
    
      Caroline P. Spears and others vs. Ziba B. Oakes.
    
    In 1818, G., being tenant of S. of a lot, offered to purchase the lot. His offer was accepted on his giving bond for the purchase money, secured by a mortgage of the lot. The bond and mortgage were given, and the mortgage recorded. G. died in 1819, in possession of the lot, leaving, as his heirs at law, a widow and an infant child only a few days old. G. was insolvent, and owed X>. when he died, a large sum of money, which his estate was entirely insufficient to pay. D., immediately after G.’s death, took possession of the lot, and administered on his estate, and about a year afterwards paid the bond and had satisfaction entered on the mortgage. In 1824, the executors of D. sold the lot, and various persons were in undisturbed possession of it, claiming under the sale by D.’s executors, until some years after G’s child arrived at age, when the widow and child claimed the lot and brought suit to recover it. Search was made, but no deed from S. to G. could be found. Held that the plaintiffs were entitled to recover; that the mortgage and other facts proved were, until rebutted, conclusive evidence that S. had conveyed the lot to G., and that no presumption from the proof could arise, that either G. or the plaintiffs had conveyed to D.
    
      Before O’Neall, J., at Charleston, May Term, "1850.
    The report of his Honor,' the presiding Judge, is as follows:
    “ This was an action of trespass, to try title, brought by the plaintiffs, Caroline P. Spears and Thomas M. Hume and wife, as heirs at law of George T. Spears, deceased, to recover a lot .of land in Charleston. The South Carolina Society once owned the lot. The charter of that society was given in evidence. On the 19th of September, 1811, the South Carolina Society executed a lease to Robert Haig of the premises in dispute for seven years. This was a building lease, and the lessee, by it, was to have certain rights in the buildings to he erected. On the 24th of August, 1816, he assigned his unexpired term and interest in the buildings, to George T. Spears; and he paid rent to the South Carolina Society. On the 22d of September, 1818, he (George T. Spears) applied to the South Carolina Society to purchase ; his proposition was accepted. He was to give $1500, payable in three years, secured by a mortgage of the lot. The plaintiffs were unable to produce any deed to their ancestor; they proved that search had been made among his papers, and in all the public offices, and neither it nor the mortgage could be found. They gave in evidence from the Register of Mesne Conveyances, the record of the mortgage of the lot, executed by George T. Spears to the South Carolina Society, dated 2d October, 1818. George T. Spears died in possession, on the 24th or 25th of October, 1819, leaving a widow, Caroline P., and an only child, (born 19th October, 1819) now the wife of Thomas M. Hume. On the 19th of November, 1819, administration was granted to J. M. Dart. The inventory of Spears’s personal estate was $1,166 50. On the 24th of October, 1820, satisfaction was entered, in the Register’s office, of and upon the mortgage executed by Spears to the South Carolina Society, by the treasurer of the society ; and on the 21st of October, three days previous, an entry was made in the Society’s cash-book, of the receipt of $1500 principal, and $110 interest, of the bond of George T. Spears. Immediately upon the death of Mr. Spears, Mr. Dart, his administrator, took possession of the lot; various persons were in possession till 1838, when the buildings were burnt. Since then, it has been enclosed, and is now in the possession of the defendant, who refused before suit brought to give it up or to suffer the plaintiffs to take possession. The defendant proved that Mr. Spears was insolvent at his death, that his friend and partner, Mr. Dart, was injured by him, and that to him he owed a very large sum of money. It appeared that the plaintiff, Mrs. Spears, made no claim for the lot until within the last two years, when it was claimed for her and for her daughter. It appeared that the money paid to the South Carolina Society for the principal and interest of George T. Spears’s bond, was paid by the draft of Mr. Dart. On the 20th November, 1824, Hamilton and Dart, executors of X M. Dart, conveyed the lot to Carter. There was some proof that Stocker purchased the lot, as the property of Tobey, for the Master in Equity proved that he sold it, 25th November, 1841, as the property of Tobey, to Stocker for $1300. Then Mr. Dukes proved that he once had a deed from Pressly, assignee of Stocker, to the defendant, as trustee for the wife and children of Stocker. He said he had searched for it and could not find it, but that he thought it was delivered to the defendant.
    “ The jury were told, that the plaintiffs had given sufficient proof to presume the existence of title from the South Carolina Society, in their ancestor, George T. Spears. That that was the legal implication of accepting a mortgage from him. That nothing had been shewn to divest that title. That it might be true that he owed Mr. Dart many thousands of dollars, but that did not and could not of itself give Mr. Dart title. So, too, of the payment to the South Carolina Society by Mr. Dart, that was in his duty as administrator, and rather strengthened instead of weakened the presumption of the plaintiffs’s title. As to the adverse possession, none such for the statutory period was sufficiently proved to divest the title, if both parties were adults. But Mrs. Hume was a minor until the 19th of October, 1840, and since then, even five years adverse possession had not been shewn in any one. Indeed there was no proof whatever when the defendant acquired possession. The jury, however, looking I suppose to the equities of the case, foimd for the defendant.”
    The plaintiffs appealed, and now moved for a new trial.
    
      Simons., for the motion.
    Phillips, contra,
    cited on the subject of legal presumptions Stockdale vs. Young (3 Strob. 505); and contended that the giving and accepting the mortgage did not raise the presumption that the South Carolina Society executed a conveyance to Spears, (1 Phil. Ev. 225.) He further cited 16 Mass. E. 348; 18 Pick. 15; 4 Leigh, 598.
    Memminger, same side. It is clear that justice has been done by the finding of the jury; it is not a case, therefore, in which the Court should be astute to find a ground on which to set aside the verdict. (1 McM. 449.) There is no conclusive evidence that the Soulih Carolina Society conveyed the lot to Spears. There is a presumption of fact, arising from the mortgage, that the Society did make such a conveyance, but upon that presumption the jury have passed, and their verdict should stand. But may it not he presumed that Spears executed a conveyance to Dart, and that Dart having the title, satisfied the mortgage out of his own funds, — as he certainly did. (1 Bill Ch. 378.)
   Curia, per

O’Neall, J.

There are two questions to he considered and decided in this case; first, did the plaintiffs shew title; secondly, was that title defeated by any thing shewn on the part of the defendant.

I am clear that in both respects the case is with the plaintiffs.

1. As to the title : It is unnecessary to say any thing about a grant, or the former owners, until we reach the South Carolina Society; for their title is unquestioned. To whom did they convey 1 Many facts were shewn on the trial, to make out a satisfactory answer to this question. A prima fade case of loss was made by shewing that search had been made in all places where such a deed should he, and that none could he found. Then secondary proof was resorted to. It was shewn that the society had- leased the premises on a building lease to Haig ; that the plaintiifs’s ancestor bought and procured an assignment of that lease, under which he went into possession ; then, that he submitted to the society a proposition to buy, which was accepted ; that a mortgage of the premises in dispute was executed by Spears, the plaintiffs’s ancestor, to the South Carolina Society, to secure the purchase money; then, that that was paid, and satisfaction entered on the record, 24th October, 1820. It was proved that Spears died in possession of the lot. These facts, it is not denied, made out, prima fade, title in the plaintiffs ; but it is said such proof was not conclusive. Concede it, and how does that help the defendant ? The jury is bound to respect a prima fade shewing, until rebutted, just as much as they Avould be any other. Indeed, if not rebutted, such a shewing establishes the case, and the jury have no right to say we will not find accordingly. But the plaintiffs’s case is not merely prima facie. I think it is conclusively shewn, that the title of the South Carolina Society was in George T. Spears ; the mortgage' was by him to the South Carolina Society to pay the purchase money. This tvas an admission in law, that he had the title of the South Carolina Society to the premises ; otherwise he had nothing to.convey, and thereby mortgage. If, in that mortgage, there had béen an express recital of the sale, by the South Carolina Society, to him of the lot, and then that the sum to be secured was the price, and that the society had conveyed to him, there could be no doubt that such a recital would have been an estoppel against the South Carolina Society to deny the existence of the conveyance (1 Green. Ev. § 23 and note 1.) The plaintiffs have proved all these facts, except the conveyance, and then the mortgage, which gives the effect of an estoppel to the recitation, comes in and shows conclusively, that by accepting a conveyance as a security from the party contracting to buy, the South Carolina Society had previously conveyed to him title. This may not be an estoppel, but until rebutted by shewing that there was a mistake, in fact, in thus .accepting, or that George T. Spears had in fact no title, it operates to exclude a presumption to the contrary, and may, therefore, be said, under such circumstances, to be conclusive.

2. There is nothing shewn on the part of the defendant to defeat this title. Spears died in possession. There is nothing therefore to create a belief that he had conveyed to another. His administrator paid the mortgage, and, for any thing which appears in the proof, had or might have had his intestate’s funds legally liable to pay the debt; for it was a bond debt, and would be preferred over Mr. Dart’s own claims against the deceased, which, for aught that appears, were mere simple contracts. It is very true Spears was insolvent, and largely indebted to his friend and benefactor, Mr. Dart. But thatcould not transfer his real estate. It is also true, that Mr. Dart took possession of the lot soon after Mr. Spears’s death. He was, however, Spears’s administrator, and, according to the usage of the country, and which has very much the sanction of our decided cases, the administrator may and often does take possession of the real estate to rent it. This must be regarded, in the absence of other proof, the character of Mr; Dart’s possession ; for he did not occupy it himself. He could not acquire a title against the heirs of- his intestate, by possession, without shewing something more to give it an adverse character. But during his whole possession, Mrs. Hume, the infant child ,of Spears at his death, was a minor. It is clear that, against her, the possession could have no effect, and the case of Thomson vs. Gaillard, (3 Rich. 418,) settled that the infancy of one distributee will save the others from the bar of the statute. So, too, no presumption of a deed can arise from Mr. Dart’s possession. The infancy of Mrs. Hume, and her consequent legal incapacity to convey during the whole possession, negatives any presumption of a thing which she could not legally do. If she had been of age five years before action brought, and there had been proof of a possession continued under Mr. Dart, or his heirs, by his or their tenants, then, according to Hill vs. Connelly, she, and of course her mother, might have been barred. But there was no such proof, and it follows there is nothing, in this respect, as well as in the others which I have been considering, which cam in any way defeat the plaintiffs’s title.

It may be that the great sums of money paid by Mr. Dart, for Mr. Spears, may make us feel that he, Mr. Dart, or his representatives, ought to have the full benefit of his, Spears’s, estate, in the discharge of the same. That this may even be the right of the case, may very well be admitted; and still if Mr. Dart did not take the proper measures to acquire the legal estate, his executors, or their alienees, cannot expect at law to hold it; and it may even be, that in equity, at this distant day, his representatives may find it-very difficult to set up their debts-, so as to make the real estate liable now for their, payment.

The motion for a new trial is granted.

Evans, Withers and WhitneR, JX, concurred.

Frost, J.,

dissenting. Spears had been the clerk of Dart, a factor of large business and capital, who took Spears into partnership. Spears injured his friend ; and at the time of his death, being wholly insolvent, he owed Dart a very large sum of money, said to be $>30,000. Immediately after the death of Spears, in 1819, Dart administered on his estate, paid, by his own check, Spears’s bond for the lot, — the amount of which greatly exceeded the whole inventoried estate of Spears, — and took possession. This he must have done with the consent, at least, of Spears’s widow. From that time until the great fire of 1838, Dart, and those who claimed under him, had possession of the lot, by successive tenants; and since the fire, the lot has been enclosed. This could only have been done by one of those who claimed title under Dart’s deed. The plaintiffs never, during that time, had any possession, nor made any claim to the lot, till the commencement of this suit. There is parol evidence of intermediate conveyances from Dart to the defendant. Sufficient time has elapsed to presume a deed from Spears to Dart; but that cannot avail the defendant, because Dart’s possession commenced after Spears’s death. No presumption of a deed can arise against the minor plaintiff, who was under a disability to convey •, and her co-tenancy with her mother prevents the operation of the statute of limitations. In addition to the long possession, the defendant has shewn every meritorious consideration in support of his title, and every circumstance which can manifest its fairness. But he has not shewn a deed from Spears to Dart. If the verdict could be supported only by proof of defendant’s title, a new trial should be granted ; and Dart, and all who claim under him, be left to abide the consequences of their remissness or indiscreet confidence.

But the defendant is entitled to retain his verdict, if the plaintiffs have not shewn a good title. The plaintiffs’s title, like the defendant’s, is imperfect for want of a deed. The plaintiffs showed no conveyance from the South Carolina Society to Spears. The only evidence, to supply the want of a deed, is the offer of Spears to purchase the lot, which was accepted by the society, and the mortgage of the lot by Spears to the society, to secure $>1500, which was the price he offered.

What then is the effect in evidence of the mortgage deed ? Has it the effect to transfer the lot from the society to Spears ? Land can be conveyed only by deed, apt and proper in all its parts for the alienation of land. It is not permitted to add to, vary, or explain a deed by extrinsic evidence. It would be a bold adventure, in an issue of title, to produce and prove a deed of mortgage and offer witnesses to prove that it was intended as a conveyance of the mortgaged premises from the mortgagee to the mortgagor. That cannot be implied or presumed, by law, of which the law, by one of its most rigid rules, prohibits any evidence to be received. If by implication of law, or by estop-pel, or in any other way, a mortgage from A. to B. can operate as a conveyance of the mortgaged premises from B. to A., deeds of conveyance are idle forms.

The acceptance of Spears’s mortgage by the society, is the subject of a presumption of fact. In a presumption of law, which is of two kinds, the law itself makes the presumption. The presumption, juris et de jure, is not a rule of inference from testimony, but a rule of law, which is attached to circumstances, when proved; such as that from a seal, a consideration is presumed ; and that an infant, under seven years, is presumed to be incapable of crime. Against this class of presumptions no proof is admitted. Presumptions juris may be described as -prima facie evidence. They are inferences from facts proved, prescribed by law, and made by the Court. These hold good only until the contrary be proved.

It has been shewn that the inference of a conveyance, from the fact of the mortgage, cannot be referred to the first class of presumptions; nor can it be to the second. Presumptions of law, in aid of a title, are never made, except in support of ancient possession. A deed or grant is never presumed, unless there be proof of twenty years possession, at least. The plaintiffs have had no possession. Nor can the plaintiffs claim any relaxation of the rules of evidence, for that also is allowed only for the protection of rights sanctioned by evidence of long continued enjoyment. Length of time is unfavorable to any presumption of title in the plaintiffs; for during the whole period of time since they allege their title to have accrued, there has been an open and notorious adverse possession of the lot.

The inference from the mortgage deed must be referred to the class of presumptions of fact. A presumption of fact is a conclusion of probable reasoning. It is deduced from experience of the connection or dependence between a fact proved and the fact to be inferred from it. The dependence may be so universal and uniform that the inference is immediate and necessary; or it may be so casual and remote as to excite only the faintest conjecture. Presumptions of this class pertain to the jury.

The case presented for their decision this inquiry: — By the fact that the South Carolina Society accepted a mortgage of the lot from Spears, is it proved that the society executed and delivered a deed of conveyance of the lot to Spears? The various observation and experience of the affairs and habits of society, which was united in the jury, made the question peculiarly proper for them. They were not embarrassed by conflicting and voluminous testimony, from which it required professional art and experience to extricate the truth. The subject was not above the feeblest comprehension.

By their verdict they have declared that the evidence has not produced conviction on their minds that the deed of conveyance was, in fact, executed. The presumption of a deed which would perfect the defendant’s title, is supported by more probable argument. They might justly require very convincing evidence of a title in the plaintiffs which should deprive the defendant of property so long enjoyed without disturbance or claim. They might conclude that, through some remissness, the deed of conveyance had not been executed or not delivered. If it had been; some evidence of its record, or of its execution, or of its existence, might be expected and required by the jury. They had a right to say, as they have said, that they did not believe, from the evidence, that the deed had been executed. On this subject the jury should not be coerced. If the defendant were a squatter, or had entered tortiously, a new trial might he proper. The verdict assigns the land to a claimant, with every evidence of title, except a deed from Spears to Dart, in preference to the demand of the plaintiffs, who have shewn neither title nor possession. The verdict cannot be imputed to prejudice, passion or caprice; it effects what is just. It cannot be said to be against evidence. From an admitted fact a majority of the Court has deduced an inference contrary to the inference of the jury from the same fact. It is the right of the jury, in such a case, to differ from the Court.

Wakdlaw, J., concurred.

Motion granted.  