McGowan v. Reid

Citations

• 33 S.C. 169
• 11 S.E. 685
• 1890 S.C. LEXIS 117

Syllabus

<p>1. Where plaintiff proves that he is a devisee of A, who died seized of the land in dispute, and that defendant’s vendor also claimed the land under A, plaintiff has established A as a common source of title, and need not prove a grant from the State.</p> <p>2. Under action for partition, plaintiff was allotted her share of the land, but no division of the remainder was made between the two defendants, A and B, and the cause was dropped from the docket, and no Us pen-dens was on file. B then mortgaged all of this remainder as his own property, to secure his individual debt. Pending an action to foreclose this mortgage, A, after notice to B, had the partition suit restored to the docket, and this land partitioned between them, under decree of the court. The land was then sold under decree in the foreclosure suit, and purchased by the mortgagee, A giving notice of his claim. Held, that A’s right to the portion allotted to him was res judicata as to B, and that the mortgagee and purchaser could claim no higher rights than B had.</p> <p>3. In action to recover plaintiff’s share of a tract of land in which defendant claimed the entire interest, and for rents, the Circuit Judge, to whom the case was submitted for trial without a jury, having given judgment in favor of plaintiff' for the land, erred in not passing upon the demand for rents.</p>