¶1 March 26, 1907. After careful consideration of the petition herein, this Court has failed to consider that any material question of law or of fact has either been overlooked or disregarded.
¶2 It is therefore ordered that the petition be dismissed, and that the order heretofore granted staying the remittitur be revoked. *450
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Status
Disposition: Affirmed
Case posture Disposition Affirmed. Posture Before KLUGH, J., Spartanburg, September, 1906. Affirmed.Action by Minnie V. Mitchell, in her own right, and as guardian for the infant, Margaret Mitchell, against Jesse Cleveland.
From judgment for plaintiff defendant appeals on following exceptions:
1. Because the presiding Judge erred in allowing the introduction of evidence against the objections of the defendant, as follows:
(a) The answer of Margaret Trimmier in the case of Dodd against Rowland et al. , the error in its introduction being: It undertook to prove the fact that a deed had previously been made of the land involved in this suit to H.J. Rowland for the benefit of Margaret Trimmier, by Margaret Trimmier's collateral statement, rather than by the best and competent evidence, viz: the deed itself. It undertook
to show the contents and terms of the deed just mentioned, when the deed itself was the best evidence of such contents and terms. The answer amounted at best to no more than a statement under oath of Margaret Trimmier as to the provisions of the deed to H.J. Rowland, referred to, and it was incompetent to introduce such a statement to show the contents and terms of such deed, even if there was proof that such deed had been lost. The introduction of this answer was further incompetent, for the reason that there was no sufficient evidence before the Court of the loss of said deed alleged to have been made to H.J. Rowland. The answer was not competent evidence, as a statement of Margaret Trimmier made against interest, so as to be binding upon the defendant in this case.
(b) The answer of H.J. Rowland in the case of Dodd
against H.J. Rowland et al. , the error in its introduction being: It undertook to prove the fact that a deed had previously been made of the land involved in this suit to H.J. Rowland, for the benefit of Margaret Trimmier, by H.J. Rowland's collateral statement, rather than by the best and competent evidence, viz: the deed itself.
It undertook to show the contents and terms of the deed just mentioned, when the deed itself was the best evidence of such contents and terms. The answer amounted at best to no more than a statement under oath of H.J. Rowland as to the provisions of the deed to H.J. Rowland, referred to, and it was incompetent to introduce such a statement to show the contents and terms of such deed, even if there was proof that such deed had been lost.
The introduction of this answer was further incompetent, for the reason that there was no sufficient evidence before the Court of the loss of said deed alleged to have been made to H.J. Rowland. The statements in the said answer were mere hearsay, and, therefore, incompetent. The plaintiffs were allowed to introduce in evidence report of the case of Trimmier against Darden , in 61 S.C. page 220. This was error, for the reason that it was not the best evidence
of the records and other facts therein contained, and further, because all the matters in the said action were res inter alios acta , and not binding upon the defendant here.
2. Because the presiding Judge erred in refusing to allow the witness, R.J. Gantt, to testify in behalf of the defendant that in examining the title to a part of this Trimmier land, he was unable to find the record of any deed for such land to Margaret Trimmier, F.M. Trimmier, or any other Trimmier; the error being that inasmuch as the plaintiff claimed title under F.M. Trimmier, who was for many years clerk of Court, it was entirely competent for the defendant to show by this evidence that he allowed an irregular and incorrect record of the deed under which the plaintiffs claimed through him to remain on the books, did nothing to have it corrected, or to make any claim of title to the property involved in this action, and, therefore, he and the plaintiffs claiming in his right were estopped from asking a recovery in this action, and the evidence was competent on such question of estoppel.
3. Because the presiding Judge erred in refusing to allow the defendant to introduce in evidence as a circumstance tending to show that F.M. Trimmier made no claim to this property, a letter written to him by his brother, Theodore Trimmier, of date August 14, 1859, holding that the contents of such letter were hearsay evidence.
4. Because the presiding Judge erred in refusing to sustain the position taken by defendant on motion for non suit that the plaintiffs had failed to trace their title back to a grant, or to such a possession as would presume a grant, or to a common source as the defendant's only claim of title, and that there was no evidence tending to show any of these facts, and in not sustaining the motion for a non suit on this ground.
5. Because the presiding Judge erred in not sustaining the defendant's motion for non suit, on the ground that the evidence offered by the plaintiffs showed affirmatively that Margaret Trimmier had claimed the title to the land in dispute
from a source and by a title prior to, entirely different from, and independent of, the title through which the plaintiffs claim, and that, therefore, there was no question of fact to be submitted to the jury.
6. Because the presiding Judge erred in not holding on the motion for non suit, that even if Margaret Trimmier's only claim of title was through the deed from H.J. Rowland to Hiram Mitchell, executed in 1843, that under a proper construction of that deed, Margaret Trimmier had the right upon the death of F.M. Trimmier, without children, to convey or will the fee simple title to the land embraced therein, and the proof showing that she had done this, the motion for non suit should be granted.
7. Because the presiding Judge erred in not holding, on the motion for non suit, that even if the only claim of title Margaret Trimmier had to the land in dispute was through the deed of 1843, inasmuch as the estate F.M. Trimmier held in the land was a remainder interest, and by his will be undertook to give the remainder interest to his mother for life, the life estate so undertaken to be given to his mother was absolutely void, and all subsequent interests depending thereon, including those given under F.M. Trimmier's will to the plaintiffs in this action, failed, and in not sustaining the motion for non suit on this ground.
8. In not holding on the motion for non suit that under a proper construction of the will of F.M. Trimmier, and under the laws of the State of South Carolina, the said F. M. Trimmier did not intend, and if he did intend, could not have legally effected such intention, viz: to give his remainder interest after the death of Margaret Trimmier, the only interest he had in the estate, if he had any interest at all therein, to Margaret Trimmier for life, and at her death to his sister, Margaret L. Trimmier for life, and on her death to the plaintiff, Minnie V. Mitchell, and on her death to her children, and that as the testator could not have had any such intention under a proper construction of the said will, he must be considered to have died intestate as to his
interest in such lands, if he had such interest, and if not, on this ground sustaining the motion for non suit.
9. Because the presiding Judge erred in not holding, on the motion for non suit, that the plaintiff, Margaret Mitchell, was not entitled to recover in this action, as she could not in any event have any interest in the land before the death of her mother, and in not, therefore, at least sustaining the defendant's motion for a nonsuit as to the plaintiff, Margaret Mitchell.
10. Because the presiding Judge erred in not holding, on the motion for nonsuit, that the deed of 1843 from H.J. Rowland to Hiram Mitchell, trustee, was absolutely void, and the previous deed to H.J. Rowland, if such deed ever existed, was also absolutely void, for that, according to the plaintiff's own testimony, both deeds were, if made at all, made for the express purpose of defeating creditors of William Trimmier, and the latter deed for the further reason that is was never recorded, and in not, therefore, on this ground, granting the motion for non suit.
11. Because the presiding Judge erred in not holding on the motion for non suit, that even under the plaintiff's testimony, Mrs. Margaret Trimmier had a beneficial interest in the land in dispute prior to the deed of 1843, and that the only way in which the said Margaret Trimmier could legally part with her interest in the said property, so as to cut off her heirs at law from inheriting the same, was by renouncing her inheritance under the statute of the State of South Carolina then of force, and there being no evidence of such renunciation, it was error for the presiding Judge to refuse to grant the motion for non suit on this ground.
12. Because the presiding Judge erred in charging the jury that the fact that Mrs. Margaret Trimmier could not take the life estate given to her in the land in dispute by F.M. Trimmier under his will, and if he did will it to her, did not necessarily destroy the gift of the second life estate of Margaret L. Trimmier, and the third to the plaintiff in this action, when he should have held that the failure of the
first life estate destroyed all subsequent estates resting upon it.
13. Because the presiding Judge erred in charging the jury that if they believed from the testimony that a deed was made by H.J. Rowland to Hiram Mitchell, as trustee for Margaret Trimmier for life, and at her death to Franklin M. Trimmier, and that subsequently F.M. Trimmier willed his remainder interest to his mother, Margaret Trimmier, and at her death to Margaret L. Trimmier, and at her death to Minnie V. Mitchell, and if she died leaving a child or children, to go to them, otherwise to go to other persons, then, and in such case, the plaintiff and her child held a fee simple title in the said land, subject to the contingencies named in the will of F.M. Trimmier, when he should have held that the will of F.M. Trimmier, properly construed, was never intended to give to Margaret Trimmier a life estate in any remainder interest in the said land, and that if so intended, it was absolutely void, and that any subsequent estate resting upon it was also void.
14. Because the presiding Judge erred in charging the jury as follows: `So if you find that at the termination of the life interest of Mrs. Margaret Trimmier, some person under whom defendant claims, under whom he derives title, took possession of this land, and excluded F.M. Trimmier, or those to whom he had willed the property from all interest of F.M. Trimmier in it, then that would give rise to the running of the statute of limitations. And if that holding continued notoriously and actually for ten years or more, it would oust the parties who sought to derive title under F.M. Trimmier, and would mature into a perfect title, which might be passed by partition sale, or any other sale to the defendant in this case. But it would require full ten years' possession by some one person after the death of Mrs. Margaret Trimmier before such a title by adverse possession could mature;' and again, in other portions of his charge to the same effect, the error being that such charge was in violation of that principle of law that one may join
his possession with that of the persons with whom he inherits, in order to make out a defense of adverse possession, and such charge deprived the defendant in this case from setting up the defense that the adverse possession of Miss M.L. Trimmier, and of her heirs after her death, gave to the defendant a perfect title in the land in dispute.
15. Because the presiding Judge erred in charging the jury that the provisions of Section 109 of the Civil Code of South Carolina have no application to this case, inasmuch as forty years have not expired since the enactment thereof, when he should have held and instructed the jury that if the evidence in this case showed that the defendant in this action, in connection with the parties by and through whom he claims title, have been in possession of the land in dispute for forty years, then the plaintiffs were not entitled to recover, and further, that if the jury believed from the evidence that the possession of the defendant, taken in connection with the previous possession of the parties by and through whom he claimed under a written instrument, had existed for forty years — his possession should be taken as valid against the world.
16. Because the presiding Judge erred in charging the jury that the proper construction of the deed made by F.M. Trimmer to M.L. Trimmer in 1871 was that he thereby gave to her a life interest to his mother, Margaret Trimmer, when he should have held that if the said deed had any reference whatsoever to the land in dispute in this case, it was intended to convey to the said parties all the right, title and interest the said F.M. Trimmer had therein.
17. Because the presiding Judge erred in charging the jury as follows: `So, if you find that the plaintiff has established her complete title, a perfect title from Rowland down to herself, and a better title than that of the defendant, then plaintiff is entitled to recover the land. If she has not established a better title than that of the defendant, then she is not entitled to recover,' the error being:
(a) The charge ignored the principle of law which requires a plaintiff to recover from a defendant upon the strength of his own title, and not upon the weakness of the defendant's title.
(b) The charge was a charge upon the facts, in violation of the constitution of the State of South Carolina prohibiting such a charge, in that it instructed the jury that if the plaintiff established a good title from Rowland down to herself, then she was entitled to recover, and took away from the jury the disputed question of fact whether both parties claimed from a common source.
18. Because the presiding Judge erred in charging the jury that the indexing of the deed from H.J. Rowland to Hiram Mitchell, without making it appear upon the index that such conveyance was to Hiram Mitchell as trustee for Margaret Trimmier for life, and then to F.M. Trimmier, or at least to Hiram Mitchell as trustee, was sufficient compliance with the laws requiring such indexing; and further, that even if it was not a good and sufficient indexing in law, that the failure to index said deed properly took nothing from the force and effect of the record thereof, when he should have held that the indexing of a deed is and was at the time this deed was recorded, a part of the record thereof, and that there was no such legal and sufficient indexing here as to make said record constructive notice to the defendant and others.
19. Because the presiding Judge erred in charging the jury as follows: `If you find plaintiff was in ignorance of her rights and failed to assert them because she was in ignorance of them, why then, she cannot be estopped, and on the other hand, if you find that the public record gave notice to the defendant, and gave him an opportunity of knowing that the title to this and was not clear, then he is bound by that notice. Where a person is not purchasing, and is ignorant of any right he may have, the law does not make it his duty to go and inquire and find out those rights. But if you find that he knew, or reasonably could know his rights, then
the law makes it his duty to make known his rights. On the other hand, where a person undertakes to buy land, the law avails him notice, and makes it his duty to take notice of any and all facts which may exist, and which will affect the title which he undertakes to buy; so, if you find here, even though plaintiff knew he was buying, yet if plaintiff was in ignorance of any right plaintiff had in the premises, why no estoppel can arise, and it is incumbent on the defendant to show by a preponderance of the evidence that the plaintiff did know, that the plaintiff did have any knowledge of her right at the time, and that she concealed her knowledge with the intention of inducing defendant to buy, put himself in the possession of a purchaser, before the plaintiff can be estopped to assert her claim,' the error being:
(a) It violated the general rule of law that a paper properly recorded is as much constructive notice to one person as to another, although one of the persons is about to purchase the land embraced in such deed.
(b) If it be true that the deed from Rowland to Mitchell was so recorded and indexed that the record thereof was constructive notice, such constructive notice was chargeable to the plaintiffs just as to all other persons, and having such constructive notice, the obligation was upon her to assert her title, and if, with this obligation resting upon her, she not only failed to assert such title, but acted in such way as to lead the defendant and others to believe that she made no claim to the property, then she would be estopped from prosecuting this action, and the charge of the Judge, being in conflict with this view of the law, was error.
20. Because the presiding Judge erred in charging the jury as follows: `If Minnie V. Mitchell, if her right only arose by way of remainder after the death of Margaret L. Trimmier, then, although Margaret L. Trimmier may have been claiming adversely to the right of Franklin M. Trimmier, still, the right of Minnie V. Mitchell to assert any claim could not have accrued until the death of Margaret L. Trimmier, and therefore, no holding by Margaret L. Trimmier
could be a trespass as against Minnie V. Mitchell until the right of Minnie V. Mitchell to assert her right to the land accrued to her, and right to bring action accrued.' It is true in this case that the only claim of right the plaintiff, Minnie V. Mitchell, had was through the will which gave her a life estate after the expiration of a previous life estate in Margaret L. Trimmier. It is also true from our standpoint that Margaret L. Trimmier did not claim this land under the will just mentioned, but by a superior and older title, independent and opposed to such will. It was, therefore, error of law for the presiding Judge to charge the jury as he did in the instruction just quoted in this exception, in effect that it was beyond the power of Margaret L. Trimmier, even by the strongest kind of denial of any claim under the will of F.M. Trimmier, to put the plaintiff, Minnie V. Mitchell, upon the assertion of her right, so as to complete adverse possession against her.
21. Because the presiding Judge erred in refusing the defendant's motion for a new trial on the ground, among other grounds, that the verdict of the jury was uncertain, irregular and void, in that it did not designate the plaintiff in whose favor it was rendered.
22. Because the presiding Judge erred in holding upon the motion for new trial that there was only one plaintiff before the Court, to wit: Minnie V. Mitchell, and that the verdict of the jury in favor of the plaintiff was, therefore, not void for uncertainty.
23. Because the action, having been brought in favor of Minnie V. Mitchell and Margaret Mitchell, and the verdict of the jury having been rendered in favor of the plaintiff, any judgment entered thereon was and is void for uncertainty, and consequently illegal. Source: CourtListener
