The opinion
CONNOR, District Judge
(dissenting). I regret that, after anxious consideration, I find myself unable to concur in the conclusion reached by the court. I concur, without hesitation, in the process of reasoning and the conclusions stated, forcibly and clearly, in the opinion of Judge WOODS, in every respect, save the last proposition.
The title was in Elliott prior to his conveyance to the Butters Dumber Company. His title is founded upon the law of South Carolina, by which, after 20 years’ adverse possession, under a claim of right, a presumption arises that a grant was issued by the state, or deed executed by the true owner to the person holding such possession. This presumption is indulged because experience has justified the conclusion, when possession for this period is shown, that a grant or deed has been executed, which has either been lost or destroyed. It has, for its purpose, the security of titles. Ricard v. Williams, 7 Wheat. 109 , 5 L. Ed. 398 . The principle is clearly stated in Ellen v. Ellen, 16 S. C. 140:
“Title to land growing out of long-continued possession — long enough to presume a grant, deed or other muniment of title — attaches at the beginning of the possession, in a presumption of law, that a deed was executed at that time which has since been lost.”
This rule of law is not peculiar to South Carolina, but obtains, either by decisions of the court, or by legislative enactment in all of the American states — differences being found only in respect to the period of time during which possession is required to raise the presumption. In the light of the evidence in this case, the court takes it, as a fact, that Elliott either had a grant from the state, or a deed from the true owner. He conveyed to the Butters Lumber Company thereby vesting a perfect title in that company. This title may be divested:
(1) By a deed executed in accordance with the statute of South Carolina; it is conceded that no such deed was introduced in evidence.
(2) By an ouster, or disseisin, under color of title, followed by a continuous possession, in the disseisor, for the full period of 10 years; this is not shown.
(3) By possession, without any connection either of possession, or claim by those in possession, for 20 years.
The Butters Dumber Company undertook to convey to the Cape Fear I,umber Company by deed, ineffectual, because not properly executed —January 17, 1900. Assuming that, at that time, the Cape Fear Dumber Company took possession of the land, this action was instituted October 9, 1916; hence 20 years had not expired. If either the Cape Fear Dumber Company or plaintiff had remained in possession for 10 years, the deeds under which they entered, while invalid, and ineffectual to convey title, were color of title, such possession would have ripened into title. It is conceded that neither of these companies were in possession for the statutory period; hence, no title was acquired through this source. It is said:
*530 “The successive possession for twenty years gives rise to the presumption of a grant to the first taker at the beginning.”
In this I concur. It is further said:
“Starting with the first taker, the successive, adverse possessions may be tacked to make out the full period of 20 years from which a good title is presumed in the last taker to the successive possessors claiming the land as their own.”
From this proposition the conclusion is reached that the plaintiff may tack the possession of the Cape Fear Lumber Company and its own possession, admittedly less than 20 years, to the prior possession of the Butters Lumber Company and Elliott, for the purpose of completing the 20 years and raising a presumption of a deed to itself. In this conclusion I am unable to concur. The presumption based upon Elliott’s possession for 20 years exhausted its probative force when invoked to show title in him. The title which vested in the Butters Lumber Company is based, not upon a presumption, but upon a valid deed from the owner, Elliott. If a grant from the state to Elliott had been shown, and his deed to the Butters Lumber Company introduced, is it not clear that, upon the plaintiff’s evidence, it would fail in this action? The presumption of the existence of a grant or deed is as effectual, for the purpose of vesting title, as if a grant, or deed, had been introduced. If the plaintiff is dependent upon Elliott’s possession to raise the presumption that a grant or deed was executed to it, the evidence rebuts the presumption, and shows that the title is in the Butters Lumber Company. In other words, having invoked tire presumption to show title in Elliott and having shown that his title vested in the Butters Lumber Company, I am unable to perceive how it may again invoke the same presumption to show title in itself, which is contrary to1 the truth, as shown by its own evidence.
It is said, and in this I concur, that:
“Possession not obtained by a tortious act is prima facie evidence of title, and upon this tlie plaintiff may rest until the defendant justifies his invasion of the possession by proving either title in himself, or a license to enter, from the true owner.”
This language is quoted from the opinion of the learned judge, who writes tire opinion here, when a member of the Supreme Court of South Carolina. The law is stated with his uniform clearness arid accuracy. The distinction between the two cases is seen by reference to the facts stated in that case. The judge says:
“The important question is thus raised, whether a plaintiff alleging both title and possession (italics mine) is entitled to recover damages upon proof of his possession and the invasion of it by the defendant, without giving proof that he has a perfect title.”
This question is answered in the affirmative and sustained by an able, learned discussion, and citation of authority. Beaufort Land & Investment Co. v. New River Lumber Co., 86 S. C. 358, 68 S. E. 637 , 30 L. R. A. (N. S.) 243. Here there is no allegation in the complaint that plaintiff was, at any time, in possession; but it is alleged that “the plaintiff was the owner and entitled to the possession of a tract of land,” etc., and that “defendant, well knowing that plaintiff was *531 the owner, and entitled to the possession thereof, entered upon and cut and removed timber,” etc. The action is not trespass quare clausum fregit, or for the invasion of plaintiff’s possession, for manifest reasons. As said in the opinion, the title is in issue. The principle upon which the plaintiff in the case cited recovered cannot aid the plaintiff in this case; to entitle it to recover it must show, at least, prima facie title.
I concur in the opinion that defendant did not acquire title by the purchase at the foreclosure sale. If it acquired the equitable rights of the original mortgagee, they must be asserted and administered in a court of equity. White the plaintiff has not, as I respectfully think, acquired the legal title to the land, and cannot, upon its own showing in this action, recover the value of the timber alleged to have been cut by defendant, it would seem that it has acquired equitable rights, which will be protected and enforced in a court of equity; here its right to recover depends upon its showing that it had the legal title. I cannot think that it may recovet of defendant, as it seeks to do, upon the evidence introduced before the District Court, the value of the timber, which was apparently the principal value of the land.
I think that the judgment of nonsuit should be sustained.