Summary
holding that deed conveying "any other interest I may be entitled to" included subsequently acquired interests
Summary of this case from Z.W.E. v. L.BOpinion
12906
April 24, 1930.
Before DENNIS, J., Marlboro, August, 1929. Modified in part and in other respects affirmed and remanded.
Action for partition by John B. Wallace against Norman Quick and others, wherein Vann T. Wallace and another, upon the death of John B. Wallace, were substituted as parties plaintiff. From the decree rendered, defendant named appeals.
The report of Special Referee and decree of Judge Dennis dare as follows:
The following is the report of the Special Referee:
This case was begun by John B. Wallace, now deceased, by summons dated February 15, 1919, issued by his attorneys, Messrs. Townsend and Rogers. The defendants were Norman Quick, Martin C. Freeman, Ida Dumeer, George Freeman, Blanche Freeman, but "time and chance" have since played their part and now new names with a few of the old ones fill the caption. This makes it advisable before going into a consideration of the questions of the case to clear up the relationships of the parties and set forth the theories upon which they are before the Court.
Indeed, in this matter about all I can hope to do is to get the various contentions clearly stated with such decisions thereon as I am able to make, knowing assuredly that the case will be fully explored by the Circuit Judge; for there are a number of perplexing questions to be determined and forceful arguments have been advanced before me to sustain each of the conflicting claims with the proverbial "hair" perhaps betwixt the "false and true." If I can lessen the labor of the Court in distinguishing what are the vital points to be decided and the facts surrounding them I shall be satisfied, regardless of whether my own particular views in the case be sustained or not.
FAMILY HISTORYThe history then of the parties is as follows:
Evander Wallace, the elder, was a son of Barney Wallace and was born May 2, 1821, and died June 1, 1858 (page 3). He married Annie Boarer (or Mary Ann Boarer) and left her surviving him with four children: John B. Mary Ann, Helena, Evander, and perhaps another (22). The fifth child and Helena died young, just when it does not appear; indeed, Mrs. Patterson, a party and a witness, does not mention them at all (78), but as Col. Gibson, who was born only a year before the elder Evander's death says positively that he went to school with the four named (3), I am satisfied that at least Helena, with the other three children, survived her father. This fact is to be noted because it may prove important. Mary Ann Wallace the next year after the death of her husband Evander — say in 1859 — married Eli English (80) and she is referred to generally in this case as Mary Ann English. She died in 1916 (79, 20), surviving her second husband some eight years. He died in 1908 (20). She left a will dated May 13, 1910, appearing at page 28 of the testimony.
John B. Wallace seems to have gone away to Texas in 1866-67 (7) after having served in the Confederate War. He has died since the beginning of this action intestate, leaving as his sole heirs at law his children Vann T. Wallace and Mrs. Helen Carver (72, 73), now the plaintiffs.
Mary Ann Wallace, daughter, married John Barrentine (4) and so was known either as Mary Ann or Ann Barrentine (78). She died in 1870 (78); she had one child (19) Alma (78); there is no testimony as to what became of the husband. Alma married Martin C. Freeman, Sr., and died in 1896, presumably intestate (78) and leaving her husband and three children, Blanche, Ida and George Freeman, Martin C. Freeman remarried and died in 1923, leaving as his sole heirs at law his widow, Emma Freeman, his three children by Alma Barrentine above named, and eight children by the second marriage: Mary King, John Watts Freeman, Lucile Porter, Ernest Freeman, Julia Barlow, Vivian Freeman, Martin C. Freeman, Jr., and Sarah Frances Freeman, the last three under age (79). The Ida Peterson who testified (77) is the above-named Ida Freeman and the Ida Dumeer of the original caption. Lucile Porter of the testimony is the Lucile Freeman of the answer. These descendants of Mary Ann are spoken of generally as the Barrentine or Freeman heirs. Evander Wallace, the other child, does not appear in the action. He made a deed for his interest and he is dead (6). His descendants are not parties, but his grantees are represented by the next named defendant, Norman Quick.
Norman Quick is an original party and is the real defendant in the action, being in possession of the land which is the subject (or object) of the suit.
HISTORY OF THE ACTIONThe original summons was as to all parties except Norman Quick served by publication, and the only answer was by him.
The complaint alleges that Evander Wallace, the elder, died leaving as his heirs his widow, known in this action as Mary Ann English, two sons, J.B. and Evander, and the children of a daughter ____ Barrentine (that is Mary Ann or Anna), and owning the one hundred thirty-five (135) acres of land described; that afterwards his two sons, Evander and John B., conveyed the interest they thus owned in the land to one Stephen Quick, subject to the use thereof by their mother during her lifetime; that she died June 1, 1916, having devised to John B. Wallace her entire interest in the land; that after her death, the heirs of Stephen Quick by deed dated December 14, 1916, conveyed their interest to Norman Quick, who went into and has since held possession of the land; that plaintiff was entitled to one-third of the property as the devisee of Mary Ann English; that Norman Quick was entitled as grantee (remote) of J.B. and Evander Wallace to 2/3 of 2/3 or 4/9 thereof; and that, for short, I will call them the Barrentine heirs, were entitled to the remainder, and the plaintiff prays for partition and for an accounting for rents and profits.
Norman Quick answered the complaint and denied that either Evander Wallace, the elder, or Mary Ann English had more than a life estate; alleged substantially that the deed of John B. and Evander carried the fee in the land and that the same had in due course vested in him and that he was the owner of the entire fee in the land. On this record motion was made to refer the case, and by his order dated May 5, 1920, copy of which appears in the record (12 of package marked "pleadings") Judge John S. Wilson referred "all the issue of the case" to me. Just here it may be set down that the attorney for Quick, Mr. LeGrand, has noted from time to time objections to my power to try the title, contending that he had the right to a jury trial. I mention this at his request and for his benefit. I consider that, however, a question that I cannot pass on; the order of reference determining my duty for me.
Various references were had under the pleadings. Then Martin C. Freeman died and the Barrentine heirs, the minors of them at least, by their guardian ad litem, Ross M. Lindsay, answered, setting up their interest. Thereafter the plaintiff died and by formal order of Judge Henry S. Johnson dated April 16, 1928, the present plaintiffs were substituted, subject to proof that they were his heirs. In passing I may here report that this proof was duly made and there is no contradiction of it. Then all of the Barrentine heirs answered by Tison and Miller, attorneys. Briefly, they alleged a family agreement to the effect that Mary Ann English should have the premises for life and then it was to be divided equally between the three children, John B., Evander and Ann Barrentine, which agreement they contended was duly carried out on the part of the children and was binding; (2) that from Evander Wallace's death in 1858 to her death in 1916, Mary Ann English received the rents and profits and thereby consumed any interest she would have had, if the family agreement pleaded did not in fact exist, and therefore her will had nothing, insofar as the land involved was concerned, to operate on; (3) they claimed rents and profits. To this answer of the Barrentine heirs Norman Quick answered, denying anything inconsistent with his claim to hold the fee-simple unencumbered title to the entire tract of land of which he alleged he was in the rightful control and possession; and plaintiffs replied denying any liability to account for rents on the part of Mary Ann English, and setting up laches and the Statute of Limitation.
These answers were under a consent order (45).
FIRST QUESTIONThe first question to be determined is whether the plaintiffs, meaning here those who are asserting a right to the land against Norman Quick, have made out their claim to any interest in the land, for if they have not, the other question fade out.
Undoubtedly, Quick claimed the full title and is and has been for years in the exclusive possession of the land. Ordinarily the rule is that the weakness of the possessor's title; but must show a complete title in himself, going back to a grant from the State, either actual or presumed, and that he cannot recover on the weakness of the possessor's title; but an exception exists where both parties claim from a common source. In such a case the question is which has the better title. Cave v. Anderson, 50 S.C. 293, 27 S.E., 693; Bethea v. Allen, 95 S.C. 479, 79 S.E., 639; Clarke v. Johnson, 150 S.C. 351, 148 S.E., 190, and others.
Here I think it clear that the parties did claim from a common source — the elder Evander Wallace. The parties adverse to Quick allege him as their source, and while said defendant does deny that either Evander or Mary Ann Wallace "had any more than a life estate" in the property, yet as a part of his chain of title he connects himself with, and bases his claim on deeds that depend on Evander's title and that moreover by their recitals expressly designate Evander as the source of ownership. As is clearly shown by the authorities cited by the attorneys representing plaintiffs — i. e., those adverse to Quick — on this phase of the case [ Ellen v. Ellen, 18 S.C. 489, 492, seq. and Stone v. Fitts, 38 S.C. 393, 397, 17 S.E., 136] he is bound by these recitals, and when on the stand he himself testified that he claimed under these deeds and offered no other independent title as he in general would have had a full right to do (65, 66). Bethea v. Allen and cases supra. In addition it appeared that he entered under these deeds and it may be that he should not have been allowed to set up any other contrary claim, under the statement quoted with approval from a former decision in Cave v. Anderson, 50 S.C. 297, 27 S.E., 693 — "It is against the moral policy of the law to permit one to dispute the title under which he took possession of the land." No objection was made on this special point, however, if, indeed, it could have been, and the defendant was allowed to testify fully with the result stated.
It is true that Mr. LeGrand strongly argued that the long possession of Mary Ann English and her husband Eli — from 1858 to her death in 1916 — with the proof that she sold the timber on the land (23); that she received the income and used the place as her own (21); paid the taxes during all the period and returned the land in Eli English's name and her own from 1872 on until her death (12 of Package marked "Exhibits"); conclusively showed that the title thereby had vested in either her or Eli, and therefore that the action must fail, the plaintiff not only not having proved the right claimed, but on the contrary that the defendant had shown an outstanding title in others which fully protected him from the present assault.
Granting for a moment the correctness of the deduction as to the effect of the long possession, I cannot follow his conclusions entirely. The Barrentine or Freeman heirs would be excluded, perhaps, but those claiming under John B. Wallace would not only not be ousted, but very likely would by this course of reasoning have their interest enlarged. For if Mary Ann English acquired the full title by her possession, then the whole tract would pass under her will to them, and if Eli English acquired the title, then at his death Mary Ann as an heir would take at least a share in his interest, which would pass by the will to the same claimants. The Court long ago in a somewhat similar case said that "litigants may not get all they ask for, but may reasonably expect to receive what rightfully belongs to them under the case made." Windham v. Howell, 68 S.C. 482, 47 S.E., 715.
These facts do, however, make necessary a very careful consideration of the long possession of Mary Ann and Eli English, not only as affecting the particular question of title, but as bearing perhaps vitally on the determination of other issues in the case.
In the first place I am satisfied that Evander Wallace, the elder, did own at his death the premises involved. Of course, this is not important if I am correct in holding that the parties claim under him as a common source, for if he had no title, still of those claiming from him, they that had the better right would be entitled to the possession. Clarke v. Johnson, 150 S.C. 351, 148 S.E., 190.
Evander Wallace was undoubtedly in possession of the land at his death in 1858. How long before it is impossible to say with certainty. By the recitals in these deeds which the defendant Quick cannot gainsay it had been conveyed to him. Ebby Quick (53) says he had lived on it twelve years before his death. Mr. LeGrand has brought out very forcibly the weakness of testimony of Col. Gibson, Mr. Quick and Judge Townsend, mixed, as he shows it must have been of what they knew themselves and of what they had heard, when they were testifying of those days so long gone. But Ebby Quick could have known of his own knowledge of this fact for he was born in 1844. The memories of many go back in regard to some facts to an equally tender age. There was no reason for him to prevaricate. After Evander died in 1858 his widow and children continued on indefinitely; Eli English marrying the widow and coming on the place in 1859, and among them the possession was unbroken until 1916.
Considering now Evander alone — the case is remarkably like that of Sibley v. Sibley, 88 S.C. 184, 70 S.E., 615, Ann. Cas., 1912-C, 1170. Applying the principles declared there, he was in possession at his death and had been for some years, whether twelve or not in 1859. Eli English married the widow and entered under his marital rights, thenceforward during her coverture he held the interest of his wife and by virtue thereof was a co-tenant with the children, and their possession continued or tacked with Evander's made out in all probability the full time necessary to presume a grant to Evander at the beginning of his occupancy ( 88 S.C. 187, 70 S.E., 615, Ann. Cas., 1912-C, 1170).
Now as to Eli and Mary Ann English: Being in under his marital right for the reason set out in the above case (to which may be added Windham v. Howell, 91 S.C. 349, 74 S.E., 754; Cathcart v. Matthews, 91 S.C. 464, text 471, 74 S.E., 985, Ann. Cas., 1914-A, 36; Floyd v. Page, 129 S.C. 301, 124 S.E., 1, text 5, Eli could not claim adversely to his stepchildren during their minority nor afterwards until he ousted them under the claim of exclusive title. There is little positive evidence of any ouster. The returning of the land for taxation by Eli English in his own name and the payment of taxes was referable to his own marital rights, so far as Mary Ann English was concerned and would have had to have been brought home to his co-tenants as an adverse claim before it could so operate. The fact that John B. and Evander left and that Ann got married and left might also be some evidence, but such evidence is very indefinite and unsatisfactory and admits of other explanations.
The most compelling proof is the presumption of ouster arising from long and continued possession by Mary Ann and Eli after the children left the home. As stated in Powers v. Smith, 80 S.C. 110, text 114, 61 S.E., 222, such a state of facts would seem to give rise to a rule of law. There is, indeed, in my mind some confusion as to whether the law is that "inaction by tenants in common — for twenty years in the face of notorius and exclusive possession, with the use and exercise of authority incident to exclusive and adverse ownership," is of itself and without more sufficient to presume ouster in adverse holding and to establish conclusively the presumption of a grant or that "before the statute can being to run it must appear that the holding the tenant claims the property as his own and has in unequivocal terms notified the others," as under the ten year statute. Powers v. Smith, 80 S.C. 114, 61 S.E., 222; In re Russell's Estate, 118 S.C. 420, 110 S.E., 791, 793; Glenn v. Walker, 113 S.C. 1, 100 S.E., 706; Whitaker v. Jeffcoat, 128 S.C. 404, 122 S.E., 495, 496; Kirton v. Howard, 137 S.C. 11, 134 S.E., 859, 867; Southern Railway Co. v. Day, 140 S.C. 388, 138 S.E., 870, 878.
But I am relieved of making a decision on this point, for in the Sibley case the Court passed on a similar situation and still applying that decision here, whatever rights Eli English acquired attached themselves to his marital right under which he entered, were available to him during his life and enured to the benefit of his wife, Mary Ann English, who survived him, and if there was possession adverse to plaintiffs' predecessors for twenty years she alone could claim it. She of course is dead, but those who succeeded her do not make any such claim, but recognize in their complaint and proof the defendant Quick and the Barrentine heirs as co-owners with them.
Moreover, throughout the years both Mary Ann and Eli English have at various times either by word or action apparently given recognition to the claims of these co-tenants. When in 1892 the son Evander sold out his interest to Mary Ann Quick, Eli English vested with his wife's interest during his life took part in the transaction by signing as a witness. Merck v. Merck, 89 S.C. 390, 71 S.E., 969. Ann. Cas., 1913-A, 937. This deed purported to convey for a valuable consideration a one-third part, after the expiration of "the life estate of my mother, Mrs. Eli English." According to L.H. English, a nephew of Eli (18 and 19) while Mrs. Ann English called all the land hers in various conversations when both Mrs. English and Eli were present Eli repeatedly said, without contradiction, that after Mary Ann English's death the land would belong to Stephen and Martha Ann Quick and Evander's children (that is, Evander the elder), and that Mary Ann's interest was all there was (meaning Mary Ann or Ann Barrentine, the predecessor of the Freeman heirs), thus both showing knowledge of and distinctly recognizing the deed of John B. and Evander Wallace, the son, and the right of the third surviving child of Evander the elder.
In passing I may note that this testimony is marked "ruled out, subject to later ruling." I think it is competent, Mrs. English was present and besides Eli was an owner of the land, being practically a life tenant during his wife's life and this was in disparagement of their title.
I am frank to say, however, that to my mind this long continued occupancy of the land by Mr. and Mrs. English undisturbed by anyone and rent-free for nearly three-score years — while the generation of her children ebbed and flowed, until now, the claimants are either the grandchildren or great granchildren means something in this case, that probably an understanding of the reasons for it would carry with it the correct solution of the issues in this case.
If under the Powers case, and it of course merely epitomizes what many other cases had previously stated, a grant of the entire fee would be presumed to protect the possession, I suppose some lesser grant could also be presumed. The possession spoken of above I take it is that of the assailed occupancy, here Quick. The possession we are trying to understand is that of Mary Ann and Eli English, but it would seem logical to follow the principle to a theory reconcilable with the actions of the parties.
It might be well to summarize the facts with which the true solution must be reconcilable or the differences explained. I will put first as I have found it:
(1) That Evander the elder died intestate, seized of the land.
(2) That for Two Hundred ($200.00) Dollars John B. Wallace conveyed to Stephen Quick his interest to take effect "after the death" of his mother.
(3) That Evander then conveyed his interest to Stephen Quick's wife, Mary Ann, for the same amount of money, stating his interest to be one-third part "upon the expiration of the life estate of my mother."
(4) I think that we can safely add that as a fact both Mary Ann and Eli knew of these deeds and perhaps of their general terms.
(5) Eli and Mary Ann English claimed at least at one period only a life estate, admitting the right of the Quicks and the Barrentine heirs to succeed them (this testimony of L.H. English, page 18, I think is relevant as a declaration against interest being in disparagement of their title).
(6) After Eli's death Mrs. English made a will in which she definitely devised to John B. Wallace "more especially my interest" in the land (page 28). This statement gives I think substantially all the evidence. I do not mean of course that it all has the same, or equal probative value.
The theories advanced have been already stated.
Under No. 1 of course Mary Ann by law was entitled to dower or one-third of the land in fee; presumably she took the latter. The inference to be drawn from 3, 4 and 5 is that she had a life estate only in all of the land. In fact, considering the effect of the designation of the property as one-third, this is almost a statement in 3 and this is entirely consistent with 2; the consideration is the same, indicating perhaps the same interest and the taking effect at the death of his mother, is practically the recognition of a life estate. But this theory is utterly at variance with 6. So that as a theory reconcilable with all of the factors the family settlement of the specific terms urged must fail.
Perhaps, however, there was an agreement, tacit or explicit, that Mary Ann was to remain on the land but that there was to be no change in the ultimate legal ownership among them. This would have been very natural. It is not shown how old Mrs. English was, but she was sixteen when married and probably even at the maturity of her youngest child she was still a young woman with a long life ahead of her and it may be that the explanation is the simple one based on the love and solicitude of her children for her. This is, indeed, inconsistent with 3 and 5 insofar as the retention by her of her share is concerned, but the former can be explained on the supposition that Evander was anticipating that at the death of his mother he would be a one-third owner and the latter by the fact that she may have thought that she only had a lifetime right. But there was no legal cause then why she nor is there any now why her successors should be committed to the consequences of the error, if such it was. No one was buying the land or changing his position relative thereto by reason either of her silence or acquiescence. It was all idle talk anyway.
On the other hand, if we take the other theory, we have to destroy an admittedly legal estate on evidence that is not clear and convincing. Mrs. English herself was not bound by the declarations of her sons, and I reach the conclusion that she never relinquished her one-third interest in the land.
But one thing I do think is established by the facts and the presumption — that her occupancy of the premises was permissive and rent free. Fifty-eight years without demand from anybody precludes any other idea. This covers Eli's possession, too. He, in fact, was the one accountable until his death and neither he nor any of his representatives are parties to the suit.
CONSTRUCTION OF THE DEEDThis conclusion then leads up to the question of the construction of the deed of John B. Wallace:
One side claims that he conveyed only the interest he then had, the other that he conveyed that and the interest which his mother devised him.
Here also it might be well to set down the salient points of the deed.
(1) The consideration expressed was Two Hundred ($200.00) Dollars; (2) he expressly conveyed all his interest; (3) he recited (underscoring mine) "my interest now being the share I am entitled to as an heir at law of my father Evander Wallace and any other interest I may be entitled to by inheritance or otherwise; this deed to take effect after the death of my mother"; (4) he gave a general warranty. Besides there are facts and circumstances outside the deed itself, but these are the main points within the four corners of the instrument.
The adverse parties have filed full and able arguments on the construction of this deed and will doubtless repeat them before the Court. It will be proper, therefore, it seems to me, that I should merely indicate my findings and the reasons as briefly as I can, not specifically referring either to the decided cases or these arguments.
The question is not whether or not an expectant heir can convey his interest in hoped-for property. In this State it can be done. Blackwell v. Harrelson, 99 S.C. 264, 84 S.E., 233, Ann. Cas., 1916-E, 1263. Nor is it whether after-acquired property will pass under a deed that the acquirant had previously executed purporting to convey it. We have a line of cases assuring this beginning with Craig v. Reeder, 3 McCord, 411. See list in Judge Gary's opinion in Boykin v. Springs, 66 S.C. 373, 44 S.E., 934. The question really comes to this: Was the intention to pass John B.'s present interest and his expectant interest, or was it intended to pass his present interest alone?
It is elementary that deeds ordinarily operate in praesenti and effect a present change of title. Of course, the intention governs, but unless the contrary appears, that is the rule. Here we have the words of a present conveyance and the only sign other than the usual intention mentioned arises from either the stipulation that the deed should go into effect at the death of the mother or from the recital definitive of the more general words at the beginning of the description. As to the former, it is settled law in South Carolina that a deed with such a stipulation is a present conveyance of the fee, the real intention being only to postpone the date of the enjoyment of the property conveyed. Merck v. Merck, 83 S.C. 329, 65 S.E., 347, 137 Am. St. Rep., 815, and cases cited.
This brings us face to face then with the last clause. Judge Henry McIver in Mellichamp v. Mellichamp, 28 S.C. 125, 5 S.E., 333, lays down the cardinal rule — "When a Court is called upon to construe any case the first effort should be to ascertain the intention of the parties from the language they have used" — a rule expressed in almost every case where the Court has undertaken the construction of any paper. It would seem to be a corollary to this that if a meaning can be obtained thus giving effect to every word in the paper, then that is the legal intention without further ado. If, however, there is ambiguity, then resort may be had to other rules, seeking still the main purpose of ascertaining the intention. But the deed must first be read in the light of all the surrounding circumstances as is clearly stated in Williams Bruton et al., 121 S.C. 30, 113 S.E., page 319, text 324:
"We are not inadvertent to the principle that, where a deed is susceptible of more than one construction, the words should be `more strongly construed against the grantor.' 13 Cyc., 609; Foy v. Neal, 2 Strob., 156; Peay v. Briggs, 2 Mill., Const., 98, 12 Am. Dec., 656. But the determination whether such doubt exists as to require the application of that principle the deed should be read `in the light of all the circumstances surrounding the parties when the deed was executed, and also of their subsequent conduct relative to it.' Stephens v. Long, 92 S.C. 65, 75 S.E., 530, and cases therein cited."
In this deed the grant is of "all my right, title and interest" — a clear and definite description; then he says, "my interest now being the share I am entitled to as an heir of my father — and any other interest I may be entitled to by inheritance or otherwise." If there is any doubt as to the meaning it might result from the use of "now" and of the phrase "any other interest I may be entitled to." As to the first "now," it has but one meaning, but it is used in contrast with either past or future. Which does it mean here? As to the second expression, "may be," undoubtedly their uses of may or much involved the notions of power, ability, is some obscurity here. The Century Dictionary says: "The opportunity, permission, contingency, etc., passing in to each other, and may in many constructions being purposely or inevitably used with more or less indefiniteness." We need only turn to our own decided cases to see that this statement is justified by judicial utterances. In Ex Parte, American Fert. Co., 122 S.C. 171, 115 S.E., 236, text 238, the expression "may be due" was said to have a "prospective slant." The expression "may sustain" in Lockhart Power Co. v. Askew, 110 S.C. 449, 96 S.E., 685, was shown by the surroundings also to include the future. In Marion County Lumber Co. v. Hodges, 96 S.C. 140, text 144, 79 S.E., 1096, the Court says: "the words `such as may be necessary' look to the future as well as to the present." This was a case, too, in which it was a question of what was conveyed by a deed. In each instance it was necessary to resort to connecting and surrounding circumstances to ascertain the meaning.
Following that course, it seems to me that the meaning here becomes clear. First, a present grant of a definite interest, explicitly stated to be "all my interest" in the land. Then he explains: "my interest now being" — that is in contrast with a point in the past when he became entitled to a share by the death of his father, and then he adds, "and any other interest I may be entitled to by inheritance or otherwise" — because of the death of his two sisters, Helena and the other. I can see that he probably did not know the exact interest that he thus took. It would require a considerable calculation to fix it mathematically, so he covers it by saying first, "all my interest" and further particularizes by giving the sources whence the interest came. We must give "may be entitled to" this meaning if we are to cover the entire interest he had; he certainly meant to convey "all." Yet, if we say that he meant by these expressions something to arise in future which he did not then have, then he did not convey the portion he inherited from the sisters who took from their father just as he did, and we thus raise a direct contradiction in terms. There was certainly Helena, probably a fifth child, as I have already noted.
It may be argued that the expression included both the present holding and the indefinite future acquirement but I think the presumption is against this. Judge Milton McLaurin's name appears as a witness and very likely he drew the deed. As a lawyer he would hardly have left such an unusual grant to inference; if indeed the rule is not as I think it must logically be, that to convey by deed an interest, the acquirement of which is both in the future and uncertain, the intention to do so must appear plain and positive.
This view is reinforced not alone by the actions of Mrs. English in making her will; her actions may not be relevant, but by those of the grantee Steven Quick and his successors in title, in so far as any inference can be drawn therefrom. In dividing the Steven Quick estate his interest in the 135 acres involved was set off to the widow. If the heirs and she herself had understood that there was any possible addition it would have been most natural to set it out for her protection, even if the contingent interest was not deemed sufficiently certain to value it in the partition.
On the other side of the question are the facts that Evander did convey a full one-third interest in the land after a life estate in his mother, for the same amount of money. If he had survived his mother and had been devised her interest very likely it would have inured to his grantee, but I do not think that it has been shown with sufficient certainty that John B. intended to convey anything else than what he had at the time of his conveyance, nor that he or his successors are estopped to claim under the will.
RENTS AND PROFITSThis brings us then to the last question in the case, the question of rents and profits, the ascertainment of the proportionate shares in the land being merely a matter of calculation.
Most interesting arguments were made before me on the accountability of co-tenants for rents and specifically for collecting rents from the estate of Martha Ann English, or rather from her share in the land, if she had any from the very beginning of her tenure. Under the conclusions, however, that I have reached as to the facts, this question does not arise and for me to discuss it here, although it may be brought into the case later, would add only length to this report. The accountability of Norman Quick does remain. In connection with this it might be well to make a word of explanation. The reference in the case was by consent of all parties closed on April 9th. It was, however, opened by consent for Mr. LeGrand to offer evidence on the part of Norman Quick as to rents. At the reference held for this purpose the question of improvements was also brought up, but objection was made that under the agreement this evidence was not admissible. The testimony was taken on the ruled-out sheet very largely for this reason. I think, however, that it should all be considered as it is a settlement in equity by the Court that is being had. While technically under the agreement I think the subject of improvements was not an issue, still on any application the Court would doubtless require the reference reopened for the purpose of passing on this question, and I therefore, with this explanation, proceed to consider this along with the admittedly pertinent question of rents.
I do not think there is much need to discuss the law applicable. Some point was made as to rights of the Barrentine heirs, minors and all to raise the question of rents years after the action was begun. Whatever legal difficulty there might have been in other circumstances, I call attention to the fact that here their rights were preserved by the allegations of the initial complaint which sets up a claim for them in behalf of all, indeed, setting out at least the main division in which the rents would be divided. This is clearly held in Youmans v. Youmans, 128 S.C. 31, 121 S.E., 674, text 677. That case, and I might add the case of Cain v. Cain, 53 S.C. 350, 31 S.E., 278, 69 Am. St. Rep., 863, so clearly state the law in situations such as this, that I feel that it is not necessary to cite any others on the remaining questions.
The defendant, Norman Quick, took title according to his deed dated November 14, 1916, therefore he has been in possession, counting 1929, thirteen years, his possession being clearly exclusive. He was served with a summons and complaint in the action on February 26, 1919, as appears by the Sheriff's return. Therefore, all the improvements of any moment testified to were made after suit began and full notice of the disputed title, if he had had none before. He, also, just as in the Youmans case, held through the most lucrative period of farming that this section has had at least in a generation, and has not, although he had ample notice of the law suit, brought forward any statement accounting for actual profits and expenditures. The Court is left to the uncertain — because necessarily, based on estimates — testimony of neighbors and his own unaided recollection both as to costs of buildings, amount of clearing, value of buildings and crop production and price, and amount of cultivation. It does appear that at least one of the buildings was incommensurably large for the English place, and while it and the other buildings doubtless added to the value of the plantation there is no certain evidentiary basis to sustain a specific finding thereon. It further appears that while he cleared up land from year to year, and it is testified that the general cost of clearing comes to twenty-five to thirty dollars an acre, he used the wood taken off for his own purposes. Mr. S.J.T. Quick (page 96) says he probably sold some to Mr. Hunsucker. The defendant says he did not (112) sell any of it and that in so far as Mr. Hunsucker was concerned he let him have the wood for clearing it up, and on 106 that he used the lumber for building purposes on the place; that he sold none of it. So that even under his own testimony the cost of clearing and the cost of the buildings could not be allowed him as the place more or less paid its own way in this respect. There is also the view that in cutting the timber when it was small he prevented its maturity and its coming to a value that would have benefited the owners perhaps very much more than any improvements made by him.
All in all I think I must conclude as suggested in the above case of Youmans v. Youmans, that the defendant is willing to be held for a sum estimated from the rental value rather than to account for the actual rents and profits received (See Subdivision 6 of that case, 121 S.E., page 676 [ 128 S.C. 37]). He will, of course, participate himself in the increased production and value along with the others and very likely this method will do substantial justice. If it does not, I do not see how any one else could be held accountable, for he could have kept an accurate account and had full notice of the duty to do so. The Court in the above case said:
"One of the rights which the excluded tenants in common may be entitled to have carefully safeguarded by the occupying tenant, and which the Court of equity may in the circumstances find it just strictly to enforce, is the right to have the occupant of the land account fully for the rents and profits received. See Cain v. Cain, 53 S.C. 350, 31 S.E., 278, 69 Am. St. Rep., 863, 7 R.C.L., 834, Par. 30."
So I have endeavored to make up a statement on this basis. The witnesses on rental value were all men of experience and integrity. The differences in their estimates are not more than is usual in such cases. Probably those called for the plaintiff would be inclined to place as high a value as they could conscientiously, and those for the defendant would in the same manner be inclined to use the lowest value. Doubtless somewhere between them would be reasonable. As to the amount cultivated Mr. Norman Quick knows better than anyone else and I have taken the figures that he has given.
I find that a rental of $20.80 (the cents are derived, of course, from a calculation of averages, and are not given in an attempt to make an approximation meticulously exact) is the proper rental per acre for the years 1917-1920, inclusive, and $8.00 for the remaining 9 years. I deduce the result from the figures given by the witnesses testifying specifically as to these years, and am confirmed in my calculation by the fact that it corresponds closely when averaged with the average rental testified to by one of the witnesses who gave his idea as to the whole term, and whose figures I did not use in making my calculation, using them only as a check. Of course, after all it is mostly an estimation, but I see no other way of arriving at a definite amount, which is the necessary task of the Court.
On this basis then the defendant, Norman Quick, owes as rent:
1917 30 acres at $20.80 ................ $ 624.00 1918 33 " " " ................ 686.40 1919 33 " " " ................ 686.40 1920 37 " " " ................ 769.60 1921 40 " " $ 8.00 ................ 320.00 1922 33 " " " ................ 264.00 1923 40 " " " ................ 320.00 1924 60 " " " ................ 480.00 1925 60 " " " ................ 480.00 1926 60 " " " ................ 480.00 1927 60 " " " ................ 480.00 1928 60 " " " ................ 480.00 1929 60 " " " ................ 480.00 _________ $6,550.40 This rent, of course, should go to the parties in the proportion in which they own the land. The only change in ownership during this period has been that of Martin C. Freeman, Sr. Only his heirs are before the Court. I merely call this to the attention of the parties as it may or may not be of any moment.Before tabulating the shares, I perhaps should mention that there is no testimony on the possibility of dividing the land in kind. It is shown that some sixty odd acres are clear, and the balance, say one-half of the place, is swamp or woods; there being 135 acres, more or less, in all.
According to my computation then the shares of the parties in both land and rents thus far accrued are:
Vann. T. Wallace .............. 297/1782 Helen Carver .................. 297 297 ___ 891 ____ 1782 396 Norman Quick ................................ ___ 891 48 Blanche Freeman ............................. ___ 891 48 Ida Peterson ................................ ___ 891 48 Geo. Freeman ................................ ___ 891 4 John Watts Freeman .......................... ___ 891 4 Martin C. Freeman ........................... ___ 891 4 Mary King ................................... ___ 891 4 Lucile Porter ............................... ___ 891 4 Julia Barlow ................................ ___ 891 4 Ernest Freeman .............................. ___ 891 4 Vivian Freeman .............................. ___ 891 4 Sara Frances Freeman ........................... ___ 891 22 Emma Freeman ................................... ___ 891 _____ 891 ___ 891 I think my holdings of fact and law appear above with sufficient definiteness to omit here a resume of each separately, and that it perhaps would really tend to confuse to repeat them here. For that reason, unless called on to do so, I shall not make out a separate list of each finding of law and fact. SUPPLEMENTARY REPORTI make this supplementary report to the one I filed yesterday evening with the Clerk for the reason that I have discovered in the calculation an error. I hope that the following is correct. I overlooked the fact that on the death of the fourth child who survived Evander the share of this one would go equally to the mother and her three surviving brothers and sisters. There was a fifth child, but I do not think the testimony is sufficiently explicit to say that she survived her father Evander. If it should be held that she did, of course that would make a further change in the shares.
In the calculation below I have assumed that there were only four children surviving the father, Evander. The shares then would be as follows:
Vann T. Wallace ........... 891/4752 891/2376 Helen Carver .............. 891/4752 Norman Quick, being owner of share of J.B. and Evander .............. 990/2376 Blanche Freeman .................... 120/2376 Ida Peterson ....................... 120/2376 George Freeman ..................... 120/2376 John Watts Freeman ................. 10/2376 Martin C. Freeman .................. 10/2376 Mary King .......................... 10/2376 Lucile Porter ...................... 10/2376 Ernest Freeman ..................... 10/2376 Julia Barlow ....................... 10/2376 Vivian Freeman ..................... 10/2376 Sarah Frances Freeman .............. 10/2376 Emma Freeman ....................... 55/2376 --------- 2376/2376 DECREE On February 15th, 1919, this action was commenced by the plaintiff for the partition of certain real estate of Marlboro County, the complaint alleging that the plaintiff was the owner of certain interests, that the defendant Norman Quick was the owner of certain interests, and that the other defendants were the owners of certain interests. The action was for partition of the land described in the complaint, and for an accounting.The defendant, Norman Quick, by his answer verified March 15th, 1919, denied that the plaintiff or the other defendants had any interest in the land, and alleged further that deed executed to plaintiff's grantors by John B. Wallace and Evander Wallace carried the fee-simple title to the lands, which said fee-simple title is now vested in the defendant, Norman Quick. The two deeds referred to in the answer are attached to the answer. The answer further alleges that if plaintiff's testator had an interest in the land to dispose of, then so much of that interest as passed to John B. Wallace would then pass to the defendant, Norman Quick, under the deed previously made by John B. Wallace to Steven Quick, under whom this defendant, Norman Quick, claimed. In paragraph eight of the answer, the said defendant claims that he is the owner of an absolute fee-simple title to all of the lands described in the complaint, and he denies that either the plaintiff or any of the other defendants has any interest therein.
On May 5th, 1920, a motion was made by plaintiff's attorney for an order of reference, and over the protest of the attorney for Norman Quick, Judge John S. Wilson; presiding Judge, ordered a reference of all issues, both of law and fact, to W.M. Stevenson, as Special Referee, to take the testimony and report his conclusions, both of law and fact.
Some time subsequently, one of the parties defendant died, and a guardian ad litem was appointed, and this guardian ad litem joined with the defendants other than Norman Quick in an answer which was served on the plaintiff and on the defendant, Norman Quick. Thereupon, by answer verified January 23rd, 1929, Norman Quick, in opposition to the claim of the other defendants, filed an answer again denying that these defendants or the plaintiff had any interest in the matter, and setting up that he was the owner of the land in fee-simple.
After the order of reference, nothing seems to have been done for a long time, the final reference having been held this year. At this reference, the attorney for Norman Quick objected to the reference on the ground that he was entitled to a jury trial, and had not consented to the order of reference or waived his right to a jury trial. The Referee held that he could not pass on this question, as it was settled by the order of Judge Wilson, and he proceeded to take the testimony and to file his report.
This matter comes before me upon exceptions to the report of the Special Referee, these exceptions being made by Norman Quick and by the other defendants. Upon the hearing before me on these exceptions, the attorney for Norman Quick again took the position that the Court was without jurisdiction to hear this matter, because the question of title being raised by the defendant, Norman Quick, he was entitled to a jury trial, and this Court would have no jurisdiction.
It seems to me that the order of reference of Judge Wilson is binding on me until the same is reversed, as I have no power, even if I so desire, to modify or change this order.
However, if the contention of Norman Quick is correct, and he is entitled to a jury trial, then the Referee and I will have marched up a very long and tedious hill, only to march down again.
"Without undertaking to pass upon the order of Judge Wilson, but taking the contention of the defendant, Norman Quick, as correct, and that upon the face of the pleadings he was entitled to a jury trial, still it seems to me if after all of the evidence is before the Court, and it appears from the evidence that there is no question for a jury, but that all of the questions are for the Court, then it would be harmless error on the part of Judge Wilson, and therefore that the defendant, Quick, would have no right to a jury trial."
While in so many words the defendant, Quick, alleges that he is the owner in fee-simple of the title to this land, and denies any interest in the plaintiff or the other defendants, still his answer proceeds to set up the source of his title, and the evidence discloses no other source of title, and the defendant, Norman Quick, testified that the deeds set up in his answer are the only sources of his title. Therefore, I conclude that there is no issue for a jury, and that this is a proper case for reference.
The report of the Referee gives a full history of the litigation.
I am very strongly inclined to think that upon the death of Evander Wallace, Sr., the husband of Mary Ann Wallace, that there was an understanding by which Mary Ann Wallace was to hold the entire property for life, and at her death it was to go to her three children or their representatives. However, I have not been able to find evidence sufficient to warrant me in so holding. It is clear that upon the death of Evander Wallace, Sr., his widow, Mary Ann Wallace, who was afterwards Mary Ann English, inherited one-third of this real estate, and the other two-thirds were inherited by her children. This estate having vested in her, it could not be divested except upon proof clear and positive. I do not think there is such proof, though the evidence is highly persuasive that she agreed to claim only a life estate.
The defendants other than Norman Quick claim that Mary Ann English should be held for rents and profits for at least six years previous to her death. I think that this contention is right. However, under the will of Mary Ann English, the defendants received certain personal property. The will provided that the debts should be paid out of the personal property, and therefore any rents and profits that the defendants, other than Norman Quick, would be entitled to charge against Mary Ann English would have to be credited with the amount which they received from the personal property of the deceased, Mary Ann English.
Subject to the ruling upon rents and profits, it is
Ordered and adjudged: That all exceptions to the Referee's report be and the same are overruled and dismissed, and the report of the Referee is confirmed.
It is further ordered and adjudged, That the parties hereto may apply to the Court for further orders for the partition or sale of the land described in the complaint.
Mr. J.W. LeGrand, for Norman Quick, appellant, cites: Error to order reference: 141 S.C. 142; 140 S.C. 103; 130 S.C. 131. Error in ordering reference appealable after final judgment: 136 S.C. 234; 34 S.C. 172; 36 S.C. 175; 122 S.C. 251; 24 S.C. 85; 88 S.C. 183; 70 S.C. 176; 66 S.C. 321; 59 S.C. 51. Issue of title triable by jury: 29 S.C. 52; 41 S.C. 197; 76 S.C. 169; 138 S.C. 183; 69 S.C. 234; 71 S.C. 282; 38 S.C. 424; 59 S.C. 446; 78 S.C. 155; 73 S.C. 108; 53 S.C. 28; 26 S.C. 235. Possession which will presume title: 48 S.C. 293; 80 S.C. 114; 78 S.C. 155. Rule for construction of written instrument: Jones Evidence, Sec. 175. Instrument construed against grantor: 98 S.C. 239; 19 L.R.A., 196; 22 L.R.A., 246; 2 Const. Rep., 101; 13 Cyc., 601, 602, 609; 1 Strob., 147; 19 L.R.A., 46. "May be" refers to future: 122 S.C. 177. Doubt as to meaning construed against person using it: 7 Wall., 688; 109 U.S. 278; 111 U.S. 335; 170 U.S. 133; 170 U.S. 272; 10 R.C.L., 686. Party may introduce title in third party to defeat plaintiff's action: 78 S.C. 155; 73 S.C. 108. Tax receipts admissible: 16 S.C. 143; 78 S.C. 31.
Messrs. R.M. Lindsay and Tison Miller, for Barrentine heirs, respondents, cite: Party bound by recitals in deed under which he claims: 18 S.C. 489; 17 S.E., 136; 50 S.C. 297; 78 S.C. 191. Parol partition accompanied by possession binding: 61 S.E., 968. Accounting between co-tenants: 109 S.E., 648; 16 S.C. 216; 7 R.C.L., 638; 17 A. E. Enc., 696.
Messrs. Rogers Ellerbe, for plaintiffs-respondents, cite: Party bound by recitals in deed under which he claims: 18 S.C. 489; 29 S.C. 377; 50 S.C. 298; 54 S.C. 259; 78 S.C. 191. Deed should be construed against grantor when intention has been ascertained: 4 Strob., 408; 23 S.C. 235; 112 S.C. 1; 119 S.C. 156; 106 S.C. 304; 105 S.C. 268; 93 S.C. 401; 120 S.E., 324; 25 S.E., 673. Expectant interest not subject to conveyance at law: 58 A.L.R., 339; 8 R.C.L., 1063; 44 A.L.R., 1465; 17 A.L.R., 597; 99 S.C. 264; 66 S.C. 373; 120 S.C. 324. Trial before Referee and Circuit Judge by consent equivalent to trial by jury: 38 S.C. 424. Accounting for rents: 14 S.C. 307; 2 McCord Eq., 322; 4 Strob. Eq., 167; 15 S.C. 364; 81 S.C. 282; 26 S.C. Eq., 301.
April 24, 1930. The opinion of the Court was delivered by
This is an action for the partition of a tract of land containing 135 acres alleged to have belonged to one Evander Wallace, Sr., and inherited by the plaintiffs and all of the defendants except Norman Quick, who claims the entire interest in the land. The case is quite complicated.
It appears essential to an apprehension of the various points that have arisen that a statement of the family relations of the Wallaces be given at the outset:
All of the parties, including the defendant Norman Quick, claim through a common source of title, Evander Wallace, Sr. He died intestate in 1858, seized and possessed of the land, and leaving as his heirs at law, a widow, Mary Ann, two sons, John B. Wallace and Evander Wallace, Jr., a daughter Mary Ann, who married John Barrentine, and a daughter Helena, who died unmarried.
The widow, Mary Ann Wallace, thereby inherited one-third interest in the land, and the four children named, 1/4 of 2/3 equal 1/6 each.
About a year after the death of Evander Wallace, Sr., his widow, Mary Ann Wallace, married Eli English, and died in 1916, leaving no children by her English husband. During her lifetime she remained in possession of the premises, with her second husband.
One of the daughters Helena, died unmarried during the lifetime of her mother, and her interest of 1/6 devolved upon her mother, her brothers, John B. and Evander, and her sister, Mary Ann Barrentine, in equal portions. So that thereafter Mary Ann (Wallace) English, became entitled to 1/3 plus 1/4 of 1/6 equal 3/8 and each of the others John B., Evander and Mary Ann Barrentine to 1/6 plus 1/4 of 1/6 equal 5/24.
(Checking: Mary Ann Wallace (English) 3/8, plus John B. 5/24, plus Evander 5/24, plus Mary Ann Barrentine 5/24 equal 24/24.)
On September 2, 1885, John B. Wallace conveyed to Steven Quick his interest in the land, described as "being the same tract of land heretofore conveyed by Barnabas Wallace to Stephen Wallace and by said Stephen Wallace to Evander Wallace my father, my interest now being the share I am entitled to as an heir at law of my father, the said Evander Wallace deceased, and any other interest I may be entitled to by inheritance or otherwise. This deed to take effect after the death of my mother."
On March 8, 1892, Evander Wallace, Jr., conveyed to Martha Ann Quick, wife of Steven Quick, his interest in the land, described as "being the same tract of land conveyed by Barnabas Wallace to Stephen Wallace and by said Stephen Wallace to Evander Wallace my father, my interest therein being the one-third part thereof upon the expiration of the life estate in my mother Mrs. Eli English."
(It seems clear that both John B. Wallace and Evander Wallace, Jr., intended and doubtless had agreed that their mother should have a life estate in the property.)
The other child Evander Wallace, Sr., and Mary Ann Wallace (English), namely, Mary Ann Wallace (Barrentine), does not appear to have made any disposition of her interest inherited from her father. (She inherited nothing from her mother, by reason of the will of her mother which will be later referred to.)
Mary Ann Wallace (English), died, as stated, in 1916, leaving a will dated May 13, 1910, in which she devised her interest in the land in question to her son John B. Wallace.
Mary Ann Wallace, daughter of Evander Wallace, Sr., and Mary Ann Wallace (English), married John Barrentine, as stated, and died in 1870, leaving as her sole heir at law a daughter, Alma Barrentine. (It is assumed, in the absence of any showing to the contrary, that she survived her husband.)
Alma Barrentine, daughter of Mary Ann Barrentine, married Martin C. Freeman. She died intestate in 1896, leaving as her heirs at law her husband Martin C. Freeman, and three children, Blanche Freeman, Ida Freeman (later Ida Dumeer, and later Ida Peterson), and George Freeman.
Martin C. Freeman afterwards married Emma ____ and died intestate, leaving as his heirs at law the widow, Emma, the three children named by the first wife, and the eight children named by his last wife, Emma.
Upon the death of Alma Barrentine, first wife of M.C. Freeman, he inherited one-third of her interest (which as has been seen was 5/24), that is 1/3 of 5/24 equal 5/72, and each of the three children of the first marriage inherited 1/3 of 2/3 of 5/24 equal 5/108, in all 15/108.
(Checking: The inherited interest of Alma Freeman was 5/24; of which M.C. Freeman inherited 5/72 and the three children in all 15/108, these added make 5/24.)
Upon the death of M.C. Freeman, his widow, Emma, inherited one-third of his interest, that is 1/3 of 5/72 equal 5/216, and each of the eleven children of both marriages inherited 1/11 of 2/3 of 5/72 equal 5/1188, in all 55/1188.
(Checking the inherited interest of M.C. Freeman was 5/72; of which his widow inherited 5/216 and the eleven children in all 55/1188, which added make 5/72.)
On November 14, 1916, Martha Ann Quick and the other heirs at law of Steven Quick, namely Maggie Quick, J. Thad Quick, and Fred M. Quick, by deed, conveyed to the defendant Norman Quick the tract in question, and described as being the land conveyed by Evander Wallace, Jr., to Martha Ann Quick by deed dated March 8, 1892, and by John B. Wallace to Steven Quick by deed dated September 2, 1885. (Both deeds above referred to.)
The defendant Norman Quick immediately went into possession of the entire tract, and has so continued ever since. The heirs at law of Evander Wallace, in addition to the prayer for partition, demand an accounting from Norman Quick of the rents and profits of the place beginning with January 1, 1917.
Assuming that the heirs at law are entitled to a partition of the land, an interesting question is presented as to the quantity of the interest of Norman Quick as a tenant in common with the heirs at law.
He claims title through Evander Wallace, Jr., and John B. Wallace by the deed from Evander Wallace, Jr., to Martha Ann Quick, dated March 8, 1892, and by the deed from J.B. Wallace to Steven Quick, dated September 2, 1885.
By the deed from Evander Wallace there was conveyed his interest as an heir at law of his father, Evander Wallace, Sr., which was, as has been seen, 5/24. About this there is no controversy. So we begin with the assurance that Norman Quick was entitled to that interest.
By the deed from J.B. Wallace there was conveyed "my interest now being the share I am entitled to as an heir at law of my father, the said Evander Wallace, deceased, and any other interest I may be entitled to by inheritance or otherwise."
The contention of Norman Quick is that this deed conveyed, not only the interest which J.B. Wallace inherited as an heir at law of his father, Evander Wallace, Sr., which was 1/4 of 2/3 equal 1/6, but also the interest which he inherited as an heir at law of his deceased sister Helena, which was 1/4 of 1/6 equal 1/24, and the interest which he took as devisee under the will of his mother. Mary Ann Wallace (English), which was one-third plus her interest as an heir at law of her deceased daughter Helena, which was as above stated 1/4 of 1/6 equal 1/24; this would give Norman Quick 1/6 plus 1/24 plus 1/3 plus 1/24 equal 5/8, plus interest of Evander Wallace, Jr., which was 1/6 plus 1/4 of 1/6 equal 5/24.
This would give Norman Quick:
1. The interest of J.B. Wallace inherited from his father, one-sixth ..................... 16.66% 2. The interest of J.B. Wallace inherited from his deceased sister, Helena, one-twenty-fourth ........................................... 4.17% 3. The interest of J.B. Wallace by devise under the will of his mother, as an heir at law of Evander Wallace, Sr., one-third ........... 33.33% 4. The interest of J.B. Wallace by devise under the will of his mother as an heir at law of her deceased daughter Helena, one-twenty-fourth 4.17% 5. The interest of Evander Wallace, Jr., inherited from his father, one-sixth ................ 16.66% 6. The interest of Evander Wallace, Jr., inherited from his deceased sister, Helena, one-twenty-fourth ........................................... 4.17% ------- Total ..................................... 79.16% Leaving undisposed of the inherited interest of Mary Ann Barrentine, five twenty-fourths .. 20 84% ------- Accounting for the whole ................... 100.00% The issue vital to the interests of the plaintiffs, Vann T. Wallace and Helen Carver, children of John B. Wallace, who were substituted in his stead as plaintiffs after his death, and seriously affecting the interest of Norman Quick, is whether the deed from John B. Wallace to Steven Quick conveyed not only his interest as heir at law of his father Evander Wallace, Sr., but also his interest as heir at law of his deceased sister Helena, and also his interest as devisee under the will of his mother, Mary Ann (Wallace) English.The defendant Norman Quick contends that this issue should be decided in his favor upon a proper construction of the deed which conveyed the interest of John B. Wallace inherited from his father and also "any other interest I may be entitled to by inheritance or otherwise." If this contention should be sustained, the plaintiffs, children of John B. Wallace, take no interest at all in the distribution.
The 5/24 interest, 20.84 per cent. distributable among the Barrentine and Freeman heirs, upon the correctness of the foregoing hypothesis, would be apportioned as follows:
1. Blanche Freeman, inherited from her mother 5/108, and from her father 5/1188 equal to 60/1188 ...................................... 5.05% 2. Ida Peterson same ............................ 5.06% 3. George Freeman same .......................... 5.06% 4. Emma Freeman, widow of M.C. Freeman, 5/216 ........................................ 2.31% 5. Mary King inherited from her father 5/1188 0.42% 6. John W. Freeman same ......................... 0.42% 7. Lucile Porter same ........................... 0.42% 8. Emma Freeman same ............................ 0.42% 9. Julia Barlow same ............................ 0.42% 10. Vivian Freeman same .......................... 0.42% 11. Martin Freeman same .......................... 0.42% 12. Sarah Freeman same ........................... 0.42% ------ Total ........................................ 20.84% The Special Referee and the Circuit Judge both held that the deed from John B. Wallace to Steven Quick conveyed the then present interest of John B. Wallace as an heir at law of his father Evander Wallace, Sr., and the interest which John B. Wallace inherited from his deceased sister Helena; and that the interest which he took as devisee under his mother's will, which included her original interest of one-third as heir at law of Evander Wallace, Sr., and the interest which she inherited from her deceased daughter Helena, vested in the children of John B. Wallace, the plaintiffs in this case. The correctness of this conclusion we consider the vital point in the case.There appear to be two conditions under which a grantor who conveys an expectant interest will be estopped from disputing the title of his grantee: (1) Where the deed purports to convey the fee and contains a general warranty, as in Gaffney v. Peeler, 21 S.C. 55; Wingo v. Parker, 19 S.C. 9; and (2) where he specifically conveys not only his present interest, but any interest which he may acquire in the future.
In 5 C.J., 858, it is said:
"In the United States the general rule is that an expectant heir may, in the life-time of his ancestor, sell, assign, or release his expectant interest in the estate of the latter, whatever it may turn out to be on his death, and a Court of equity will enforce the contract if it is shown to have been made in good faith and for a valuable consideration." (Citing very many cases.)
In Blackwell v. Harrelson, 99 S.C. 264, 84 S.E., 233, 234, Ann Cas., 1916-E., 1263, the Court said:
"It is no doubt true that authority may be found for the proposition that a sale by an expectant heir of an interest in land which he expects to inherit from a person then living is void as against public policy ( McCall v. Hampton, 98 Ky., 166, 32 S.W. 406, 33 L.R.A., 266, 56 Am. St. Rep., 335), but no decision to that effect in this State has been called to my attention, and I think the weight of numerical authority as well as the better reasoning support the contrary view. See authorities discussed in note Trull v. Eastman [3 Metc. (Mass.) 121], 37 Am. Dec., 126; 4 Cyc., 15, and authorities cited. I am therefore of the opinion that the fact that Charles H. Harrelson at the date of his deed to Ella J. Harrelson was an expectant heir of the person in whose land he was purporting to convey an interest would not be sufficient to prevent the application of the rule of estoppel." (From circuit degree of Judge Spain, adopted by the Court.)
The question appears to be conclusively settled in favor of the validity of the assignment of an expectant interest in equity by the great authority of Story and Pomeroy. See 3 Story Eq. Jur. (14th Ed.) § 1395, 3 Pom. Eq. Jur. (3d Ed.) §§ 1236, 1270, 1290. See also Trull v. Eastman. 3 Metc. (Mass.) 121, 37 Am. Dec., 126, and elaborate note of Judge Freeman: Notes: 17 A.L.R., 597, 44 A.L.R., 1465, 58 A.L.R., 339, 8 R.C.L., 1063.
This being unquestionably the law, the issue is presented whether the grantor, John B. Wallace, has conveyed this expectancy by his deed to Steven Quick of September, 1885, a matter of legal construction.
The terms of the conveyance appear to leave no doubt upon the issue:
"All my right, title and interest of, in and to all that certain piece, parcel or tract of land * * * it being the same tract of land heretofore conveyed * * * my interest now being the share I am entitled to as an heir-at-law of my father, the said Evander Wallace, deceased, and any other interest I may be entitled to by inheritance or otherwise. This deed is to take effect after the death of my mother."
The use of the phrase "may be" is susceptible, generally speaking, of either a present or a future construction, but, in connection with the previous phrase "my interest now," there can be no doubt that the grantor had in mind to convey not only his present interest, but such interest as he might become entitled to at any time in the future.
In the case of Ex parte American Fertilizing Co., 122 S.C. 177, 115 S.E., 236, 238, in the decree of Hon. L.D. Lide, Special Judge, which was adopted as the opinion of the Court, it was declared:
"In my opinion the words `may be due,' contemplate future indebtedness. The phrase has a prospective slant. The use of the word `due' does not necessarily imply that the debt has already matured. It is often used by business men in the sense of `owing irrespective of the time of payment.' Century Dictionary. In the case of Shoemaker v. Smith, 37 Ind., 128, the Court says: "The words `may be' are peculiarly appropriate to express the future and not the past." In the case of Griggs v. St. Paul, 56 Minn., 150, 57 N.W., 461, a contractor drew an order on the city for a certain sum of money authorizing the deduction thereof `from any money which may be due me on account of the grading of Park avenue.' The Court held that the words `may be due' did not refer exclusively to what was presently due and payable at the date of the order, but also included moneys that might thereafter become due and payable under the contract. The Court said: `The word `may,' as here used, implies contingency, possibility, or probability and is broad enough to include whatever might become due and payable.' In Brown v. Bachelor, 1 H. N. 264, a guaranty of `any balance that may be due' was construed as referring to future as well as to past transactions."
It follows that Norman Quick is entitled to an interest of 79.16 per cent. in the proceeds of the sale for partition, and the Barrentine heirs 20.84 per cent.
The conclusions of the Special Referee confirmed by the decree, in reference to the right of the appellant Norman Quick to a trial by jury; the possession of the property of Mary Ann Wallace (English) and her husband; and the alleged agreement between Mary Ann Wallace (English) and the other heirs at law that her interest should be limited to a life estate, are approved.
In reference to the accountability of the estate of Mary Ann English for rents and profits for six years preceding her death, we are of opinion that the evidence overwhelmingly shows that no such charge was ever expected to be made against her therefor, and that there should be none against her estate.
There does not appear to be any exception to the report of the Special Referee upon the matter of the accountability of Norman Quick for rents and profits, and to that issue the decree confirming the report must be affirmed. In such accountability the defendant Quick will receive credit for such ratio of the amount for which he is held accountable as his interest herein determined indicates.
The judgment of this Court is that the decree be modified as herein indicated, and in other respects affirmed. The case will be remanded to the Circuit Court for further proceeding consistent herewith.
Note: Special Referee's report and circuit decree.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.