Hudson v. Schumpert , 80 S.C. 23 ( 1908 )

April 11, 1908. The opinion of the Court was delivered by The complaint of the above named plaintiff is as follows:

"That he is the owner of and seized in fee of the following described real estate situate in the County of Lexington and State of South Carolina: `All that tract known as Division No. 3, as follows, viz.: containing three hundred and twenty-five (325) acres, more or less, and has such marks, bounds, etc., as follows: Beginning at a stake on the road, thence S. 53 W. 60. 82 to a large pine 3x6. Thence S. 34 E. 41. 30 to a burnt pine stump. Thence N. 69 E. 78.35 to a stake on the branch. Thence down the branch to a poplar near the Mill. Thence S. 79 W. 350 to a stake. Thence S. 8 E. 1.60 to a stake 3x6. Thence S. 66 W. 15.77 to a stake. Thence N. 80 W. 4.75 to a black jack. Thence N. 29 W. 38.10 to the beginning. Bounded by lands of L. Bickley, Joseph Schumpert, and Busby and George W. Reeder's land;' and that the defendant is in the wrongful and unlawful possession of the said real estate, and wrongfully and unlawfully withholds the possession of the same from the plaintiff.

"Wherefore the plaintiff demands that the defendant may be adjudged to surrender the possession of the said real estate to the plaintiff and to pay to the plaintiff damages for the unlawful withholding of the same, to the sum of two hundred dollars."

The defendant Joseph Schumpert answering the complaint herein says:

"For a first defense: That he denies each and every allegation in said complaint contained.

"For a second defense: This defendant denies that he is in the wrongful and unlawful possession of the real estate mentioned and described in the complaint, and wrongfully and unlawfully withholds the possession of the same from the plaintiff, but, on the contrary, the defendant alleges that he is the owner and in the lawful possession of said lands under a good and sufficient title for the same.

"For a third defense: The defendant alleges that neither the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises, or any part thereof, described in the complaint within ten years before the commencement of this action; but that defendant has held and possessed the premises adversely to the pretended title of the plaintiff for more than ten years before the commencement of this action, under a claim of title in fee, exclusive of any other right.

"For a fourth defense: The defendant alleges that the plaintiff is barred from maintaining this action for the recovery of the land and premises mentioned and described in the complaint, or for the recovery of the possession thereof, because said action was not brought within two years from the date of the sheriff's deed for the land under which the defendant claims the fee to said lands.

"Wherefore, the defendant asks that the complaint be dismissed, and that he have judgment for his costs and disbursements against the plaintiff."

The case was tried before his Honor, Judge Ernest Gary, in August, 1905, and he directed a verdict for the defendant.

From the judgment of Judge Gary, the plaintiff has appealed upon seven exceptions, which we will now consider.

All points raised by the plaintiff embrace practically one question, as to the two years' limitation of action against tax deeds, and when the defendant took these tax titles and recorded them it was notice to the trustees of the Wadsworthville Poor School that they disclaimed the tenancy under the lease and trustees should have brought their action within two years from the date of the deeds.

Now, if the tax titles were null and void, placing them upon record would not draw to them any vitality, so the question comes back to this proposition: Were the tax titles interposed by the defendant of any vitality? With some doubts on one point, the Circuit Judge held that they were, but we are not inclined to view the tax titles in question as valid deeds. In Pope v. Wilder, 41 S.C. 540,19 S.E., 996, this Court has pointed out that where a man causes a return to be made in his name, if it is unlawful it will have no effect upon the title of the true owner. In the case at bar the return was made in the name of "unknown," but the defendant was there represented as the agent of the owner, such being the case it was tantamount to presenting the agent as the owner; having done so the same consequences which were visited upon Wilder ads. Pope, will be attached to the defendant here.

Having concluded that there was no virtue in the tax proceedings we are obliged to hold that the Circuit Judge was in error here.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.

MESSRS. JUSTICES GARY AND JONES concur in the result.