Des Champs v. Mims

Full title: DES CHAMPS v. MIMS

Court: Supreme Court of South Carolina

Date published: Nov 22, 1928

148 S.C. 52 (S.C. 1928)

145 S.E. 623

Opinion

12529

November 22, 1928.

Before MANN, J., Sumter, March, 1927. Reversed and remanded with directions.

Action by Armand Des Champs, by guardian, etc., against T.B. Mims. Defendant's motion for nonsuit was granted, and plaintiff appeals.

The portions of the record directed to be reported follow:

WILL OF L.H. DES CHAMPS

Filed in Probate Office, Clarendon County, bundle 29, package 3.

Item I. (Devise to wife of testator of Oakland plantation, with all personal property on it, also money; land to her for natural life, and at her death to testator's children.)

Item II. "I also give and bequeath to my children all of my other real estate, that is the `Walnut Grove' plantation and the `Baywood' plantation, to be equally divided between them my living children to belong to them during their natural lives, and after their death to belong to their children, this property not to be liable to their debts in no wise and if any of my children should die without heirs then their share of the property of real estate is to be equally divided between the other living heirs."

Item III. (Appoints wife executrix.)

Report of H.C. Curtis, special referee, dated January 16, 1914, recommended to Court that relief asked for be granted.

Decree of Judge John S. Wilson, at chambers, Manning, S.C. dated February 21, 1914:

It appears from proceedings herein that the plaintiff desires to sell the tract of land hereinafter described. He alleges in his complaint that this is a part of a tract of land devised to me under the will of his father, and in order to support himself it has become necessary to put a mortgage upon the entire tract of land, and that he was contracted for his support debts of pressing necessity, and he has small means of subsistence.

He alleges further that after paying the debts so contracted he desires to use the remainder of the fund for the improvement of the remainder of the land.

While it is difficult to draw the line between granting and refusing a request of this kind, I am impressed with the dire necessity in this case of granting relief to the plaintiff in order to prevent the loss of the use of his entire property. It is manifest from the devise, that while the testator sought to provide against extravagance and mismanagement at the same time his design was to give a support to the plaintiff.

The plaintiff has come to that situation in which he finds himself in dire need and the necessity is all the greater since he has recently married. Under all the circumstances and having in view the yielding of a larger income from the remainder of the property, I think that I am exercising my discretion wisely in granting the relief sought.

All of the parties in being who could by any possibility have any interest in the property have been made parties, and all have appeared and answered except one, and all of the adults save the same one have consented to the relief prayed for. There can be no serious objection on his part to the granting of the relief, else an answer would have been filed by him.

It is therefore ordered, adjudged and decreed, that the tract of land described be sold and conveyed to any person who may be named by plaintiff at a sum not less than $40 per acre, and that, upon complying with the terms of sale, the Clerk of this Court do make and execute unto the purchaser a deed in fee simple to said tract of land, freed from all trusts and limitations, and that from and after such conveyance all the parties to this action and all persons who might otherwise have had an interest therein under the terms of said will, or otherwise, be and they are hereby forever barred of all interest at law or in equity in or to the same

Out of the proceeds of sale the Clerk of this Court shall deduct the costs and disbursements, and shall pay all liens and incumbrances of every kind upon said premises, including the taxes on the whole property, if not paid, and any incumbrances that may be upon the whole property of the plaintiff, and shall then pay a reasonable fee to plaintiff's attorneys, and to the attorneys for the guardian ad litem for the minors, if any be incurred, as sanctioned by plaintiff, the remainder will be paid to plaintiff, the same to be expended by him in erecting improvements upon the remainder of the tract of land from which the tract of land hereinafter described is taken.

DEFENDANT'S MOTION FOR A NONSUIT

Mr. Epps: May it please your Honor, at this stage, the defendant moves for a nonsuit on the following grounds:

First: The plaintiff not having been in esse at the time of the bringing of the suit for the sale of the sixty acres of land in question, and none of his class being in esse at the time, and his rights at said time being at most those of a contingent remainderman, the decree in the case acted on the property in rem and the plaintiff is barred by the decree.

Second: The Court having had jurisdiction, the decree and the deed thereunder conveyed the fee in the land, and even if the Court neglected its duty to preserve the fund representing the proceeds from the sale, that would not defeat the title made by the Clerk in pursuance of the decree.

Third: The plaintiff remainderman not being in esse, it was not necessary for the fact to be made to appear that it was in the interest of the unborn contingent remainderman that the land be sold, nor for the Court to have jurisdiction, and, especially, as the life tenant was the first object of the bounty of L.H. Des Champs, the testator.

Fourth: The life estate and the fee having been united in the defendant's predecessor, the grantee — of the deed made by the Clerk of Court — the contingent remainder was merged and destroyed, or perhaps, it would be better to express it, that the particular life estate and the fee were merged, and that drowned and destroyed the contingent remainder.

JUDGE MANN'S ORDER OF NONSUIT

This case came on to be tried before me and a jury in the Court of Common Pleas for Sumter County, March 31, 1927.

At the close of plaintiff's testimony, the defendant moved for a nonsuit on several grounds taken down by the stenographer.

After hearing argument for and against the same, and after carefully considering the matter, I am clearly of the opinion that the Court of Common Pleas had jurisdiction to render the decree which was rendered in the case of Claude D. Des Champs v. Mrs. Henry Des Champs Green et al., filed in Clarendon County as Judgment Roll No. 4,682, this being the proceeding by virtue of which the deed was made by A.I. Barron as Clerk of Court to Charles H. Broadway, who is the predecessor in title to the defendant T.B. Mims.

Having arrived at this conclusion, I do not deem it necessary to specifically pass upon each of the other grounds contained in the motion, but this order may be considered as sustaining all of said grounds which are not in conflict herewith.

Let the reasons in full as taken down by the stenographer be reported with and attached hereto as the grounds in detail upon which this order is granted.

Messrs. Harby, Nash Hodges, for appellant, cite: A proceeding is void where Court does not have power to grant the particular relief attempted to be granted: 33 C.J., 1076; 15 R.C.L., 853; 5 S.E., 176; 112 N.W., 386; 11 L.R.A. (N.S.), 803. No Court has jurisdiction to destroy remainders unless the interests of remaindermen are preserved in some lawful manner: 101 S.C. 1; 128 S.C. 254; 115 S.C. 35; 117 S.C. 475; 3 Rich, Eq., 1; 112 S.C. 284; 116 S.C. 7; Sec. 5324, Code; 12 Rich, Eq., 114; 80 S.C. 501. Same, to sell property of infant remainderman to pay debt of life tenant, nor without adequate necessity for such sale: 117 S.C. 175; 115 S.C. 35; Id., 10. Upon birth of child here remainder vested in it: Dudley Eq., 201; 16 S.C. 316; 66 S.C. 155. As to failure to confirm sale: 108 S.E., 411. Contingent remainders not destroyed by merger here: 14 R.C.L., 216. Child en ventre sa mere considered as person in being: 2 Bail., 231; 18 S.C. 47. Cases distinguished: 74 S.C. 42.

Messrs. Epps Levy and W.C. Davis, for respondent, cite: Decree in rem bars interest of subsequently born contingent remainderman: 3 Rich. Eq., 1; 22 S.C. 331; 28 S.C. 189; 80 S.C. 501; 79 S.C. 364; 23 S.C. 514; 144 S.C. 509. As primary interests: 22 S.C. 412; 115 S.C. 10. As to authority of Court of equity to order sale of property: 135 S.C. 183; 115 S.C. 35. Order confirming sale relates back to time of sale: 117 S.C. 192; 79 S.C. 364. Proceeding in rem acts directly against the property, interests of parties not as controlling in question of jurisdiction as where action is in personam: 110 S.C. 491. As to vesting of fee: 50 S.C. 206. As to merger: 74 S.C. 42; 10 S.C. 376; 93 S.C. 66. Estate cannot vest until birth of taker: 27 S.C. 479; Sec. 5325, Code.

November 22, 1928. The opinion of the Court was delivered by

MR. JUSTICE COTHRAN.Page 58

This is an action for the recovery of real estate and for damages for its use and occupation.

The plaintiff traces his title to his grandfather L.H. Des Champs, who devised certain real estate, of which that in controversy was a part, to his living children for life, remainder to their children.

The father of the plaintiff was C.D. Des Champs, a son of the testator; the plaintiff was his only child.

After the death of the testator, the children partitioned the land among themselves; the father of the plaintiff was allotted a tract of 150 acres, which included the particular tract, containing 60 acres now in controversy.

The defendant traces his title by successive conveyances, in reverse order, as follows:

T.B. Mims, the defendant, from J.J. Touchberry, December 22, 1919; he from C.R. Touchberry, January 8, 1919; he from C.H. Broadway in 1917, recorded October 24, 1917; he from A.I. Barron, Clerk of Court, March 26, 1914.

The deed from A.I. Barron, Clerk of Court to C.H. Broadway, dated March 26, 1914, was executed in pursuance of a decree of his Honor, Judge Wilson, dated February 21, 1914, in an action instituted in 1913 by C.D. Des Champs, father of the plaintiff, against his brothers, sisters, nieces and nephews, alleging, in substance, that he was unable to make a living upon the 152-acre tract; that he had mortgaged the same and was unable to pay the mortgage; that the remainder of the tract could be made more profitable by the erection of improvements. He prayed for judgment that he be allowed to sell 60 of the 152 acres, and out of the proceeds of the sale that his mortgage indebtedness be paid, and that, after the payment of the costs of the proceeding and attorney's fees, the remainder be paid to him, to be expended in making improvements upon the remaining 92 acres of the tract.

The parties defendant were the only person in esse at that time having an interest in the land. C.D. Des Champs had married, as stated in the transcript, "at some time prior to February 2, 1914," and at that time there were no children born of that marriage. The case was referred to a special referee, who made a report recommending that the prayer of the complaint be granted, the defendants offering no objection. His report was confirmed by a decree of his Honor, Judge Wilson, dated February 21, 1914.

In pursuance of that decree, the Clerk of Court sold the 60 acres to C.H. Broadway for $2,500, and executed a deed to him therefor. The proceeds of sale were applied:

To two mortgages of C.D. Des Champs to Weinbery .................................... $ 922.10 Attorney's fees ................................. 204.00 Costs ........................................... 59.70 Referee ......................................... 6.00 And the balance was paid directly to the life tenant, C.D. Des Champs ...................... 1,308.20 _________ $2,500.00 No part of the $1,308.20 paid to the life tenant was expended in improvements upon the remaining 92 acres of the tract.

No confirmation of the sale was made by order of Court until July 7, 1922; the cause was not on the Calendar, and no notice of any motion for an order to confirm such sale was given this infant plaintiff.

The plaintiff was not born until August 29, 1914, a little more than six months after date of the decree of his Honor, Judge Wilson, and in the course of nature was en ventre sa mere at that time.

C.D. Des Champs died November 25, 1921, leaving the plaintiff as his only child.

The case at bar of the infant son of C.D. Des Champs against the defendant, Mims, the present holder of a claimed title, by previous conveyances traceable back to the deed of the Clerk to Broadway under the proceedings referred to, came on for trial before his Honor, Judge Mann, and a jury at March term, 1927.

At the close of the evidence for the plaintiff, the defendant moved for a nonsuit upon the reported grounds; the motion was granted in an order also reported. The plaintiff has appealed.

The nonsuit was granted upon the ground that the plaintiff, who was not in being at the time, was concluded by the decree of his Honor, Judge Wilson, in the proceeding brought by the life tenant for the sale of the 60 acres. The presents the main point in the appeal.

It has been suggested that the interest of the unborn child of C.D. Des Champs, referred back to the death of the testator, was a contingent remainder, and comes within the rule announced in Bofil v. Fisher, 3 Rich, Eq., 1, 55 Am. Dec. 627, that "the Court has the power, by its decrees, to alienate the contingent titles of unborn remaindermen."

We do not so consider the interest of the unborn child. It is true that the vesting of his interest was necessarily postponed to the time of his birth; at the same time the fee had to be in some one, by way of remainder or executory devise, and those who held the fee were trustees for such child or children of the life tenant as might be in existence at the time of the death of the life tenant. Where there were children living at the time of the death of the testator, and a child was subsequently born, it has been held that the children in being took vested transmissible interests, which, however, opened up to let in children born after the death of the testator. In such case, the children in being at the time of the death of the testator took their vested interests subject to sharing with the after-born child, trustees for him. Such being the case, we can perceive no reason why, in the event that there were no children to take vested interests at the time of the death of the testator, the tenants of the fee-simple title should not occupy the same relation to the unborn child. "In what respect does a limitation to A for life, remainder to his son B, now living, in fee, which confessedly gives B a vested remainder eo instanti, differ from the case where the remainder is limited to the first son of A, hereafter to be born, except that the vesting of the interest must, of necessity, be postponed until the birth of a son?" Rutledge's Trustees v. Rutledge's Adm'x, Dud. Eq., 201.

In Gourdin v. Deas, 27 S.C. 479, 4 S.E., 64, there was a trust deed for the benefit of D. for life, "and after her death to her issue to take per stirpes, their heirs and assigns forever." The Court held that D. took an estate for life, and that "the remainders vested in such of the issue as were in esse at the date of the deed, at that time, opening to let in other issue as they came into existence, whose interests were also vested at their birth. * * *"

Chief Justice McIver, who wrote the opinion in the Gourdin v. Deas case, cites, "as a case of high authority," doe ex rem. Barnes v. Provost, 4 Johns. (N.Y.), 61, 4 Am. Dec., 249. There the testator devised certain land to his daughter C. for life, and at her death to such children as she shall have lawfully begotten at the time of her death, to be equally divided among them. At the date of the will and at the death of the testator, C. had four children; thereafter a fifth child was born who predeceased the life tenant C. leaving children. The Court held that the four children took vested remainders, which opened to let in her children of C. subsequently born, and hence that the children of a daughter of C., who predeceased C., the life tenant, were entitled to the share which their mother would have taken if she had survived the life tenant.

But, assuming that the interest of the plaintiff, unborn at the death of the testator and when the order of sale was made, was a contingent remainder, the facts of this case do not bring it within the rule announced in the Bofil v. Fisher case.

The Court there said:

"Is there no power in the state, by which the titles of estates may be unfettered from the contingent claims of unborn remaindermen, and their rights not extinguished, but transferred from the property itself to a fund arising from the sale of the property? I think there should be; I think there is. * * * The Court by its decree acts on the property and disposes of that; while the fund arising from the sale is to be managed under the direction of the Court in its administrative department. The rights of all the parties in interest will be transferred from the property to the fund, and will be protected by the Court, so far as that is practicable."

We have only to consider the purpose to be accomplished by the life tenant, and the decree of the Court, in the suit instituted by him against the heirs of the testator, in 1914, to be convinced that it is wide of the mark indicated in the Bofil v. Fisher case. His purpose is disclosed in the prayer of the complaint:

"That plaintiff be allowed to sell 60 acres; that the mortgage indebtedness be paid out of the proceeds of sale, that the remainder of proceeds of sale, after payment of costs, attorney's fees, etc., be turned over to plaintiff to be expended in making improvements upon the remaining portion of the premises."

The decree practically follows the prayer of the complaint. Not a word is said in either as to the interest of the unborn child which was then on its way, presumably to the knowledge of the father.

Under the Bofil v. Fisher case, such a proceeding can be justified only under the circumstances therein stated: The rights of the so-called contingent remainderman must not be extinguished; here they are absolutely so; the rights of such person must be transferred from the land to the fund; here there is not a suggestion that that be done; in fact, the fund is directed to be dissipated in part by the payment of the life tenant's lien obligations, and the remainder turned over to him after the payment of costs and attorney's fees, to be expended by him in improvements upon the remaining 92 acres; no provision is made for the supervision by the Court, "in its administrative department," of the fund arising from the sale; the fund, on the contrary, was directed to be applied to the debts of the life tenant, with which the remainderman was not concerned, and no check placed upon the life tenant's disposition of the remainder for improvements which resulted in his failure to make any improvements and his wasting of the entire fund.

We think that under the following authorities the decree of his Honor, Judge Wilson, was without authority of law, absolutely void, and furnishes no shield to the purchaser against the claim of the remainderman. 33 C.J. 1076; 15 R.C.L., 853; Anthony v. Kasey, 83 Va., 338, 5 S.E., 176, 5 Am. St. Rep., 227; Sache v. Wallace, 101 Minn., 169, 112 N.W., 386, 11 L.R.A. (N.S.), 803, 118 Am. St. Rep., 612; Mauldin v. Mauldin, 101 S.C. 1, 85 S.E. 60; Piegler v. Jefferies, 128 S.C. 254, 121 S.E., 783; Cagle v. Schaefer, 115, S.C. 35, 104 S.E., 321; Gaines v. Sullivan, 117 S.C. 475, 109 S.E., 276; Kolb v. Booth, 80 S.C. 501, 61 S.E., 942; Dumas v. Carroll, 112 S.C. 284, 99 S.E., 801; Bradley v. Calhoun, 116 S.C. 7, 106 S.E., 843; McIver v. Thompson, 117 S.C. 175, 108 S.C. 411; Fairey v. Strange, 115 S.C. 10, 104 S.E., 325; Rutledge's Trustees v. Rutledge's Adm'x, Dud. Eq., 201; Mangum v. Piester, 16 S.C. 316; Rutledge v. Fishburne, 66 S.C. 155, 44 S.E., 564, 97 Am. St. Rep., 757; Haynsworth v. Haynsworth, 12 Rich. Eq., 114; Cannon v. Cannon, 135 S.C. 183, 133 S.E., 556; Pearson v. Carlton, 18 S.C. 47.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.