Opinion
14825
February 27, 1939.
Before LIDE, J., Florence, October, 1938. Affirmed.
Action by Ellie Evans James against S.C. James and others for construction of a deed. From a decree sustaining a demurrer to the complaint, plaintiff appeals.
The order of Judge Lide follows:
There is involved herein the construction of a deed for a certain tract of land in the County of Florence containing 149 acres, more or less, made by Mary A.L. James on September 16, 1895, she being then seized in fee thereof, to her son, George W. James, "and his lawful children," George W. James had no children at the time the deed was made, and in fact he never had any. He died intestate in the year 1936, leaving as his only heirs at law his wife, Ellie Evans James, the plaintiff herein, and a sister and nieces and nephews, the five defendants first above named; the last named defendant, Roy Evans, being made a party defendant as administrator of his estate. The complaint quotes the pertinent portions of the deed, and prays that it be adjudged that George W. James was seized in fee simple of the property in question and that the same be partitioned among his heirs at law. The defendants (with the exception of the administrator) have demurred to the complaint upon the ground that it appears on the face thereof that the plaintiff has no interest in the land in question, "as it does not appear that she is an heir at law or distributee of Mary A.L. James at the time of the death of George W. James in 1936." The demurrer was fully argued before me by counsel for the respective parties, and the matter has had my careful consideration.
For convenience I am setting forth a full copy of the body of the deed herein, the same being as follows:
"The State of South Carolina
"County of Williamsburg
"Know all men by these presents that I. Mary A.L. James, of the State and county aforesaid, for and in consideration of the natural love and affection I have for my son George W. James have granted, given, behoofed and released, and by these presents do grant, give, behoof and release unto my said son George W. James and his lawful children:
"All that certain piece, parcel or tract of land containing one hundred and forty-nine acres, more or less, lying, being and situated on High Hill Branch in the State and county aforesaid and is bounded as follows, to wit: on the east by lands of M.E. Cockfield, on the south by lands of Ned Gaskins and Mary O. Myers, and on the west by lands of Mary O. Myers, and on the north by lands of Bob Cockfield.
"Together with all and singular, the rights, members, hereditaments and appurtenances to the said premises before mentioned unto the said George W. James, his lawful children forever except my support during my natural lifetime.
"To have and to hold, all and singular the said premises before mentioned unto my said son George W. James and his lawful children as their part of my real estate.
"Witness my hand and seal this 16th day of September in the year of our Lord one thousand eight hundred and ninety-five and in the one hundred and twentieth year of the sovereignty and independence of the United States of America.
"Sd. Mary A.L. James (L.S.)
"Signed, sealed and delivered in the presence of
"Sd. K.W.L. Turner "Sd. N.M. Turner"
This deed was duly probated on the same date it was executed, and it was recorded in the Clark's office for Williamsburg County (the land being then situate in that county) on February 1, 1900, in Book X, page 540.
It appears from an examination of the foregoing deed that in the granting clause, the appurtenance clause, and the habendum clause, the property is conveyed to "George W. James and his lawful children," and there are no other words which could possibly be construed as words of inheritance. At the end of the appurtenance clause, but nowhere else, is the following exception in favor of the grantor, "except my support during my natural lifetime".
What estate then did George W. James take? This depends upon what effect is given to the phrase "and his lawful children". The intention of the grantor, Mary A.L. James, as gathered from this language, was that the children should take, but obviously they cannot take as immediate grantees, because George W. James had no children when the deed was executed, and in fact never had any. They cannot take by way of remainder, because if that had been the intention of the grantor she would have given a life estate to George W. James. Yet the grant is immediately to the children as well as to George W. James. Unless, therefore, the word "children" can be so construed as to make it a word of limitation, in a case of this kind, the deed would be meaningless. Of course if children had been in existence when the deed was made they would have taken with George W. James as tenants in common (but not in fee because there would have been no words of inheritance).
It is quite apparent from the foregoing that the Court has stated the principles upon which the case of Dillard v. Yarboro, 77 S.C. 227, 57 S.E., 841, is based. In that case the conveyance was made to Miss Yarboro, an unmarried woman, to "her and her children and her assigns forever." And it was there held that the estate was one in fee conditional, the word children being construed as equivalent to heirs of the body. After mature reflection I am of opinion that this case is controlling here and requires the deed under consideration to be construed as having granted an estate in fee conditional to George W. James. And aside from the fact that the case appears to be binding authority, I think it is founded upon sound reasoning. It is true that the opinion in the Yarboro case follows the rule of construction announced in the celebrated Wild's case, 6 Coke 16, and the doctrine was there laid down as relating to a will, hence the Yarboro case has been criticized to some extent because it holds that the rule should be extended to deeds. But when the reasons for the rule are analyzed it seems to me that they apply as well to deeds as to wills, the fundamental purpose of the doctrine being to effectuate the intention of the devisor or grantor.
The Yarboro case was very vigorously criticized by Mr. Justice Cothran in his concurring opinion in the case of Wallace v. Taylor, 127 S.C. 121, 120 S.E., 838. In that case the circuit decree was rendered by the late Hon. Henry Buck, as special Judge, a highly competent and conscientious lawyer. In the deed there involved the granting clause was to W.W. and W.R. Hamilton "and to their children after my death but not before." The habendum clause was to W. W. Hamilton and W.R. Hamilton, "their children, their heirs and assigns forever, after my death." It was the opinion of the learned special Judge that the rule in Wild's case applied because the grantee in question, W.R. Hamilton, had no children, and that the superadded words "heirs and assigns" were not affective to destroy the fee conditional character of the estate; relying in support of his conclusions upon the Yarboro case. The majority of the Supreme Court, however, decided that W.R. Hamilton took a fee simple title to the land, evidently because the use of the words "heirs and assigns" was considered as preventing the application of the rule laid down in the Yarboro case. This case was not mentioned in the leading opinion, nor was its authority impugned. But Mr. Justice Cothran filed an opinion concurring in the result, in which he urged that the Yarboro case was not soundly decided and should not be followed. He also held that the deed could be properly construed as containing a covenant to stand seized to uses, and that as a result the heirs of W.R. Hamilton, deceased, were entitled to the fee. Mr. Justice Marion also concurred in the result.
The Yarboro case has been cited by our Supreme Court a number of times both before and since the decision in the case of Wallace v. Taylor, supra, and there has been no other criticism thereof or suggestion that the case should be overruled. On the contrary, its citation has been with evident approval. It therefore follows that the grantee, George W. James, in the case at bar, took a fee conditional title and that upon his death the estate reverted to those persons then in existence constituting the heirs at law of Mary A.L. James, deceased, and hence the plaintiff, Ellie Evans James, widow of George W. James, deceased, acquired no interest in the land by inheritance. It is true that George W. James was an heir at law of his mother, but there was nothing to inherit until his death. Hence he had no interest in the reversion. Corley v. Hoyt, 116 S.C. 110, 107 S.E., 34.
Counsel for the plaintiff herein very earnestly argued that this deed should be construed as containing a covenant to stand seized to uses, and that by so doing it may be assumed that George W. James took a fee simple estate, at the termination of the life estate in his mother, reserved in and by the deed. The doctrine of covenant to stand seized to uses has been a veritable haven of refuge for many whose estates were about to be lost by reason of the strict application of the common law doctrine requiring words of inheritance to convey a fee, especially because of the exceedingly able and discriminating opinions by Mr. Justice Cothran commencing with the Bank of Prosperity v. Dominick, 116 S.C. 228, 107 S.E., 914. No useful purpose would be subserved by citing the numerous cases since then. The characteristics of a deed of this kind have been stated in many decisions, one of the most recent being Gowdy v. Kelley, 185 S.C. 415, 194 S.E., 156, as follows, to wit:
(1) Consideration of love and affection.
(2) Blood relationship.
(3) Fee simple to commence in futuro.
We have here the consideration of love and affection and the blood relationship. Is the third characteristic present? It is argued that the words in the deed at the end of the appurtenance clause "except my support during my natural lifetime", amount to a reservation of a life estate, and therefore the estate is one to commence in futuro. On the other hand, counsel for defendants urges that these words create at most a charge on the land for the support of the grantor; and I am inclined to agree with him that this language cannot be construed as equivalent to a life estate.
But even if the deed may be construed as containing a covenant to stand seized to uses it by no means follows that a fee simple estate was taken by George W. James. It is quite true that if the deed contains such a covenant it should be construed according to the principle relating to trust deeds, pursuant to which the intention to create a fee simple may be effectuated although technical words of inheritance were not used. But some words must be found in the deed supporting the intention to convey a fee simple. Are there any such words here? I think not. It must be borne in mind that the rule in Wild's case is not a rule of law like the rule in Shelley's case, which may operate against the intention of the grantor, but rather a rule of construction to effectuate such intention and give some reasonable meaning to the words used. In the case of Pearson v. Easterling, 104 S.C. 178, 88 S.E., 376, 377, the Court, referring to the Yarboro case, stated that the word children was there construed as a word of limitation "in order to carry into effect the intention of the grantor." In the case of Lawrence v. Burnett, 109 S.C. 416, 96 S.E., 144, 146, the Court cited the Yarboro case and said that the word children was there construed to mean heirs of the body "to give effect to the manifest intention."
There is nothing whatever in the instant deed to show that the words "lawful children" were used in the sense of heirs generally. It is much more reasonable to suppose that they were used in the sense of heirs of the body or issue. To construe the deed as a fee conditional, in my judgment, would carry out the intention of Mrs. Mary A.L. James, to wit, that the property should descend to the heirs of the body or issue of her son, George W. James, upon his decease. He held it during his lifetime and having left no such heirs there appears to be no good reason why the estate should not be adjudged to have reverted. Hence even if the doctrine of covenant to stand seized to uses be applied to the deed the result would be the same.
At the end of the habendum clause are these words, "as their part of my real estate", and it is suggested by counsel for plaintiff that this language would prevent the application of the doctine laid down in the Yarboro case. But it does not seem to me that these words would, have any such significance. They do indicate that Mrs. Mary A.L. James was making some division of her property, probably among her children, but of course in giving her property to her children, or any of them, she had the right to make the gift upon any such limitation as she might deem proper.
My conclusion is that the complaint shows on its face that the plaintiff, Mrs. Ellie Evans James, has no estate in the premises as an heir at law of her deceased husband, and that hence the demurrer should be sustained and the complaint dismissed with costs. And it is so ordered.
Mr. Ashton H. Williams, for appellant, cites: Fee conditional: 77 S.C. 227; 57 S.E., 841; 127 S.C. 121; 120 S.E., 838; 83 S.C. 265; 65 S.C. 241; 94 S.C. 487; 74 S.E., 1065; 104 S.C. 181; 88 S.E., 376; 109 S.C. 417; 96 S.E., 168. Construction of deeds: 185 S.C. 415; 194 S.E., 156; 127 S.C. 121; 120 S.E., 838; 123 S.C. 127; 115 S.E., 605; 92 S.C. 368; 75 S.E., 553; 116 S.C. 228; 12 S.C. 564; 23 S.E., 392; 14 N.C. 411; 28 S.C. 125; 5 S.E., 333.
Messrs. Royall Wright, for respondents, cite: Construction of word "children" in deed: 77 S.C. 227; 57 S.E., 841; 127 S.C. 121; 120 S.E., 838; 83 S.C. 265; 65 S.E., 241.
February 27, 1939. The opinion of the Court was delivered by
This action, in which it is sought by plaintiff to have the Court construe a deed to a certain tract of land in Florence County, was begun in July, 1928. A demurrer to the complaint was sustained by Judge Lide in a well considered decree, and this appeal followed.
Under the authorities cited by him, we think that the several questions raised by the exceptions and argued here were properly disposed of by the Circuit Judge. He held that the decision in Dillard v. Yarboro, 77 S.C. 227, 57 S.E., 841, is controlling in the case at bar and requires the deed under consideration to be construed as having granted an estate in fee conditional to the grantee, George W. James. Counsel for appellant asked, and was granted, permission to argue against the decision in the Yarboro case, with a view to having the Court modify or overrule it.
No good reason appears, however, why this should be done. That decision was rendered in June, 1907, and has been cited with the evident approval of this Court in the following cases: Williams v. Gause, 83 S.C. 265, 270, 65 S.E., 241; Holley v. Still, 91 S.C. 487, 495, 74 S.E., 1065; Pearson v. Easterling, 104 S.C. 178, 181, 88 S.E., 376; Lawrence v. Burnett, 109 S.C. 416, 422, 96 S.E., 144; Cureton v. Little, 119 S.C. 31, 37, 111 S.E., 803; Strother v. Folk, 123 S.C. 127, 136, 115 S.E., 605; Simpson v. Antley, 137 S.C. 380, 386, 135 S.E., 469; Gleaton v. Gleaton, 154 S.C. 140, 147, 151 S.E., 276.
While it is true, as pointed out by the appellant, that Mr. Justice Cothran in his concurring opinion in Wallace v. Taylor, 127 S.C. 121, 120 S.E., 838, criticized the rule announced in the Yarboro case, what was there said by him the only criticism of the decision to which our attention has been called was merely an expression of the individual views of the learned Justice, as the Yarboro case was not discussed in the main opinion of the Court. We are impressed with the reasonable view that the decision in the Taylor case was affected, if not entirely controlled, by the super-added words "their heirs and assigns", contained in the habendum and warranty clauses of the deed there construed; that is to say, that these words, in the Court's view, raised "an irresistible inference" that it was the intention of the grantor to convey an estate in fee simple. Adams v. Verner, 102 S.C. 7, 11, 86 S.E., 211. Consequently, it was held that the authorities cited by the Circuit Judge showed "nothing to prevent W.R. Hamilton from taking the entire fee in the one-half assigned to him."
Upon full consideration of the matter, the Court holds, as already indicated that the decision in the Yarboro case should not now be overruled or modified. The contentions of the appellant, therefore, are rejected.
The circuit decree, which we approve and adopt, and which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM and FISHBURNE concur.
Mr. JUSTICE BAKER did not participate.
Mr. JUSTICE CARTER did not participate on account of illness.