Opinion
14781
December 2, 1938.
Before MANN, J., Calhoun, May, 1938. Affirmed.
Action by J.O. Hutto and others against Mrs. Pearl E. Hutto, individually and as administratrix of the estate of S.P. Hutto, deceased, and F.O. Hutto, as administrator of such estate, for partition of realty, in which B.M. Keller filed a petition for a writ of assistance, on which a rule to show cause why defendant, F.O. Hutto, should not be required to surrender possession of a portion of such land to petitioner was issued. From an order directing the sheriff of Calhoun County to put petitioner in possession of the premises involved, F.O. Hutto appeals.
The order of Judge Mann follows:
This matter comes before me upon a rule to show cause, after due proceedings, upon the verified petition of B.M. Keller for a writ of assistance to which the respondent, F. O. Hutto, has filed his verified return.
It appears from the proceedings that this action, under which Keller became a purchaser at a judicial sale, was commenced on January 25, 1937, and was for the partition of certain real estate owned in fee simple and possessed as tenants in common by the plaintiff, F.O. Hutto, and his brother, the late S.P. Hutto, who died intestate on December 18, 1936, leaving as his only heirs-at-law and distributees the parties to this action. Due proceedings were had in the cause as resulted in a decree of this Court dated February 1, 1937, whereby the real estate described in the complaint, consisting of a number of tracts, was ordered to be sold at public auction at the county court house at St. Matthews on salesday in March, 1937, by Honorable J.A. Merritt as Special Referee. The said real estate was duly advertised and sold on said salesday, the petitioner Keller being the successful bidder at the price of Seven Thousand ($7,000.00) Dollars for one of the said tracts of land described in the complaint and in the decree and in the notice of sale as follows: "That certain tract of land in the county and State aforesaid, containing 200 acres, more or less, and bounded north by S.P. and F.O. Hutto; east by Halfway Swamp; south by Ida Trezvant; west by Highway No. 45 and known as the Herbert tract."
Keller having complied with the terms of sale, the said Special Referee executed and delivered to him a title deed dated January 4, 1938, and now recorded on January 17, 1938, in Book 20, page 50, in the office of the Clerk of Court for Calhoun County, conveying the said tract of land (the description therein being exactly as the description set out in the complaint, the decree, and the notice of sale); and thereunder petitioner entered into possession of the said real estate, with the exception of a small part hereinafter referred to.
That at such sale the said F.O. Hutto, who was a party plaintiff in the said action, became the successful purchaser of adjoining real estate, the deed thereto dated April 11, 1938, and now recorded in Book 16, page 71, in the said office, being executed to him by the said Referee, the following being a description of the said real estate purchased by the said F.O. Hutto, as described in the complaint, in the decree, and in the notice of sale, and in the said deed to him, to wit:
"That certain tract of land in the County and State aforesaid, containing three hundred and thirty-six (336) acres, more or less, bounded on the north by Felder Shirer; lands of Cuffy Gates and lands of Arthur White; east by Cuffy Gates; south by Halfway Swamp, and west by Arthur White.
"That certain tract or parcel of land in the County and State aforesaid containing one hundred and forty-six (146) acres, more or less, bounded north by Jesse Bardin; south by Julian Evans, Perry Brandenburg and Halfway Swamp, and west and southwest by Moncks Corner road (No. 45)."
In reference to the disputed area, the property purchased by Keller lies on one side of the said Halfway Swamp, and the property purchased by the said F.O. Hutto lies on the other side of said Halfway Swamp, the center of the run of the creek of said swamp being the boundary line between the said properties.
A number of years prior to the commencement of this action the title to the lands lying on both sides of said Halfway Swamp, although obtained from different sources, became united in ownership in fee and possession in the said S.P. Hutto and F.O. Hutto as tenants in common, and while so united on or about May, 1934, the county authorities for Calhoun County improved the highway running across the said swamp, threw up a large causeway thereby impounding the waters on the upper side of said causeway into an artificial pond, and built a substantial concrete bridge with a spillway therein, so that the overflow of waters from said pond might escape; and in doing so changed for a short distance the run of the creek of said Halfway Swamp from its original location and located it further to the east, and completely blocked and stopped the old run of said creek at the causeway, so that no longer does any water flow through the old run. That this change of location of the said original run of the creek was consented to and acquiesced in by the said F.O. Hutto and S.P. Hutto, who owned all of the property thereabout on both sides of the creek, and they contributed $500.00 to the county to aid in the said improvement and the change in location of the said run of the creek. So much was admitted in argument at the hearing before me. It will be noted that at the time of the change of location the lands on both sides of the said creek were owned by the same parties, and that the partition suit, under which the properties were sold, was not commenced until several years after the change had been made. That after the respective deeds were made to the said F.O. Hutto and to the said B.M. Keller, the said F.O. Hutto fenced off and threw into his property the lands on both sides of the causeway lying between the old original creek bed and the new location of the creek, contending that the center of the old creek bed was the line and not the center of the new run of the creek, and he withholds possession of the same from Keller, even although Keller has exhibited his deed and demanded possession thereof. While it seems to be immaterial, it might be noted that the original decree of sale provides "that the purchaser or purchasers be let in possession of said land upon the production of the Special Referee's deed." Upon the petition of Keller, this Court, under date of May 4, 1938, issued a rule to show cause, directed to F.O. Hutto, requiring him to show cause why he should not be required to surrender to Keller the possession of the small portion of the land lying between the center of the old creek bed and the center of the new run of the said creek. Hutto has made a return, and while substantially admitting the allegations of fact appearing in the petition of Keller, alleges that the boundary of Halfway Swamp as given in both the deed to Keller and in the deed to him referred to the original run of the creek of Halfway Swamp and was so intended by the Special Referee and parties to the partition suit, and was accepted by Keller and by him as referring to the original run of the creek of Halfway Swamp. However, he does not state any fact in his return, evidencing, or disclosing, or manifesting, such alleged intention. He also alleges that in changing the run of the creek it was not intended by him and his co-tenant that it would affect any change in the status of the original run as a boundary between the various tracts of land then owned and held as tenants in common by him and S.P. Hutto, His contention is that he, as purchaser at said sale, is the owner and entitled to possession of the lands lying between the center of the run of the new creek and the center of the run of the old creek bed, and that he, therefore, took possession of the same and refused upon demand to deliver possession to Keller.
His further contention is that the petition of Keller for a writ of assistance and his return thereto raises an issue of title to real estate properly triable by a jury, and that the relief asked for in the petition cannot be granted by the Court under a rule to show cause.
I will dispose of this last contention first. Hutto being a party to the partition proceeding, and he and Keller both being purchasers at the sale of respective adjoining tracts, the title to real estate is not involved in this proceeding, and the Court has the power — in fact it is its duty — to see that the respective purchasers are put into possession of their respective parcels of land. There are numerous decisions so holding. It is only necessary, however, to cite the cases of Ex parte Qualls, In re. Hopkinson v. Coffin, 71 S.C. 87, 50 S.E., 646; Ex parte Winkler, In re. Gerald v. Gerald, 31 S.C. 171, 9 S.E., 792. In the last-mentioned case the Court, at page 178, 9 S.E., at page 795, said:
"It is urged, however, that the return raised a question of title to real estate which could not be determined on a rule to show cause, and it was upon this ground that the circuit judge acted in discharging the rule. In this we think there was error. The return does not, and could not, set up any claim of title paramount to the mortgage under which appellant claims. The respondent, having been a party to the proceedings to foreclose that mortgage, is, of course, bound by the judgment therein; and the only question now is, what was that judgment? and that must be determined by its terms. Or, to be more precise, the only question is, what property was ordered to be sold by that judgment, and what was sold under that judgment? The return does not raise any issue of fact in reference to this, and could not well do so, but simply claims that, under a proper construction of the terms of that portion of the judgment in which the property ordered to be sold is described, only a part, and not the whole, of the lot was ordered to be sold. We are unable to discover anything in the return which can be regarded as raising an issue of title to real estate.
"It does not even raise the question, which for the first time was raised in argument here, as an additional ground upon which the order discharging the rule might be sustained, though no notice of such additional ground, as required by the proper practice, was given, to-wit: That the court has no power, under a rule to show cause, to require a person in possession of mortgaged premises to surrender the possession to the purchaser at a foreclosure sale, where the person in possession was a party to the action for foreclosure. And even if such position had been properly taken we do not see how, under the case of Trenholm v. Wilson, 13 S.C. 174, it could have been sustained; for there it was held that a purchaser of the mortgaged premises, at a foreclosure sale, could, by rule to show cause, require the widow of the mortgagor to surrender the possession to him, although she was in possession, claiming that the sale was invalid; that she had a valid claim of dower in the premises; and that her right to retain possession could not be determined under a rule to show cause. Indeed, as was said by that eminent jurist, Chancellor Kent, in Kershaw v. Thompson, 4 Johns. Ch. [609], 612: `It does not appear to consist with sound principle, that the court, which has exclusive authority to foreclose the equity of redemption of a mortgagor, and can call all the parties in interest before it, and decree a sale of the mortgaged premises, should not be able even to put the purchaser into possession against one of the very parties to the suit, and who is bound by the decree.' In the comparatively recent case of Le Conte v. Irwin, 23 S.C. 106, the propriety of a proceeding by a rule to show cause, in a case like this, is recognized.
"In fact, if a mortgagor, or a purchaser from him, who is a party to the action for foreclosure, should be permitted to force a purchaser at the sale under the judgment of foreclosure to an action of ejectment to recover possession of the mortgaged premises by surrendering such portion of the mortgaged premises as he may see fit, and retaining the balance under a claim that such balance was not covered by the mortgage, it is very manifest that the value of that class of securities would be very much impaired, and tedious, expensive, and unnecessary litigation encouraged. It seems to us that, where a mortgagor or his vendee, who is a party to the action for foreclosure, in good faith, desires to contest the amount of property covered by the mortgage, the proper time to raise such question is before the judgment of foreclosure is obtained, and not afterwards, when he is ruled to show cause why he should not surrender possession to the purchaser, though it may be possible that cases may arise in which such question may afterwards be raised. But in this case it is sufficient for us to say that the return in this case, resting, as it does, solely upon the ground that the portion of the lot which respondent refuses to surrender was not embraced in the order of sale, when we think it clearly is so included, raises no question of title to real estate, and that the circuit judge erred in ruling otherwise." (Italics added.)
The Court said, at page 181, 9 S.E., page 796: "When the sale has been made, and the person in possession, if a party to the proceeding, refuses to surrender the same to the purchaser, the court, by virtue of its inherent power to enforce obedience to its mandates, requires such person to complete the sale — the thing adjudged to be done — by surrendering possession of the thing sold. This is a very different thing from a judgment for the delivery of real or personal property from one person to another. The court, having all the parties in interest before it, and having power to order a sale of all of such interests, and having made such order, must necessarily have the power to carry its order into full effect by requiring the party in possession to surrender the same to one whom the court has invited to buy."
The remaining question is to determine whether or not the center of the old creek bed or the center of the new run of the creek is the boundary line between the respective tracts which were sold, "Halfway Swamp" being given as the common defining boundary line in the respective deeds. Under the law of this State, where a swamp is given as a boundary, unless a contrary intention is clearly disclosed, the center of the run of the creek of the swamp is the boundary line, and not the margin of the swamp area. Wheeler v. Wheeler, 111 S.C. 87, 96 S.E., 714; Felder v. Bonnett, 27 S.C.L., 44, 2 McMul., 44, 37 Am. Dec., 545.
Indeed, Hutto, in his return, admits that the run of the creek of Halfway Swamp is the division line, but contends for the old creek bed and not the new run of the creek.
It will be noted that, while the lands on both sides of the run of the creek were owned by Hutto and his deceased brother, several years prior to the partition suit they, in cooperation with the county, closed, or acquiesced and consented to the closing of, the old run of the creek completely and the establishment of a new run for the creek in a more substantial and permanent manner. It is quite apparent it was the intention of the then owners of the property to permanently change the location of the run of the said creek.
The case of Ivester v. Fowler et al., 109 S.C. 424, 96 S.E., 154, seems conclusive of the question. There at page 430, 96 S.E., at page 156, the law is stated: "While it is true that a change in the location of a stream or way that is a boundary between adjacent owners does not change the location of the boundary, it is equally true that, where one person acquires titles to several distinct parcels of land so bounded, they become united into one tract. ( Alston v. Collins, 2 Speers, 450); and if the owner changes the previously existing boundary between them by relocating the stream or way, so as to show that the change was intended to be permanent, and thereafter devises or conveys the several tracts with reference to the stream or way as the boundary between them, it will be presumed that he intended the stream or way as it existed at the time the devise or conveyance takes effect. Baynard v. Eddings, 2 Strob., 374; 5 Cyc., 907-8, 940. Of course if the intention to limit the devise or conveyance by the old boundary is made manifest, effect will be given to it. The rule is applied with regard to easements created by the owner during the unity of title, when they appear to be permanent, and are necessary to the enjoyment of the several parcels. Elliott v. Rhett, 5 Rich. [405], 406, 57 Am. Dec., 750; Charleston Rice Milling Co. v. Bennett, 18 S.C. 254."
The same presumption of law applies to changes in location of a street or highway: "When a highway or street is referred to in a grant or other conveyance, the way as opened and actually used, rather than as platted, is construed to be the boundary intended by the parties, in the absence of any evidence to show a different intention. A highway mentioned in a deed as a boundary must be understood to mean the highway as it practically exists, the apparent and traveled highway, and not the highway as it exists of record. The rule has been held to apply in case of a private street, whether in the city or the country, where the grantor who has opened it up sells building lots, bounding them on it. But it has been held that where the grant or conveyance refers to a map, the line of the way as actually surveyed is held to determine the boundary of the land." 9 C.J., 197.
"Where a change is made in the location of a highway, or street, it will not affect boundaries fixed according to the original location; but grants made subsequently to such change, referring to the highway or street as a boundary, will be construed to mean the way as located at that time, unless an intention to bound on the original way is manifested." 9 C.J., 204.
"As to a conveyance bounded by a stream, in respect to non-navigable streams the presumption being that the boundary is at the middle of the stream the burden is on the party claiming otherwise, to show something which required that a different principle should be adopted." 9 C.J., 271.
"All grants and conveyances are presumed to be made with reference to an actual view of the premises by the parties." 9 C.J., 271.
Frequently parties own tracts of land with well-defined names and boundaries and then change the boundaries by adding to them other lands which become a part of the whole when the property is sold under the original name. The following is taken from the case of Baynard v. Eddings, 33 S.C.L., 374, 2 Strob., 374:
"This cannot be done, for a law Court sits to ascertain the rights of the parties, according as they have fixed them; it has no power to declare what, in good conscience, they ought to be, and to compel the parties to accordingly acknowledge, and allow them to have effect.
"The sixth ground makes the only real question in the case: what was the Red House tract, at the execution of the deed? This was purely a question of fact, resolvable alone by the verdict of the jury. They have decided it in favor of the defendant, and I think their verdict ought not to be disturbed. It is very true, that when Ephraim Mikell bought the Red House tract, it was represented by the plat mentioned in the sixth ground. It is also equally true, that the old line ditch, to which the plaintiff insists on extending his deed, was then the boundary: but Mr. Mikell was also the owner of the adjoining tract, called the Crawford tract, after his purchase, and, for the convenience of his agricultural operations, he had a right to attach part of the Red House tract to the Crawford tract, and continue to the combined parcels the old name. That he did this, is apparent from the testimony of his son and executor, Jenkins Mikell."
As pointed out above, grants and conveyances are presumed to be made with reference to an actual view of the premises by the parties. At the time of the institution of the action and of the sale there was only one creek and that was where the Huttos had re-established it. If the parties to the partition suit did not intend for the creek, as it then appeared, to be the division line for the premises sold, they should have made that intention manifest in the decree of sale, and not have waited until purchasers had invested their money, before contending for a different division line. They are presumed to have known the law. There is no ambiguity in the description. Halfway Swamp is clearly given as the division line — and that means the center of the run of the creek. There is only one creek. To adopt the contention of Hutto, Keller would be shut off from the creek at the point in question. His boundary then would not be the creek. Riparian rights are usually valuable and it is presumed that Keller in fixing his bid at the public sale had them in view. To permit Hutto now to show a division line was intended, other than the creek as it exists, would be tantamount to altering a written instrument (the judicial proceedings) by oral testimony. His present contention should have been established in proper manner in the judicial proceedings prior to the sale. It now comes too late. As was said in the case of First Carolinas Joint Stock Land Bank v. McNiel, 177 S.C. 332, at page 343, 181 S.E., 21, at page 25:
"The Courts should be particularly jealous of the integrity of judicial sales. This Court has held that, where a decree requires the master to deduct from the proceeds of the sale taxes and assessments, a purchaser would be justified in bidding upon the property upon the assumption that all taxes and assessments would be taken care of, including the unmatured installments of a city paving assessment levy on the property, and that he would acquire as clear a title from such tax liens as from the mortgages then being foreclosed. In re. Wilson, 141 S.C. 60, 139 S.E., 171.
"When a man buys a piece of property at a judicial sale, he secures every interest in the property which is covered by the proceedings in the actions. If the court has jurisdiction and the parties in interest are properly served and made parties to the suit, the title carried at the sale by the decree of court is a good and sufficient title to such interests as are determined in the suit. This court held in the case of Walker v. Oswald, 151 S.C. 152, 148 S.E., 722, that the plaintiff could have set up his rights to the timber on the mortgaged premises, under a timber deed thereto, and taken a decree of sale of the property without the timber. He did not elect to do this, but three days before the sale conveyed or signed the timber rights to another and gave notice thereof at the sale. This court held that the plaintiff was bound by the decree of sale, and that he should have applied for a supplemental order or decree or for an order to stop the sale and allowed an amendment to the decree; in other words, the plaintiff did not assert his known rights to the timber, in his suit to foreclose the mortgage on the land where the timber was located, and that it was too late for him to attempt to give notice of his interest in the property at the sale itself, and that the decree of sale adjudicated, settled, and discharged his right to the timber which was sold with the land."
If Hutto, even at the sale, had declared his present contention, it would have been unavailing. In the case of Walker v. Oswald, 151 S.C. 152, 148 S.C. 152, 148 S.E., 722, the Court said at page 162, 148 S.E., at page 725: "The crux of this whole case is that Walker brought a foreclosure in usual form of a mortgage on a piece of land over which he held another interest, to wit, the timber contract. He did not set up the timber interest for the reason that he, according to his testimony, thought he would get the land without it. Later on he found out that this plan would not mature in all probability. He then attempted to deed the timber rights which were included in the decree of foreclosure in a suit to which he was a party and had full knowledge of all the proceedings therein. At the sale of the property Warren attempted to give notice of his interest in the property. If this court would permit persons to give such notice at a judicial sale, no property would ever be fairly sold in South Carolina under a decree of court. At every sale some one would claim a fence, a house, the timber, or some other part of the land which would chill the bids and upset judicial sales entirely. When a man buys a piece of property at a judicial sale, he secures every interest in the property which is covered by the proceedings in the action. If the court has jurisdiction and the parties in interest are properly served and made parties to the suit, the title carried at the sale by the decree of court is a good and sufficient title to such interests as are determined in the suit. Of course, when the master himself, under an order of the court, makes an announcement at the sale, such announcement is binding upon the parties, but when an outsider makes an announcement, the successful bidder at the judicial sale buys whatever is legally sold under the proceedings. Ex parte Boyce, 41 S.C. 201, 19 S.E., 495; Stewart v. Groce, 42 S.C. 500, 20 S.E., 411; Beall Co. v. Weston, 83 S.C. 491, 65 S.E., 823."
There is no run of the creek of Halfway Swamp at the location in question, except the run as located in 1934. The center of that run is the defined boundary under the proceedings in partition. The matter before me is analogous to that presented in Ex parte Winkler, 31 S.C. 171, 9 S.E., 792, involving no dispute of fact.
It therefore follows that the petitioner, B.M. Keller, is entitled to the aid of this Court to place him in possession of the premises purchased at said sale. Therefore, it is
Ordered, That the sheriff of Calhoun County be furnished with a certified copy of this order, and that he forthwith enter upon the said premises which are described as follows, to wit: "That certain tract of land in the County and State aforesaid, containing 200 acres, more or less, and bounded north by S.P. and F.O. Hutto; east by Halfway Swamp; south by Ida Trezvant; west by Highway No. 45 known as the Herbert tract," and that he eject and remove therefrom, particularly from the area lying between the center of the present run of the creek of Halfway Swamp and the old creek bed, the said F.O. Hutto and any of the parties in this action who may be in possession of said premises, or any part thereof, and any person who, since commencement of this action, has come into possession of the said premises, or any part thereof, under him or them, and detains the same, or any part thereof, against the said B. M. Keller, and that he put the said B.M. Keller, or his assigns in the full, peaceable, and quiet possession of the said premises without delay; and him, the said B.M. Keller in such possession thereof, from time to time maintain, keep and defend, or cause to be kept, maintained, and defended, according to the tenor and true intent of said judgment. That any of the parties to this proceeding shall have the right to apply at the foot hereof for such further orders as may be necessary to carry the same into effect.
Messrs. W.R. Symmes and Robinson Robinson, for appellant, cite: Judicial sale cannot change boundaries: 41 S.C. 514; 19 S.E., 855; 4 McCord, 434; 1 McCord, 122; 2 Bay's L., 11; 6 Rich. L., 11; 86 S.C. 226; 68 S.E., 531; 52 S.E., 698; 37 S.E., 342; 81 A.S.R., 749. Purchase on notice of boundaries: 177 S.C. 332; 181 S.E., 21; 151 S.C. 152; 148 S.E., 722. Pleadings: 78 S.C. 302; 58 S.C. 931; 92 S.C. 418; 75 S.E., 698; 181 S.C. 165; 186 S.E., 269; 185 S.C. 462; 194 S.E., 868; 93 S.C. 556; 78 S.E., 679; 92 S.C. 418; 75 S.E., 698; 166 S.C. 289; 164 S.E., 837. Title to property question for jury: Sec. 593, Code 1932; 63 S.C. 38; 40 S.E., 1023; 36 S.C. 559; 15 S.E., 711; 52 S.C. 236; 29 S.E., 546; 71 S.C. 280; 51 S.E., 139; 106 S.C. 514; 91 S.E., 864; 60 S.C. 559; 39 S.E., 188; 61 S.C. 1; 39 S.E., 192; 77 S.C. 1; 57 S.E., 531; 130 S.C. 330; 125 S.E., 910; 88 S.C. 180; 70 S.E., 455; 78 S.C. 187; 59 S.E., 852; 54 S.C. 353; 32 S.E., 572; 38 S.C. 421; 17 S.E., 222; 53 S.C. 367; 31 S.E., 298; 25 S.C. 72; 144 U.S. 119; 36 L.Ed., 368.
Messrs. John S. Bowman and J.M. Moorer, for respondent, cite: Nature of hearing: 27 S.C. 335; 79 S.C. 47; 42 C.J., 507; 84 N.W., 46; 64 S.C. 425; 13 S.C. 174; 23 S.C. 106; 31 S.C. 171; 9 S.E., 792. Intent: 7 S.C. Eq., 351; 107 S.C. 57; 33 C.J., 168; 185 S.C. 283; 18 S.C. 495. Boundary lines: 29 S.C.L., 450; 10 S.C.L., 256; 109 S.C. 424; 33 S.C.L., 374; 19 S.C. L., 12; 99 S.C. 200; 9 S.C.L., 98; 33 S.C.L. 156; 155 S.C. 301; 34 S.C.L., 127; 12 Am. Dec., 656; 30 S.C. L., 135; 82 S.C. 441; 3 Rich., 129.
December 2, 1938. The opinion of the Court was delivered by
In January, 1937, J.O. Hutto, and others, heirs-at-law of S.P. Hutto, deceased, brought their action against Mrs. Pearl Hutto, individually and as administratrix of the estate of S.P. Hutto, deceased, and F.O. Hutto, as administrator of the said estate, for the purpose of partitioning the real estate of which S.P. Hutto died seized and possessed, which action resulted in a decree under which the said real estate was sold at public auction. At that sale B.M. Keller and F.O. Hutto each bought certain of the tracts of land.
This present proceeding is in the nature of a rule to show cause for the purpose of putting the petitioner, B.M. Keller, in possession of a certain portion of the land which he alleges he purchased at this sale and which he also alleges is withheld from him by F.O. Hutto.
The matter was heard by Hon. M.M. Mann, Judge of the first circuit, who made a decree on the 28th day of May, 1938, by which he directed the sheriff of Calhoun County to put the petitioner, B.M. Keller, in possession of the premises involved in this proceeding. From this order F.O. Hutto appeals upon five exceptions, which the appellant elects to argue as involving two questions, viz.:
1. Could this case be properly decided upon the pleadings, without the determination of issues of fact made by the petition of respondent and the return of the appellant?
2. Was a jury the proper fact-finding agency for the determination of these issues?
Judge Mann has written a strong decree, with which we are entirely in accord, but in view of the earnestness with which appellant has presented his appeal, it may not be amiss for us to say:
This proceeding is brought in the original case in which F.O. Hutto was a party and is the proper way, as in the nature of a writ of assistance, to put the petitioner in possession of the land, which he purchased at the sale for partition. The authorities fully sustain the circuit decree in this respect.
It is vigorously argued that the title to real estate is involved, and that it was error not to refer the issue to the determination of a jury.
There is no doubt that when the title to real estate comes in issue, that issue must be tried by a jury. Section 593 of the Code of 1932 so provides, but in our opinion the question of title is not involved in this proceeding.
Several years before this matter arose, S.P. Hutto and F.O. Hutto had bought certain tracts of land, and united them with a common boundary of Halfway Swamp in Calhoun County. The county was preparing to improve the highway running through the swamp. It threw up a large causeway, which impounded the waters on its upper side, causing an artificial pond, and built a concrete bridge with a spillway therein. This changed the run of the creek from its old location for a short distance, and placed it further to the east. S.P. Hutto and F.O. Hutto not only acquiesced in and consented to this change in the run of the creek, but actively participated therein by paying to the county five hundred dollars in part payment of the expenses of the work which made the change in the run of the creek.
As we understand it, the land which petitioner contends is contained in that bought by him at the sale for partition, lies between the old run of the creek and the new run. F. O. Hutto has fenced this in and taken possession of it, thereby keeping B.M. Keller, petitioner, from access to the waters of the creek.
It is contended for Hutto that it was the intention of S. P. Hutto and himself that this change in the run of the creek should not change the boundaries of their lands. There is nothing in the record to evince this intention of the Huttos, except the statement of F.O. Hutto, whereas there is the physical fact of the participation of the Huttos in the cost and expense of the improvements which changed the boundary by changing the run of the creek. It would be dangerous to say that such statement by F.O. Hutto of their intention is to prevail over this physical fact. S.P. Hutto is dead; when F.O. Hutto dies who will prove that such was the intention of the Huttos? The law will presume from their actions that the Huttos intended that the boundaries of the land should change with the change of the run of the creek.
This is not a matter of uncertain boundary lines to be shown by surveys and plats and parol testimony. Everyone knows where the old run of the creek was and where the new run is. Everyone knows that the land in dispute lies between them. The deeds of Keller and Hutto to the lands purchased by them at the partition sale contain descriptions of their lands. It was possible, and entirely proper for the trial Judge to determine by the pleadings which of the runs of the creek was the true boundary. The title to the land is not in dispute.
Let the order of Judge Mann be published.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.