December 29, 1910. The opinion of the Court was delivered by This is an action to recover the possession of land.
The defendant denied the allegations of the complaint as to ownership, and set up the defenses of adverse possession and presumption of a grant. The jury rendered a verdict in favor of the plaintiff for possession of the land, and the defendant appealed upon exceptions, which will be set out in the report of the case.
The following statement is set out in the record:
"It appears that Edward Whitte, once owned the land in dispute, and that he died about the year 1850, that he left several children, that a daughter married Passailaigue, and *Page 393 that one son was born of this marriage, J.E. Passailaigue; that after the death of her husband, Passailaigue, she married Baker. That Mrs. Baker died about 1892, leaving J.E. Passailaigue as her sole heir and distributee at law. That the land described in the complaint, was assigned to Mrs. Baker, in the division of the estate of Edward Whitte. It appears that D.M. Duke, as auditor of Williamsburg county, made a deed of conveyance to the land in dispute, in 1872 to C.S. Land and Geo. E. Pritchett; that he attempted to convey said land, as the estate lands of Edward Whitte, and the Court declared said deed in this action invalid, for the purpose of conveying the title, but the same was held to be admissible as a color of title. Plaintiff showed a complete chain of paper title, back to and including the deed of B.M. Duke, auditor."
We proceed to consider the questions presented by the exceptions.
First, third, sixth and ninth exceptions: These exceptions will be considered together.
The plaintiff requested his Honor the presiding Judge to charge as follows:
"The jury is instructed that the deed from the auditor of Williamsburg county bearing date in 1872, introduced in evidence by the plaintiff, conveyed no title to the grantee named therein; and that the same was and is absolutely void as a deed of conveyance, to pass title to the land in question, and they must disregard it as such."
In disposing of the request he said: "I charge you that, but I charge you further that that deed, has been admitted into evidence, and as a matter of law, it can be used as color of title, raising the presumption of a grant, so far as it can be used by the jury as a fact, on which I have no right to charge you."
The statement hereinbefore mentioned shows, that the Court declared the deed invalid, for the purpose of conveying *Page 394 the title, but was admissible as color of title. There are two reasons why these exceptions can not be sustained: (1) They are based upon a misapprehension of fact, as it clearly appears that the deed was only introduced in evidence as color of title, and (2) even if the deed had been introduced, for the purpose of showing the origin of the plaintiff's title, it would not have precluded him, from relying upon the presumption of a grant. Mack v. Ry., 52 S.C. 323,29 S.E. 905, 40 L.R.A. 679; Ritter v. Ry., 83 S.C. 213,65 S.E. 175.
Second exception: The presiding Judge at the request of the defendant's attorney charged: "That successive adverse holders of land, under color of title, cannot unite their possession, so as to establish a title by adverse possession." This instruction and the charge when considered in its entirety, show that the exception cannot be sustained.
Fourth exception: Even if there was error, the appellant has failed to show that it was prejudicial. The ruling however is sustained by the case of Love v. Turner, 78 S.C. 513, 59 S.E. 529.
It will be observed, that no objection is urged against the charge as a correct proposition of law, but simply that there was no testimony tending to show, that the plaintiff, or those under whom he claims, ever acquired title from Edward Whitte or his heirs. If there was no such testimony, then we fail to see, wherein the charge was prejudicial to the rights of the appellant; especially as the proper mode of taking advantage of the entire absence of testimony, was either by a motion for nonsuit, or the direction of a verdict in favor of the defendant.
Seventh exception: This exception must be overruled, for the reason that the deed was unquestionably color of title, and, so charging, was not in violation of section 26 article V of the Constitution. *Page 395
Eighth exception: In order to constitute the presumption of a grant, the possession must be adverse as well as in cases where possession for the statutory period of ten years, is relied upon, to confer title. McLeod v. Rogers, 2 Rich. 19; Metz v. Metz, 48 S.C. 472,26 S.E. 787.
The request to charge was defective, in that it failed to state whether it had reference to possession, necessary to make out the presumption of a grant, or to possession for the statutory period of ten years.
Affirmed.