July 7, 1903. The opinion of the Court was delivered by This is an action for the partition of certain lands described in the complaint, in which all the appellants claim to be tenants in common, and that the respondents were in possession of certain portions of said lands respectively and claimed some interest therein. The defendants in possession answered the complaint, setting up (1) a general denial of the title alleged in the complaint; (2) that they were the exclusive owners in fee of the several parcels occupied by them; and (3) adverse possession. The question of title raised by the pleadings was submitted to a jury, that rendered a verdict in favor of the defendants other than the heirs of Mary E. Grace. A motion was made for a new trial on the minutes of the Court, but was refused. The plaintiff and certain of the defendants appealed upon exceptions, which will be set out in the report of the case.
Without considering the exceptions seriatim, we will endeavor *Page 30 to dispose practically of all the questions presented by them. In order to understand the questions raised by the exceptions, it will be necessary to state the facts out of which the issues arose. Joseph Glover died in 1840, leaving of force a last will, wherein he devised to his son, Dr. Francis Y. Glover, for life the lands described in the complaint known as "West Bank," with remainder to his children. Dr. Francis Y. Glover had two children, Eleanor L. Glover, the plaintiff, and F.Y. Glover, Jr. In 1874, F.Y. Glover, Jr., conveyed to Mary E. Grace all his interest in the said "West Bank" plantation. In 1880, Eleanor L. Glover and Mary E. Grace partitioned the said land between them by executing cross-conveyances. As the description of the land conveyed by Eleanor L. Glover to Mary E. Grace is the fact giving rise to this case, we will set it out in full. It is as follows:
"Know all men by these presents, that I, Eleanor L. Glover, of Habersham County, State of Georgia aforesaid, spinster, in consideration of the sum of five dollars and for the purpose of partitioning the land known as West Bank, and more particularly described herein hereafter, the said five dollars to me paid by Mary E. Grace, wife of James W. Grace, in the State aforesaid, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release unto the said Mary E. Grace all my right, title and interest to all that tract of land situate in the county of Colleton and State of South Carolina and bounded on the north by the Charleston and Savannah Railroad separating it from part of the Bonham Tract, on the south by lands conveyed to me the said Eleanor L. Glover by the said Mary E. Grace of date September 10th, 1880, on the east of the Pon Pon River and on the west by lands of the estate of Elliott and Deer Creek, containing twenty-eight hundred acres, more or less, and particularly described on a copy of a complied plat of the West Bank plantation made by M. Wilson, said copy made on the 10th of October, 1876, by W.C. Griffith, surveyor, and indicated on said plat by the letters `A,' `B,' `D,' `E,' `F,' `H,' `X,' `W,' to `A,' being a moiety of the West Bank *Page 31 plantation, formerly the property of Dr. Joseph Glover."
Mrs. Grace's deed is similar, except as to names and land conveyed. After making deeds of conveyance to certain portions of her land, Mrs. Grace, in 1883, made another deed to her husband, James W. Grace, as trustee, in which she described the land conveyed as "all the balance or portion now possessed by me of all that plantation known as West Bank (the same originally a moiety) * * * containing in the whole that is now owned about 2,000 acres * * * and bounded as follows: On the north by the track of the Charleston and Savannah Railway Company, south by balance of said West Bank tract, the property of Eleanor L. Glover * * * This property now conveyed, together with the moiety owned by Eleanor L. Glover, having been for a number of years the property of Dr. Joseph Glover." The plaintiff contends that inasmuch as the conveyance by her to Mrs. Grace mentioned the northern boundary as the "Charleston and Savannah Railroad," that the lands lying to the north of the railroad did not enter into the partition, and that she and the heirs at law of Mary E. Grace are the owners thereof as tenants in common. In this contention the heirs at law of Mrs. Grace, who were made defendants, joined and the issue was submitted to the jury.
We will first consider whether those exceptions can be sustained which assign error on the part of his Honor, the presiding Judge, in leaving to the jury the construction of the deeds instead of construing them himself. We find in the record that his Honor charged the jury: "Those deeds are before you — that is, if you find they are properly executed, and the Court must construe them and tell you what effect they have in this case." The plaintiff's first request was as follows: "It is the duty of the Court to construe all written instruments, and it is your duty to accept such construction." The Circuit Judge said: "I so charge you. I have endeavored to construe for you the written instruments in this case so far as it has occurred to me will guide you in the determination of the issue presented *Page 32 here for you to determine, and you will accept that construction as the true construction of the written instrument." Other portions of the record are to the same effect, but we deem the foregoing sufficient to show that the exceptions raising this question cannot be sustained.
We will next consider those exceptions complaining that the presiding Judge should have charged the jury that the will introduced was the will of Dr. Joseph Glover, stating its terms, and not left it to the jury to say whether or not there was such a will, and what were its terms; that he should have charged that the deed of F.Y. Glover, Jr., to Mary E. Grace was his deed and conveyed to her the property which it purported to convey, and not left to the jury the question whether or not there was such a deed. If these facts were in dispute, then they were properly submitted to the jury. If, however, they were not contested, and conceding there was error, it was not prejudicial to the rights of appellants. The rule upon the subject of constructing written instruments is stated in the case of Thompson v.The Family Protective Union, 66 S.C.
We will next consider those exceptions insisting that the presiding Judge should have charged that the deed from Mrs. Glover to Mrs. Grace conveyed one-half of so much of West Bank as lay on the south side of the railroad, "and no more," and should have construed the same as the appellants do, namely: that the plaintiff and the heirs of Mrs. Grace are cotenants of so much of West Bank as lies to the north of the railroad. That he erred in leaving to the jury, and should have "decided whether or not the title had passed out of them, viz: the plaintiff and the Grace heirs." In the case of Norwood v. Byrd, 1 Rich., 135, the rule is thus stated: "It is contended that the land described in the deed cannot be located so as to cover the residue of the Norwood grant. If the deed had merely described the land conveyed as the residue of the Norwood grant not sold to Johnson, the intention of the parties would have been clear and no question could have arisen respecting its location, since there *Page 33 is no dispute respecting Johnson's line nor the lines of the grant. But a discrepancy is produced by the erroneous description in the deed of the lines and boundaries of this residue. According to the deed, the agreed on line would be in a direction at right angles to the actual line, so as to locate the residue on the southwest instead of the northwest side of the grant. The rules of location permit the courses of lines and boundaries to be rectified according to proof of the intentionof the parties to an extent quite sufficient to correct this error. Lands have been located in violation of almost every rule. Indeed, location is said to be a question of evidence, and cannotbe reduced to fixed and definite rules. Coates v. Mathews, 2 N. McC., 99. A correct location consists in the application of any one or all of the rules to the particular case, and when they lead to contrary results, that must be adopted which is most consistent with the intention apparent on the face of the deed. Colclough v. Richardson, 1 McC., 167. To give effect to the intention of the parties, the agreed on line described in the deed may be corrected so as to correspond with the fact. * * * But the simple question not involved in technical rules nor placed beyond the reach of plain, practical common sense, is whether the defendant shall be deprived of his land, because the residue of the Norwood grant so plainly expressed in the deed and proved to have been the subject of purchase, was imperfectly or erroneously described by metes and bounds. In the construction of a deed where there is a contradiction in the description of the premises granted, the Court may reject part of the description as false or mistaken for the purpose of giving effect to the deed." (italics ours).
In vol. 1 of Starkie on Evidence, it is said: "It has been frequently doubted whether a particular question be one of law or of fact. Thus far it is clear that, whenever upon particular facts found, the Court by the implication of any rules of law can pronounce on their legal effect with reference to the allegations on the record, such inference is matter of law. It is also clear that whenever the Court cannot pronounce on *Page 34 the legal effect of particular facts, and when it is requisite to enable them to do so that the jury should find some other inferences or conclusions, such further inferences or conclusions are questions of fact." It is unquestionably the duty of the Court, in construing a written instrument, to interpretits language, and it may also state the effect thereof, where it is susceptible of but one inference; but where the inference to be drawn from the facts stated in the instrument is in dispute and such facts susceptible of more than one inference, then the question must be determined by the jury, especially when the inference to be drawn is dependent upon other facts in the case. In the case under consideration, the facts stated in the deed were susceptible of more than one inference, and were likewise dependent for their solution upon other facts in the case. The exceptions raising this question must, therefore, be overruled.
The next question that will be considered is whether the presiding Judge erred in refusing to charge plaintiff's seventh request, which was as follows: "If you find that the land in dispute passed under Dr. Glover's will as part of the West Bank plantation, and that the plaintiff is a daughter of Francis Y. Glover, she is entitled to one undivided half of such land, and you must also give her one-half of the fair rental value of the land since the death of Dr. Francis Y. Glover, whether conveyed by Mary E. Grace or not." His Honor said: "I cannot charge you that, because that takes away from you what I have already charged you was a point in the case for you to determine, as to whether or not this was a partition of the whole West Bank plantation or all of it that lay south of the railroad. Therefore, the seventh request is refused." This reason is satisfactory to the Court.
We will next consider whether his Honor, the presiding Judge, erred in refusing the motion for a new trial. This motion was made upon the minutes of the Court, and involved only questions of fact. We are satisfied with the ruling of the Circuit Judge upon this question. *Page 35
The next question for consideration is whether the Circuit Judge erred in his understanding of the facts, in saying that nothing south of the railroad was involved in the contention. We do not think the presiding Judge misunderstood the facts; but, even if he did, the reasons assigned by him in refusing the motion for a new trial would not entitle the appellants to a reversal of the order, provided it was otherwise correct.
These views render unnecessary the consideration of any other question presented by the exceptions.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.