majority">

The opinion of the court was delivered by

McGowan, A. J.

This was an action for a tract of land. The plaintiff obtained judgment against one John P. Zimmerman, which was entered October 27th, 1860. Zimmerman, the defendant in execution, was then the owner of the land in dispute, but he sold and conveyed it to Theodore D. Wagner, December 31st, 1862. Wagner sold it to F. F. Warley, May 17th, 1866, who had it in possession until he died, April 16th, 1876, leaving his widow, Rowena L. Warley, executrix and *187devisee, in possession. John P. Zimmerman died intestate in ,1863. There were two proceedings to marshal the assets of his estate, in which the judgment of Pegues was presented but was never paid. Another proceeding was instituted by Theodore D. Wagner against Pegues to enjoin the sale of the land under his judgment. An injunction was granted January 4th, 1873, but finally dissolved November 18th, 1878. Wagner v. Pegues, 10 S. C. 259.

From the view which the court takes it will not be necessary to state the facts more at length. .After many delays, and the dissolution of the injunction, the land was sold by the sheriff, January 6th, 1879, under the judgment of the plaintiff, who bid it off; took sheriff’s titles, and now brings this action for its recovery. The defence is the statute of limitations. The case was heard without a jury by consent of counsel. The Circuit judge overruled the defence principally on the force of the act known as the stay law, (13 Stat. 286, 305,) suspending in certain cases the operation of the statute of limitations, and adjudged “ that the plaintiff recover of the defendants the possession of the said real property.”

The defendants excepted, and charged as error “ so much of the judgment as holds that Section 4 of the stay law of 1865 applied to the case.”

The plaintiff, content with the result of the judgment, yet, “ in case the court should come to the conclusion that there was error in so much of the Circuit opinion as is appealed from,” insists that the judgment shall be affirmed on other grounds, and among them “ that the possession of Warley cannot be connected with that of Wagner so as to make out a continuous adverse possession for the statutory period.”

We will first consider the question here raised as to the right of the defendant to unite the possessions, as it will decide the case if the conclusion should be reached that the possession of Wagner could not be united with that of Warley so as to make out ten years of adverse possession.

It seems now settled in this state that the statute of limitations runs against the lien of a judgment in favor of a purchaser from the judgment debtor without any other evidence of the adverse *188character of his possession than the purchase, conveyance and possession. McRaa v. Smith, 2 Bay 339; Lamar v. Raysor, 7 Rich. 511. The authority on which these ¿¡ases rest is not cleaidy perceived, as the statute refers in terms to title, and is silent as to a lien, which, by the law then of force, continued for twenty years, or until presumed paid. It is said in the case of MeRaa v. Smith that it was so h'eld for the reason that “judgments and executions were within the mischiefs intended to be guarded against by the statute, although not particularly mentioned in it.” In the case of a pxxrchaser from a mortgagor a different doctrine has been declared and sustained by a long line of authorities. Thayer v. Cramer, 1 McC. Ch. 395; Wright v. Eaves, 5 Rich. Eq. 81; Norton v. Lewis, 3 S. C. 25 ; Gillison v. S. & C. Railroad Company, 7 S. C. 181. Is there any difference in principle between the lien of a mortgage recorded and that of a judgment in the proper office, as far as the statute of limitations is concerned ? Both are liens-* — one general on all the property, and the other specific on particular property of the debtor — one created by the law and the other by the parties. But it is-difficult to see that they differ in such a manner as to make necessary and proper a construction of the statute in one case different from that in the other. It is desirable that there should be harmony in the law, and that as far as possible the same rule should be made to apply in like cases.

The case of McRaa v. Smith has, however, been recognized in other cases, and we do not propose to disturb it. But as we think it out of harmony with those of similar character, we are not willing to extend it beyond the very point decided. There was in that case no necessity to unite possessions. There was only one continuous possession in the defendant Smith for the whole period necessary. The question now presented is, whether the principle thex’e announced requires us to go further and apply it to a case in which the bar of the statute cannot be made out against a judgment creditor without uniting the possessions of two successive occupants of the land. Can the possession of the, first occupant be added to that of the second when he is sued by the purchaser at sheriff’s sale ?

*189It lias been well settled in this sí ate that the operation of the act of limitation depends upon actual possession of the land and not upon mere non-claim of th% plaintiff, and that one in possession of land for a less time than the statutory period cannot unite his possession with that of one from whom he purchased in order to make out ten years, for, until that period has run out, they are both, as it respects the true owner, as mere trespassers. A conveyance from the first to the second tenant, under such circumstances, conveys nothing. It is said in several of the cases that “ actual deed from a person Avho has no right conveys nothing.” Mazyck v. Wight, 2 Brev. 151; King v. Smith, Rice 11; Beadle v. Hunter & Garrett, 3 Strob. 331; Dillard v. Philson, 5 Strob. 213.

But it is suggested that these authorities only refer to cases where all the occupants, AA'hose possession it is proposed to tack, were originally nahed trespassers, and do not embrace a case where the first occupant got his possession by regular conveyance from the person having the legal title. The judgment in this case states the proposition as-folloAVS: “When the possession was originally wrongful, until it ripened into right by lapse of time or by descent cast, there was no estate, no right of property Avhich could be conveyed by deed. Consequently the purchaser from a party then in possession of lands of another acquired nothing by his deed. They were, as to the real owner, mere trespassers, who could not tack their successive trespasses together so as to defeat the right of him who had the title. * * * There is no case in this state Avhich determines that a conveyance of land by him who holds the same by a perfect title to another, to Avhom he transfers such title, accompanied with possession, breaks the continuity of such possession. On the contrary the decisions only go to this extent, that a mere trespasser, having nothing to convey, no estate in the land, cannot, by his deed, convert the entry of his successor into anything more than a naked trespass as against the rightful owner.”

The exact point here made has never, so far as we know, been decided in this state. The cases in the reports Avere actions by the real oAvners against persons claiming title by possession, but who did not connect themselves with the legal title. We have *190not been referred to any case, and we have not been able to find one where possessions were united against the lien of a judgment creditor who was not the owner of the land but had a lien upon it as judgment creditor or mortgagee. We do not think that the case of dower, decided in Wilson v. McLenaghan, McM. Eq. 35, is analogous. Dower is a peculiar estate, issuing out of anoLher estate. The necessary concession of the dowress is that hers is the tide of her husband.' Dower right is inchoate until established bylaw, and-is a mere chose. Then, if that case does not control this, what rule of construction shall be adopted in the case where a judgment debtor sells land subject to alien? We must keep in view the difference between power and property. The right to the property, as such, and the right to levy and sell are distinct. The judgment creditor was not the true owner of (he land. As creditor lie could not sue for the land. His right was a lien — the power to levy and sell. Possession by the defendant in execution for ten years would not bar (he lien which runs for twenty years or until presumed paid. Yet it might be so considered if the judgment creditor were the real owner of the land. The judgment debtor has the legal title, subject to a lien, aud, therefore, it cannot be said that he has “ perfect title.” If he conveys the land the right to levy and sell is not lost, but goes with it. The purchaser can take no higher right than the seller can give. He is fixed with knowledge of the lien, and takes and holds subject to it as much so as the defendant in execution himself.. His possession is not necessarily adverse to the lien, but consistent with it. He buys property subject to a known encumbrance, and he holds in subordination to it. So far as the lien is concerned his title is defective — he never had it — and quoad hoc, is he not in the exact condition of the naked trespasser? Nota trespasser out and out, but entirely without title or estate so far as the lien has effect. All the cases hold that the possessions cannot be united if the first taker had no right whatever. The fact here is that the first taker had the legal right, but qualified by the lien. Would it not seem that upon principle the same result should follow to the extent of that qualification ? So far as the lien was concerned, the first purchaser, Wagner, had no right whatever *191except in subordination to it, and, before he acquired title by ten years’ possession, “ he could not, by his deed, convert the entry of his successor into anything more than a naked trespass as against the lien.”

Warley went into possession of the land still subject to the lien. The judgment creditor, who, as to the lien, was the true owner, could not enforce it against him until he went into possession, and as his deed from Wagner conveyed nothing but the legal title subject to the lien, he could not claim the benefit of adverse possession in quieting his title as against the lien until he had possession himself for the whole period of ten years.

We do not think this case should be an exception to the well established general rule that possessions cannot be united to make out the time necessary to complete the bar of the statute.

We concur with the Circuit judge that the fourth section of the act of 1865, (13 Stat. 286, 305,) suspended-the statute from running in favor of Warley during the continuance of that act. In some particulars the section is not expressed in clear technical language, but we think there is no doubt about the intention.

The judgment .below is affirmed and the appeal- dismissed.

Willard, C. Jv and Fraser, A., A. J., concurred.

Citation profile

Relationships

How this case has been treated — in progress