Brown v. Moore

Citations

• 26 S.C. 160
• 2 S.E. 9
• 1887 S.C. LEXIS 34

Syllabus

<p>1. A witness, through whom defendants claimed, testified in their behalf that he permitted S., since deceased, to remain on half of the land in dispute. Held, that this testimony was not incompetent under the proviso to section 400 of the Code, because (1) the plaintiffs were not claiming under S., but as purchasers in remainder after the termination of S.’s life-estate; and (2) the testimony was not as to a transaction with S., but related to an act of the witness.</p> <p>2. Where plaintiffs sued for the recovery of land, claiming it as purchasers under a deed of M., since deceased, and there was no evidence to show who were the heirs of M., the Circuit Judge did not err in charging the jury that the plaintiffs could not recover as heirs at law of M.</p> <p>3. In action for recovery of land, plaintiff must make out a complete title in himself, and cannot recover on the weakness of the defendant’s ; but where both claim under a common source, it is the better title thereunder that will determine the issue.</p> <p>4. Whether a paper was intended to operate as a deed or as a will depended upon the fact of delivery. The Circuit Judge therefore properly submitted that question to the jury.</p> <p>5. Plaintiffs cannot recover land under a deed from M., where defendants produce a paper under seal, executed by M. at a prior date, in which he acknowledges that he had conveyed the land to the defendants. The defendants need not further prove a deed from M. and its loss, but the plaintiffs, claiming under M., are estopped by his covenant and bound by his recitals.</p> <p>6. This case distinguished from Ellen v. Ellen, 18 S. G., 489.</p> <p>7. Where a party recites that he has “deeded and conveyed” a tract of land, as against him it will be assumed that the conveyance was in fee.</p> <p>8. The trial judge cannot charge upon facts disputed in evidence, nor express his opinion upon them. But he may say that no evidence has been offered upon one or all of the issues, if such b