Southern Ry. Co. et al., Calhoun v. State v. Boynton. 275 489 411 437 448 506 529 Trustees P. E. Church v. Church of the Messiah.... 285 U. Union Central Life Ins. Co., Livingston v. 128 United States F. &. G. Co., Bellinger, Judge of Wyman v. A. C. L. R. R. et al. . Y. Youmans et al. v. Youmans et al. 248 325 138 186 283 OF CASES ARGUED AND DETERMINED IN THE Supreme Court of South Carolina Justices of the Supreme Court During the Period Comprised in this Volume. HON. EUGENE B. GARY, CHIEF JUSTICE. 10498 CATHCART v. MATTHEWS ET AL. (104 S. E. 180.) 1. TRESPASS-EVIDENCE OF RENTAL VALUE ADMISSIBLE.-In an action for damages for withholding possession of realty, evidence of rental value is admissible, although the action could not be maintained, as one for rents and profits. 2. TRESPASS-INSTRUCTION HELD NOT TO ELIMINATE DEFENSE OF GRANTOR'S TITLE. In an action for damages for withholding possession, where the jury were instructed that if defendant's grantor was a purchaser for value without notice, etc., and he acquired such title, verdict must be for defendant, unless plaintiff afterwards acquired title by adverse possession, a further instruction that, if at the time defendant acquired his grantor's title he had notice of circumstances relating to plaintiff's claim sufficient to put him on inquiry, he shall be chargeable with such knowledge as reasonable diligent inquiry would have disclosed, was not improper, as depriving the defendant of the right to stand on the validity of his grantor's title. 3. VENDOR AND PURCHASER-Defense oF BONA FIDE PURCHASE IS LEGAL DEFENSE. As it arises under the recording act, the defense of bona fide purchase without notice is a legal defense, in an action for withholding possession of land. 2-S. C. 115. Arguments of Counsel. [115 S. C. 4. APPEAL AND ERROR - DEFENDANT, HAVING PRESENTED DEFENSE AS LEGAL, CANNOT ASSERT THAT IT WAS EQUITABLE.-Defendant having preferred a request with respect to the bona fide purchase without notice cannot assert that it was an equitable defense, not proper to be submitted to jury. 5. VENDOR AND PURCHASER - EVIDENCE HELD TO WARRANT FINDING PLAINTIFF'S POSSESSION WAS NOT SURRENDERED AND THAT DEFENDANT VENDEE HAD NOTICE.-In an action for withholding possession of lands, evidence that plaintiff locked the building, but left books therein, held sufficient to warrant finding that plaintiff's possession was not surrendered, and that defendant had notice sufficient to put him on inquiry, 6. VENDOR AND PURCHASER-DEFENSE OF BONA FIDE PURCHASE Nor AVAILABLE, WHERE THERE IS EVIDENCE OF NOTICE.-Where a purchaser had notice of facts sufficient to put him on inquiry, he is chargeable with knowledge of all facts which a reasonably diligent inquiry would have elicited, and cannot rely on bona fide purchase. Before SHIPP, J., Fairfield, February term, 1917. Affirmed. Action by William M. Cathcart, as administrator of the Estate of Jno. H. Cathcart, Deceased, against J. E. Matthews and J. E. McDonald, as Executors of Jno. P. Matthews, Deceased. From judgment for plaintiff, the defendant appeals. For former appeals in this case, see 91 S. C. 464, and 105 S: C. 329. Messrs. McDonald & McDonald, for appellants, cite: This is old form of action to recover damages for wrongful invasion of the possession of the plaintiff; the gist of such action is the injury done to such possession: 3 Elliott Evid., sec. 2649; 2 Greenleaf Evid., sec. 613. Action to recover real property with or without damages, may be joined with action for rents and profits: Sec. 218, Code Proc. 1912; but evidence of latter not admissible on complaint that does not allege former: 57 N. Y. 151; 29 Fed. NOTE. On the general rule as to effect of possession of land as notice of title, see note in 13 L. R. A. (N. S.) 51. |