May 30, 1912. The opinion of the Court was delivered by This is an action by the administrator, of the estate of John H. Cathcart, deceased, to recover rents and profits, for the use of a certain storehouse and lot in Winnsboro.
The defendant denied that the legal title was in John H. Cathcart, and pleaded the presumption of a grant, and adverse possession.
It appears from the testimony, that Richard Cathcart became feeble in mind, about the year 1865, and that he executed a power of attorney, whereby he empowered John H. Cathcart, to sell all the lands, of which he was then seized.
In pursuance of said power of attorney, the lot described in the complaint, was conveyed to Margaret J. Shaw, on the second day of November, 1867; and, on the same day, she executed an instrument of writing, under her hand and seal, and in the presence of two witnesses, in which she made this declaration: "I hereby acknowledge that, I hold the real estate conveyed to me this day, for a full and valuable consideration, paid by John H. Cathcart, subject to such uses as *Page 467 John H. Cathcart may direct; hereby binding myself, to make such conveyances, as John H. Cathcart may at any time require of me."
On the twenty-second day of June, 1874, the said Margaret J. Shaw, conveyed to Elizabeth Cathcart; and, on or about the 16th of October, 1884, Elizabeth Cathcart conveyed to the defendant, John P. Matthews.
All the deeds of conveyance were duly recorded, but the declaration of trust, was not placed on record.
Under proceedings in the probate court, John H. Cathcart was adjudged non compos mentis, and sent to the hospital for the insane, on the 25th of June, 1874.
In May, 1875, he was discharged therefrom, and upon his petition, the commission in lunacy was superseded and set aside, by an order of the probate court.
During the year 1883, he was again adjudged a lunatic, and sent to the hospital for the insane, where he remained until his death in 1908.
At the close of the testimony, the defendant's attorneys made a motion for the direction of a verdict, upon the ground, "that the evidence shows, that the legal title was not in plaintiff's intestate, at the time title was made to the defendant."
After hearing the motion his Honor ruled as follows: "The Court has determined, that there is no evidence to go to the jury here, to support the allegations of the complaint, of legal title to the land in question, in plaintiff's intestate, at the time of the conveyance to the defendant, and, therefore, has determined to direct the verdict of the jury, for the defendant."
We have quoted the language of the motion, and of the ruling of his Honor, the presiding Judge, in order to show the exact ground, upon which the verdict was directed.
There are two reasons why there was error, in directing the jury to render a verdict in favor of the defendant. In the first place, there was testimony tending to show, that *Page 468 John H. Cathcart commenced to exercise acts of ownership, and to hold possession of the land, openly and adversely to the rights of his trustee, Margaret J. Shaw, prior to the adoption of the Code of Procedure on the first of March, 1870, when the time necessary to acquire title by adverse possession was changed from ten to twenty years; and that he held continuously, openly and adversely, until he was adjudged to be of unsound mind, and was sent to the hospital for the insane in 1883 — long enough to acquire title by adverse possession, which is "not only a shield of defense, but is capable of being asserted actively." Duren v. Key,50 S.C. 444, 27 S.E. 875.
In the second place, the complaint contains these allegations: That John H. Cathcart took possession of the said house and lot, on the 2d day of November, 1867, and continued in uninterrupted ownership thereof, until the day of his death, in 1908.
That on the _____ day of _____, 1884, while the said John H. Cathcart, was confined to the hospital for the insane, the said John P. Matthews entered upon the premises of the said John H. Cathcart and began to use the house and lot for the purpose of carrying on a mercantile business.
That the defendant knew, when he entered upon and began to use the premises, that he was entering upon and using the premises of the said John H. Cathcart, and that they had been in the possession, and under the control of the said John H. Cathcart, from the 2d day of November, 1867, up to the very day upon which, the said John P. Matthews entered upon said premises.
It will be observed, that the complaint, not only alleges that John H. Cathcart was the owner of the land, but that he was in possession, and that this possession had been invaded by acts of trespass, on the part of the defendant.
There was testimony tending to prove these allegations, but it was only necessary for the plaintiff to introduce testimony, *Page 469 tending to show that John H. Cathcart was in possession of the premises, and that the defendant invaded this possession, by acts of trespass, in order to cast upon him, the burden of proving, that he had a better title than the plaintiff's intestate.
The rule is thus stated by Mr. Justice Woods, in the case of Investment Co. v. Lumber Co., 86 S.C. 358,68 S.E. 637, 30 L.R.A. (N.S.) 243n: "The important question is thus raised, whether a plaintiff alleging both title and possession, is entitled to recover damages, upon proof of his possession, and the invasion of it by the defendant, without proving also, that he had a perfect title. The question must be answered in the affirmative. One person who finds another, in possession of land can not by seizing the possession or invading it, put him whose possession he seized or invaded, to proof of his title. In such a case possession isprima facie evidence of title, and he who invades it, must establish his title. If this were not so, a holder of land could be put to proof of title against the world, by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession, this gives character to the action, as one in the nature of the old action, of trespassquare clausum fregit." In the case of Turner v. Poston,63 S.C. 244, 41 S.E. 296, the Court uses this language: "The right of possession is a very sacred one, and the Court will not allow the repose which it gives, to be endangered, by giving improper advantages to a trespasser. If defendant had a good title, he should have resorted to the Courts, when he could have obtained any redress, to which, by law, he was entitled."
We do not deem it necessary, to cite other authorities to show, that the testimony adduced by the plaintiff, cast upon the defendant the burden of proving his title.
Judgment reversed and new trial granted. *Page 470
MR. JUSTICE HYDRICK concurs in the result. Petition for rehearing dismissed by formal order filed May 30, 1912. *Page 473