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September 20, 1956


The opinion of the court was delivered by: Taylor, Justice.

September 20, 1956.

This appeal arises out of an action brought by appellant in the Court of Common Pleas for Chester County for possession of a house and lot located in the City of Chester. Respondents, by way of answer, set up ownership under deed of a third party, adverse possession, and alleged certain improvements and betterments for which they sought to be indemnified in the event appellant was adjudged owner of said property. The case was tried before a Judge and jury at the December, 1955, Term, resulting in a verdict for respondents; and appellant contends error in that, first, the trial Judge refused to direct a verdict for the appellant where the only reasonable inference to be drawn from the testimony was that appellant was owner of the property involved and that there was no testimony to support the issue of equitable estoppel; second, that the trial Judge erred in ruling that respondents were not liable to appellant for a reasonable rental for use and occupancy of the property and failing to submit this issue to the jury; third, that the Court erred in charging the jury that appellant had a cause of action against respondents' grantor.

John G. White died testate on July 13, 1944, owning certain real estate in the City of Chester, South Carolina, as shown by certain exhibits admitted into the record. He devised certain lots, including Lot No. 18, the one in question, as shown on exhibit, to appellant and other lots within the near proximity were devised to his son, E.M. White. E.M. White, however, went into possession of Lot No. 18 immediately after the death of his father, John G. White, and retained possession thereof until conveyed by deed of June 4, 1948, to respondents, who have been in possession since.

During the course of trial, respondents gave notice that they were relying upon the doctrine of equitable estoppel, and the Court ruled that there was no question but that the appellant had title to the property if she had not lost it by estoppel. One who relies upon the defense of equitable estoppel must carry the burden of proof of such plea; Raleigh & C.R. Co. v. Jones, 104 S.C. 332, 88 S.E. 896; Davis v. Sellers, 229 S.C. 81, 91 S.E.2d 885.

"The essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially." 19 Am. Jur. 642.

In Hubbard v. Beverly, 197 S.C. 476, 15 S.E.2d 740, 741, 135 A.L.R. 1206, this Court used the following language:

"The doctrine of estoppel applies if a person, by his actions, conduct, words or silence which amounts to a representation, or a concealment of material facts, causes another to alter his position to his prejudice or injury. The citation of authority for this well established postulate of law would only be a work of supererogation.

Respondent Bertha Howard testified that she had put a fence on the property during the life of the testate. Respondent John Howard testified that he married Bertha Howard in 1945, and at the time Bertha was renting the house from Mr. Floyd White; that after their marriage he rented the house from a Mr. Neely, a real estate agent; that he put a fence on the property after he purchased it and that he bought the property for $1,350.00, paying for it mostly in monthly installments and that he made improvements thereon, that he neither consulted an attorney nor made any investigation of the title at the time of purchase.

Mr. George White, brother of appellant, testified that he collected rent for his father during his lifetime; that after the death of his father, John G. White, he cut the plat of the property in half and gave to appellant that part showing the lots devised to her. E.M. White testified that George gave him his half of the plat and that the street was the dividing line between his and appellant's property; that he took over the house and lot involved from his brother. Floyd, and that he sold the house and lot in question to respondents.

Respondents in their brief rely principally upon and quote the following testimony as sufficient to sustain their position relative to equitable estoppel:

"Q. Now, Mrs. Macaulay, when did your father die? A. 1944.

"Q. All right, go ahead. A. And so I did look into the matter, of course, I talked to the defendants who were occupying the house and they said that they had bought the lot in 1948, June, I believe, and then I kept on making some inquiries about this lot and some study into the matter and came to ...

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