Beck v. Northwestern R. R.

The opinion of the Court was delivered by

This was an action for injunction and damages for an alleged unlawful digging and removing soil along the side of the right of way on land claimed by the plaintiff. The case was tried ,by his Honor, Judge Sease, and a jury, at the November term of Court, 1913, for Sumter county, and *315 resulted in a verdict in favor of plaintiff in the sum of six hundred dollars, and on November 22, 1913, Judge Sease made an order enjoining the defendant from using more than twenty-five (25) feet on each side from the center of its roadbed as a right of way. After entry of judgment, defendant appeals, and by ten exceptions imputes error to the Circuit Court, and seeks reversal. The evidence in the case shows that both the plaintiff and the defendant claim from J. Adger Smyth as a common source of title; and that J. Adger Smyth, along with others in 1887, conveyed to the Eutawville Railroad the right of way in question, and by subsequent deeds and conveyances, and change of name and amendments of charters, the property was acquired by the defendant railroad company. The agreements conveying the right of way from Smyth and others, while not properly probated, were recorded in'the register of mesne conveyance office for Sumtér county on April 28, 1891. J. Adger Smyth did not sign himself the agreement conveying the right of way over his lands to the railroad; it was signed by his friend, Maj. R. C. Barclay, but he ratified, approved and confirmed Barclay’s action. The plaintiff bought her land in 1904, the road was built in 1889. 'The husband, an unquestioned agent of the plaintiff, had been a locomotive engineer in the employment of the defendant and had operated as such over the railroad long before his wife, the plaintiff, purchased the land.

1 The first exception imputes error in permitting the plaintiff to withdraw from the stipulation entered into between counsel as to the admission of the records of Sumter county clerk’s office to prove papers instead of proving them in the regular way. We think that his Honor was in error, this agreement was made between the attorneys of the respective parties, they consented to it, and it is binding and conclusive and could only be set aside for fraud. Parties cannot agree and by so doing lull a party into a sense of security and a lack of vigilance, and then repudiate a *316 solemn agreement, and inconvenience and injure the other party, by serving notice that the agreement is at an end. The agreement entered into was binding and effective until the case was finally disposed of, and the plaintiff after entering into it could not avoid it by serving notice. See Jones and Parker v. Webb, 8 S. C. 206, and cases therein cited.

2 The fourth and fifth exceptions should be sustained. Both'parties claim from the same source, J. Adger Smyth. The plaintiff could not have any higher right than J. Adger Smyth. The Eutawville Railroad went into possession under this agreement. Their entry was lawful, not tortious; the defendant is the successor in the interest of that road, and whatever rights it had acquired passed to the defendant. By that agreement one hundred feet was acquired from the center of the track. When the defendant purchased years after the road was constructed she knew the road was there. The charter gives the right to acquire seventy-five (75) feet from the center of the roadbed by condemnation. This agreement along with others was recorded in the office of register of mesne conveyance for Sumter county, and while not properly prepared for record so that the recording would be constructive notice to .subsequent purchasers, still, it was a circumstance that should have been left to the jury to say whether they were such as would put her on inquiry. She had actual notice that the railroad was built and being operated across and over this land. She knew or should have known that both she and the defendant claimed from a common source, and she could have ascertained by inquiry either of Smyth or the railroad the extent of the railroad’s claim. She cannot claim to be a subsequent purchaser for value alone from the fact that the agreement improperly recorded was no notice to her of the railroad’s right. Under the Judge’s charge she got the benefit of this holding; whereas, it should have been submitted to the jury to determine under all the facts and circumstances of the case, the railroad being there since *317 1889, and she purchasing in 1904, and all of the rights of way being recorded, but improperly recorded, and her husband, who was her agent and acted for her in the purchase of the land, having before the purchase been in the employment of the defendant and running over the road as a locomotive engineer, whether she had actual notice of the railroad’s right of way or whether or not she had knowledge of such facts as were sufficient to put her on inquiry which, if pursued with due diligence, would have led to the knowledge of defendant’s right and been equivalent to notice.

3 The road had been constructed, and' was being operated, had been in operation for a number of years. The entry originally was by permission under an agreement giving to the railroad one hundred feet on each side from the center of the roadbed, and it should have been left to the jury to determine whether the plaintiff was an innocent purchaser for value without notice, or whether she purchased with actual notice, or had such notice that if she had been diligent would have informed her of defendant’s rights. His Honor virtually held that by reason of the agreement between Smyth and the railroad, not being probated, though recorded, that the plaintiff was an innocent purchaser with notice only extending to the right of way actually occupied by defendant company or such width as was necessary for the conduct of the road. We thinks that he was in error in restricting the jury to this; but that the jury should have been permitted to take into consideration all of the facts and circumstances of the case herein before indicated, and that it .is unnecessary to consider the other exceptions as the judgment must be reversed and new trial granted, and order of injunction set aside.

New trial granted.

dissenting. I cannot concur in the opinion of the majority.

In Wolfolk v. Graniteville Mfg. Co., 22 S. C. 337, this Court held:

“The whole system of registry is artificial, and rests on the terms of the statutes; but as a deed must be proved before it can exist for any purpose, all laws upon the subject required some kind of probate, proof of its execution, as an undisputable prerequisite to its going on the record. As to those laws, we think it settled, that the mere copying a paper in the books of registr)'- does not give notice or any of the rights of registry, unless it has been first probated in the form and manner prescribed by law. ‘The recording of the deed therefore, not being authorized by the act of assembly, gave to it no additional validity, and the record thus made, or the exemplified copy therefrom, is no more evidence of the existence of the deed than would be a copy of such deed certified by a private individual.’ ”

Séction 3543, Civil Code 1912, provides:

“No possession of real property described in any instrument of writing required by law to be recorded shall operate as notice of such instrument, and actual notice shall be deemed and held sufficient to supply the place of registration, only when such notice is of the instrument itself or of its nature and purport.”

It is admitted here that the deed was not probated.

It seems to me, therefore, that it is untenable to hold that the jury may infer that the plaintiff had notice from possession, of an unlawfully recorded deed.