September 3, 1918. The opinion of the Court was delivered by Action of trespass quare clausum fregit: the answer was a general denial, some other defenses not relevant to the questions now up, and the statute of limitations. The parcel of land in issue contains but 23 1/2 acres. The verdict was for the plaintiffs, and the defendant has appealed.
There are 11 exceptions, which need not be considered in detail, for they do not make so many issues. The first two of the exceptions are to the admission of documentary testimony. The plaintiffs offered in evidence the deed under which they claimed to own the land; it described the land as lying in Goshen Hill township. The objection to the deed was that the complaint described land in Union township. That is a mistake; the complaint did not allege that the land lay in Union township; but, had it done so, the variance would not have been material. The deed was competent. And so was the plat purporting to have been made in 1851. The plat was of age, and could speak for itself; there was no need to prove who made it or when it was made, for it was in the plaintiffs' possession.Duncan v. Beard, 2 N. McC. 406; Jones on Evidence, sec. 309.
All the other exceptions relate to the charge and the refusal to charge. And the chief contention of the defendant thereabout is that which the Court said about the difference betwixt an action like this, that is to say, by one recently in possession and deprived thereof by a trespasser, and another action, by one out of possession and suing upon a paper title to recover possession.
In the first case stated the Court more than once announced the law stated in Connor v. Johnson, 59 S.C. 131,37 S.E. 240, to wit, that when the plaintiff proved his possession and *Page 383 the trespass upon it, then the defendant had the burden of proving a title in himself.
The 3d 4th, 6th, 7th, 7 1/2th and 10th exceptions refer in differing expressions to the same issue. The Court distinctly instructed the jury that the testimony must satisfy it that the plaintiffs were in actual occupancy of the land, claiming it, and, if that was true, then the plaintiffs would be entitled to a verdict unless the defendant satisfied the jury he had a good title in himself.
The Court was right to instruct the jury that the heir might tack his holding to that of the ancestor in before him to make up a holding of 10 years' adverse possession.
Holmes writes that so much in principle was stated by Scaevola as long as 30 years B.C. Holmes, Com. Law, p. 363. The Court distinctly instructed the jury that if there were two unrelated holdings, one a possession of 5 years and the other a possession for 5 years, then these two possessions could not be united in the last occupant. So much is elementary.
The eighth and eleventh exceptions are one; they raise the same issue as the group before considered.
If the plaintiffs proved to the jury's satisfaction that they were in possession and claiming title, and that the defendant forcibly deprived them of that possession, then the plaintiffs did not have to go further at that time and prove that they had been in ten years.
The ninth exception only remains to be considered; it refers to the defendant's eleventh request to charge. The appellant relies on Sheorn v. Robinson, 22 S.C. 32, to sustain the request. The Court in that case was considering the equitable defense of a lack of notice.
The instant case is at law, and the Court would have invaded the jury's province to tell the jury what an intending purchaser of land must do towards investigation before he buys.
The judgment is affirmed. *Page 384