Summary
In Rhodes v. Black, supra [ 170 S.C. 193, 170 S.E. 160], the first deed construed was to "Sytha P. Black during her natural life, and to John Newton Rhoads, their heirs or assigns" in the granting clause; and in the habendum these words were used: "To have and to hold, all and singular the said premises before mentioned unto the said Sytha P. Black and John N. Rhoads, their heirs and assigns forever.
Summary of this case from United States v. 31,600 Acres of Land, Etc.Opinion
13661
July 8, 1933.
Before GREENE, J., Anderson, February, 1932. Affirmed.
Trespass to try title by Sallie Rhodes and others against John C. Black and others. From a decree for plaintiffs, defendants appeal.
The decree of the Circuit Judge, directed to be reported, is as follows:
The plaintiffs in this action are the widow and children of John Newton Rhodes, who was the only child of John C. Rhodes. The defendant John C. Black is the grantee of Sytha P. Rhodes, who is the widow of John C. Rhodes and the mother of John Newton Rhodes. The remaining two defendants are the agents and servants of the defendant Black. On November 24, 1897, John C. Rhodes executed and delivered to Sytha P. Rhodes (then Sytha P. Black) and John Newton Rhodes a deed conveying to them certain land in Anderson County, and on November 7, 1898, he executed and delivered to them another deed conveying to them other land in Anderson County. Sytha P. Rhodes lived with her husband, John C. Rhodes, on the land conveyed by the deeds until his death in 1925, and then lived with her son, John Newton Rhodes, and his family until his death intestate in 1930, and after his death continued to live with his family until December of 1931, when she moved to the home of the defendant, John C. Black. On the day, or the day after, she moved into Black's home, she executed and delivered to him a deed whereby she conveyed to him all her right, title, and interest in the lands conveyed by the two deeds of John C. Rhodes above referred to. This action was commenced in February, 1932. The complaint alleges that the plaintiffs are the owners in fee simple of the lands conveyed by the two deeds of John C. Rhodes, subject to a life estate in an undivided one-half interest therein in Sytha P. Rhodes, and are in possession thereof, and that the defendants were trespassing on the lands and were cutting and removing timber therefrom, and prays damages for the trespass and for the timber cut and removed and that the defendants be enjoined from trespassing and from cutting and removing timber. The defendant John C. Black answered the complaint, admitting entering on the land and cutting and removing timber therefrom, denying title in the plaintiffs, alleging title in himself as grantee of Sytha P. Rhodes, alleging that the title in John C. Rhodes, under whom the plaintiffs claim, was on condition subsequent and a breach of the condition, alleging title by adverse possession, and alleging right to partition. With the consent of the parties, the case was tried by the Court without a jury. The action is therefore an action of trespass to try title or of the nature thereof, and has been so regarded by the parties and their attorneys.
As to the defense of the breach of a condition, the defendant contends that the two deeds were made on condition that the grantor should be maintained and supported by the grantees and that John Newton Rhodes failed to perform the condition. The evidence fails to support this defense. This provisions for support and maintenance are not expressed as conditions but as part of the consideration for the deeds; the remaining parts of the consideration being care and attention already rendered and money paid by the grantees to the grantor. If it is a condition, it is a condition subsequent, and such conditions are not favored and are strictly construed, and no one but the grantor or his heirs can take advantage of the breach thereof ( McManaway v. Clapp, 150 S.C. 249, 148 S.E., 18; First Presbyterian Church v. Elliott, 65 S.C. 251, 43 S.E., 674; Hammond v. Railway Co., 15 S.C. 10), and there is authority to the effect that the breach of a condition for the support and maintenance of the grantor can be taken advantage of only by the grantor, and, if the grantor does not claim a breach during his lifetime, his heirs cannot claim a breach after his death. See 18 C.J. at page 170, and note 15-B at page 365, and the authorities there cited. The defendant Black is not an heir of the grantor, and cannot take advantage of the breach of the condition even if it is a condition, and, regarding it as a condition, the evidence wholly fails, to show a breach, but, on the contrary, shows that the grantor was in possession of the lands, lived thereon, and received the rents and profits therefrom during his life and was comfortably supported and maintained. There is therefore no merit in this defense.
As to the defense of title by adverse possession, the defendant claims that his grantee, Sytha P. Rhodes, was in possession of the lands holding adversely to her cograntee for the required period of time, and therefore acquired title against him by adverse possession, which title she conveyed to the defendant. The evidence wholly fails to support this defense. The evidence is that the grantor, John C. Rhodes, who in one deed expressly reserved to himself a home on and a support from the land and in the other provided for his support, remained in possession of the lands from the times of the deeds to his death in 1925. His wife, the said Sytha P. Rhodes, lived with him, and his son, John Newton Rhodes, lived on other lands, until his death in 1925, and then she went to live with her son and remained with him and his family until the latter part of 1931. The possession of one cotenant is presumed to be the possession of all, and can become adverse only upon some unequivocable act clearly showing the claim of exclusive possession in himself and repudiation and ouster of the others. Whitaker v. Jeffcoat, 128 S.C. 404, 122 S.E., 495; Sheffield v. Grieg, 105 S.C. 219, 89 S.E., 664; Green v. Cannady, 71 S.C. 317, 51 S.E., 92; Odom v. Weathersbee, 26 S.C. 244, 1 S.E., 890. There is no evidence that Sytha P. Rhodes acquired title by adverse possession, and this defense is not sustained.
The action therefore resolves itself into a trial of the titles of the plaintiffs as heirs of John Newton Rhodes and of the defendant Black as the grantee of Sytha P. Rhodes, and, as the plaintiffs and the defendant claim under the two deeds of John C. Rhodes as their common source of title, the action further resolves itself into one for the construction of these two deeds, both of which have been properly executed, witnessed, probated, and recorded, and which were admittedly drawn by laymen.
Omitting the formal parts, the deed of November 24, 1897, which is of record in the office of the Clerk of Court for Anderson County, in Deed Book QQQ (3Q), at page 265, reads as follows:
"Know all men by these presents, That I, John C. Rhoads of Anderson County, in the State aforesaid, for and in consideration of the sum of one hundred dollars lawful money and services already rendered and to be hereafter rendered, to me paid by Sytha P. Black of same place, in the State aforesaid (receipt whereof is hereby acknowledged), have granted, bargained, sold and released, and by these presents, do grant, bargain, sell and release unto the said Sytha P. Black during her natural life, and to John Newton Rhoads, their heirs or assigns, all that certain tract or parcel of land, containing eighty-nine and three-fourths acres, more or less, situate on little Beaverdam Creek in Williamston Township, Anderson County, South Carolina. Bounded by lands of Alexander Jordan, W.A. Hammond and others. Being part of the `Lark Rogers' place. Conveyed to me by W.W. Humphreys, Master in Equity, on the .... day of ......., which is duly recorded in the office of Register of Mesne Conveyance for Anderson County. Provided, It is a part of the above consideration that the said Sytha P. Black and John Newton Rhoads shall maintain and support the said John C. Rhoads in a decent and comfortable manner, and furnish to him a comfortable home on the premises during his natural lifetime. And I, the said John C. Rhoads, do hereby reserve to myself, however, a home on the premises and a decent support from the said premises during my natural lifetime. And after the death of myself said Sytha P. Black and John Newton Rhoads shall hold and enjoy the premises jointly. And after the death of the said Sytha P. Black the entire premises shall descend and go to the said John Newton Rhoads in fee simple.
"Together with all and singular the Rights, Members, Hereditaments and Appurtenances to the said Premises belonging, or in anywise incident or appertaining.
"To have and to hold, all and singular the said premises before mentioned unto the said Sytha P. Black and John N. Rhoads, their heirs and assigns forever.
"And I do hereby bind me and my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Sytha P. Black and John N. Rhoads, their heirs and assigns, against me and my heirs and every other person or persons whomsoever lawfully claiming, or to claim the same, or any part thereof."
Likewise omitting the formal parts, the deed of November 7, 1898, which is of record in the same office in Deed Book UUUUU (5U), at page 241, reads as follows:
"Know all men by these presents, That I, John C. Rhoads in the State aforesaid in consideration of the sum of seven hundred and sixty dollars, and the care and attention already given and to be give me, to me paid by John N. Rhoads in the State aforesaid (receipt whereof is hereby acknowledged), have granted, bargained, sold and released, and by these presents, do grant, bargain, sell and release unto the said John N. Rhoads, Sytha P. Rhoads, all that tract of land containing 67 acres more or less situate in Williamston Township, County of Anderson in said State, adjoining lands of William Martin, Andy Martin and others. It is understood that part of the consideration is that the said John N. Rhoads and Sytha P. Rhoads are to provide me during my lifetime a decent and comfortable living, and that the said John N. Rhodes is to provide a decent and comfortable living for the said Sythia P. Rhodes during her lifetime and at the death of myself and the said Sythia P. Rhodes, then the title to said tract of land to be vested in the said John N. Rhodes absolutely.
"Together with all and singular the Rights, Members, Hereditaments and Appurtenances to the said Premises belonging, or in anywise incident or appertaining.
"To have and to hold, all and singular the said premises before mentioned unto the said John N. Rhodes and Sythia P. Rhodes and their heirs and assigns forever.
"And I do hereby bind myself, heirs, executors and administrators, to warrant and forever defend all and singular the said Premises unto the said John N. Rhodes and Sythia P. Rhodes and their heirs and assigns against me and my heirs and all other persons lawfully claiming, or to claim the same or part thereof."
The paramount and cardinal rule of construction of a deed is to ascertain the intention of the grantor as expressed by him in the deed and then to give effect to that intention if it can be done without violating an established rule of law.
"Large and more sensible rules of construction require that the whole deed should be considered together, and effect be given to every part, if all can stand together consistently with law; that an exposition favorable to the intention should be made, if not contrary to law; that the intention should be regarded as looking rather to the effect to be produced than the mode of producing it; that too minute a stress should not be laid on particular words, if the intention be clear — and that, if the deed cannot operate in the mode contemplated by the parties, it should be construed in such manner as to operate, if possible, in some other way." Chancellor v. Windham, 1 Rich., 161, 42 Am. Dec., 411.
"The object of construction as to deeds — in fact, as to all papers in contest before the Courts — is to reach the intention of the parties, because it is this which must control; otherwise the contract would be the contract of the Court and not of the parties." McCown v. King, 23 S.C. 232.
"The object of construction of all contracts by the Courts is to ascertain the intention of the parties, and, when so ascertained, nothing remains but to effectuate that intention, if it can be done according to law. It is not for the Courts to make contracts by construction, but it is their duty to carry out the expressed intention of the parties if it can be done consistently with sound and settled legal principles. As is said in 2 Devlin on Deeds, § 836: `As in the case of all contracts, tracts, the intent of the parties to the deed, when it can be obtained from the instrument, will prevail, unless counteracted by some rule of law.' Again, in same section, it is said: `If a question of law arises upon the construction of a deed, it is the province of the Court to construe it, and to decide from the language what the intention of the party was. When the intention of the parties can be plainly ascertained, arbitrary rules are not to be resorted to. The rule is that the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, if practicable, when not contrary to law.'" Pope v. Patterson, 78 S.C. 334, 58 S.E., 945, 947.
"Equally as fundamental is the principle that the real object of construction is to ascertain the intention of the parties. [Citations.] This intention, however, must be gathered from a reading of the whole instrument and a consideration of it in the light of certain well-recognized rules of construction." Crawford v. Lumber Co., 79 S.C. 166, 60 S.E., 445, 446.
"The purpose of all rules of construction is to ascertain the intention. When this is done, effect must be given to it, if it can be done without violating any settled rule of law." Smith v. Clinkscales, 102 S.C. 227, 85 S.E., 1064, 1065.
"One of the first canons of construction is that the intention of the grantor must be ascertained and effectuated if no settled rule of law be contravened." Antley v. Antley, 132 S.C. 306, 128 S.E., 31, 32. See, also, McManaway v. Clapp, 150 S.C. 249, 148 S.E., 18; Holliday v. Jordan, 112 S.C. 113, 99 S.E., 465; McIntosh v. Kolb, 112 S.C. 1, 99 S.E., 356, and Folk v. Graham, 82 S.C. 66, 62 S.E., 1106.
Subordinate to this paramount and cardinal rule of construction and as guides to the Court in ascertaining and giving effect to the intention of the grantor as expressed in the deed are the following rules:
Effect should be given to each and every part of the deed. Antley v. Antley, Holliday v. Jordan, and Crawford v. Lumber Company, supra.
If there are two incompatible, repugnant, or contradictory clauses, the first will prevail over the latter. Smith v. Clinkscales and Crawford v. Lumber Company, supra; Miller v. Cramer, 48 S.C. 282, 26 S.E., 657.
The clauses of a deed may be transposed in order to give effect to the intention of the grantor. Folk v. Graham and McCown v. King, 23 S.C. 232.
Where the habendum is repugnant to or irreconcilable with the grant, it will be rejected, and the grant will prevail. Wilson v. Poston, 129 S.C. 345, 123 S.E., 849; Ingram v. Porter, 4 McCord, 198.
To give effect to the grantor's intention, one word may be construed as another. Keith v. Perry, 1 Desaus, 353; Sease v. Sease, 64 S.C. 216, 41 S.E., 898. See, also, Bank v. Dominick, 116 S.C. 228, 107 S.E., 914.
Barrett Co. v. Still, 102 S.C. 19, 86 S.E., 204, is an illustration of the application of the rule that effect should be given to the grantor's intention. In the deed there under consideration the grant was to H.D. Still, and the habendum was to him, his heirs and assigns forever, which, of course, would ordinarily convey to him a fee-simple estate, and the warranty was to him, his heirs and assigns and it is held that the warranty may be considered in ascertaining the grantor's intention. But intervening between the grant and habendum was a clause reading "to H.D. Still for life, then to M.M. Still, her heirs and assigns forever." Stating "there is no ambiguity in the wording of the deed and the intent of the grantors is plain that they intended to convey a life estate to H.D. Still, remainder in fee to his wife, Marian M. Still" and giving effect to that intention, the Court held that the deed conveyed a life estate to H.D. Still with remainder in fee to Marian M. Still.
All the elements of a covenant to stand seized to uses are present in the deeds here under consideration, the consideration of natural love and affection, which, though not expressed, is evident, blood relationship, and enjoyment of an estate in the future, and these deeds might be construed as covenants to stand seized to uses if necessary to effectuate the grantor's intention, as such construction is resorted to give effect to the intention ( Bank v. Dominick, supra; Watson v. Watson, 24 S.C. 228, 58 Am. Rep., 247, and Chancellor v. Windham, supra), but such construction is not here necessary.
It is evident from the rules of construction of deeds established by the authorities here cited that it is the duty of the Court to ascertain the intention of the grantor as expressed by him in the words used in the deeds and then to give effect to that intention if it can be done without violating some other established principle of law.
There can be no doubt of the grantor's intention. It was to convey the fee-simple estate to his son, John N. Rhodes, charged with the support and maintenance of himself and his wife, Sytha P. Rhodes, during their lives. This intention is clearly and plainly expressed, and should be given effect if possible. And it is possible to give it effect by following the rules of construction that effect and meaning should be given to each and every word used in a deed ( Antley v. Antley, Holliday v. Jordan, and Crawford v. Lumber Company, supra), and that one word may be construed as another when necessary to effectuate the grantor's intention ( Keith v. Perry, Sease v. Sease, and Bank v. Dominick, supra).
Construing the word "their" as "his" in the granting and habendum clauses of the deed of 1897 so that the granting clause will read "unto the said Sytha P. Black during her natural life and to John Newton Rhodes, his heirs or assigns" and the habendum clause will read "unto the said Sytha P. Black and John Newton Rhodes, his heirs and assigns forever" gives effect to the expressed intention of the grantor and meaning to the words "during her natural life," which otherwise are meaningless, and the Court so construes this deed.
Construing the word "their" as "his" in the habendum clause of the deed of 1898 so that the clause will read "unto the said John Newton Rhodes and Sytha P. Rhodes, and his heirs and assigns forever" gives effect and meaning to all words and to the intention of the grantor as expressed by him in those words, and the Court so construes this deed.
Adopting this construction, the deeds conveyed to John Newton Rhodes a fee-simple estate in the land subject to a life estate in an undivided one-half interest thereof in Sytha P. Rhodes and subject further to a charge against all the land for the support and maintenance of Sytha P. Rhodes during her life. This right of Sytha P. Rhodes to support and maintenance from the land, of course, is personal to her, and she cannot convey or transfer the right to another. Her deed to the defendant John C. Black, therefore, conveyed to him only her life estate in the land and not her right to support and maintenance.
It is therefore ordered, adjudged, and decreed:
(1) That the plaintiffs are the owners in fee simple of the lands described in and conveyed by the deeds of John C. Rhodes to John Newton Rhodes bearing dates of November 24, 1897, and of November 7, 1898, and of record in the office of the Clerk of Court for Anderson County, in Deed Book QQQ (3Q), at page 265, and Deed Book UUUUU (5U), at page 241, respectively, subject to an estate for the life of the said Sytha P. Rhodes in an undivided one-half interest therein in the defendant John C. Black and charged with the support and maintenance of the said Sytha P. Rhodes during her life, and that the defendant John C. Black is the owner of an estate for the life of the said Sytha P. Rhodes in an undivided one-half interest in the said lands also charged with the support and maintenance of Sytha P. Rhodes during her life.
(2) That the defendants be and they are hereby enjoined from committing acts of waste on the lands and from cutting any timber therefrom except such as is necessary for the personal uses of the defendant Black and Sytha P. Rhodes for firewood and for repairs to the premises.
Mr. Leon L. Rice, for appellants, cites: As to habendum clause showing intent: 57 S.C. 173; 164 S.C. 427; 106 S.C. 304; 123 S.C. 175; 102 S.C. 234; 165 S.C. 111; 76 S.C. 38; 120 S.C. 212. Construction of will drawn by layman: 161 S.C. 235; 64 S.C. 256.
Messrs. G.C. Sullivan and John K. Hood, Jr., for respondents, cite: Intention of testator should govern: 1 Rich., 161; 23 S.C. 232; 78 S.C. 334; 82 S.C. 66; 150 S.C. 249; 76 S.C. 166; 112 S.C. 113; 132 S.C. 306. Words may be changed to get at intention: 1 DeSaus., 353; 64 S.C. 216; 116 S.C. 228; 41 S.E., 898.
July 8, 1933. The opinion of the Court was delivered by
The very able decree of his Honor, Circuit Judge Greene, in this cause, appealed from by the defendants, which will be reported, being entirely satisfactory to this Court, and requiring nothing else to be said to sustain it, is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.