Opinion
8863
July 3, 1914.
Before WILSON, J., Monck's Corner, March, 1913. Affirmed.
This was an action brought originally by Theodore G. Barker et al. against Harvey c. Thomas et al., for the recovery of possession of a tract of land in Berkeley county, which suit was commenced in July, 1906. The case was tried before Judge Memminger and a jury. The jury found for the defendant and Judge Memminger of his own motion set aside the verdict on the ground that it was inconsistent with the testimony. See Barker v. Thomas, 85 S.C. 82, 67 S.E. 1.
Since then the Seacoast Timber Co. and Joseph F. Heyward were substituted as plaintiffs, and the case dismissed as to Mrs. Haynes. The case was then tried before his Honor, Judge John S. Wilson, and a jury, in March, 1913. At the close of plaintiff's testimony the defendant made a motion for a nonsuit and direction of verdict on the grounds that plaintiffs had failed to connect with a grant or to show any title in themselves. This motion was refused and the case went to the jury, who rendered a verdict in favor of the plaintiffs. The defendant thereupon made a motion for a new trial on the same grounds practically as the motion for a nonsuit, and on the additional ground that the testimony showed title in defendant, and that the jury should have found for the defendant. This motion was refused by his Honor in a short order, and from the order refusing a nonsuit and the order refusing a new trial, the defendant, Harvey C. Thomas, appeals to this Court.
Mr. W.A. Holman, for appellant, cites: 37 S.C. 102.
Messrs. Ficken Erckmann, for respondent, cite: Payment of taxes evidence to go to jury: 82 S.C. 358; 45 S.C. 312. Evidence as to possession of plaintiff's predecessors in title for jury: 3 Starkie Ev. 1229, 1226; 3 Term Rep. 158. Kind of possession necessary to hold uncultivated pine lands: 82 S.C. 358. The evidence being sufficient to presume a grant, and title in plaintiff's predecessors, possession will be presumed within time required by law: Code Civil Proc., sec. 126.
July 3, 1914. The opinion of the Court was delivered by
This was an action to recover a tract of timber land. The defendant denied plaintiffs' title, asserted title in himself, and pleaded the statute of limitation.
The plaintiffs proved a complete chain of title in themselves, which had its origin in the will of Thomas Broughton, dated in 1808. Their testimony tended to show that their predecessors in title had paid taxes on the land, and had possession more than 40 years before the trial, and that their possession continued to within 10 years before the commencement of the action, which was in 1906. They proved such acts of ownership as are usually exercised over woodland. The testimony was indefinite and somewhat conflicting as to the dates and duration of these acts, but it was sufficient to make out a prima facie case and raise the presumption of a grant from the State. Bardin v. Ins. Co., 82 S.C. 358, 64 S.E. 165; Smyly v. Colleton Co., 95 S.C. 347, 78 S.E. 1026.
The testimony did not show title in defendant, as a matter of law. He seems to have overlooked the fact that his possession did not commence until 1903, the date of the conveyance to him, and that, even if it showed such possession in him and his grantors as would warrant the presumption of a grant from the State, still the issue should have been submitted to the jury, whose province it was to determine the character and duration of the possession which was relied upon by both parties. Smyly v. Colleton Co., supra.
There was, therefore, no error in submitting the case to the jury or in refusing to set aside the verdict.
Affirmed.
MR. JUSTICE GAGE dd not sit in this case.