Vaen v. Varn

• Citation: 10 S.E. 829,32 S.C. 77
• Parties: Vaen v. Varn et al.
• Decision Date: 13 February 1890
• Court: United States State Supreme Court of South Carolina

10 S.E. 829

(32 S.C. 77)

Vaen

v.Varn et al.

Supreme Court of South Carolina.

Feb. 13, 1890.

Deed—Life-Estate—Consent Order.

1. A deed which reserves to the grantor a life-estate, but contains no words of inheritance, or words limiting the estate to an interest less than life, conveys only a life-estate; and on the death of one of the grantees the joint tenancy is severed to the extent of his interest, which reverts to the grantor, under Gen. St. S. C. § 1851, providing that, "where any person shall be, at the time of his or her death, seised or possessed of any estate in joint tenancy, the same shall be adjudged to be severed by the death of the joint tenant, and shall be distributable as if the same were a tenancy in common."

2. A consent order cannot be attacked on appeal.

Appeal from common pleas circuit court of Barnwell county; W. H. Wallace, Judge.

Action for partition by A. G. Varn against M. B. Varn and others. Defendants appeal. Gen. St. S. C. § 1857, provides that "where any person shall be, at the time of his or her death, seised or possessed of any estate in joint tenancy, the same shall be adjudged, to be severed by the death of the joint tenant, and shall be distributable as if the same were a tenancy in common. Skinner & Williams, for appellants. Geo. G. Thompson and L. T.Izlar, for respondent.

Simpson, C. J. The "case" herein is so meager, and so many confused statements therein, growing out, perhaps, of the misuse of words in the printing, that we have found it very difficult both to get the facts, and to obtain a clear idea of the legal errors intended to be alleged. The cause, however, as far as we have been enabled to understand it, seems to be of the following character: One W. M. Chitty in November, 1850, executed a deed, in which, "for natural love and affection, he conveyed a tract of land situated in Barnwell county, containing some 263 acres, to Robert A. Varn, Casson W. Varn, John W. Varn, Miles B. Varn, Curtis M. Varn, and Henry C. Varn, their executors, administrators, and assignees " with a reserve of the right of said lands to Isaac Varn during his natural life, and that of his wife, Louisa A. Varn, (the last two being the father and mother of the grantees above named;) and the said Chitty, for himself, his heirs, executors, administrators, and assignees, forever, warranted the said tract of land to said grantees, etc., against himself, "his executors and administrators. Soon after the execution of this deed, Chitty, the grantor, died, leaving as his heirs at law several children, one of whom, to-wit, Mary Fields, subsequently died, leaving as her heirs at law several children. Henry Varn, one of the grantees above, died in 1862, unmarried and childless. Robert A. Varn, another of said grantees, died in 1865, unmarried and childless. Casson W. Varn, another of the said grantees, died also, in 1865, unmarried and childless. Lastly, M. Varn, another of said grantees, died in 1885, leaving a widow and four children as his heirs. Isaac Varn, the father, died in 1878, and Louisa, the mother, died in 1885; so that only two of the original grantees were left, John W. Varn and Miles B. Varn, the latter of whom is in possession of the land above mentioned. Some time after the death of W. M. Chitty, the plaintiff (respondent) purchased from his heirs their interest in said lands, with the exception of the interest of William Beard, Elliot Beard, Mrs. Brabham, —— Beard, and—— Beard; and in 1887 he commenced the action below for partition, claiming that he was entitled to the fee to the extent of the interest conveyed to him by the heirs of W. M. Chitty, and that as tenantin common with John W. and Miles B. Varn, who had only a life-estate, and with the Beard children, who held a fee to the extent of their interests and what he had not purchased, he was entitled to said partition. It is stated in an agreed statement for the purpose of this appeal, that all of the defendants answered, joining in the prayer of the plaintiff for partition, except John W. Varn, who made default. But there is no answer in the record from any one of the defendants. It is further stated in appellants' argument that Miles B. Varn answered with a general "denial, claiming title, laches, and estoppel." It is also stated in respondent's argument that Miles B. Varn answered with a "generaldenial, claiming exclusive title, and for a second defense set up some equitable allegations in the nature of a former settlement, but that he never attempted to sustain either of the defenses by any proof whatever. " As we have said, however, this answer does not appear in the case, and we have no means of knowing exactly what defense it contained. The case came up first before Judge Hudson, who made an order, on reading and filing the pleadings, that an issue be framed and referred to the jury, in which the plaintiff and such of the defendants as joined in the prayer of plaintiff should be the actors to try the question whether the actors had title to the land described in the complaint. He further ordered that a certain action then pending between one Anna Varn and Miles B. Varn, for the partition of the same land, should be stayed until the question of title involved in this action might be determined. This issue was not tried at that term of the court, and the case afterwards came before his honor, Judge Fraser, who, by consent of all the counsel on both sides, substituted another order for trial by jury for the order supra of Judge Hudson, which, being submitted to the jury as stated by counsel of respondent, though these facts do not appear fully in the "case, " was finally withdrawn; Judge Fraser announcing that, under the testimony offered, he would have to instruct the jury to find for the plaintiff. If, however, the defendants desired to produce evidence on their equitable defense, he would refer the case to the master for that purpose. This was consented to, and an order to that end was made. The master thereafter took the testimony, and reported it. At a subsequent term the case came up before his honor, Judge Wallace, who, it seems, considered and adjudged the rights of the...