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Docket Number

16801

Attorney(S)

Mr. John Gregg McMaster, of Columbia, for Appellant, cites: As to action to try title and recover possession of real property: 71 S.C. 322, 327, 51 S.E. 101; 93 S.C. 161, 76 S.E. 201. As to order of nonsuit being considered on one ground above, that is, that the statute of limitations bars the action, and the doctrine of estoppel having no place in the consideration: 61 S.C. 404, 39 S.E. 567; 54 S.C. 314, 32 S.E. 431; 19 Am. Jur. 601, Sec. 3; 218 S.C. 47, 61 S.E.2d 387; 21 C.J. 1150, 1160; 10 R.C.L. 782; 19 Am. Jur. 661, 668, 787: 182 S.C. 135, 188 S.E. 789; 216 S.C. 98, 56 S.E.2d 740. As to right of trial by jury: 22 S.C. 133. Messrs. James D. Walters and Walter F. Going, Jr., of Columbia, for Respondent, cite: As to order of trial judge being proper: 44 S.C. 378, 22 S.E. 412; 8 Rich. Eq. 130; 11 Rich. Eq. 33. As to nonsuit on grounds of equitable estoppel being proper: 107 S.C. 367, 93 S.E. 137; 99 S.C. 417, 83 S.E. 639; 103 S.C. 1, 86 S.E. 1067; 220 S.C. 131, 66 S.E.2d 809; 19 Am. Jur. 643. Sec. 43. As to trial judge properly taking case from jury, when no jury issue is raised: 107 S.C. 367, 93 S.E. 137.

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Smart Summary

McKinnon v. Summers, Supreme Court of South Carolina (Nov. 27, 1953)

Factual and Procedural Background

Mrs. Sarah E. McKinnon died circa 1900 seized of 201 acres in Richland County, leaving nine children as heirs. Plaintiff (one child) alleges that on October 12, 1901 his siblings conveyed the 201 acres to him, but that deed was not recorded until 1935. On November 7, 1901 a partition plat dividing the acreage into nine equal tracts was recorded. Plaintiff further alleges that on December 16, 1902 four tracts (Nos. 1–4) were conveyed to various siblings and that his name appears as a grantor on those conveyances though his signature was forged. The defendant acquired whatever title those 1902 grantees had by mesne conveyances in 1944.

Plaintiff sued (filed September 27, 1950) seeking cancellation of the deed(s) to the defendant and declaration that he is owner in fee simple of the four tracts. Defendant denied forgery, pleaded equitable estoppel, asserted both the six-year statute for fraud-based relief (Section 10-143, 1952 Code) and the ten-year statute for recovery of real property (Section 10-124, 1952 Code), and also pleaded adverse possession and presumption of grant based on open continuous possession for over forty years.

At the 1951 Spring term the defendant moved for an order of reference; Judge Griffith denied the motion on the ground the case was "to try title" and should be tried by a jury (no appeal from that order). The case proceeded to trial before Judge Littlejohn and a jury at the 1951 Fall term. After plaintiff's testimony the court ordered a nonsuit on the grounds that the claim was barred by the six-year statute of limitations and that an equitable estoppel arose in favor of defendant. Plaintiff appealed from the nonsuit order.

Legal Issues Presented

Whether the plaintiff's cause of action is governed by the ten-year statute applicable to actions for recovery of real property (Section 10-124) or by the six-year statute applicable to actions for relief on the ground of fraud (Section 10-143).
Whether the earlier order by Judge Griffith, denying defendant's motion for an order of reference on the ground the case was "to try title," constitutes the law of the case and precludes the trial court's later determination that the action is governed by the fraud statute of limitations.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Plaintiff contended the action is governed by the ten-year limitation applicable to actions for recovery of real property (Section 10-124), i.e., an action to try title/recover possession, rather than by the six-year fraud statute.
Plaintiff sought equitable relief cancelling the defendant's deed(s) and a declaration of fee simple title based on his claimed 1901 deed to him.

Respondent's (Defendant's) Arguments

Defendant contended the gravamen of the suit is cancellation of deed(s) for forgery (relief on ground of fraud) and therefore the six-year statute of limitations (Section 10-143) applies.
Defendant pleaded equitable estoppel and argued the court could nonsuit plaintiff on that ground.
Defendant asserted title defenses at law: adverse possession and presumption of grant based on open, notorious, exclusive and uninterrupted possession for more than forty years.
Defendant maintained the trial judge's order denying a general order of reference and requiring jury trial was proper in light of the legal title issues raised by the answer.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
71 S.C. 322, 51 S.E. 101	Cited by appellant as to action to try title and recover possession of real property.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
93 S.C. 161, 76 S.E. 201	Cited by appellant as to action to try title and recover possession of real property.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
61 S.C. 404, 39 S.E. 567	Cited by appellant regarding nonsuit when statute of limitations bars action and that estoppel has no place.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
54 S.C. 314, 32 S.E. 431	Cited by appellant on the same topic (nonsuit/statute of limitations vs. estoppel).	Cited by counsel in the record; not discussed or relied on in the court's opinion.
218 S.C. 47, 61 S.E.2d 387	Cited by appellant in support of limitations/estoppel discussion.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
182 S.C. 135, 188 S.E. 789	Cited by appellant in authorities listed on limitations/estoppel.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
216 S.C. 98, 56 S.E.2d 740	Cited by appellant among authorities on limitations and estoppel.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
22 S.C. 133	Cited by appellant concerning the right of trial by jury.	Cited by counsel; the opinion discusses jury-trial issues but does not rely specifically on this citation.
44 S.C. 378, 22 S.E. 412 (Brown v. Brown)	Cited by respondent and quoted by the court for the principle that a party has six years from discovery of fraud to attack a deed (i.e., six years from time of knowledge or sufficient information to put on inquiry).	The court relied on this authority in affirming that fraud-based relief is governed by the six-year rule measured from discovery.
8 Rich. Eq. 130	Cited by respondent as supporting the trial judge's order being proper (equity practice references).	Cited by counsel in the record; not discussed or relied on in the court's opinion.
11 Rich. Eq. 33	Cited by respondent as supporting the trial judge's order being proper.	Cited by counsel in the record; not discussed or relied on in the court's opinion.
107 S.C. 367, 93 S.E. 137	Cited by respondent regarding propriety of nonsuit on equitable estoppel and trial judge taking case from jury when no jury issue is raised.	Cited by counsel in the record; the court referenced related principles about jury issues but did not rely specifically on this citation in its analysis.
99 S.C. 417, 83 S.E. 639	Cited by respondent as authority that nonsuit on grounds of equitable estoppel can be proper.	Cited by counsel in the record; the court deemed discussion of estoppel unnecessary based on its limitations ruling.
103 S.C. 1, 86 S.E. 1067	Cited by respondent in support of equitable estoppel authority.	Cited by counsel in the record; not addressed further because the court resolved the case on statute of limitations grounds.
220 S.C. 131, 66 S.E.2d 809	Cited by respondent as authority on equitable estoppel.	Cited by counsel in the record; not discussed by the court because it resolved the case on limitations.
DuPont v. DuBos, 33 S.C. 389, 11 S.E. 1073 (and second appeal 52 S.C. 244, 29 S.E. 665)	Cited by the court for the proposition that a complaint may embody two causes (equitable cancellation for forgery and a legal action for possession) and for the principle that equity will follow the law's period fixed for fraud (six years).	The court relied on DuPont in analyzing that the complaint could state two causes but that the equitable cancellation claim is governed by the six-year fraud limitation, citing the second DuPont opinion for the six-year principle.

Court's Reasoning and Analysis

The court began by identifying the competing statutes: Section 10-124 (ten years for recovery/possession of real property) and Section 10-143 (six years for actions for relief on the ground of fraud, with accrual measured from discovery). The court analyzed the pleadings and the evidence to determine the gravamen of plaintiff's cause.

The court found the complaint sought cancellation of the defendant's deed(s) on the ground of forgery and a declaration of plaintiff's ownership — an equitable action to set aside the questioned conveyances. The court emphasized that plaintiff did not frame a plain legal action to recover possession independent of cancellation of the deeds. Because plaintiff's right to possession depended on successfully nullifying the allegedly forged deeds, the essential claim was equitable relief for fraud.

The court reviewed plaintiff's own testimony and established that plaintiff became aware of the questioned signatures (and the possible forgery) no later than 1942 during prior proceedings before the Master, yet did not commence this action until 1950. That timeline made the equitable cancellation claim subject to the six-year limitation measured from discovery.

Relying on authority (including DuPont and Brown) the court concluded that fraud-based equitable relief is governed by the six-year limitation and quoted the principle that a party has six years from discovery of fraud to attack a deed. Because plaintiff discovered the alleged fraud by 1942 and delayed filing until 1950, the claim was time-barred under Section 10-143.

The court also addressed whether Judge Griffith's earlier refusal to order a general reference (stating the case was "to try title") bound subsequent resolution. The court explained that Judge Griffith's determination related to the procedural question of whether plaintiff was entitled to a jury trial; the answer raised legal issues (adverse possession, presumption of grant) which justified a jury trial. That interlocutory ruling did not resolve the separate question whether the complaint stated an equitable cancellation action governed by the fraud statute, and thus was not the law of the case on the statute-of-limitations question.

Because the court resolved the case on limitations grounds, it expressly declined to decide or discuss the equitable-estoppel defense.

Holding and Implications

Holding: The court affirmed the trial court's nonsuit order, concluding that the gravamen of plaintiff's complaint was an equitable action to cancel deeds for forgery governed by the six-year statute of limitations for relief on the ground of fraud (Section 10-143). Because plaintiff discovered the alleged forgery by 1942 but did not sue until 1950, the claim was time-barred.

Order of nonsuit affirmed.

Implications: The direct consequence is that plaintiff's equitable claim for cancellation of the questioned 1902 conveyances is barred by the six-year fraud statute of limitations measured from discovery; the nonsuit was properly entered. The court did not set or announce a broader new rule of law beyond applying established limitations principles (including the rule that equitable relief for fraud is governed by the six-year period measured from discovery), and it expressly left the equitable-estoppel defense undecided.

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McKINNON v. SUMMERS.

November 27, 1953.

OXNER, Justice.

The principal question on this appeal is whether the cause of action stated in the complaint is governed, as plaintiff contends, by the statute of limitations applicable to actions for recovery of real property, or, as contended by defendant and held by the trial Judge, by the statute of limitations applicable to actions or relief on the ground of fraud.

Section 10-124 of the 1952 Code is as follows: "No action for the recovery of real property or for the recovery of the possession thereof shall be maintained unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within ten years before the commencement of such action." Section 10-143 fixes a limitation of six years for the commencement of "any action for relief on the ground of fraud in cases which prior to the adoption of the Code of Civil Procedure in 1870 were solely cognizable by the court of chancery, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud".

In order to determine which of the foregoing sections applies to the case before us, it is necessary to analyze the pleadings. Mrs. Sarah E. McKinnon died intestate about 1900, seized and possessed of 201 acres of land in Richland County and leaving as her sole heirs at law and distributees nine children. Plaintiff, one of the children, claims that on October 12, 1901, his brothers and sisters conveyed the above tract of land to him. However, the deed was not recorded until 1935. On November 7, 1901, a plat showing a partitioning of the 201 acres into nine tracts of equal size was made and subsequently recorded. Plaintiff alleged in his complaint that on December 16, 1902, his brothers and sisters, notwithstanding the fact that they had previously conveyed the entire property to him, undertook to convey Tract No. 1 to his sister, Nancy McKinnon, Tract No. 2 to his sister, Flora McKinnon, Tract No. 3 to his sister, Lucille McKinnon, and Tract No. 4 to his sister, Mary McKinnon. All of these deeds were recorded in 1903. Plaintiff further alleged that while his name appears as a grantor on each of these conveyances, his signature was forged. It seems to be conceded that in 1944, defendant, by various mesne conveyances, acquired whatever title the grantees received under the foregoing four deeds.

Plaintiff asserts in his complaint that by reason of the deed to him on October 12, 1901, "he is the owner in fee simple" of the four tracts of land mentioned, and "is entitled to have the deed of conveyance into Annie J. Summers (defendant) set aside and cancelled, and that he be declared the owner in fee simple of said property." The complaint was later amended by alleging that defendant denies the plaintiff's title and claims possession of said property, "rendering it necessary for the plaintiff to apply to this court for relief and for the protection of his title." The prayer of the complaint is for "judgment against the defendant setting aside and cancelling deeds conveying the premises unto the defendant, and that the plaintiff be declared the owner in fee simple of said premises, and for the costs of this action."

The defendant denied the alleged forgery, set up a claim of equitable estoppel, pleaded the six year statute of limitations contained in Section 10-143 of the 1952 Code and the ten year statute of limitations contained in Section 10-124, and further alleged title by adverse possession and presumption of grant, claiming that she and her predecessors in title had been in open, notorious, exclusive and uninterrupted possession of said property for more than forty years prior to the commencement of this action.

At the 1951 Spring term of the Court of Common Pleas, the defendant moved before Judge Griffith, the presiding Judge, for an order of reference. This motion was denied upon the ground "that this is an action to try title and should be tried by a jury." There was no appeal from this order. The case came on for trial before Judge Littlejohn and a jury at the 1951 Fall term of court. At the conclusion of plaintiff's testimony, the court ordered a nonsuit "on the ground that the claim was barred by the six year statute of limitations, and the further ground that an equitable estoppel had arisen in favor of the defendant." The plaintiff has appealed from this order of nonsuit.

Plaintiff testified that his brothers and sisters conveyed the entire 201 acre tract to him in October 1901; that shortly thereafter he went to Georgia, taking the unrecorded deed with him; that he returned to South Carolina in 1911, and sometime later was appointed a bailiff in the Circuit Court for Richland County, which position he has held for the last thirty-one years; that the deeds to his sisters on December 16, 1902 were made while he was in Georgia and that one of his brothers forged his name as grantor thereon; that when he moved to Georgia in 1901 he left the 201 acre tract in charge of his oldest sister, giving her the right to use the property with the understanding that she was to pay the taxes; that upon the death of this sister in 1938, he permitted another sister and two of his brothers to occupy the land under the same arrangement; and that thereafter the two brothers died, leaving only the sister on the premises. He said that while his oldest sister was in possession, the property was returned for taxation in her name and she paid the taxes. The testimony shows that at least one, if not all, of the deeds attacked was witnessed by two outstanding lawyers, who have since died. Plaintiff placed the entire responsibility for the forgery on one of his brothers. This brother died in 1932.

It further appears from plaintiff's testimony that in some litigation before the Master of Richland County about 1941 or 1942, some question arose as to the genuineness of his signature on the deeds to certain of his brothers and sisters conveying Tracts Nos. 5, 6, 7, 8 and 9. At the hearing before the Master, plaintiff claimed that his signatures on these conveyances were forged. The Master found otherwise. Plaintiff admits that during the course of this litigation, he learned that his signature also appeared on the deeds being attacked in the instant action. It is, therefore, clear that not later than 1942 plaintiff was aware of the alleged forgery and did not commence this action until September 27, 1950.

We think the Circuit Judge correctly held that the gravamen of the cause of action stated in the complaint was cancellation of the deeds on the ground of forgery and that such cause of actions was barred by the six year limitation governing actions for relief on the ground of fraud. This action is not one for the recovery of real property within the contemplation of Section 10-124. Whether plaintiff could have maintained an action at law to recover possession of the premises by ignoring the alleged forged deeds need not now be decided. It suffices to say that he states no such cause of action. On the contrary, he attacks the deeds in his complaint and seeks cancellation thereof. Even though the property was conveyed to plaintiff in 1901, if he joined in the conveyances now attacked, which were made in 1902, he divested himself of all title to the land in controversy. It is essential to plaintiff's claim of title and the right of possession that he show that his name was forged to the deeds made in 1902. Any right of possession on his part would follow merely as an incident to the successful determination of his equitable claim to cancellation. Stated differently, there is no attempt to recover possession or establish title otherwise than by nullifying the deeds alleged to be forged.

Considering the complaint in the light most favorable to plaintiff, it might be said that it contains two causes of action, the first to set aside certain deeds on the ground of forgery and the second to recover possession of the land, one equitable and the other legal. See DuPont v. DuBos, 33 S.C. 389, 11 S.E. 1073. As to the first cause of action, the statute of limitations contained in Section 10-143 would apply. In the second appeal of the case of DuPont v. DuBos, 52 S.C. 244, 29 S.E. 665, 668, where it was sought to cancel a forged deed, the court said: "At law, fraud must be taken advantage of within six years of its discovery. Where, however, an equitable action must be brought, by analogy a court of equity will follow the period fixed in law cases by statute." In Brown v. Brown, 44 S.C. 378, 22 S.E. 412, 414, the court approved the following charge:

"A man has six years from the discovery of fraud to attack that fraud, to attack the deed for fraud, six years from the time he discovers it; that is, six years from the time he knows or has sufficient information to put him on inquiry as to the facts which constitute the fraud."

Finally, it is claimed that in the order of Judge Griffith denying defendant's motion for an order of reference, the court held that this was "an action to try title," and there being no appeal from this order, the construction adopted by Judge Griffith is the law of the case. But the language mentioned must be construed in the light of the question before Judge Griffith, namely, whether plaintiff was entitled to a jury trial. In determining this question, it was necessary for Judge Griffith to consider not only the complaint but the answer. The latter raised title by adverse possession and presumption of a grant, purely legal issues upon which plaintiff was entitled to a jury trial. In this respect, the issue of "title" was involved. Under these circumstances, a general order of reference would have been improper. There was no motion by defendant for an order of reference limited solely to the equitable issue of cancellation. It was, therefore, unnecessary for Judge Griffith to determine whether the complaint embodied an action for cancellation on the ground of fraud, and we do not think he undertook to do so.

In view of the foregoing conclusion, we deem it unnecessary to discuss or decide the question of equitable estoppel.

The order of nonsuit is affirmed.

BAKER, C.J., and STUKES and TAYLOR, JJ., concur.

McKINNON v. SUMMERS