Opinion
12540
December 5, 1928.
Before W.P. GREENE, Special Judge, Greenville, April, 1927. Affirmed.
Action by J.P. Drake and others against Grover S. Drake. From an order sustaining a demurrer, plaintiffs appeal.
The order of Judge Greene in the Court below is as follows:
The above-stated case was heard by me at Greenville at the April term of the Court upon a demurrer to plaintiff's complaint. The will referred to in the complaint and made a part thereof was before me, as was the deed referred to in the sixth paragraph of the complaint made by C.G. Drake to G.S. Drake June 3, 1916. It was agreed by the parties that in disposing of the case, the pleadings were to be construed in connection with these papers.
It appears from the complaint that C.G. Drake, being the owner of a tract of land in Greenville County, made his will on March 18, 1914, disposing of his property under the terms of which will all of his property, real and personal, was devised and bequeathed to his wife, Mary A. Drake, for life, and upon her death the property was to be divided equally between his children, except that Grover S. Drake was to take the home place known as "Drake's Inn," it being provided in the will that the said Grover S. Drake "shall live and stay with his father and mother and take care and provide for them during their joint and several lives. If he shall fail to do this, it is my will and desire that all my said property shall be by my executor equally divided among all my children." The will further provided that if the said Grover S. Drake should marry and die before the death of the testator's wife, leaving one or more children, the property devised to him should go to his child or children, and if he should leave no child or children, said property should be equally divided among testator's other children.
It is further alleged in the complaint that on June 3, 1916, the said C.G. Drake executed a deed to the said home tract of land known as "Drake's Inn" conveying the same to G. S. Drake. The Court construes this allegation to mean that the premises were conveyed in fee simple, and the deed shows the conveyance to be in fee simple, except for the provision alleged in the sixth paragraph of the complaint as follows: "This deed not effective until after the death of myself and wife, Mary A. Drake."
It is further alleged in the complaint that the other property of the testator was deeded to his other children, the conveyances to the other children being upon an expressed consideration of $100.00 in each case, while the consideration for the conveyance to Grover S. Drake is upon a stated consideration of $500.00; and it is alleged that the real consideration according to a family understanding was that the said Grover S. Drake was to care for his father and mother during their joint lives, and during the life of the survivor, and that if he failed to provide for them as had previously been provided for in the will referred to in the complaint, his right to said property was to be forfeited, and the whole property should be divided amongst all of the children on the plan previously set out in the will.
The complaint alleges that Grover S. Drake performed his alleged contract for the support of his father and mother during their joint lives, but that since the death of his father he has totally failed to carry out the terms of his contract, and the plaintiffs allege that his title to the property under said deed has been forfeited, and that the whole property should now be partitioned amongst all of the children on the plan set forth in the will.
The demurrer to the complaint raises several questions. The Court feels that the case could have been much more satisfactorily disposed of had the testimony been taken with all proper parties before it, but inasmuch as the case has been submitted to the Court in its present shape, it must be disposed of in the light of the pleadings, and of the provisions of the said will and deed.
There can be no doubt that by the making of the deed to Grover S. Drake and to the other children of the testator the provisions of the will were pro tanto revolted. There is no dispute about this proposition, but the contention of the plaintiffs is that while the expressed consideration of the deed was $500.00, there was an agreement between the parties that Grover S. Drake was to perform the same services under the deed as he was required to perform by the terms of the will. The demurrer admits the allegations to this effect, but the legal effect of a parol agreement such as is alleged in the complaint is for the Court.
By the terms of the deed under which Grover S. Drake claims, his title is in fee-simple subject only to reservation of a life estate in the grantor and his wife. The parol agreement (because it is not incorporated in the deed) cannot have the effect of in any way limiting or changing the estate granted by the terms of the deed. This much would seem to be elementary.
It is true, however, as contended by the plaintiffs on the hearing, that the real consideration of the deed in this case may be shown by parol testimony. Whitman v. Corley, 72 S.C. 410, 52 S.E., 49.
But as stated this testimony can only be heard for the purpose of showing the real consideration of the deed, and not for the purpose of changing or limiting in any way the estate granted. If the real consideration of the conveyance to Grover S. Drake was as alleged in the complaint, this fact would not call for a cancellation of the deed, but any interested or injured party could assert his right in another kind of action. Knight v. Jones, 93 S.C. 379, 76 S.E., 978; Owings v. Owings, 120 S.C. 408, 113 S.E., 279.
The right of the plaintiffs to a partition of the property depending upon the ordering of a cancellation of the deed to Grover S. Drake, and being of the opinion that they are not entitled to a cancellation of the deed under the allegations of the complaint and the terms of the said deed, it follows that the demurrer must be sustained, and the complaint must be dismissed, and it is so ordered.
Messrs. Price Poag, for appellants, cite: Parol testimony permissible to show real consideration of written instrument: 72 S.C. 410. Cases distinguished: 112 S.C. 431; 93 S.C. 379; 120 S.C. 408. Proper to cancel or set aside deed here: 123 N.W., 813; 28 L.R.A. (N.S.), 608; 21 L.R.A., 605; 188 S.W. 843. When complaint attacked by demurrer it must always be liberally construed in favor of plaintiff: 132 S.E., 616. Equity will not suffer a wrong to be without a remedy: 1 DeS., 429. Family agreements are favorites of equity: 32 S.C. 263; 141 S.C. 265; 54 A.L. R., 964. As to admission of parol testimony to change character of deed absolute upon its face: 144 S.E., 512; 100 S.C. 397.
Messrs. J. Robert Martin and Benj. A. Bolt, for respondents, cite: Deed reciting consideration, and under seal, is conclusive unless attacked for fraud or undue influence: 119 S.C. 340; 113 S.C. 390. Sale of land after devise and before death of testator, is a revocation of devise pro tanto: 112 S.C. 434; Harper's Eq., 117; 141 S.C. 524. Complaint demurrable here: 21 S.C. 226; 129 S.E., 49. No grounds for cancellation of deed here: 120 S.C. 408; 93 S.C. 376; 111 N.E., 99. Same, personal right which grantor alone possesses: 9 C.J., 1186, Par., 51. Cases distinguished: 28 L.R.A. (N.S.), 611.
December 5, 1928. The opinion of the Court was delivered by
The plaintiffs appeal from the order of Hon. William P. Greene, Special Judge, sustaining the demurrer interposed by the defendant in this cause. The reasoning of the order, which will be reported, is entirely satisfactory to this Court. In addition to the authorities cited by Judge Greene in support of his holding, we call attention to the recent case of Myrick v. Lewis, 139 S.C. 475, 138 S.E., 198, which was decided about the time the order of the Special Judge was filed in the lower Court.
The judgment of this Court is that the order appealed from be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, STABLER, and CARTER concur.