Pope v. Patterson

• Decision Date: 05 October 1907
• Citation: 58 S.E. 945,78 S.C. 334
• Parties: POPE et al. v. PATTERSON.
• Court: South Carolina Supreme Court

58 S.E. 945

78 S.C. 334

POPE et al. v. PATTERSON.

Supreme Court of South Carolina

October 5, 1907

Appeal from Common Pleas Circuit Court of Barnwell County; J. E McDonald, Special Judge.

Partition by M. L. Pope and others against E. L. Patterson. Judgment for defendant, and plaintiffs appeal. Affirmed on the opinion of the court below.

The following is the opinion of McDonald, J., in the court below:

"This is an action for the partition of real estate, and was heard by me at a special term of the court for Barnwell county October, 1905, upon the pleadings and an agreed statement of facts. By agreement of counsel, a jury was waived. Since the hearing of the case, my time has been so fully occupied by pressing business engagements that I have not been able heretofore to consider the numerous authorities cited by counsel for plaintiffs in his very full and able argument. I sincerely regret this delay in my decision of this very interesting case.

"The plaintiffs allege, in their complaint, that they are seised in fee and entitled to the possession of two-fifths interest in fee in a tract of land situate in Barnwell county, S. C containing 1,300 acres, more or less, and that the defendant is entitled to three-fifths thereof in fee, but that he has been in exclusive possession of said lands, collecting and receiving the rents and profits thereof, and converting them to his own use. The plaintiffs therefore demand partition of the premises, and an accounting of the rents and profits received by the defendant for the time that he has been in exclusive possession of the said premises. The defendant sets up three defenses: (1) A general denial. (2) The presumption of a grant, arising from 20 years' continuous adverse possession. (3) Adverse possession for 10 years under claim of title, founded upon a written instrument.

"The plaintiffs base their claim to their alleged interests in the tract of land described in the complaint upon a certain deed executed and delivered by one H. D. Duncan to H. A. Duncan as trustee, bearing date the 13th day of April, 1868. That deed is in the following language: 'The State of South Carolina, Barnwell District. Know all men by these presents that I, Hansford D. Duncan, of the said state and district for and in consideration of the natural love and affection which I bear towards my children, H. A. Duncan, Harriet Eliza Twiggs, widow of the late George W. L. Twiggs, deceased, Sarah E. Eaves, wife of Dr. Paul F. Eaves, Mary Lucia Sams, wife of the Rev. Marion W. Sams, and my grandson, Darling P. Duncan, and also the sum of one dollar to me in hand paid by H. A. Duncan, the receipt of which I do hereby acknowledge, have given, granted, bargained, sold and released, and by these presents do give, grant, bargain, sell and release unto the said H. A. Duncan all that tract of land situate, lying and being in the said district on the lower three runs, containing fifteen hundred acres, on which I formerly resided, and known as the Sandy Run Place. Also my two lots in the village of Barnwell, on which I now live, containing ten and eleven acres. To have and to hold all and singular the above described premises, together with the rights, members, and appurtenances thereto belonging unto the said H. A. Duncan, his heirs and assigns forever. And I, the said H. D. Duncan, do hereby warrant and forever defend the said premises unto the said H. A. Duncan against me, my heirs, executors and administrators, and all other persons claiming or to claim through me. In trust, nevertheless, that the rents and profits of the said land are to be paid over to the said H. D. Duncan for and during his natural life, and the use of the said residence in Barnwell village for the same term. And after the death of the said H. D. Duncan, then the whole estate herein conveyed to be equally divided, share and share alike, between my children, H. A. Duncan, H. E. Twiggs, S. A. Eaves, M. L. Sams, and my grandson, D. P. Duncan. The share of my daughter, M. L. Sams, to her sole and separate use during life, and after her death, to be equally divided among her children who may be living at the time of her death; the share of a deceased child, should the child so dying leave a child or children alive, to be equally divided among the children of said deceased child. The share of my grandson, D. P. Duncan, for the sole and separate use of his wife, Rosa, during life, and after her death to be equally divided among the children of the said D. P. Duncan who may be living at the time of his death; the share of a deceased child, should the child so dying leave a child or children alive, to be equally divided among the said children of said deceased child. The shares of my children, H. A. Duncan, H. E. Twiggs, S. A. Eaves, to vest absolutely upon the falling in of the life estate of myself. And on the further trust that should the said H. D. Duncan desire to sell the whole or any part of the above described property, the said H. A. Duncan shall execute such titles of the same to such person as he, the said H. D. Duncan, shall direct, in writing, without the necessity of applying to any court for that purpose. In witness whereof I have hereunto set my hand and seal this, the 13th day of April, A. D. 1868. H. D. Duncan. [L. S.] Signed, sealed, and delivered in the presence of W. W. Woodward, B. B. Sams.'

"From the agreed statement of facts, it appears that all of the plaintiffs, except Rosa Aldrich and A. P. Aldrich, are children of Mrs.

Lucia Sams and her husband, Marion Sams. Mrs. Lucia Sams was the daughter of the grantor, H. D. Duncan, mentioned as M. L. Sams in the above deed. H. D. Duncan, the grantor in the above deed, died in the year 1881, and the trustee, H. A. Duncan, died in the year 1882. Mrs. Sams died on the 6th of November, 1902, her husband, Marion Sams, having predeceased her on the 2d of August, 1899. The plaintiffs Rosa Aldrich and A. P. Aldrich are the wife and child of D. P. Duncan, the grandson of H. D. Duncan mentioned in said deed. D. P. Duncan died on the 31st of March, 1894, leaving him surviving, as his heirs at law, his wife, the plaintiff Rosa Aldrich, and an only child, the plaintiff A. P. Aldrich. D. P. Duncan and Rosa Duncan were husband and wife at the time of the execution of the above trust deed. On the 30th day of August, 1879, H. A. Duncan, as trustee, conveyed to H. D. D. Twiggs the property in dispute, and on the same day, in pursuance of a sale for delinquent taxes, a deed was also executed and delivered to the said H. D. D. Twiggs by the sinking fund commission conveying the property in dispute, the same having been sold for delinquent taxes in the name of H. A. Duncan. On the 18th day of February, 1880, H. D. D. Twiggs conveyed the property in dispute to H. F. Snelling. Thereafter, on the 18th of April, 1893, H. F. Snelling conveyed to Benjamin Graham 800 acres of the land in dispute. On the _____ day of _____, 18___, H. F. Snelling conveyed to the British & American Mortgage Company, Limited, by way of mortgage, 500 acres of the land in dispute. Subsequently the said mortgage was foreclosed and the land sold. The British & American Mortgage Company, Limited, became the purchaser thereof, and took deed thereto bearing date the 12th day of November, 1897. The British & American Mortgage Company, Limited, on the 19th of November, 1897, conveyed to the defendant E. L. Patterson said 500 acres of land, being part of the land in dispute, and on the 4th day of June, 1903, Benj. Graham conveyed to the defendant E. L. Patterson 800 acres, being part of the land in dispute. All of the above deeds were duly placed on record in the office of the registrar of mesne conveyance for Barnwell county, and the respective and successive owners of said land paid the state and county taxes thereon after the date of the sale for taxes in the year 1879. The defendant claims title by virtue of above deeds and possession thereunder. It is admitted in the agreed statement of facts that the successive owners of the land in dispute held the same openly, notoriously, exclusively, and adversely against all persons whomsoever, but this admission is without prejudice to the right of the plaintiffs to contend that such possession was not adverse as to them, it being contended that as to Mrs. Lucia Sams, she being a married woman, and under the disability of coverture at the time of the execution of the above trust deed, the possession of the several successive owners could not be adverse to her. This action was commenced on the 24th day of February, 1904. These are the salient facts upon which the issues in this case arise.

"It is contended by the plaintiffs that under the above deed from H. D. Duncan to H. A. Duncan, trustee, the beneficiaries mentioned therein took vested remainders at the time of the execution of said deed, the enjoyment thereof, however, being postponed until the falling in of the life estate reserved in said deed to the grantor, H. D. Duncan. They contend further, the the trustee, H. A. Duncan, did not hold the legal title in trust for the remaindermen, but that his office as such trustee terminated with the death of H. D Duncan, the grantor and life tenant. In other words, it is the contention of the plaintiffs that the statute of uses executed the use and vested the legal title in the remaindermen immediately upon the execution of the trust deed, and that the reservation or power of sale contained in the trust deed is null and void, as being repugnant to the estate granted. This in brief is the main contention on behalf of the plaintiffs. They, of course, contend, further, that the tax deed above mentioned is void as against them, for noncompliance with statutory requirements; and they also contend that there...