Opinion
13556
January 21, 1933.
Before GREENE, J., Spartanburg, October, 1930. Affirmed.
Action by E.E. Crow against Robert O. Monk and others. From a judgment in favor of the plaintiff, certain defendants appeal.
The master's report directed to be reported follows:
This is an action for the foreclosure of a mortgage dated April 3, 1925, executed by the defendant Robt. O. Monk to the plaintiff and the plaintiff's father, P.M. Crow, to secure two notes of $2,000.00 each, both being payable twelve months after date, one to the order of the plaintiff, E.E. Crow, and the other to the order of P.M. Crow. Both notes provide for interest from date until paid at 8 per cent. per annum, payable annually, and also for 10 per cent. attorney's commissions. P.M. Crow assigned his note to his son, E.E. Crow, before this action was begun.
The mortgage, securing these two notes covers 183 acres, more or less, composed of three tracts or parcels of land, which were devised by Robinson B. Monk to Robinson O. Monk by his last will and testament on file in the Court of Probate for Spartanburg County in box 87, package 5. In this will the three tracts of land are referred to as "the Bishop place, containing 80 acres, more or less. Also to same my McElrath place, containing 23 acres, more or less. Also to same my Cleveland farm, joining lands of Atkins, John M. Culbreth and others, containing 84 acres more or less."
The plaintiff's mortgage constitutes the first lien on these lands. I find that there is due and owing to the plaintiff on his two notes and mortgage at this date the sum of $4,944.42, which includes interest as provided for and $375.00 attorney's fees.
The defendant Corrie M. Ragan holds a second mortgage on the same three tracts of land and also a lot situated on Hydrick Street, in the City of Spartanburg, known as lot No. 8. The Ragan mortgage is dated April 13, 1925. It was given for the sum of $3,000.00. I find that there is now due and owing to the defendant Corrie E. Ragan on this mortgage the sum of $4,435.32, which includes an attorney's fee of $275.00.
The defendant the Central National Bank of Spartanburg, S.C. also holds a third mortgage on the same tract of land, containing 183 acres, more or less, dated March 31, 1927, for $1,500.00. This mortgage also covers a tract of land containing 485 acres, more or less. The said bank also has another mortgage executed to it by Robert O. Monk, dated January 9, 1929, for $826.00, covering the same lands as plaintiff's mortgage, the 485-acre tract and some other property.
The same bank also holds another mortgage executed to it by Robert O. Monk for $1,366.00, dated August 4, 1928, but this mortgage does not appear to embrace any property described in plaintiff's mortgage.
The defendants W.O. Whatley, Jr., and Merchants' Farmers' Bank are judgment creditors of the defendant Robert O. Monk as shown by judgment roll in the Clerk's office for Spartanburg County, numbered 21920, 21921, and 21928.
The main question presented to me for consideration in this action is the quality of title held by the defendant Robert O. Monk in and to the lands described in plaintiff's mortgage. The other defendants to this action, to wit, Nina Geddes Nelson and Aleta Geddes Haskell, are grandchildren of the testator, Robinson B. Monk, and are specifically mentioned as such in his will. The other defendants Robinson O. Monk, Jr., Richard Bishop Monk, and Betty Ellen Monk, are minors and are children of the defendant Robert O. Monk, who executed the mortgage to plaintiff. These parties all answered through their respective attorneys, and are confidently relying upon the decision of the Supreme Court of our State in the case of Monk v. Geddes, 159 S.C. 86, 156 S.E., 175, 176, as decisive of this action. They claim that, under the will of Robinson B. Monk and the decision referred to, Robert O. Monk held a life estate only in the three tracts of land described in plaintiff's mortgage, and this is the entire interest that can be sold in this foreclosure proceeding.
While recognizing the force of the decision above referred to, I am of the opinion that there is a distinction between the title to the 416 acres, more or less, described in the first paragraph of Item 7 of said will and the title to the other tracts of land devised later in the same item. The language with respect to the 416-acre tract, which was the property affected by the decision in Monk v. Geddes, supra, is as follows: "I give, devise and bequeath unto my beloved son, Robinson O. Monk, my place known as my Campton Farm, containing 416 acres, more or less * * * for his own use and behoof during his life time. In the event of the death of my son, Robinson O. Monk, without heirs, then I devise the said tract to my grandchildren." It will be noticed that the tract of 416 acres is given to Robert O. Monk "for his own use and behoof during his life time."
The decision in Monk v. Geddes turns upon this language, the Court saying: "The will here expressly gives to Robinson O. Monk only a life estate in the land; and, if he holds any greater estate, it must arise by implication. The general rule is that no estate can arise by implication unless from necessity," etc. The decision then proceeds to declare that the word "heirs" must be construed as heirs of the body, or children, and not as heirs general, and it holds that there is no estate created in the heirs of the body of Robert O. Monk by implication. All of this is summed up in the final language of the decision, as follows: "In our view of the matter, Robinson O. Monk took a life estate in the land with remainder in the grandchildren if he should die without heirs of the body, and if he should die with heirs of the body, the land would become intestate property of the testator."
As distinguished from the language in Monk v. Geddes, supra, the action now before me for consideration relates to three tracts of land, which are given outright to the defendant Robert O. Monk by the language of Item 7 of the will. The will says: "Also to my son, Robinson O. Monk, the farm known as the Bishop Place, containing 84 acres, more or less; also to same, my McElrath place, containing 23 acres, more or less; also to same my Cleveland farm." It will be noticed that these three farms are not given to Robert O. Monk for his lifetime as the tract of 416 acres was devised. The three tracts of land are given without limitation whatever and following them there is also given to Robert O. Monk other properties, including bank stocks, mill stocks, etc., and various other pieces of real estate and interests therein. Just before the appointment of his mother as guardian of Robert O. Monk during his minority and the provision for executors of the will, there is this language: "In the event of the death of my son, Robinson O. Monk, without heirs, then it is my will that all of the property to go to my grandchildren."
Since the Supreme Court, in Monk v. Geddes, supra, lays great stress and emphasis upon the fact that the tract of 416 acres, more or less, was given to the son, Robinson O. Monk, for his own use and behoof during his lifetime only, there must be some distinction between the devise of that tract of land and the devise of the three tracts of land embraced in plaintiff's mortgage which are not so qualified and limited. If the Court, emphasizing the limitation for life only, cannot by implication create a larger estate in the heirs of the body of Robert O. Monk, what is the correct legal conclusion as to the quality of estate granted by the terms of the will pertaining to the Bishop place, the McElrath place, and the Cleveland place? It seems to me by the same rule of construction that it is but fair to hold, in the absence of any limitation for life only as to these tracts of land, that the testator intended that they should be enjoyed by the devisee in fee-simple except as that fee-simple estate is qualified by the subsequent language of the will above quoted. If this rule is applied, then the lands must be held to be devised to Robert O. Monk in fee simple, subject, however, to be defeated in the event of his death without heirs of the body. This would give to the defendant Robert O. Monk a fee defeasible estate with executory devise to testator's grandchildren, in the event of his death without heirs of the body surviving him. See Cayce Land Co. v. Guignard, 124 S.C. 443, 117 S.E., 644; Drummond v. Drummond, 146 S.C. 200, 143 S.E., 818; Hudson v. Leathers, 141 S.C. 32, 139 S.E., 196; Bomar v. Corn, 150 S.C. 116, 147 S.E., 659.
Messrs. Nelson Mullins, J.D. Kerr and F.B. Grier, Jr., for appellants.
Messrs. Bomar Osborne, for respondent, cites: As to fee defeasible: 124 S.C. 443; 141 S.C. 36; 150 S.C. 111; 146 S.C. 197; 109 S.C. 416.
January 21, 1933. The opinion of the Court was delivered by
This action was begun in the Court of Common Pleas for Spartanburg County, October 22, 1930, for the foreclosure of real estate mortgage executed by Robert O. Monk to the respondent, Crow. The infant defendants, Robert O. Monk, Jr., Richard Bishop Monk and Betty Ellen Monk, appear in the case by their duly appointed guardian ad litem, who filed answer to the complaint, and the defendants Aleta Geddes Haskell and Nina Geddes Nelson also filed answers to the complaint, which defendants set up the same defense as the infants above named, alleging in their answers that Robert O. Monk, the mortgagor, was not seized of a fee-simple title to the premises and had only a life estate therein, with remainder to these defendants. The other defendants to the action, other than the defendant Robert O. Monk, have liens against the property involved by reason of mortgages or judgments. The case, by order of the Court, was duly referred to Hon. Leroy Moore, master, for the purpose of taking the testimony and passing upon the issues in the case, who duly complied with the order of the Court and filed his report in the case. From this report the appellants appealed to the Circuit Court and the cause was heard before Hon. G.B. Greene, presiding Judge, who, after due consideration of the case, issued a decree confirming the master's report. The case now comes to this Court on appeal from the decree of his Honor, Judge Greene.
The facts and issues involved in the case are fully and clearly set forth in the report of the master, which report was confirmed by the Circuit Judge. We agree with the conclusion reached by the master and the Circuit Judge.
The exceptions are, therefore, overruled, and the judgment of the lower Court affirmed.
NOTE: The report of the master will be incorporated in the report of the case.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.