
    8224
    CATHCART, ADMR., v. MATTHEWS.
    1. Real Estate—Adverse Possession—-Limitation op Actions—Title.— One in possession of land before the Code of 1870 could acquire title by adverse possession in ten years.
    2. Ibid.—Ibid.—-Ibid.—The disability of lunacy does not stop the running of the statute in favor of one going in possession of, land under claim of title while compos mentis. The possession of another under such lunatic would enure to his benefit.
    
      3. Ibid.—Ibid.—Tithe.—One in possession of land under claim of title cannot be put to proof of bis title by one who invades his possession as a trespasser or squatter.
    Mu. Justice Woods, with whom, concurs Mu. Justice Watts, thinks it inferable from the evidence that the possession of the deceased in this ease was adverse to that of the trustee after conveyance by him in breach of the trust, and that by such possession he acquired a good title.
    
    4. R.EHEAMXG refused.
    Before Ernest Moore, special Judge, Fairfield, October, 1909.
    Reversed.
    Action by Wm. M. Gatheart, administrator of John FI. Cathcart, against Jno. P. Matthews. Plaintiff appeals.
    
      Messrs. Hanahan & Traylor and Glenn W. Ragsdale, for appellants.
    
      Mr. Hanahan cites: Title acquired by adverse possession can be asserted affirmatively: 50 S. C. 457; 39 S. C. 14; 45 S. C. 317. Equitable trusts are not zuithin the statute of limitations: 7 John. Cb. 89; 83 Am. Dec. 173; 40 S. C. 178. Regular mercantile books are admissible as evidence: 1 N. & McC. 186; 2 Bay 173; 3 Wig. on Ev., sec. 1533, 1535.
    
      Messrs. McDonald & McDonald, contra,
    cite: Entries in mercantile books not made in the ordinary course of business are not admissible as evidence: 1 N. & McC. 130, 18G; 4 McC. 76; 1 Ell. on Ev., sec. 467; 1 Whar. on Ev., secs. 343, 344, 347; 9 Ency. 931; 77 111. 18; 11 N. J. L. 189; 131 N. Y. 169; 176 Penn. 476; 53 E. R. A. 703. Plaintiff must prove legal title to recover suit: 1 N. & McC. 369; 79 S. C. 743; 88 S. C. 180. Recording is presumptive of delivery: 33 S. C. 361; 38 S. C. 397; 81 S. C. 455. Presumption of possession follozvs legal title: 26 S'. C. 534; 48 S. C. 38; 71 S- C. 330; 65 S. C. 536. If the trustee is barred so is the cestui trust: 40 S. C. 168; 50 S. C. 137; 60 S. C. 173; 66 S. C. 393; 73 S. C. 319; 78 S. C. 154, 334. Presumption of a 
      
      grant begins with commencement of possession: 2 Rich. 19; 5 Rich. 459 ; 71 S. C. 521. Lunacy will not rebut presumption of grant: 17 S. O. 482; 4 Rich. R. 103. After twenty years it is presumed the trustee was instructed to convey according to, terms of trust deed: Riley’s Eq. 102; 2 Rich. Eq. 99; 4 Rich, Eq. 152; 3 Hill 33ft; 1 Hill Ch. 380; 11 Rich, Eq. 372; 31 S. C. 91; 72 S. C. 320; 80- S. C. 110; 36 S. C. 197; 20 S. C. 52; 11 Rich. 430; 14 S. C. 103; 120 U. S. 537; 175 U. S. 510. Possession to be adverse must be continuous: 1 McM. 357; 6 Rich. 63; 8 Rich, 42; 14 S. C. 189.
    May 30, 1912.
   •The opinion ini ¡this case was filed on May 2, but remittitur held up on petition for rehearing until

The opinion of the Court was delivered 'by

Mr, Chibo? Justice Gary.

This is am action by the administrator, of the estate of John H. Oathcart, deceased, to recover rents and profits; for the use of a certain storehouse and lot in Winnsboro.

The defendant denied that the legal title was in John H. Cathcart, and pleaded 'tíre presumption of a grant, and adverse possession.

It 'appears from the testimony, ¡that Richard Cathcart became feeble ini mind; about the year 1865, and that he executed a power of attorney, whereby he empowered John H. Cathcart, to1 sell ail the land's; of which' he was then seized.

In pursuance of said power of attorney, the lot described in the complaint, was conveyed to Margaret J. Shaw, on the second day of November, 1867; and, on the same day, she executed an instrument of writing, under her hand and seal, and in the presence of two witnesses; in which she made this declaration: “I hereby acknowledige that, I hold the real estate conveyed to me this day, for a full and valuable consideration, paid by John H. Oathcart, subject to such uses as .John H. Cathcart may direct; hereby binding myself, to make such conveyances, as John.' H. Cathoaart may at any time require of me.”

On the twenty-second' day of June, 1874, the said Margar ret J. Shaw, conveyed to Elizabeth Cathcart; and, on or about the 16th of October, 1884, Elizabeth Cathcart conveyed to the defendant, John P. Matthews.

All the deeds of conveyance were duly recorded, but the declaration of trust, was not placed on record.

Under proceedings in the probate court, John H. Cathcart was adjudged non compos mentis, and sent to the hospital for the insane, on the 25th of June, 1874.

In May, 1875, he was discharged therefrom, and upon his petition, the commission in lunacy was superseded and set aside, by an order of the probate court.

During the year 1883, he was again adjudged a lunatic, and sent to the hospital for the insane, where he remained until his death in 1908.

At the close of the testimony, the defendant’s attorneys made a motion for tine direction of a verdict, upon the ground, “that the evidence shows, that the legal title was not ini plaintiff’s intestate, at the time title was made to the defendant.”

After hearing the motion; his Honor ruled as follows: “The Court has determined, that there is no evidence to go to the jury here, to support the allegations of the complaint, of legal title to the land in question, in plaintiff’s intestate, at the time of the conveyance to the defendant, and, therefore, has determined to' direct the verdict of the jury, for the defendant.”

We have quoted the language of the motion, and of the ruling of his Honor, the presiding Judge, in order to show the exact ground, upon which the verdict was directed.

There are two reasons why there was error, -in directing the jury to render a verdict in favor of the defendant. In the first place, there was testimony fending to; show, that Joto H. Catooart oom'meuced toi exercise acts of ownership, and to hold possession of toe land, openly and adversely to toe rights of his trustee, Margaret J. Shaw, prior to' toe adoption of the Code of Procedure on the first of March, 1870, when the time necessary, to acquire 'title by adverse possession was changed from ten 'to1 twenty years; and that he held continuously, openly and adversely, until he was adjudged to he of unsound mind, and was sent to> toe hospital for toe insane in 1883—'long enough to' acquire title by adverse possession, which is “not only a shield of defense, but is capable of being asserted actively.” Duren v. Key, 50 S. C. 444, 27 S. E. 875.

Ini the second place, the complaint contains these allegations: That John PI. Cathcart took possession of the said bouse and lot, on the 2d day of November, 1867, and continued in uninterrupted ownership' thereof, until toe day of his death, in 1908.

That on the day of , 1884, while the said John IT. Cathcart, was confined to toe hospital for the insane, the said John P. Matthews entered upon the premises of the said John H. Cathcart and began to use toe bouse and lot for the purpose of carrying on a mercantile business.

That the defendant knew, when he entered upon and began to use toe premises, that he was entering upon and using the premises of the said John IT. Cathcart, and that they had been in toe possession, and under toe control of the said John IT. Catocart, from the 2d! day of November, 1867, up to toe very day upon which, toe said) John P. Matthews entered) upon said1 premises.

It will be 'observed, that toe complaint, not only alleges that John IT. Catocart was toe owner of toe land, but that he was in poissession, and that this possession had been invaded by acts of trespass, on the part of the defendant.

There was testimony tending to' prove these allegations, but it was only necessary for toe plaintiff to introduce testimany, tending to show that John H. 'Cathcart was in possession of the premises, and that the defendant invaded this possession, 'by acts of trespass, in order to cast upon him', 'the burden of -proving, that he bad a better title than the plaintiff'’s intestate.

The rule is thus stated 'by Mr. Justice Woods, in the case of Investment Co. v. Lumber Co., 86 S. C. 358, 68 S. E. 637, 30 L. R. A. (N. S.) 243n: “The important question is thus raised, whether a plaintiff alleging both title and pos..sessioo, is entitled to recover damages, upon proof of bis possession, and the invasion of it by the defendant, without proving also, that he had a perfect title. The question must be answered in the affirmative. One person who finds another, in possession of land can not by seizing the possession or invading it, put him whose possession he seized or Invaded, to proof of his title. In sudh a case possession is prima facie evidence of title, and he who invades it, must establish his title. If this were not so, a bolder of land could be put to proof of title against the world, by any one who might choose to trespass or squat upon his lands. This conclusion is well supported by authority. When the plaintiff alleges an invasion of his possession, this gives character to the action, as- one in tibe nature of- the old action, of trespass .quare clausum fregit.” In the case of Turner v. Poston, 63 S. C. 244, 41 S. E. 296, the Court uses this language: “The right of possession is a very sacred one, and the Court will not allow the repose which it gives1, to be endangered, by giving improper advantages to a trespasser. If defendant had a good title, he should have re-sorted to- tihe Courts, when he could have 'obtained -any redress1, to Which, by law, he was entitled.”

We do not deem1 it necessary, to cite other authorities to show, that tihe testimony adduced by the plaintiff, cast upon the 'defendant the burden of proving his title.

Judgment reversed and new trial granted

Mr. Justice ITydrick concurs in the result.

Mr. Justice Woods,

concurring in the result. The complaint alleges 'that John H. Cathcart was at the time of his death the owner of the land described in the complaint, and that the plaintiff, as the administrator of his estate, is entitled to- recover of the defendant the sum of six thousand' dollars as rents and profits. The defendant denied the title of John H. Cathcart, and set up title in himself. The trial was by common consent on the issue of the legal title to the land. The Circuit Judge instructed a verdict for the defendant on this issue, and none of the exceptions raise the question 'that the plaintiff, as administrator of the estate of John H. Oath-cart, might have been entitled to recover rents and profits under the terms of the -trust deed, -even if the legal title was not in him, but- in the trustee. All the -equitable issues- made by the pleadings- were expressly reserved by -the Court.

The declaration of trust under which Margaret J. Shaw, the trustee of John IT. Cathcart, held the land in dispute, was:: “I hereby acknowledge that, I hold- the real estate- conveyed to me this day, for -a full and valuable consideration paid by John H. Cathcart, subject to such uses as John H. Cathcart may direct; hereby binding myself, to- make such conveyances, as- John H. Cathcart may at any time require of -me.”

The statute did not execute the u-se, and the trustee held the legal title. McCaw v. Calbraith, 7 Rich. 80; Huckabee v. Newton, 23 S. C. 295; Ayer v. Ritter, 29 S. C. 135, 7 S. E. 53; Steele v. Smith, 84 S. C. 464, 66 S. E. 200, 29 L. R. A. (N. S.) 939.

On June 22, 1874, the trustee conveyed to ElizaJbtb Oath-cart, and on October 16, 1884, Elizabeth- Cathcart conveyed to defendant, Matthews. There was no- direct evidence that J-oihn IT. Cat-heart directed the execution of -the conveyance by the trustee. Hence there w-a-s ground for inference b-y the jury that the conveyance from the trustee toi the grantor of the defendant was not in execution of the trust, but in violation of it. The Court - could not hold as a matter of law, -therefore, that 'the defendant had conclusively shown that he had a good conveyance from, the -trustee.

It is true that any possession by John H. Cathcart should be -referred to -the trust, and considered to be held under it until conveyance by the trustee in violation of the trust, but ■if the trustee did -convey in violation of the trust, then the possession -of John H. Cathcart, after that repudiation -of -the trust might well be adverse to- the- trustee and her grantee. 3 Wash, on Real Property, 1991. I do not think the proposition sound that John H. Cathcart could not hold by adverse possession while he was non compos or in the lunatic asylum. If any person entered or being already in held under John H. Cathcart while he was a lunatic or in the asylum the possession of such person would enure to the benefit of the lunatic. This is a principle of general recognition. The following are cases in which it was applied in favor of persons under the disability of marriage or infancy: Sibley v. Sibley, 88 S. C. 184; Davis v. Mitchell, 5 Yerg. 281; Killebrew v. Mauldin, 145 Ala. 654; 39 So. 575; 80 Am. S. R. 905. Applying the principle in this case, there was-evidence from which the jury might have inferred that John H. Cathcart held the land adversely to the trustee and her grantee for more than the statutory period after the trustee conveyed the property. This being so, it seems to me there was some evidence upon which the jury could have legally based a verdict in favor of the plaintiff on the ground that John H. Cathcart had acquired the legal title to the land by adverse possession.

I am unable to -assent -to the conclusion stated by the Chief Justice that the Court should have held that, under the facts proved, ‘the defendant had seized upon -or invaded the possessioo of the plaintiff, and that, therefore, it followed as a legal proposition that the burden) was on the def end-ant to prove his title; for there was evidence from which the jury could have inferred that no one was ini possession at tine time' the defendant obtained' his deed and entered, and that, therefore, he did not seize upon or invade the possession of John H. Gaithcart.

The entries in the cash book of John H. Cathcart were properly -excluded. The entries were not made on a book account kept with the parties -Concerned, but are mere entries of a declaration by a p arty in his own f avo-r -ora bis cash hook. The person against whom these entries were made is not b ound by them.

Mr. Justice Watts concurs.

Mr. Justice Fraser,

concurring. I concur in so- much of the -opinion of the Chief Justice as holds), that -there was testimony tending to- sho-w that John H. Cathcart was- in possession of the land described in the complaint, -and that the defendant, Matthews, invaded that possession and that -burden of proof was on the defendant to- justify that invasion.

I also concur in so much of the opinion of. Mr. Justice Woods as holds, -that tine -statute1 having begun to run in1 favo-r-of John H. -Cathcart, was not suspended during his disability.

Petition for rehearing dismissed1 by formal order filed May 30, 1912.  