This is a second appeal in this case. The first appeal is in 116 S.C. 7;106 S.E., 843. The second trial was before his Honor, Judge Shipp, and a jury, at Allendale during September, 1921. At the last trial the appellants moved for a directed verdict, the effect of which would have been to declare the legal title to seven-eighths undivided interest in the property to be vested in the appellants and one-eighth interest in the respondent. This motion was refused, and a verdict rendered for the defendant. The grounds of motion for a directed verdict at the close of all the testimony were:
"Mr. D.S. Henderson: We submit to the Court and move the Court to direct a verdict in favor of the plaintiffs in this action for the undivided seven-eighths interest in the *Page 84 tract of land in dispute, according to the rights among themselves under the Statute of Distributions, upon the following grounds and for the following reasons:
"(1) That it is unquestioned, and in fact admitted in the testimony in the case, that the land in question came under the will of Wm. Cave, and contained 153 acres, which was set apart in the decree of Job Johnstone, Chancellor, to which the executors of Wm. Cave were parties. to John W. Bradley for life, and at death to his children, it being recognized that John W. Bradley was a grandchild of Wm. Cave.
"(2) That it is unquestioned and settled by the evidence in the case that the defendant, Mrs. Calhoun, claimed from the same source of title as the plaintiff's, namely, from Wm. Cave, and that, according to the decision of the Supreme Court, the Probate Judge's deed to Julia R. Bradley, amounted to nothing, because it simply sold the interest of John W. Bradley, and, if John W. Bradley had nothing at the time, nothing was sold, and that, so far as the paper title is concerned in the case, it is unquestioned that the title of the plaintiffs is paramount to that of the defendant.
"(3) The defendant set up in the first place res adjudicata under the Job Johnstone and Inglis decrees, put in evidence, and claimed that under the Inglis decree a fee simple title to the land was vested in John W. Bradley, and we contend that the unquestioned evidence in the case, there being no presumptions at all, is that the children, some of them, at least, were in esse, and actually living on the land in question, and in reach of the Sheriff of Barnwell District, and were never made parties to that action, and that, if the Court please, if they had been made parties to the action, the Court had no power to change the trust qualities of the Wm. Cave will, and change it from a life estate to an absolute fee simple in John W. Bradley. That the *Page 85 decree undertook, without having the parties before it, to change the trust, and, whilst the trust directed that the executors could partition, yet it said if they did not partition they could sell, but the proceeds must be reinvested upon similar trust, and what action was taken by the Inglis decree was a violation of that trust, and, under the decision of our Supreme Court, and the authorities upon which it is based, that action was void; not simply voidable, but void.
"(4) That on the res adjudicata question of the Probate title it has been settled by our Supreme Court in this particular case that the Probate Court had no power, authority, or jurisdiction, and, even if it had, did not undertake to sell anything else but the interest of John W. Bradley, and, if John W. Bradley only had a life estate, they sold nothing.
"(5) That, may it please your Honor, the inference that can be drawn from the testimony in this case is that Mrs. Julia R. Bradley, when she purchased at the Probate sale, purchased with the knowledge that the land she was purchasing was trust property under the Cave will, and that if she did not have the actual knowledge she had facts sufficient which, if followed up, would have given her that knowledge, that it was trust property, and I don't think there is any dispute on that, and that she stood in the shoes of the trust estate, and, being the quasi trustee of the remaindermen, she could not plead adverse possession against them, or the presumption of a grant, or laches, or any doctrine that would deprive them of their legal rights as remaindermen, no matter how long she stayed in possession.
"(6) We further take the position that, as Mrs. Julia R. Bradley was the stepmother of the children by the first marriage, she was in a quasi parental possession with these children when John W. Bradley died, and, standing in that attitude towards them, if she purchased an outstanding title *Page 86 at the Probate sale, even if the title was good — and our Supreme Court has said it was not good — she could not claim adverse possession or the presumption of a grant, anything of that kind, until she gave them what it denominated in the books, not the ordinary notice of ouster, but unequivocal notice that she claimed under the Probate title.
"Now, the only other position that our friends take on adverse possession is that they are protected by the presumption of a grant as against the trustees of William Cave's estate; that the fee to the land originally vested in Wm. Cave's executors, and that for 30 or 40 years they could have sued, and that consequently a title vested in John W. Bradley absolutely, and that John W. Bradley's title could be sold; but our answer to that is that, under the will of Wm. Cave, the executors had the right to partition the land, and that they did it under the direction of the Court of the Job Johnstone decree, and, when that was done, as far as they were concerned, all authority as to who had the property in question was at an end, and no question of the Statute of Limitations or the presumption of a grant could arise."
The exceptions, three in number, complain of error on the part of his Honor. The practical question presented by the exceptions is whether or not the motion to direct a verdict should have been granted. The other questions raised by the exceptions are incidental thereto. In the former appeal it appeared that in neither the Johnstone decree in 1856 nor in the Inglis decree in 1861 are the defendants mentioned in any manner as parties. Hence the appellants claim that they were not bound thereby.
This Court in the former appeal, in passing on the question of whether or not the directed verdict in favor of defendant as directed by Judge Bowman should stand, ruled that the Inglis decree did not bind the appellants, because they were not parties thereto; ruled that this decree and the *Page 87 accompanying records might be received in evidence for what they were worth, but the question should be submitted to the jury as to whether or not appellants' rights had been adjudicated thereby. In the same decision this Court held on the question of adverse possession:
"All questions of ouster, adverse possession," etc., "are disputed questions, and should be submitted to the jury."
As to the question arising out of the construction of the decrees in the former appeal, the Court meant by the language used that the decrees were to be received in evidence for what they were worth, and in the new trial, if the defendant might succeed in some manner to connect the appellants with the decrees by any competent facts, circumstances, or testimony, then the matter should be submitted to the jury, but if all that appeared upon the trial were the decrees, with no sufficient connecting links, then the general rule that the Court must construe the written instrument would apply. In this case no connecting link was supplied, and on the motion for a directed verdict it was the duty of Judge Shipp to construe the decrees upon the face of the decrees themselves, and no other inference can be drawn than that the remaindermen were not parties to the Inglis proceeding, and in no manner bound thereby.
Judge Shipp said on the motion for a directed verdict this:
"Now, unless Mr. Boulware shows me something to the contrary, I will properly instruct the jury on the matter of the judgments — that is, there can be no presumption that these people were parties."
We have no doubt that he so instructed the jury, and, if the jury found by their verdict that the appellants were parties to these decrees, there was no evidence to sustain their findings, and it was contrary to law as laid down by the Court. *Page 88
As to the decrees, there was no evidence other than the decrees themselves to go to the jury as to whether the appellants were parties thereto, and his Honor, on the grounds made by Mr. Henderson in reference thereto, should have granted the motion.
Under the former appeal the Court said in reference to sale by the Probate Judge that Mrs. Bradley acquired only such title as her deceased husband had. Under the will of Cave he had only a life estate. An investigation of his title would have shown that under the whole record in this case, Mrs. Bradley acquired nothing. Her husband only had a life estate that terminated with his death. The whole proceeding in the Probate Court was a nullity, except possibly the question of title.
As to the nature of Mrs. Bradley's holding — whether she held permissively or as trustee of a constructive trust, or adversely, as contended by the respondent: There is no question but that this Court has held that a question of adverse possession and prescription need not of necessity be sent to a jury. The facts show that John W. Bradley, his children by his first wife, and his second wife and child used the property as a home after Bradley's death, and his widow purchased the property at Probate sale. She was in possession as widow, mother,, and stepmother of plaintiffs. The children have come and gone as they saw fit and proper. The Probate sale was a nullity. Mrs. Bradley only bought such title as her husband had. This Court has decided that. It turns out that he only had a life estate. Mrs. Bradley occupied the premises with her daughter, who was the youngest child of John W. Bradley, and a tenant in common with the plaintiffs. One tenant in common cannot hold adversely to the other tenants in common, unless under certain circumstances, none of which, are made to appear in the present case, and it is absolutely without evidence to support a claim of adverse possession *Page 89 by one tenant in common against the other tenants in common. Under the doctrine of Sullivan v. Latimer, 35 S.C. 422;14 S.E., 933, as applied in the former appeal, in this case, it inevitably follows under the facts as developed in this case that Mrs. Bradley bought the land subject to the trust of her husband; the will of Wm. Cave on record shows that John W. Bradley only had a life estate, and held as trustee of his children. This fact not only put Mrs. Bradley on notice that she bought nothing, but was trustee of her children, and the other evidence in the case shows that Mrs. Bradley knew that her husband only had a life estate. She knew this other than from the will of Wm. Cave. John W. Bradley told her he had only a life estate. His Honor was in error in not directing a verdict in favor of the plaintiffs, as asked for, on all of the grounds, for seven-eighths of the property, and the questions of taxes, betterments, rents, and profits are left open.
MR. CHIEF JUSTICE GARY concurs.