This action was instituted in November, 1926, by the plaintiff R.F. Weston, a son of one W.T. Weston, against the defendants, who claim title under one W.G. Weston, another son of W.T. Weston, for the partition of two tracts of land alleged to have belonged to W.T. Weston at the time of his death in 1898. One of the tracts containing 292 acres lies in Greenville County and is claimed by the defendant J.E. Morgan; the other tract containing 147 acres lies in Spartanburg County and is claimed by the defendant J.J. Gentry.
It becomes necessary to treat these two tracts separately, as the issue of title was raised as to each in the suit for partition.
All issues of law and fact were referred to E. Inman, Esq., Master of Greenville County, who filed a report dated April 7, 1928, holding that the plaintiff had failed to establish the title asserted by him and recommending a dismissal of the complaint. *Page 207
Upon exceptions to the Master's report, his Honor, Judge Mauldin, filed a decree dated August 2, 1928, reversing the Master's conclusions and decreeing a sale of both tracts for partition. From this decree the defendants have appealed.
THE SPARTANBURG TRACT The defendant Gentry claims title to this tract under a deed from the Master of Spartanburg County, dated June 6, 1916 the sale having been made under a decree foreclosing a mortgage executed by W.G. Weston to J.C. Ward on March 8, 1910. He claims that W.G. Weston held title to the property under a deed from James McMakin to him, dated July 20, 1887, recorded in R.M.C. office of Spartanburg County, February 14, 1906, nineteen years after its execution, and eight years after the death of W.T. Weston, the father of W.G. Weston, the supposed grantee.
The plaintiff, R.F. Weston, brother of W.G. Weston and son of W.T. Weston, claims that the deed from McMakin to W.G. Weston is a forgery; that it was made to his father, W.T. Weston, and was fraudulently altered before its record by W.G. Weston, erasing the middle initial "T" in the name of the grantee wherever it appeared in the deed, and inserting the letter "G" in place of it.
An inspection of the original deed, which was before the Circuit Judge and has been submitted to this Court, convinced the Circuit Judge who so found, and has convinced me, that the charge of forgery has been sustained. It is not necessary to detail the unmistakable evidences of the alterations in the deed, as the fact has been so found by the Circuit Judge and it is the same as a finding of a jury in a law issue, not reviewable by this Court. While the case was originally one for partition, an equitable proceeding, it turned upon the issue of title which was asserted by both sides.
The basic conclusion of fact, therefore, is that the deed was executed and delivered to W.T. Weston. Upon his death intestate in 1898, he left as his heirs at law, the widow and *Page 208 three children, R.F. Weston, W.G. Weston, and a daughter who, with her mother, has since died intestate, casting the descent of the whole title upon the two sons, R.F. and W. G., one undivided half-interest each. The question is whether the defendant Gentry has acquired the interest of R.F. Weston; there is no question as to his acquisition of the interest of W.G. Weston.
So far as Gentry's claim to title, as a successor of W.G. Weston, is concerned, it cannot be sustained for the reason that the title of W.G. Weston originated in the alleged deed of McMakin which is shown to have been a forgery. Nor, for the same reason, can that deed be deemed color of title in W.G. Weston to give him constructive possession of the entire tract which could be tacked to the possession of Gentry in making out adverse possession under the statute; the stream is polluted at its source.
In Garvin v. Garvin, 40 S.C. 435, 19 S.E., 79, 84, the following charge by the Circuit Judge was approved by this Court: "In my judgment, if you find that the paper between Robert Garvin and Robert C. Garvin was fraudulent, it could not be used for any purpose, not even as 'color of title,' until in some way or other the judgment creditor was affected with notice of that fraud."
The principle is thus clearly stated in the case of Livingstonv. Peru Iron Co., 9 Wend. (N.Y.), 511: "A disseisin, it is said, may commence by force or fraud; an adverse possession may commence by force, but, I apprehend, not by fraud, as, for instance, under a deed obtained by fraud or by forgery. The person guilty of the fraud or forgery cannot rely upon such a deed as conveying a valid title; and the arguments which have gone the greatest length in favor of adverse possession, have proceeded on the ground that the possessor relied on his title, and believed the property which he possessed to be his own. A man may think himself the true owner of property in the possession of another, and may take forceable possession under claim of title; that is *Page 209 an adverse possession; but if, with a full knowledge that such property belongs to another, a person procures a forged deed, and enters under that, what is the quo animo? Is it an intent to enjoy his own, or to defraud another? And it has been often said and decided that the fact of possession and the quo animo the possession was taken, are the only tests. If the quo animo is a bona fide intention to enjoy his own property, that intent can never exist where the possessor knows the property is not his own. If by the quoanimo is meant an intention to appropriate the property to his own use, right or wrong, then, indeed, is the possession of almost all intruders adverse."
See, also, 2 C.J., 190, citing Parker v. Waycross F.R.Co., 81 Ga. 387, 8 S.E., 871; Hunt v. Drunn, 74 Ga. 120;Hussey v. Moser, 70 Tex., 42, 7 S.W. 606.
As regards the Spartanburg tract, however, the claim of Gentry does not depend upon the validity of the title of W. G. Weston, nor upon the efficiency of that deed as color of title, nor upon the efficiency of certain acts of W.G. Weston alleged to constitute an ouster of the plaintiff, a tenant in common of the land with W.G. Weston. In addition to these matters, he contends that on June 6, 1916, he received a deed from the master of Spartanburg County, covering the tract in question which was sold by him under a decree of foreclosure in the case of J.C. Wall (or Ward, variously stated in the record for appeal), the mortgage being dated March 8, 1910, by W.G. Weston to Wall (or Ward), and that he has been in possession ever since. The present action was commenced in November, 1926, and I do not see how it is possible to escape the conclusion that Gentry's title has been perfected by the lapse of more than ten years. There can be no doubt but that the master's deed constituted color of title, 1 R.C.L., 715, in Gentry, and that this extended to the entire tract.
In 1 R.C.L., 727, it is said: "One who enters upon land under color of title is presumed to have entered in accordance *Page 210 therewith; and, therefore, his actual possession of a portion of the property will, by presumption of law, be constructively extended to the boundaries defined by his color of title, excepting in so far as the land so included is in the adverse possession of another." The author cites an array of cases in support of the text, including McColman v. Wilkes, 3 Strob., 465, 51 Am. Dec., 637.
The evidence is undisputed that Gentry went into possession, under his deed, actually cultivated a part of the land, and inclosed a large part of it under a wire fence.
It has been suggested by the respondent that the Circuit Judge has found as a matter of fact that Gentry has not had adverse possession of the land as the rules of law require, and that his conclusion, as a fact, is binding upon this Court. If he had found as facts that Gentry had not gone into possession, had not cultivated a part and inclosed another part. I think that the Court would be concluded from reviewing such facts; but as I view the decree upon this point there does not appear anything more than a conclusion of law from the undisputed facts, which presents an entirely different situation.
THE GREENVILLE TRACT The defendant Morgan claims title to this tract under a deed from J.W. Norwood to him, dated November 1, 1919. Norwood held under a deed from the master of Greenville County to him, dated June 21, 1913, the sale having been made under a decree foreclosing a mortgage executed by W.G. Weston to B.M. Shuman, attorney, on April 3, 1911, recorded in RMC office of Greenville County, April 12, 1911. He claims that W.G. Weston held title to the property under a deed from W.R. Lipscomb to him dated September 15, 1886, recorded in RMC office of Greenville County, June 6, 1887.
The plaintiff claims that the deed from Lipscomb to W. G. Weston is a forgery; that it was made to his father W.T. Weston and was fraudulently altered before its *Page 211 record, by W.G. Weston, erasing the middle initial "T" in the name of the grantee wherever it appeared in the deed, and inserting the letter "G" in place of it, exactly the process invoked in the McMakin deed, above referred to.
An inspection of the original deed, which was before the Circuit Judge and has been submitted to this Court, convinced the Circuit Judge who so found, and has convinced me, that the charge of forgery has been sustained. It is not necessary to detail the unmistakable evidences of the alternations in the deed, as the fact has been so found by the Circuit Judge and it is the same as a finding of a jury in a law issue, not reviewable by this Court. While the case was originally one for partition, an equitable proceeding, it turned upon the legal issue of title which was asserted by both sides. It is of interest, however, to note the evidences of alteration which are so manifest that his Honor in my opinion could have reached no other conclusion. I refer to them in this branch of the case, and not in the other, for the reason that in that branch of the case the right of Gentry to recover upon the ground of adverse possession is so clear as to render a discussion of the other points in the case unnecessary; while in this branch, it appears necessary to discuss such other points.
Commencing with the indorsement of the deed: It appears to have been made by the draughtsman of the deed and unmistakably was at first written "W.T. Weston"; there appears an erasure of the top part of the "T," with nothing substituted therefor; in the premises there is a partial erasure of the initials "W.T.," which plainly show to have been originally so written, nothing substituted therefor; in the granting clause the name "W.T. Weston" appears plainly without any effort at erasure; in the habendum appears a manifest attempt to change the "T" into a "G"; in the warranty, the same appears; and in the renunciation of dower; in the record of the deed the letter "G" plainly appears to have been written over an erasure of some other letter at every place where the grantee's name appears; the *Page 212 index shows the grantee both in direct and indirect, as "W.T. Weston."
The basic conclusion of fact, therefore, is that the deed was executed and delivered to W.T. Weston. Upon his death intestate in 1898, he left as his heirs at law, the widow and three children, R.F. Weston, W.G. Weston, and a daughter who, with her mother, has since died intestate, casting the descent of the whole title upon the two sons, R.F. and W.G., one undivided half-interest each. The question is whether the defendant Morgan has acquired the interest of R.F. Weston; there is no question as to his acquisition of the interest of W.G. Weston.
So far as Morgan's claim to title, as a successor of W.G. Weston, is concerned, it cannot be sustained for the reason that the title of W.G. Weston originated in the alleged deed of Lipscomb which is shown to have been a forgery. Nor, for the same reason, can that deed be deemed color of title in W.G. Weston to give him constructive possession of the entire tract which could be tacked to the possession of Morgan in making out adverse possession under the statute; the stream is polluted at its source. See authorities cited above upon this proposition.
As regards the Greenville tract, the claim of Morgan does not depend upon the validity of the title of W.G. Weston nor upon the efficiency of that deed as color of title. Inasmuch, however, as the possession of Norwood under his deed from the master, dated June 21, 1913, continued to the date of Norwood's deed to Morgan, dated November 1, 1919 a little over six years, and Morgan's possession continued from the date of Norwood's deed to him, 1919, to the date of the commencement of the present action, November, 1926, a little less than seven years, these two possessions cannot be tacked in order to make up the statutory term of ten years to constitute adverse possession; unlike the claim of Gentry, Morgan's contention of adverse possession under the statute cannot be sustained and other points *Page 213 in the case have to be considered. (It is hardly necessary to cite authorities upon the proposition that successive possessions, each less than ten years, cannot be tacked to make up the necessary ten-year period constituting adverse possession under the statute, unless the possessions are those of ancestor and heir. Garrett v. Weinberg, 48 S.C. 28,26 S.E., 3; Burnett v. Crawford, 50 S.C. 161, 27 S.E., 645;Kilgore v. Kirkland, 69 S.C. 78, 48 S.E., 44; Lewis v.Pope, 86 S.C. 285, 68 S.E., 680; Atlantic C.L.R. Co. v.Searson, 137 S.C. 468, 135 S.E., 567.)
The defendant Morgan not being in a position to assert a title under adverse possession by virtue of the statute of ten years, the next question is whether he can assert it under the rule of presumption of a grant after 20 years' possession by his grantor and predecessors in title; and in the solution of this question the possessions of all parties, the defendant and his predecessors, may be tacked. Morgan's possession was seven years, Norwood's six years, making 13 years, still not enough to make up the twenty years. The question then arises whether he can avail himself of the possession of W.G. Weston, and this depends upon the further question whether there has been an ouster of his cotenant, R.F. Weston, by W.G. Weston.
Again, as in the matter of the adverse possession of Gentry, in the Spartanburg branch of the case, we are confronted by the objection that the Circuit Judge has found as a fact that there was no ouster; and again it is apparent from the decree that the Circuit Judge has not made specific findings of fact in reference to this matter but only announced his conclusions. The facts are practically admitted, at least the evidence is not contradicted as to the acts of W.G. Weston in reference to this matter, and in my opinion the issue has become one of law and not of facts, the conclusion as to which this Court has the power to review.
W.T. Weston, who is held to have been the grantee of the Lipscomb deed, died in 1898; it appears that at once *Page 214 W.G. Weston took possession of the title deed and went into possession of the land and exercised ownership of it; that he paid the taxes upon it, although some of the tax receipts appear to have been issued in the name of the estate, which is not at all inconsistent with payment by him; in 1911 he mortgaged it to B.M. Shuman, attorney, allowed it to be sold under foreclosure and purchased by Norwood in 1913, fifteen years after the death of W.T. Weston, without objection on the part of the plaintiff, who was then old enough to look after his interests.
I think that the master has correctly summed up the situation thus: "The testimony shows unmistakably that the plaintiff has never exercised any of the functions of ownership or possession of any of those lands, and that the lands have been in the possession, occupancy, control and management, exclusively, of W.G. Weston from 1898 until the several tracts were sold off and in the successors from W.G. Weston on down to the present time, a period of 28 years, and R.F. Weston has testified that during that time he has never taken any steps whatever to get any benefits from or interest in these lands until the commencement of this action."
In 1905, twenty-one years before the present action was instituted, W.G. Weston had both tracts surveyed and platted and the plat recorded in Spartanburg County, though not in Greenville.
There was some testimony tending to show that W.G. Weston went into possession of the land prior to the death of W.T. Weston in 1898; and that later the plaintiff accepted part of the personal property as his share of the estate. I have not considered it necessary to go into these contentions.
I have no disposition to recede from the principles announced in the cases of Whitaker v. Jeffcoat, 128 S.C. 406,122 S.E., 495, and Clarke v. Johnson, 150 S.C. 351,148 S.E., 190. I think that the present case easily comes within *Page 215 the doctrine there announced. To hold that the plaintiff for twenty-eight years did not have notice of the adverse claim of W.G. Weston to the land, in view of all the circumstances of ownership by him, strikes me as a very severe strain upon one's credulity.
In the case of Powers v. Smith, 80 S.C. 110,61 S.E., 222, 223, plaintiffs proved legal title in themselves, and the defendants as tenants in common through inheritance from a common ancestor. They also proved possession in the defendants and their ancestor thirty-six years, and plaintiffs testified that they never had any notice that the defendants or their ancestor claimed to be exclusive owners of the land. The defendants' possession is described as renting it out, paying taxes, and otherwise using it as their own without any recognition whatever of the claim of the plaintiffs or their ancestors. On this state of facts, the Court held: "Thus it appears the defendants' claim to the land rests on an unbroken, exclusive possession and use from 1868 to 1904, a period of 36 years, unaffected by any intervening disability of the plaintiffs or those under whom they claim. In action by tenants in common or any others, claimants to land, for 20 years in the face of notorious and exclusive possession, with the use and exercise of authority incident to exclusive and adverse ownership, is sufficient to rebut the presumption that possession is in subordination to the legal title, and to establish the presumption of a grant or deed, and almost any other presumption necessary to the protection of the possession.Gray v. Givens, 2 Hill, Eq., 511; Trustees v. McCully, 11 Rich., 429; Massey v. Adams, 3 S.C. 254; McGeev. Hall, 26 S.C. 179, 1 S.E., 711; Stone v. Fitts, 38 S.C. 394,17 S.E., 136; Trustees v. Jennings, 40 S.C. 179,18 S.E., 257, 891, 42 Am. St. Rep., 854; Miller v.Cramer, 48 S.C. 291, 26 S.E., 657; Metz v. Metz, 48 S.C. 472,26 S.E., 787; Young v. McNeill, 78 S.C. 155,59 S.E., 986." *Page 216
The following observations are applicable to both branches of the case, the claim of Gentry and the claim of Morgan:
There are two separate and distinct matters governed by the provisions of the Code, namely, the Statute of Limitations as applied to actions "for the recovery of real property or for the recovery of the possession thereof," and adverse possession, as invoked by a party either suing for the recovery of real property or defending such an action.
Chapter 3 of Title 2 of Part 2 the Code of Civil Procedure, beginning with Section 329, prescribes the limitations for the commencement of actions "other than for the recovery of real property." The limitation prescribed for such actions, excluded by the express terms of Section 329, is found in Section 317: "No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of such action:" Then follows a provision not pertinent to the present inquiry.
The matter of adverse possession, which, as has been held, frequently is available to a party as either a shield or a sword, is treated in Section 320 et seq. In presenting a claim of this character, the claimant is not allowed to tack successive possessions in order to make up the ten year possession, although the sum of them may be in excess of it. For this reason a defendant relying upon it may fail in this defense, but that failure will not at all interfere with his defense under the Statute of Limitations. For instance, in the Morgan branch of the case, Morgan's possession was for seven years and Norwood's for six; they cannot be tacked, and for that reason Morgan's defense under adverse possession would fall; his defense under the Statute of Limitations would not be affected by that failure, and it would be entitled to consideration. The question, then, *Page 217 whether the plaintiff was seized and possessed of his interest in the land within 10 years prior to the commencement of the action, depends upon the solution of the question of ouster. If the efficiency of the acts of W.G. Weston as an ouster be established, the plaintiff's cause of action then arose. From what has been said I think that it was established both as to Gentry and to Morgan, and hence the plea of the Statute of Limitations as to each protects his title.
As to Morgan I think that the foreclosure of the mortgage which W.G. Weston gave to Shuman, and the sale and conveyance to Norwood in 1913, constituted an ouster and that the Statute of Limitations barred the plaintiff's action commenced in 1926.
For the same reason the foreclosure of the mortgage which W.G. Weston gave to Wall (or Ward), and the sale and conveyance to Gentry in June, 1916, constituted an ouster, and that the Statute of Limitations barred the plaintiff's action commenced in November, 1926. SeeOdom v. Weathersbee, 26 S.C. 247, 1 S.E., 890;Sudduth v. Summeral, 61 S.C. 291, 39 S.E., 534, 85 Am. St. Rep., 883; McIntosh v. Kolb, 112 S.C. 1,99 S.E., 356; Burnett v. Crawford, 50 S.C. 168,27 S.E., 645.
By all the tokens of ouster narrated, R.F. Weston was ousted by his brother from the time of the making of the survey and plat in 1905.
(1) The claiming tenant alone has cultivated the land.
(2) There was a dwelling house which was rented out by the claiming tenant alone.
(3) It was considered the property of the claiming tenant more than twenty years.
(4) It was surveyed by the claiming tenant and platted in his name and the plat recorded more than twenty years before the commencement of this action. *Page 218
(5) Evidence of his exclusive occupancy by cultivating, renting, and logging is undisputed.
(6) All the evidence of declarations by the claiming tenant is that he owned the land, and such declarations extend back more than twenty years before the commencement of the action.
It is not an agreeable aspect of the case that no complaint was made by the plaintiff for nearly thirty years after W.G. Weston took possession of the lands, and only then when W.G. Weston who has acted a sorry part in the whole transaction, after he had lost by his own acts all interest in the property, turned upon those who had trusted to his title and paid out their money, in an effort to "slip" to his brother the evidence of his own malefactions in order that he might recover an interest in the property.
For these reasons I think that the decree of his Honor, Judge Mauldin, should be reversed, and the complaint dismissed.