Bradford v. Griffin

• Citation: 19 S.E. 76,40 S.C. 468
• Parties: BRADFORD v. GRIFFIN.
• Decision Date: 27 February 1894
• Court: South Carolina Supreme Court

19 S.E. 76

40 S.C. 468

BRADFORD v. GRIFFIN.

Supreme Court of South Carolina

February 27, 1894

Appeal from common pleas circuit court of Sumter county; J. H Hudson, Judge.

Action by J. Wesley Bradford against Thomas N. Griffin to compel him to carry out a contract for the purchase of land. Judgment for plaintiff. Defendant appeals. Affirmed.

The opinion of Mr. J. S. G. Richardson, which the court below referred to as containing the reasons for its decision, is as follows:

"John D. Ashmore proposes to sell to G. W. Bradford a plantation on Lynches creek containing 1012 acres of land. This plantation consists of two parcels of land: (1) A tract which J. D. Ashmore holds under a deed from his mother Martha Ashmore, dated in June, 1844; and (2) a tract which he also holds under a deed from his mother, dated May 8 1850. These two parcels originally belonged to John Durant. No paper title for them in John Durant has been exhibited to me. Such paper title may, however, exist, and perhaps can be found in the possession of the ordinary who administered on the derelict estate of John Durant. John Durant was, however, in the actual possession of these two parcels of land for many, perhaps ___, years before his death. He died in 1843, intestate, leaving his sister Martha Ashmore, and certain nephews named Smith, children of a predeceased sister, his heirs at law. A partition has been made, and these two parcels allotted to Martha Ashmore, or to John D. Ashmore, claiming under her. Under such a state of facts, I think the title of Martha Ashmore a fair marketable one. The long possession of John Durant and of those claiming under him, is sufficient to raise the presumption of a grant from the state. McLeod v. Rogers, 2 Rich. Law, 19. The possession of John Durant in his lifetime, or of John D. Ashmore, from June, 1844, to September, 1854, since his death, is sufficient to give title under the statute of limitations; and the partition between the heirs of John Durant, even if it be informal, (of which I know nothing, it not having been known, or the facts in relation to it stated to me,) would be enforced in equity. Thompson v. Dulles, 5 Rich. Eq. 370. The deed from Martha Ashmore to John D. Ashmore, dated in May, 1850, conveys the fee simple, and as to the tract of land embraced in that deed there can be no doubt as to his right to convey it. The difficulty arises under the deed of 1844. That deed is from a mother to her son; its consideration is natural love and affection, and nothing more. It belongs, therefore, to that class of deeds known in the books as covenants to stand seised to uses. 4 Kent, Comm. 492, 493. It conveys the land, by its terms, to 'John D. Ashmore for life, and after his death to the issue of his body forever.' The word 'heirs' is nowhere used in it, either in terms or by reference and adoption. The questions are: (1) What estate does John D. Ashmore take? and (2) what estate, if any, is given to his issue?

"1. If the words above extracted were contained in a will, I should say that John D. Ashmore took either a fee conditional at common law, (Whitworth v. Stuckey, 1 Rich. Eq. 404,) or that he took an estate for life, with remainder to his issue in fee, as purchasers, ( McLure v. Young, 3 Rich. Eq. 559,) my own mind inclining to the latter opinion, as the one conforming to the intention of the party creating the estate. But it is unnecessary to press the question to a conclusion in this point of view, for the instrument we are construing is a deed, and not a will, and that should be borne in mind. All the authorities, from Lord Coke to the present time, lay down the rule that, (with certain exceptions, unnecessary to be here mentioned, as this case cannot be brought within any of them,) in order to create a fee by deed, the word 'heirs' is necessary to be used. Co. Litt. § 1; 4 Kent, Comm. 5; 2 Bl. Comm. Mr. Preston, in his treatise on Estates, (volume 2, p. 1,) says, 'To the creation or transfer of an estate in fee by deed, it is requisite that the land should be limited, as to individuals, to the individual and his heirs.' At page 4 he says: 'No substituted words of perpetuity will, except in special cases, be allowed to supply their place. Therefore a grant, in a deed, to a man and his assigns, or to him and his assigns forever, or to him and his successors,' etc., 'will not, by reason of the omission of a limitation to his heirs, pass more than an estate for life.' And at page 484 of the same volume, speaking of the creation of estates tail, he says: 'As far as relates to deeds, the rule is positive that the word "heirs" must be used, either in terms or by reference and adoption. But the precise words "of the body" are not necessary.' These authorities are to my mind conclusive that John D. Ashmore takes under the deed of June, 1844, only an estate for life. As I have already said, the word 'heirs' is not to be found in that deed, and no substituted form of expression importing the same idea will answer in its place; indeed, none is used. In that deed the substituted words are 'issue of his body.' This expression is not synonymous with 'heirs of the body.' Issue embraces all descendants, and is applicable to them as well in the lifetime of the parent as after his death; while 'heirs of the body' may embrace only a portion of the descendants, and does not embrace even them as long as the parent is living. I conclude, therefore, that John D. Ashmore's estate under the deed of June, 1844, is for life only.

"2. The next question is, what estate is given to the issue of John D. Ashmore? My opinion is that no estate at all is given to them, and for the following reasons: (1) In June, 1844, when the deed was executed, John D. Ashmore was unmarried, and had no issue. The limitation, therefore, was to unborn issue, and was, of course, contingent. As that limitation is to the issue forever, and not to the issue and their heirs, they could no more claim a fee than John D. Ashmore can; their claim must, like his, be limited to an estate for life only. In 4 Kent, Comm. 283, note a, it is said a limitation to unborn children for life is not good. If that be good law, then this limitation, being to unborn issue for life, is not good. (2) The limitation here is 'to the issue of his body forever;' not to issue born in his lifetime, or within twenty-one years and nine months afterwards; not to issue living at the time of his death, but to all his issue forever,--that is, through all time to come; each to take an estate for life only. Such a limitation is void for remoteness. (3) The deed, as I have already said, is a covenant to stand seised to uses. Its consideration, expressed on its face, was the donor's natural love and affection for her son, the donee, for life. Such a consideration was good as between her and him; but it was not sufficient to support a contingent limitation to his unborn issue,--to persons not in being. 'Bargain and sale and covenant to stand seised,' says Chancellor Kent, 4 Comm. 496, 'are conveyances not adapted to settlements. They both require a consideration; and they could not be applied to the case of persons not in ease, for they had not contributed to the consideration when the conveyance was made.' My conclusion, therefore, is that, as to the land embraced by the deed of June, 1844, John D. Ashmore has the life estate, and his mother, Martha Ashmore, the reversion in fee, his children having no estate therein. A conveyance, therefore, of the land from John D. Ashmore will be good, provided his mother, Martha Ashmore, shall, either before or after such conveyance, release to him her estate in reversion.

"Let us suppose now, for the purposes of the argument, that the limitation to the issue of John D. Ashmore is valid. Any claim on their part to more than a life estate under that limitation would be encountered, as I have already said, by the fatal objection that the limitation is not to them and their...