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Opinion of the Court.

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be of opinion that the plaintiffs were entitled to the land, then the jury found for the plaintiffs, with $5 damages, but if upon those facts the court should be of opinion that the plaintiffs had no title to the land, then the jury found for the defendants; and that the judgment of the court thereupon was, that the plaintiffs were entitled to the land in question, and that they recover them against the defendants, with $5 damages and costs. The answer set up that by said judgment of the court of common pleas, and by the adjudication of the questions in litigation therein between the parties, by the Constitutional Court of Errors of the State, the rights of the plaintiffs in the present suit were fully and finally determined and adjudged, and they were barred thereby of all right of recovery against the defendants.

The plaintiffs filed a reply to that answer of Heyward and others, denying that the rights of the plaintiffs were determined and adjudged or in any way affected by the judgment in the case of Beckham v. DeSaussure, and alleging that the proceedings and judgment were not had between the same parties as the parties to the present cause, and did not involve the same subject matter; that the plaintiffs herein were not privies in blood or estate to any party or parties in that cause; and that the plaintiffs were not bound by the judgment therein. The reply also denied that the defendant in the case of Beckham v. DeSaussure was in possession of the premises in question, at the time of the commencement of that suit, or at any other time. It alleged that, before the institution of proceedings in that cause, to wit, on June 28, 1850, a bill in equity was filed by said Fraser, as executor of Frederick William Davie, wherein Dr. William Richardson Davie, (the father of the plaintiffs,) Richard S. Bedon and Julia A. Bedon, his wife, (the father and mother of the defendants Hyder D. Bedon, William Z. Bedon, Julia Izard, Jeannie B. Farrow, Sarah B. Heyward, Richard Bedon and Robin C. Bedon,) Josiah Bedon, (the father of the infant defendants Alice Bedon and Josiah Bedon,) Hyder D. Bedon and William Z. Bedon, defendants in this suit, and the said Beckham and William F. DeSaussure, surviving trustees under the will of Hyder Alli

Opinion of the Court.

Davie, (and plaintiffs in the suit mentioned in the answer of Heyward and others,) were impleaded as defendants, the subject matter of which action was the title of Dr. William Richardson Davie (the plaintiffs' father) to the said premises, under the will of General William Richardson Davie; that, the said cause having been heard, a decree of the court was duly entered, at Columbia, for the District of Richland, on March 19, 1851, whereby the title in fee of the said father of the plaintiffs in the land was confirmed and he was declared to be in rightful possession thereof; that that decree stands as the judgment of the court, unreversed and of force; and that the respective defendants in this cause, as parties, or privies to parties, in the cause of Frederick G. Fraser, Erecutor v. Dr. William Richardson Davie and the other defendants therein, were bound, concluded and determined by the decree therein, confirming the title of the said father of the plaintiffs in this cause to the premises in question.

The present case was tried before a jury. It found, on August 8, 1873, a special verdict, which is set forth in full in the margin. Upon that special verdict, the District Court

1 Special Verdict. We find :

First. That the plantation at Landsford, the subject of this suit, was the property of General William Richardson Davie at his death, which occurred on the fifth day of November, 1820, and that General Davie devised the plantation under the residuary clause in his will, dated the 17th September, 1819.

Second. That the family of the testator at the time of his death consisted of the following persons :

1. Allen Jones, (son,) born 16th February, 1785, (who resided out of the State of South Carolina,) married, and who then had issue, three sons and one daughter, the eldest of whom was William Richardson, the father of the plaintiff's in this case, which son, Allen Jones, by a second marriage had issue, five daughters and another son.

2. Hyder Alli, (son,) born 29th October, 1786, (who resided near, but not with the testator,) married, and who then had issue, one daughter, Julia A., then a minor unmarried, but who afterwards married Richard S. Bedon and was mother of the defendants, as hereinafter mentioned.

3. Mary Haynes, (daughter,) born 25th June, 1790, then unmarried, residing with the testator; afterwards the wife of John Crockett, with issue, two sons and two daughters.

Opinion of the Court.

entered a judgment, on the 16th of August, 1873. That judgment recited service of process on the various defendants,

4. Sarah Jones, (daughter,) born 12th March, 1793, then the wife of William F. DeSaussure, with issue then born, two daughters, and a son who was born December, 1819, and was called after the testator, William Davie DeSaussure, and which daughter afterwards had issue, another daughter and two sons.

5. Martha Rebecca, (daughter,) born 13th October, 1796, then unmarried, residing with the testator; afterwards the wife of Churchill B. Jones, with issue, a son and daughter.

6. Frederick William, (son,) born 11th April, 1800, then residing with the testator, an infant and unmarried.

Third. That upon the death of General Davie, Frederick William entered into and took possession of the said plantation under the devise in his father's will, and held the same until his death, which took place on the 29th April, 1850, he having had but one child, a son, who died in infancy before his father's death, to wit, in 1832.

Fourth. That Hyder Alli died before Frederick William, to wit, 13th June, 1848, having had issue but one child, a daughter, before mentioned, to wit, Julia A., who after General Davie's death had intermarried with Richard S. Bedon, by whom she had issue as follows: 1, Josiah Bedon, now deceased, leaving a widow, Mary, now the wife of Doctor R. Wysong, and 1:wo children, Josiah and Alice Bedon, minors; 2, Hyder Davie Bedon; 3, William Z. Bedon; 4, Julia, wife of Allen C. Izard; 5, Jeannie B., wife of T. Stobo Farrow; 6, Sarah B., wife of James B. Heyward, the younger, (the said James B. Heyward and Sarah B., his wife, being now the true tenants of the lands in question ;) 7, A. Stobo Bedon; 8, Richard Bedon; and 9, Robin Carr Bedon; the last of whom is still a minor, and all of whom now living are defendants in this cause, and of whom Josiah, Hyder D. and William Z. were living at the death of their grandfather, Hyder Alli, and A. Stobo horn after his death and before the death of Frederick William Davie.

Fifth. That Hyder Alli, by his last will and testament, a copy of which is made part of this verdict, devised and bequeathed his whole estate, real and personal, to Frederick William Davie, Lewis A. Beckham and William F. DeSaussure, in trust for his daughter, Mrs. Bedon, and her children.

Sixth. That Frederick William, during his last illness, sent for Dr. William R. Davie, then a resident of Alabama, to come to him at Landsford to arrange with him for the continued occupation of the lands by the widow of Frederick William after his death; that Dr. William R. Davie did accord. ingly make a journey to South olina, but did not reach Landsford until after his uncle's death; that upon the arrival of the said Dr. William R. Davie from Alabama, after the death of the said Frederick William, he entered upon and took possession of the said lands and, in compliance with his uncle's wishes, leased the same to Frederick G. Fraser, the brother of

Opinion of the Court.

and among others on the infant defendants, Alice Bedon and Josiah Bedon, minor children of the late Josiah Bedon and

the widow and the qualified executor of Frederick William, for a term of ten years, at an annual rent of twenty thousand pounds of ginned cotton; that Frederick G. Fraser, as executor, having thus, in compliance with the wish of Frederick William Davie, secured a lease of the place for a number of years, placed Churchill B. Jones, son of Martha Rebecca Jones and nephew of the said Frederick William, in charge of the place, and the widow, with the said Churchill B. Jones, continued to reside upon the said lands, and, with the said Churchill B. Jones, worked the said plantation in the interest of the estate of Frederick William until dispossessed under the proceedings in the case of Beckham and DeSaussure against DeSaussure.

That on the 28th of June, 1850, Frederick G. Fraser, brother of the said widow and the said executor of Frederick William Davie, filed a bill in equity in Richland district, praying to be relieved from the said lease on the ground of mistake, as he had since been advised that the title to the said lands was not in the said William R. Davie, but either in the heir general of Hyder Alli or in the grandsons of Hyder Alli, the sons of Mrs. Julia A. Bedon; that to this suit William R. Davie, Richard S. Bedon and Mrs. Julia A. Bedon and their sons, Josiah Bedon, Hyder D. Bedon, and William Z. Bedon, and Lewis A. Beckham and William F. DeSaussure, trustees under the will of Hyder A. Davie, were made parties and the bill taken pro confesso against all the defendants.

That the cause came on to be heard before Chancellor Johnston, who, on the 19th March, 1851, by decree dismissed the said bill; that notice of appeal from this decree was given, but the appeal was not prosecuted and finally abandoned, and the decree remains unreversed; copies of which lease, bill and decree are made part of this verdict.

That William R. Davie, then residing in Alabama, remained in possession of the lands by his tenants under the lease until his death, which took place on the 4th January, 1854.

Seventh. That some time after the death of Dr. William R. Davie, to wit, on the 9th September, 1854, an action of trespass to try title was brought by Lewis A. Beckham and William F. DeSaussure, as survivors of Frederick William Davie, Lewis A. Beckham and William F. DeSaussure, trustees under the will of Hyder Alli Davie, against William D. DeSaussure, in the court of common pleas for Chester district, and upon a special verdict found it was adjudged that the said plaintiff's, Lewis A. Beckham and William F. DeSaussure had right and were entitled to the said lands, and that the said plaintiff's should recover against the said defendant, William F. DeSaussure, the said lands; which judgment was, upon appeal, confirmed by the court of errors for the State of South Carolina, a copy of the record in which case is made part of this verdict; that under this judgment the said Lewis A. Beckham and William F. DeSaussure obtained possession of the said lands in the year 1856.

Opinion of the Court.

Mary, his wife, then Mary Wysong, by publication and mailing through the post-office, and the appearance of said Alice

Eighth. That Frederick G. Fraser, executor of Frederick William Davie, departed this life on or about the 1st February, 1852, and that thereupon William D. DeSaussure, who had been named as executor in the will of Frederick William Davie, qualified thereon.

Ninth. That some time after the decision of the court of errors of the State of South Carolina of the case of Beckham and DeSaussure against DeSaussure, and final judgment entered thereon in the court of common plea for Chester district, proceedings were had in the court of equity for Chester district, by and among the children of Mrs. Julia Bedon, for a partition of the Landsford plantation among said children; that under said proceedings the said Landsford plantation was sold by the commissioner in equity for Chester district, and that Churchill B. Jones became the purchaser, paying a portion of the purchase money in cash and giving his bond, with a mortgage of the premises, for the balance; that thereafter Churchill B. Jones conveyed a considerable portion of said Landsford plantation to Cadwalader Rives and W. D. Fudge and remained in possession of the remainder himself; that thereafter the commissioner in equity for Chester district filed his bill in the court of equity for Chester district against said Churchill B. Jones, C. Rives and W. D. Fudge for a foreclosure of the mortgage given to said commissioner in equity to secure the purchase money; that under said proceedings a decree of foreclosure was had, a sale ordered, and the premises sold by said commissioner in equity, and that at said sale T. Stobo Farrow, as the agent of the children of Mrs. Julia Bedon, became the purchaser, and that under said title the defendants now hold, and that the defendant James B. Heyward, the younger, is now in possession under a lease from T. Stobo Farrow, as said agent of said heirs.

Tenth. That the said plaintiffs, William R. Davie, Mary Fraser, wife of Stephen McPherson Woolf, John McKenzie Davie and Allen Jones Davie, are the only surviving heirs at law of the said Dr. William R. Davie, who died intestate, and that the said plaintiffs are citizens of the State of Texas, and are of the ages following, to wit: William R. Davie, born 15th June, 1843; Mary Fraser Woolf, born 5th September, 1845; John McKenzie Davie, born 24th October, 1847; and Allen Jones Davie, born 31st July, 1850.

If upon the facts thus found the court shall be of opinion that the plaintiffs are entitled to the land, then we find for the plaintiffs the land described in the plat made by Charles Boyd, dated 17th May, 1813, as mentioned in the plaintiffs' complaint, and which lands are designated and contained within the lines indicated in the said plat by the numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, and the islands opposite, and five dollars damages; but if upon the facts found the court shall be of opinion that the plaintiffs have no title, then we find for the defendants.

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