute an ouster of the plaintiff, a tenant in common of the land with W.G. Weston. In addition to these matters, he contends that on June 6, 1916, he received a deed from the master of Spartanburg County, covering the tract in question which was sold by him under a decree of foreclosure in the case of J.C. Wall (or Ward, variously stated in the record for appeal), the mortgage being dated March 8, 1910, by W.G. Weston to Wall (or Ward), and that he has been in possession ever since. The present action was commenced in November, 1926, and I do not see how it is possible to escape the conclusion that Gentry's title has been perfected by the lapse of more than ten years. There can be no doubt but that the master's deed constituted color of title, 1 R.C.L., 715, in Gentry, and that this extended to the entire tract.
In 1 R.C.L., 727, it is said: "One who enters upon land under color of title is presumed to have entered in accordance therewith; and, therefore, his actual possession of a portion of the property will, by presumption of law, be constructively extended to the boundaries defined by his color of title, excepting in so far as the land so included is in the adverse possession of another." The author cites an array of cases in support of the text, including McColman v. Wilkes, 3 Strob., 465, 51 Am. Dec., 637.
The evidence is undisputed that Gentry went into possession, under his deed, actually cultivated a part of the land, and inclosed a large part of it under a wire fence.
It has been suggested by the respondent that the Circuit Judge has found as a matter of fact that Gentry has not had adverse possession of the land as the rules of law require, and that his conclusion, as a fact, is binding upon this Court. If he had found as facts that Gentry had not gone into possession, had not cultivated a part and inclosed another part. I think that the Court would be concluded from reviewing such facts; but as I view the decree upon this point there does not appear anything more than a conclusion of law from the undisputed facts, which presents an entirely different situation.
THE GREENVILLE TRACT
The defendant Morgan claims title to this tract under a deed from J.W. Norwood to him, dated November 1, 1919. Norwood held under a deed from the master of Greenville County to him, dated June 21, 1913, the sale having been made under a decree foreclosing a mortgage executed by W.G. Weston to B.M. Shuman, attorney, on April 3, 1911, recorded in RMC office of Greenville County, April 12, 1911. He claims that W.G. Weston held title to the property under a deed from W.R. Lipscomb to him dated September 15, 1886, recorded in RMC office of Greenville County, June 6, 1887.
The plaintiff claims that the deed from Lipscomb to W. G. Weston is a forgery; that it was made to his father W.T. Weston and was fraudulently altered before its record, by W.G. Weston, erasing the middle initial "T" in the name of the grantee wherever it appeared in the deed, and inserting the letter "G" in place of it, exactly the process invoked in the McMakin deed, above referred to.
An inspection of the original deed, which was before the Circuit Judge and has been submitted to this Court, convinced the Circuit Judge who so found, and has convinced me, that the charge of forgery has been sustained. It is not necessary to detail the unmistakable evidences of the alternations in the deed, as the fact has been so found by the Circuit Judge and it is the same as a finding of a jury in a law issue, not reviewable by this Court. While the case was originally one for partition, an equitable proceeding, it turned upon the legal issue of title which was asserted by both sides. It is of interest, however, to note the evidences of alteration which are so manifest that his Honor in my opinion could have reached no other conclusion. I refer to them in this branch of the case, and not in the other, for the reason that in that branch of the case the right of Gentry to recover upon the ground of adverse possession is so clear as to render a discussion of the other points in the case unnecessary; while in this branch, it appears necessary to discuss such other points.
Commencing with the indorsement of the deed: It appears to have been made by the draughtsman of the deed and unmistakably was at first written "W.T. Weston"; there appears an erasure of the top part of the "T," with nothing substituted therefor; in the premises there is a partial erasure of the initials "W.T.," which plainly show to have been originally so written, nothing substituted therefor; in the granting clause the name "W.T. Weston" appears plainly without any effort at erasure; in the habendum appears a manifest attempt to change the "T" into a "G"; in the warranty, the same appears; and in the renunciation of dower; in the record of the deed the letter "G" plainly appears to have been written over an erasure of some other letter at every place where the grantee's name appears; the index shows the grantee both in direct and indirect, as "W.T. Weston."
The basic conclusion of fact, therefore, is that the deed was executed and delivered to W.T. Weston. Upon his death intestate in 1898, he left as his heirs at law, the widow and three children, R.F. Weston, W.G. Weston, and a daughter who, with her mother, has since died intestate, casting the descent of the whole title upon the two sons, R.F. and W.G., one undivided half-interest each. The question is whether the defendant Morgan has acquired the interest of R.F. Weston; there is no question as to his acquisition of the interest of W.G. Weston.
So far as Morgan's claim to title, as a successor of W.G. Weston, is concerned, it cannot be sustained for the reason that the title of W.G. Weston originated in the alleged deed of Lipscomb which is shown to have been a forgery. Nor, for the same reason, can that deed be deemed color of title in W.G. Weston to give him constructive possession of the entire tract which could be tacked to the possession of Morgan in making out adverse possession under the statute; the stream is polluted at its source. See authorities cited above upon this proposition.
As regards the Greenville tract, the claim of Morgan does not depend upon the validity of the title of W.G. Weston nor upon the efficiency of that deed as color of title. Inasmuch, however, as the possession of Norwood under his deed from the master, dated June 21, 1913, continued to the date of Norwood's deed to Morgan, dated November 1, 1919 a little over six years, and Morgan's possession continued from the date of Norwood's deed to him, 1919, to the date of the commencement of the present action, November, 1926, a little less than seven years, these two possessions cannot be tacked in order to make up the statutory term of ten years to constitute adverse possession; unlike the claim of Gentry, Morgan's contention of adverse possession under the statute cannot be sustained and other points in the case have to be considered. (It is hardly necessary to cite authorities upon the proposition that successive possessions, each less than ten years, cannot be tacked to make up the necessary ten-year period constituting adverse possession under the statute, unless the possessions are those of ancestor and heir. Garrett v. Weinberg, 48 S.C. 28, 26 S.E., 3; Burnett v. Crawford, 50 S.C. 161, 27 S.E., 645; Kilgore v. Kirkland, 69 S.C. 78, 48 S.E., 44; Lewis v. Pope, 86 S.C. 285, 68 S.E., 680; Atlantic C.L.R. Co. v. Searson, 137 S.C. 468, 135 S.E., 567.)
The defendant Morgan not being in a position to assert a title under adverse possession by virtue of the statute of ten years, the next question is whether he can assert it under the rule of presumption of a grant after 20 years' possession by his grantor and predecessors in title; and in the solution of this question the possessions of all parties, the defendant and his predecessors, may be tacked. Morgan's possession was seven years, Norwood's six years, making 13 years, still not enough to make up the twenty years. The question then arises whether he can avail himself of the possession of W.G. Weston, and this depends upon the further question whether there has been an ouster of his cotenant, R.F. Weston, by W.G. Weston.
Again, as in the matter of the adverse possession of Gentry, in the Spartanburg branch of the case, we are confronted by the objection that the Circuit Judge has found as a fact that there was no ouster; and again it is apparent from the decree that the Circuit Judge has not made specific findings of fact in reference to this matter but only announced his conclusions. The facts are practically admitted, at least the evidence is not contradicted as to the acts of W.G. Weston in reference to this matter, and in my opinion the issue has become one of law and not of facts, the conclusion as to which this Court has the power to review.
W.T. Weston, who is held to have been the grantee of the Lipscomb deed, died in 1898; it appears that at once W.G. Weston took possession of the title deed and went into possession of the land and exercised ownership of it; that he paid the taxes upon it, although some of the tax receipts appear to have been issued in the name of the estate, which is not at all inconsistent with payment by him; in 1911 he mortgaged it to B.M. Shuman, attorney, allowed it to be sold under foreclosure and purchased by Norwood in 1913, fifteen years after the death of W.T. Weston, without objection on the part of the plaintiff, who was then old enough to look after his interests.
I think that the master has correctly summed up the situation thus: "The testimony shows unmistakably that the plaintiff has never exercised any of the functions of ownership or possession of any of those lands, and that the lands have been in the possession, occupancy, control and management, exclusively, of W.G. Weston from 1898 until the several tracts were sold off and in the successors from W.G. Weston on down to the present time, a period of 28 years, and R.F. Weston has testified that during that time he has never taken any steps whatever to get any benefits from or interest in these lands until the commencement of this action."
In 1905, twenty-one years before the present action was instituted, W.G. Weston had both tracts surveyed and platted and the plat recorded in Spartanburg County, though not in Greenville.
There was some testimony tending to show that W.G. Weston went into possession of the land prior to the death of W.T. Weston in 1898; and that later the plaintiff accepted part of the personal property as his share of the estate. I have not considered it necessary to go into these contentions.
I have no disposition to recede from the principles announced in the cases of Whitaker v. Jeffcoat, 128 S.C. 406, 122 S.E., 495, and Clarke v. Johnson, 150 S.C. 351, 148 S.E., 190. I think that the present case easily comes within the doctrine there announced. To hold that the plaintiff for twenty-eight years did not have notice of the adverse claim of W.G. Weston to the land, in view of all the circumstances of ownership by him, strikes me as a very severe strain upon one's credulity.
In the case of Powers v. Smith, 80 S.C. 110, 61 S.E., 222, 223, plaintiffs proved legal title in themselves, and the defendants as tenants in common through inheritance from a common ancestor. They also proved possession in the defendants and their ancestor thirty-six years, and plaintiffs testified that they never had any notice that the defendants or their ancestor claimed to be exclusive owners of the land. The defendants' possession is described as renting it out, paying taxes, and otherwise using it as their own without any recognition whatever of the claim of the plaintiffs or their ancestors. On this state of facts, the Court held: "Thus it appears the defendants' claim to the land rests on an unbroken, exclusive possession and use from 1868 to 1904, a period of 36 years, unaffected by any intervening disability of the plaintiffs or those under whom they claim. In action by tenants in common or any others, claimants to land, for 20 years in the face of notorious and exclusive possession, with the use and exercise of authority incident to exclusive and adverse ownership, is sufficient to rebut the presumption that possession is in subordination to the legal title, and to establish the presumption of a grant or deed, and almost any other presumption necessary to the protection of the possession. Gray v. Givens, 2 Hill, Eq., 511; Trustees v. McCully, 11 Rich., 429; Massey v. Adams, 3 S.C. 254; McGee v. Hall, 26 S.C. 179, 1 S.E., 711; Stone v. Fitts, 38 S.C. 394, 17 S.E., 136; Trustees v. Jennings, 40 S.C. 179, 18 S.E., 257, 891, 42 Am. St. Rep., 854; Miller v. Cramer, 48 S.C. 291, 26 S.E., 657; Metz v. Metz, 48 S.C. 472, 26 S.E., 787; Young v. McNeill, 78 S.C. 155, 59 S.E., 986."
The following observations are applicable to both branches of the case, the claim of Gentry and the claim of Morgan:
There are two separate and distinct matters governed by the provisions of the Code, namely, the Statute of Limitations as applied to actions "for the recovery of real property or for the recovery of the possession thereof," and adverse possession, as invoked by a party either suing for the recovery of real property or defending such an action.
Chapter 3 of Title 2 of Part 2 the Code of Civil Procedure, beginning with Section 329, prescribes the limitations for the commencement of actions "other than for the recovery of real property." The limitation prescribed for such actions, excluded by the express terms of Section 329, is found in Section 317: "No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of such action:" Then follows a provision not pertinent to the present inquiry.
The matter of adverse possession, which, as has been held, frequently is available to a party as either a shield or a sword, is treated in Section 320 et seq. In presenting a claim of this character, the claimant is not allowed to tack successive possessions in order to make up the ten year possession, although the sum of them may be in excess of it. For this reason a defendant relying upon it may fail in this defense, but that failure will not at all interfere with his defense under the Statute of Limitations. For instance, in the Morgan branch of the case, Morgan's possession was for seven years and Norwood's for six; they cannot be tacked, and for that reason Morgan's defense under adverse possession would fall; his defense under the Statute of Limitations would not be affected by that failure, and it would be entitled to consideration. The question, then, whether the plaintiff was seized and possessed of his interest in the land within 10 years prior to the commencement of the action, depends upon the solution of the question of ouster. If the efficiency of the acts of W.G. Weston as an ouster be established, the plaintiff's cause of action then arose. From what has been said I think that it was established both as to Gentry and to Morgan, and hence the plea of the Statute of Limitations as to each protects his title.
As to Morgan I think that the foreclosure of the mortgage which W.G. Weston gave to Shuman, and the sale and conveyance to Norwood in 1913, constituted an ouster and that the Statute of Limitations barred the plaintiff's action commenced in 1926.
For the same reason the foreclosure of the mortgage which W.G. Weston gave to Wall (or Ward), and the sale and conveyance to Gentry in June, 1916, constituted an ouster, and that the Statute of Limitations barred the plaintiff's action commenced in November, 1926. See Odom v. Weathersbee, 26 S.C. 247, 1 S.E., 890; Sudduth v. Summeral, 61 S.C. 291, 39 S.E., 534, 85 Am. St. Rep., 883; McIntosh v. Kolb, 112 S.C. 1, 99 S.E., 356; Burnett v. Crawford, 50 S.C. 168, 27 S.E., 645.
By all the tokens of ouster narrated, R.F. Weston was ousted by his brother from the time of the making of the survey and plat in 1905.
(1) The claiming tenant alone has cultivated the land.
(2) There was a dwelling house which was rented out by the claiming tenant alone.
(3) It was considered the property of the claiming tenant more than twenty years.
(4) It was surveyed by the claiming tenant and platted in his name and the plat recorded more than twenty years before the commencement of this action.
(5) Evidence of his exclusive occupancy by cultivating, renting, and logging is undisputed.
(6) All the evidence of declarations by the claiming tenant is that he owned the land, and such declarations extend back more than twenty years before the commencement of the action.
It is not an agreeable aspect of the case that no complaint was made by the plaintiff for nearly thirty years after W.G. Weston took possession of the lands, and only then when W.G. Weston who has acted a sorry part in the whole transaction, after he had lost by his own acts all interest in the property, turned upon those who had trusted to his title and paid out their money, in an effort to "slip" to his brother the evidence of his own malefactions in order that he might recover an interest in the property.
For these reasons I think that the decree of his Honor, Judge Mauldin, should be reversed, and the complaint dismissed.