Trustees v. Jennings

Citations

• 40 S.C. 168
• 18 S.E. 257
• 1893 S.C. LEXIS 15

Syllabus

<p>1. Appeal — Pacts.—Un appeal in a law case, only errors of law can be reviewed by this court.</p> <p>2. Lease — Forfeiture—Notice—Action—Presumptions—Oases Criticised. A lease of land was made for seventy-five years, by deed duly recorded, on the consideration of tlie prepayment of a sum in gross, the lease containing no covenant as to assignment, sub-leases, or surrender of possession at its termination. Pending this lease, a purchaser thereof in possession of the land undertook to convey the land in fee simple, and it thereafter passed under deeds purporting to convey the land in fee simple down to the defendant in this action, all of these deeds being duly recorded. These parties all had actual possession, and valuable improvements were erected on the land. In action brought by the lessor, within two years after termination of this lease, for the recovery of this land, held, that as the claim of seizin is inconsistent with tenancy, the conveyance in fee simple by one who had only the rights of a lessee, wrought a forfeiture of the lease, and the landlord became thereupon entitled to regain at once possession of the leased premises, and the landlord not having taken any action for more than twenty years after such forfeiture, he was not barred by the statute of limitations, but the adverse possession for that length of time by the successive possessors raised a legal presumption of a grant in fee simple to those under whom defendant claims, that may be rebutted only by positive proof. The rule as to the character of the presumption in such cases, as laid down in Smith v. Asbell, 2 Strob., 146, approved. Mr. Justice McGowan concurred under the authority of decided cases, and Mr. Chief Justice McIver concurred in the result under the authority of Trustees v. Meetze, 4 Rich., 50, and of the finding of fact by the verdict of the jury, that the landlord had actual notice of the conveyances in fee.</p> <p>3. Refusal of New Trial in a law case on questions of fact is