The complaint alleges that John H. Cathcart was at the time of his death the owner of the land described in the complaint, and that the plaintiff, as the administrator of his estate, is entitled to recover of the defendant the sum of six thousand dollars as rents and profits. The defendant denied the title of John H. Cathcart, and set up title in himself. The trial was by common consent on the issue of the legal title to the land. The Circuit Judge instructed a verdict for the defendant on this issue, and none of the exceptions raise the question that the plaintiff, as administrator of the estate of John H. Cathcart, might have been entitled to recover rents and profits under the terms of the trust deed, even if the legal title was not in him, but in the trustee. All the equitable issues made by the pleadings were expressly reserved by the Court.
The declaration of trust under which Margaret J. Shaw, the trustee of John H. Cathcart, held the land in dispute, was: "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 John H. Cathcart may direct; hereby binding myself, to make such conveyances, as John H. Cathcart may at any time require of me."
The statute did not execute the use, and the trustee held the legal title. McCaw v. Calbraith, 7 Rich. 80; Huckabee v. Newton, 23 S.C. 295; Ayer v. Ritter, 29 S.C. 135,7 S.E. 53; Steele v. Smith, 84 S.C. 464, 66 S.E. 200, 29 L.R.A. (N.S.) 939.
On June 22, 1874, the trustee conveyed to Elizabth Cathcart, and on October 16, 1884, Elizabeth Cathcart conveyed to defendant, Matthews. There was no direct evidence that John H. Cathcart directed the execution of the conveyance by the trustee. Hence there was ground for inference by *Page 471 the jury that the conveyance from the trustee to the grantor of the defendant was not in execution of the trust, but in violation of it. The Court could not hold as a matter of law, therefore, that the defendant had conclusively shown that he had a good conveyance from the trustee.
It is true that any possession by John H. Cathcart should be referred to the trust, and considered to be held under it until conveyance by the trustee in violation of the trust, but if the trustee did convey in violation of the trust, then the possession of John H. Cathcart, after that repudiation of the trust might well be adverse to the trustee and her grantee. 3 Wn. on Real Property, 1991. I do not think the proposition sound that John H. Cathcart could not hold by adverse possession while he was noncompos or in the lunatic asylum. If any person entered or being already in held under John H. Cathcart while he was a lunatic or in the asylum the possession of such person would enure to the benefit of the lunatic. This is a principle of general recognition. The following are cases in which it was applied in favor of persons under the disability of marriage or infancy: Sibley v. Sibley, 88 S.C. 184; Davis v. Mitchell, 5 Yerg. 281;Killebrew v. Mauldin, 145 Ala. 654; 39 So. 575; 80 Am. S.R. 905. Applying the principle in this case, there was evidence from which the jury might have inferred that John H. Cathcart held the land adversely to the trustee and her grantee for more than the statutory period after the trustee conveyed the property. This being so, it seems to me there was some evidence upon which the jury could have legally based a verdict in favor of the plaintiff on the ground that John H. Cathcart had acquired the legal title to the land by adverse possession.
I am unable to assent to the conclusion stated by the Chief Justice that the Court should have held that, under the facts proved, the defendant had seized upon or invaded the possession *Page 472 of the plaintiff, and that, therefore, it followed as a legal proposition that the burden was on the defendant to prove his title; for there was evidence from which the jury could have inferred that no one was in possession at the time the defendant obtained his deed and entered, and that, therefore, he did not seize upon or invade the possession of John H. Cathcart.
The entries in the cash book of John H. Cathcart were properly excluded. The entries were not made on a book account kept with the parties concerned, but are mere entries of a declaration by a party in his own favor on his cash book. The person against whom these entries were made is not bound by them.
MR. JUSTICE WATTS concurs.