Kennedy v. Kennedy

The opinion of the Court was delivered by

This action was commenced on the -day of —, 1908, for the purpose of having the lands *495 described in the complaint sold, to aid in the support and education of the defendants, Mary L., Samuel M., Flora, J., and Robert Clarence Kennedy, infant children of the plaintiff, and her late husband, W. W. Kennedy, who died on the ,12th of June, 1905. The defendant, H. A. Kennedy, a brother of W. W. Kennedy, filed an answer denying that the plaintiff and her children were the owners of the premises, and set up the defenses that he had been in possession of the land for ten years, holding it adversely, and that be had been in the unobstructed possession thereof, before the commencement of the action, for twenty years, bolding it as his own.

The jury rendered a verdict in favor of the plaintiff and her children for the land in dispute.

The defendant, H. A. Kennedy, made a motion for a new trial, which was refused, and be appealed upon exceptions which will be reported.

We proceed to consider them'.

1 First Exception: The plaintiff introduced: (1) Deed from P. D. Epps, D. J. Epps, and M. B. Epps, heirs at law of David Epps, to W. W. Kennedy, dated the 19th of October, 1894, conveying the land in) dispute; (2) deed from James M. Gamble, coroner of Clarendon county, acting sheriff, to David Epps, dated 7th of March, 1870, conveying the same land, in which deed the following recital appears:

“Whereas, by virtue of a writ of fieri facias, issued out of the Court of Common Pleas for the County of Williamsburg, tested the 16th of November, 1867, and returnable according to law, to me directed and lodged in my office, on the 28th of January, 1870, commanding me, the goods, chattels, houses, lands and other hereditaments and real estates of Jno. M. Kennedy, to levy the sum of-which David Epps, by the judgment of the said Court, at Williamsburg courthouse — 'lately recovered against the said Jno. M. Kennedy — I have levied upon a certain tract of *496 land, in the County of Clarendon, aforesaid;” (3) deed from William J. Clark, sheriff of Clarendon county, confirming the deed of James M. Gamble, coroner, acting sheriff, to David Epps, dated 27th of March, 1871, conveying the same land and containing the same recital; (4) certified copy of judgment roll, in the clerk’s office of Williams-burg county, showing judgment recovered in 1867, by David Epps against Jno. M. Kennedy, to which reference was made in said deed's.

Before the plaintiff introduced in evidence the judgment roll from Williamsburg county, the clerk of the court and the sheriff of Clarendon county, testified that there was no record of the execution under which the land was sold to be found in Clarendon, in their respective offices; that many of the books of record of the clerk’s office, and the sheriff’s office, were lost or destroyed about the- time said property was sold under execution, in 1870 and 1871 — the republican party being in power at that time. The sheriff testified that the execution book ini his office covering that period was missing, and that an execution, coming from Williamsburg county to that office, would properly be entered in the execution book; that there was no evidence of the sale by the sheriff in the sale-book, from May, 1870, to October, 1878. A. L. Barron, clerk of the court, testified as follows, upon cross-examination:

“You have an index to the abstracts? *Yes, sir. And the rolls? Yes, sir. Those old indices are there, are they not? Yes, sir. Covering this period we are talking about? Yes, sir. Going from that period, say 1865 and 1866, and coming to 1872, on those indices or directing the course of judgments, did you find any entry whatsoever, of any judgment of Epps against Kenniedfy? No, sir. I have reference to judgment which was referred to in the sheriff’s deed? No. sir; I did not. Did you find the evidence of entry of any such judgment on the abstract of judgments? No. sir.”

*497 There was testimony tending to prove that W. W. Kennedy (who was a son of said Jno. M. Kennedy), went info possession of the land in 1883, and held it continuously and adversely from that time until his death on the 13th of June, 1905.

His Honor, the presiding Judge, charged that all proceedings must be presumed to be regular; and the appellant’s attorneys, in their argument, say that there can be no fault found with this proposition. It is especially applicable to this case, as W. W. Kennedy claimed the- land for more than twenty years. Corbett v. Fogle, 73 S. C., 312, 51 S. E., 884; Smith v. Libby, Mss. Dec., 3 Rice’s Digest, cited in Sheriff v. Welborn, 14 S. C., 480.

The entering of the judgment in the book of “Abstract of Judgments,” was not a prerequisite to a valid sale, as a failure in this respect is a mere irregularity, of which no one but the defendant in the action, in which the judgment was recovered, has the right to take advantage. Mason v. Killough Music Co., 45 S. C., 11, 22 S. E., 755.

2 There was testimony tending to show that H. A. Kennedy was in privity with W. W. Kennedy, and those under whom he claimed — the plaintiff having testified that H. A. Kennedy cultivated a portion of the land for the support of his father and mother, by permission of W. W. Kennedy. The general rule is, that recitals in a sheriff’s deed to the effect that an execution was issued, and that a levy was made thereunder, are not evidence of the facts so recited. Sheriff v. Welborn, 14 S. C., 480.

But where there is privity between the parties the recitals are admissible for the purpose of proving such facts. Brown v. Moore, 36 S. C., 160, 3 S. E., 9.

Therefore, the recitals in the foregoing deeds were evidence of the facts therein stated.'

*498 3 *497 Furthermore, the provisions of the Code which was adopted on the first of March, 1870, were inapplicable to this case, as one of the deeds shows that the execution was *498 lodged in the sheriff’s office on the 21st of January, 1870, and the other, that it was lodged on the 26th of January, 1870, which was a compliance with the requirements of the law at that time. Acts of 1791 (7 Stat., 262, section 5) and 1799 (7 Stat., 294, section 4), Harrison v. Maxwell, 2 N. & McC., 347; Holloway v. Birt whistle, 2 N. & McC., 350 (note); Woodward v. Hill, 3 McC., 241; Watson v. Dickerson, 4 Rich., 568; Warren v. Jones, 9 S. C., 288; Harrison v. Mfg. Co., 10 S. C., 278.

4 It cannot be successfully contended that the jury disregarded the charge of his Honor, the 'presiding Judge, when, as in this case, the testimony was susceptible of more than one inference. This exception is overruled.

5 Second, Third and Seventh Exceptions: The practical question presented by these exceptions is, whether there was error on the part of the presiding Judge “in instructing the jury that possession of a part under a claim made under an invalid deed, would give possession of the whole.” In ruling upon the request set out in the seventh exception', the presiding Judge said:

“That is a correct statement of the law, based upon a claim, where there is no writing showing the extent of the claim, but as I have charged you, if W. W. Kennedy claimed all the land named in any one of those deeds, even though the deed may not have been a valid deed, yet showing the extent of his claim as color of title, and if he claims all of the land and showed possession of any particular part of it, any foot of it, that under the law was possession of all that was included in the boundaries named in the deed, and I so charge you.”

Section 102 of the Code is as follows.: “Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the premises-, under claim of title, founding such claim upon a written instrument, as being a conveyance of the premises in- question, and that *499 there has been a continued occupation and possession! of the premises, included in such instrument, or of some part of such premises, under such claim for ten years, the premises so included shall be deemed to have been held adversely.” The words “as being a conveyance of the premises,” show that the extent of the occupant’s claim founded on an. instrument of writing is not dependent upon the validity of such instrument, otherwise there would have been no necessity for this section of the Code. “There is a material difference between proving a deed as a part of a chain of title and introducing a paper to show the extent of a party’s possession.” Allen v. Johnson, 2 McM., 495.

The ruling of the presiding Judge is fully sustained by Wood on Limitation of Actions, p. 529, et seq.

These exceptions are overruled.

6 Fourth, Fourth (No. 2), Fifth, Sixth and Eighth Exceptions: There are two exceptions numbered “IVwe have therefore marked one of them “No. 2.” The reasons assigned by the presiding Judge, in ruling upon the requests mentioned in- said exceptions, are satisfactory to this Court, and show that they can not be sustained.

7 There is another reason why the request mentioned in the sixth exception was objectionable. Rule 77 of the Supreme Court is as follows: “The point that there is no evidence to support an alleged cause of action shall be first made by a motion for nonsuit, or a motion to direct the verdict.” The point that “no proof has been, made that during his lifetime any taxes were paid by the said W. W. Kennedy on the premises.,” should have been made by motion for nonsuit or the direction of a verdict.

*500 8 *499 Ninth Exception: As hereinbefore stated, Mrs. Kennedy, the plaintiff, testified that H. A. Kennedy cultivated the land by permission of W. W. Kennedy. If so, this testi *500 mony tended to show that H. A. Kennedy held in subordination to the title of W. W. Kennedy; and we fail to see wherein the charge was prejudicial to the rights of the appellant.

Eleventh Exception: The appellant’s attorneys, in their argument, state that their remarks with reference to the fifth exception are applicable to the question presented by this exception. We do not deem it necessary to assign other reasons than those mentioned' in disposing of the fifth exception.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.