Opinion
13707
October 28, 1933.
Before RAMAGE, J., Anderson, July, 1931. Affirmed.
Action by the First Carolinas Joint Stock Land Bank against B.H. Hudgens. From a decree for plaintiff, defendant appeals.
The decree of Judge Ramage, referred to in the opinion, is as follows:
This action is brought by the plaintiff to compel the defendant to specifically perform his written contract with plaintiff by accepting a deed to a certain tract of land, containing 91.8 acres situate in Anderson County and by paying the purchase price. All of the issues of law and fact involved in the action were referred to H.E. Bailey, Probate Judge, as special referee, to hear and determine. The referee decided that the plaintiff is entitled to specific performance. The case now comes before me on exceptions of the defendant to the report of the referee.
The defendant contends that plaintiff has not a good record title to the land in question and that, therefore, he should not be compelled to take the land. The sole question is: Can the plaintiff convey to the defendant a good, marketable fee-simple title to the tract of land contracted for? Plaintiff's chain of title is as follows: Deed from H.N. White to W.L. Dobbins, deed dated December 20, 1878, recorded February 13, 1914; deed from W.L. Dobbins to W.H. Dobbins, deed dated May 14, 1917, recorded July 6, 1917; W.H. Dobbins to plaintiff (by Court through foreclosure action), deed dated January 30, 1929, recorded January 30, 1929. The defendant makes no attack upon the last two deeds of plaintiff's chain of title, these deeds being regular. The main contention of the defendant is that the deed from H.N. White to W.L. Dobbins is not entitled to record, the probate being fatally defective, and for that reason plaintiff has no record title to the land in question, and that, therefore, the defendant should not be forced to take the land. One other reason advanced by the defendant why the Court should not decree specific performance against him is that the H.N. White deed not being entitled to record, that the children of W.L. Dobbins by his second wife, namely, John Dobbins and Susie Dobbins, now Susie Cromer, might have an interest in the land by reason of money of their mother used by their father, W.L. Dobbins, in buying this land from H.N. White. Both points hinge upon the validity of the recording of the White deed. This question should be considered first. The signature of the grantor appears to have been witnessed by L.M. Whitaker and W.L. Bolt. This deed, with renunciation of dower, is regular in every respect except the probate, which is as follows:
"State of South Carolina, County of Anderson,
"Personally appeared before me L.M. Whittaker and made oath that he saw the within named L.M. Whittaker sign, seal, and, as his act and deed, deliver the within written deed, and that he with W.L. Bolt witnessed the execution thereof.
"L.M. WHITTAKER.
"Sworn to before me this 20th day of December, 1878. W.L. Bolt, C.C.C.P."
Plaintiff contends that the error in the probate is not such as to deprive the deed to record, and plaintiff urges an additional reason, and that is, that all deeds prior to 1908 have been validated by Section 3633, Volume 2, Code 1932. It will also be noticed that this is an ancient deed, being more than thirty years old. The act validating deeds, executed prior to 1908, may be broad enough to include the deed in question, but I prefer to rest my conclusion on the ground that it appears on the fact of the record that some one has made a clerical error and, in my opinion, the error is not of such serious nature as to deprive the deed from record. See Arthur v. Hallowell, 111 S.C. 444, 98 S.E., 202. If the White deed is entitled to record, plaintiff has a record fee-simple title, going back for more than fifty years, strengthened by actual uninterrupted possession for more than fifty years in plaintiff and in those from whom plaintiff claims. I am of opinion that even if the White deed is invalid and not entitled to record, that plaintiff has a good fee-simple title. W.L. Dobbins conveyed this land to W.H. Dobbins May 14, 1917, the deed recorded July 6, 1917. W.H. Dobbins conveyed (Court to plaintiff), to plaintiff January 30, 1929, deed recorded on same day. These two deeds are regular. Actual possession under these two deeds without anything else appearing, give plaintiff a good marketable title. W.H. Dobbins held uninterrupted possession of the land for more than ten years, which possession was adverse to all the world. The mother of John Dobbins and Susie Cromer died during the year 1888, and W.L. Dobbins, their father, died July 30, 1917. John Dobbins and Susie Cromer are now over fifty years of age. They have been sui juris for more than thirty years. Any claim which they may have had is now barred by the statute of limitations as there was nothing in this case to toll the statute. These people would be barred by the ten-year statute, the twenty years, presumption of a grant, and by the forty-year statute (Section 385, Volume 1, Code 1932). Neither John Dobbins nor Susie Cromer was sworn and the record does not contain any competent evidence that these people have ever claimed any interest in this land. Furthermore, as between the original parties, it is not necessary to the validity of a deed that it be recorded, since recording becomes material only when there are double conveyances by the same person, or where there are subsequent creditors. Epps v. McCallum Realty Co., 139 S.C. 481, 138 S.E., 297. There are no double conveyances by White and no subsequent creditors. In my opinion, the title offered by plaintiff is a good, marketable, fee-simple title. The title is good from every conceivable viewpoint. Good by (1) statute of limitations; (2) adverse possession; (3) possession long enough to presume a grant; (4) written deed, properly recorded. Defendant made no application to the Court to have any adverse claimant made party.
I am of the opinion that plaintiff is entitled to a decree of specific performance against the defendant, and the report of the referee, except as may be inconsistent herewith, be and the same is hereby affirmed, and the exceptions of the defendant to the report of the referee are hereby overruled.
Messrs. Watkins Prince, for appellant, cite: Must be good record title to make contract binding: 57 A.L.R., 1326; 57 A.L.R., 1472; 152 Ala., 636; 44 So., 859; 38 Kan., 255; 16 P., 743; 23 Mich., 19; 81 Tex., 355; 16 S.W., 731; 27 S.W. 790. As to defective probate: 19 A.L. R., 1074; 72 A.L.R., 1034; 79 S.C. 357; 8 L.R.A., 620; 208 Ala., 541. Marketable title: 127 S.C. 225; 109 S.C. 255; 29 S.C. Eq., 241. Danger of litigation: 136 S.E., 797; 89 S.C. 574. Mr. A.H. Dagnall, for respondent, cites: Deed good without recording between original parties: 139 S.C. 481; 138 S.E., 297; 111 S.C. 444. As to marketable title: 128 N. Y., 636; 28 N.E., 504; 138 Ind., 103; 37 N.E., 355; 144 S.C. 70; 142 S.E., 36. Possession for twenty years presumes a grant: 78 S.C. 143; 113 S.C. 2. Specific performance: 93 S.C. 350; 76 S.E., 979; 153 S.C. 496; 151 S.E., 63; 134 S.C. 54; 131 S.E., 319.
October 28, 1933. The opinion of the Court was delivered by
The decree of his Honor, Circuit Judge Ramage, appealed from by the defendant, states sufficiently the facts of the cause, and it is satisfactory in every way to this Court. The decree, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
MR. JUSTICE CARTER disqualified.