July 24, 1901. The opinion of the Court was delivered by The plaintiffs brought this action for the partition of a tract of land, alleging that they *Page 285 were entitled to four undivided ninths of the land, and that the defendant was entitled to the remaining five-ninths. The defendant by her answer set up several defenses. First, a general denial of all the allegations in the complaint. Second and third, a denial that plaintiffs or either of them have any title to or interest in the land described in the complaint; and, on the contrary, alleges that she is the sole owner of said lands, having derived title thereto under a deed executed the 22d November, 1879, purporting to convey the same to her in fee simple, under which she has ever since said date, been in the open, notorious, adverse and exclusive possession of the said land, claiming the same as her own, and claiming that plaintiffs' action is thereby barred under the provisions of the statute of limitations.
The following are the undisputed facts as developed by the testimony in the case: The land originally belonged to one Roger Loveland, who died on the 30th of January, 1857, intestate, leaving as his heirs at law his widow, Martha Loveland, and his children, Isaac Newton Loveland (who died on the 12th of February, 1859, childless and unmarried,) and his daughter, Isabella J., who intermarried with P.F. Sudduth on the 16th of June, 1858, and died on the 14th of June, 1873, leaving as her heirs at law the said P.F. Sudduth, her husband, and her two children, S. Davis Sudduth and Mary C. Cunningham, two of the plaintiffs in this case, and also another daughter, Drusilla A., who intermarried with one Thomas H. Stall on the 1st June, 1858, and died on the 1st July, 1864, leaving as her heirs at law her said husband and her daughter, Cora B. (now the wife of one Terry), who is the other plaintiff in the case. On the 9th of February, 1864, Martha Loveland, P.F. Sudduth, Isabella J. Sudduth, Thomas H. Stall and Drusilla A. Stall, executed a deed conveying the land in question to one J.A. David, who went into possession of said land under said deed, claiming it as his own, and remained in such possession until the 3d of November, 1879, when he conveyed the same to William Sumeral, who went into possession, claiming *Page 286 it as his own, and retained such possession until the 22d of November, 1879, when he conveyed said land to his wife, Louisa Sumeral, the defendant herein, who went into possession, claiming it as her own, and has ever since retained such possession. All these deeds were recorded in the proper office in the county of Greenville, where the land lies. In the "Case" we find the following statement in regard to these deeds: "The deeds introduced in evidence contained general warranties, and purported to convey the entire interest in the land therein described." It appears, however, that though Mrs. Sudduth and Mrs. Stall joined in the deed of 9th of February, 1864, to J.A. David, they did not renounce their inheritance in the manner prescribed by the act of 1795, then in force and hence the plaintiffs claim that upon the death of Mrs. Sudduth and Mrs. Stall, respectively, their heirs at law became entitled to their shares of the land, respectively, though they admit that the surviving husbands of each of these married ladies are estopped, by their deed of 9th of February, 1864, from making any claim as one of the heirs at law of their respective wives; and hence they only claim the shares of the plaintiffs herein, to wit: four-ninths of the land. Inasmuch as the plaintiffs claim that they are protected from the plea of the statute of limitations by the disability arising from infancy, it will be necessary to state the ages of the parties. It appears from the testimony in the case that the plaintiff, S. Davis Sudduth, was born on the 1st day of March, 1866, and hence he did not attain his majority until the day before the 1st day of March, 1887; that Mrs. Cunningham was born on the 18th of March, 1859, and hence did not attain her majority until the 17th of March, 1880; and that the other plaintiff, Mrs. Terry, was born on the 16th of September, 1859, and hence did not attain her majority until the 15th of September, 1880. Now, as this action was commenced on the 20th of February, 1900, it follows that S. Davis Sudduth had been of age very nearly thirteen years, Mrs. Cunningham very nearly twenty years. *Page 287 and Mrs. Terry nearly twenty years, when this action was commenced.
After hearing the evidence and the charge of the Judge, the jury rendered a verdict in favor of the defendant, and from the judgment entered thereon the plaintiffs have taken an appeal to this Court, basing their appeal upon the several exceptions set out in the record. For a full understanding of the questions presented, the charge of the Circuit Judge, together with the exceptions thereto, will be reported.
The first exception imputes error in charging on the facts, because the Judge charged on the facts in saying to the jury that the deeds therein referred to "purport to convey the entire estate in the lands described in the complaint." The point of this exception lies in the fact that the Judge, in so charging, assumed as a fact that the land described in those deeds was the same as that "described in the complaint." But when it is seen that the Judge expressly qualified those requests, referred to in the exception, by adding the words: "If the deeds convey the land described in the complaint," it is manifest that the exception is without foundation. The only possible question of fact which could arise out of the requests, was whether the land described in the deeds was the same as that described in the complaint; and that question the Judge expressly left to the jury by his qualification of the requests. Whether those deeds purported to convey the entire or any lesser estate in the land described in the deeds, was a question of law and not a question of fact, for it is settled law that it is the province of the Judge, and not of the jury, to construe the terms of a deed when offered in evidence. The first exception must, therefore, be overruled.
The second exception is taken under a misconception of the Judge's charge, for we do not understand him as instructing the jury, "that the statute of limitations governs this case;" though he did charge the jury (and as we think correctly) that if the defendant held the land in dispute adversely for ten years, after all the plaintiffs became of age, *Page 288 she would be entitled to a verdict, but he left it to the jury to say whether the defendant did hold the land adversely for the time stated; and in this there was no error. The second exception must be overruled.
The third exception imputes error to the Circuit Judge in not charging the jury that the statute of limitations did not run in favor of one tenant in common against another unless there has been an ouster. In the first place, it does not appear that any request was made to charge any such proposition. All that we find in the "Case" as to that matter is this: "Mr. Ansel [one of the counsel for plaintiff] requests the Court to charge the jury as to ouster," and the Judge did proceed to instruct the jury as to ouster, in terms to which no exception appears to have been taken. There was no request to charge any particular proposition as to the law of ouster. It was simply a general request "to charge the jury as to ouster," and that request was complied with. The third exception must, therefore, be overruled.
The fourth and fifth exceptions are open to the same objection, as there were no requests to charge either of the propositions which appellants claim by these exceptions ought to have been charged, and this would be sufficient to dispose of both of these exceptions. But as the appellant in the fifth exception complains of error in charging the defendant's fourth request, which is set out in that exception, we will not decline to consider that exception. Without repeating that request, in terms, it is sufficient to say that it amounted to this: If the jury should conclude that the defendants went into possession under the deed from W.L. Sumeral on the 22d November, 1879, and held it adverselyto the plaintiffs, until the commencement of this action on the 20th of February, 1900, then such possession would constitute a valid defense to this action; unless during this period some one or more of the plaintiffs were infants; and if so, then the period of such infancy must be deducted from the period of adverse possession; and if there then *Page 289 (after such deduction) remained ten years during which the defendant held this land adverselyto the plaintiffs and exclusiveof their interest, this would be a good defense to this action. In this there was no error of law, for when the Judge instructed the jury that to make this possession on the part of the defendant a good defense to the action, it must have been taken underthe deed of 22d of November, 1879, which upon its face purported to convey to her an absolute and exclusive title to the land, and when he emphasized this by saying that such possession must be adverseto the plaintiffs, and reinforced such emphasis by saying that such possession must not only be adverseto the plaintiffs, but alsoexclusiveof their interest, he absolutely negatived the idea that such possession if taken, and held as a tenant in common with plaintiffs, would be a good defense to the action, as appellants seem disposed to construe the charge. It is quite true, that if a person goes into possession of a tract of landas a tenant in commonwith another, no length of suchpossession can give him a title by the statute of limitations against his cotenant, for the very obvious reason that his possession cannot be adverseto his cotenant, until an ouster is established. But where, as in this case, a person goes into possession of land, under a deed from a third person which purports on its face to convey to him an absolute and exclusive title to the entire interest in the land, and such deed is spread upon the public records, this is notice to the world that he is claiming the entire and exclusive interest in the land, and his possession may be adverse to all the world from the time of its commencement. Of course, such adverse possession cannot avail him against one laboring under any legal disability, such, for example, as infancy, until his possession continues for the prescribed time after the removal of such disability. This view is sustained by the case ofGarrettv. Weinberg,48 S.C. 28. In that case the plaintiffs brought the action to recover possession of lands in the possession of the defendant, claiming that they, as heirs at law of one Thomas Garrett, were tenants in common of said *Page 290 land, with E.W. Moise and those claiming under him, he having acquired the interest of one of the heirs at law (Mrs. Moore) of Thomas Garrett, who was the widow of said Thomas Garrett and had contracted a second marriage with one John S. Moore. It appeared that John S. Moore and his wife had joined in a deed for the lands in dispute to E. W. Moise, executed on the 13th of April, 1871, under which deed the defendants claimed. In delivering the opinion of the Court, Mr. Justice Gary, in speaking of this deed, used the following language, which is quite appropriate to the present case: "If the deed, which was recorded, should be construed as a conveyance of allthe land, and Edwin W. Moise entered into possession thereunder, without recognizing any other claim, then such entry would constituteouster."Counsel for appellants, in the argument here, suggest that the learned Justice "could not have meant it was actual ouster, but presumption of ouster, which could only operate against an infant after the expiration of twenty years, deducting the period of minority." The reason given by counsel for such a suggestion is that Mr. Justice Gary, in a subsequent portion of his opinion, held that though Marion Moise, the grantee of E.W. Moise, held possession of the land for more than ten years after John Norton, one of the plaintiffs, had attained the age of twenty-one years, yet he held that John Norton was not barred, because, as counselsays:"The opinion as a whole shows that it would have taken twenty years after John Norton reached his majority to have perfected a presumption of ousteragainst him." This view of counsel for appellant is based upon an entire misconception of the opinion of Mr. Justice Gary, in which not a word can be found justifying the inference that he held that John Norton was not barred because the period of twenty years had not elapsed after John Norton had attained the age of twenty-one years; and, on the contrary, the opinion clearly shows that John Norton, as well as some of the other plaintiffs, was not barred by the statute of limitations, for a much better reason, to wit: the minority of some *Page 291 of the other cotenants, plaintiffs, in the case. There is no warrant, therefore, for the suggestion of counsel, that Mr. Justice Gary could not have meant what he said; for it was unquestionable good law, and is sustained by the cases ofSumnerv.Murphy, 2 Hill, 488; Garyv. Bates, 3 Strob., at page 502; where O'Neall, J., in delivering the opinion of the Court, uses this language: "That Bordeaux was tenant in common with Smith and Muckelrath of the large grant, of which the land in dispute was part, is true; that each tenant in common had the right to the possession of the whole or part of the land, is also true. But it by no means follows, that a purchaser from one of the cotenants (Bordeaux) of a part of the tract, without reference to the title of the other cotenants, would necessarily become tenant in common, so as to prevent him from perfecting his title by adverse possession under our act of limitations. To constitute an adverse possession it is only necessary it should be held as `one's own.'" See, also, Odomv. Weathersbee, 26 S.C. where, at page 247, Mr. Justice McGowan, in delivering the opinion of the Court, uses this language: "It is true, that the children and their mother were tenants in common, and that one tenant in common cannot, at law, sue his cotenant unless there has been an actual ouster. But when one tenant in common conveys to a stranger who sets up title to the whole and denies that the other tenant has any interest, there is ouster, and the stranger may be sued in an action at law." From this it follows that exceptions four and five must likewise be overruled.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed. *Page 292