31 S.E. 278 (S.C. 1898), Cain v. Cain

Citation:31 S.E. 278, 53 S.C. 350
Opinion Judge:JONES, J.
Party Name:CAIN et al. v. CAIN et al.
Attorney:Willcox & Willcox, for appellants. Woods & Shipp and J. P. McNeill, for appellees.
Case Date:October 18, 1898
Court:Supreme Court of South Carolina
 
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31 S.E. 278 (S.C. 1898)

53 S.C. 350

CAIN et al.

v.

CAIN et al.

Supreme Court of South Carolina

October 18, 1898

Appeal from common pleas circuit court of Florence county; Ernest Gary, Judge.

Action by Charlton W. Cain and others against Hattie C. Cain, in her own right and as administratrix of T. C. Cain, deceased, and others. From the judgment, plaintiffs appeal. Modified.

Willcox & Willcox, for appellants.

Woods & Shipp and J. P. McNeill, for appellees.

JONES, J.

Plaintiffs bring this action for partition of land, an accounting for rents and profits, and to have certain of the defendants account for advancements. Sarah E. Cain died intestate in June, 1883, seised of one of the tracts of land described in the complaint, leaving as her heirs at law her husband, T. C. Cain, and the plaintiffs Charlton and Sallie Cain, her children. T. C. Cain and the plaintiffs, who are still minors, lived on and received their support from the land until February, 1888, when T. C. Cain married the defendant Hattie C. Cain. The family, including the plaintiffs, continued to reside on the place, and to derive their support therefrom, until the death of T. C. Cain, in 1896. Hattie C. Cain became administratrix of T. C. Cain. Four of the defendants are minor

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children of T. C. Cain by his second wife, Hattie. A few days before his death T. C. Cain conveyed a tract of land said to be worth $1,600 to his wife, Hattie C. Cain, for life, and at her death to her said four children. Plaintiffs now seek an accounting by the administratrix of T. C. Cain for rents and profits of the tract inherited from Sarah E. Cain, from the death of Sarah E. Cain, in 1883, to the death of T. C. Cain, in 1896, and an accounting by the four children of Hattie C. Cain for the value of this estate in remainder in the tract conveyed to them by T. C. Cain just before his death.

The special referee to whom the case was referred held the administratrix accountable for two-thirds of the rents and profits received by T. C. Cain for 12 years, at $90 per year, that sum, according to the testimony, being about the rental value of the premises. In reaching this result, the referee admitted and considered the testimony as to the rental value of the land. The circuit court held that the referee erred in this, and that he should have held the administratrix accountable for only the value of the rents and profits actually received. We think the circuit court misunderstood the ruling of the referee in this regard, as the referee's report clearly shows that he held the administratrix of the occupying tenant accountable only for rents and profits received. The evidence as to the rental value of the premises occupied and cultivated was admitted and considered merely as tending to establish the value of the rents and profits received, in the absence of any definite showing by the administratrix as to the actual receipts. Under such circumstances, the evidence was admissible. If the occupying tenant wishes to limit his accountability to rents and profits actually received, it is his privilege to show what he has received; but, if he is unwilling or unable to make such showing, it is competent to show, by speculative testimony, what he has probably received. Under ordinary conditions, it is probable that a fair rental value of premises will...

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