Rembert v. Evans

• Citation: 68 S.E. 659,86 S.C. 445
• Parties: REMBERT v. EVANS.
• Decision Date: 28 July 1910
• Court: United States State Supreme Court of South Carolina

68 S.E. 659

86 S.C. 445

REMBERT v. EVANS.

Supreme Court of South Carolina

July 28, 1910

Appeal from Common Pleas Circuit Court of Richland County; J. W. De Vore, Judge.

Action by George R. Rembert against W. Boyd Evans. From a judgment for plaintiff, defendant appeals. Affirmed.

E. J Best, for appellant. Washington Clark and Shand & Shand, for respondent.

WOODS J.

In this action for specific performance, the defendant admits his contract to purchase the land described in the complaint, but denies that the plaintiff can make a good title. The issue thus made depends upon the construction of a deed of trust made by Jesse De Bruhl to Samuel Fair and J. Foster Marshall on January 7, 1853. The consideration of the deed was love and affection of the grantor for his daughters, Mary D. Fair wife of Samuel Fair, and Elizabeth A. Marshall, wife of J Foster Marshall. The trust was thus declared in the granting clause immediately preceding the description of the land and negroes conveyed: "In trust and for the use, behoof and sole benefit of the said Mary D. Fair and Elizabeth A. Marshall and the children now born of the body of the said Elizabeth A. Marshall and the children hereafter to be born of the bodies of the said Mary D. Fair and the said Elizabeth A. Marshall and not in any wise to be subject to the debts, liabilities or contracts of their present husbands or any other future husbands." After the usual clause of warranty, the trust is thus further set out: "And it is further agreed by these presents that the above-mentioned real and personal estate is held by the trustees aforesaid as joint tenants in common for the sole benefit, use and behoof of the said Mary D. Fair and the children to be born of her body, and for the sole benefit, use and behoof of the said Elizabeth A. Marshall and her children now born or to be hereafter born of her body. And it is expressly understood by these presents, that one-half of the net profits after paying all the debts and contracts made in behalf of the said plantation arising from the said plantation and negroes shall be divided equally between the said trusteees for the use, benefit and behoof of their respective wives, and that in case the said Mary D. Fair shall die without child or children, then the profits of said land and negroes above given in trust for her shall be held and enjoyed by her husband, Samuel Fair, for and during the term of his natural life, not in any wise subject to his present debts, liabilities or contracts, or any other future debts, liabilities or contracts, and after his death to revert to the said Elizabeth A. Marshall and the heirs born of her body. And it is further agreed by these presents that in case of the death of the said Elizabeth A. Marshall the portion of said land and negroes given in trust for her and children shall be held and enjoyed by her husband, J. Foster, for and during the term of his natural life, not in any wise to be subject to his present debts, liabilities or contracts, or any other future debts, liabilities or contracts and after his death to go to his children begotten on the body of his present wife, Elizabeth A. Marshall. And it further agreed by these presents that the trustees aforesaid are hereby empowered to grant, bargain and sell the above-described tract of land or any part of the above-named negroes and their future increase, whenever they may deem it advisable for the use, benefit and behoof of the said Mary D. Fair and the said Elizabeth A. Marshall. And it is further agreed by these presents that the above-named trustees shall have power and they are hereby authorized whenever they may deem it advisable to bargain, sell and convey to the other, one-half of the above-mentioned real and personal estate, and that the proceeds of such sale shall be invested in any other real or personal property for the sole use and benefit of the cestui que trust for whose benefit such sale and transfer was made. And it is further agreed by these presents that the above-mentioned plantation and negroes and their future increase shall be under the exclusive management and control of the said J. Foster Marshall to make all necessary contracts appertaining to the same and to be allowed a reasonable compensation for the trouble and time he may expend in aid about the same, and that he be required to make annually a return to the said Samuel Fair for his receipts and expenditures and to divide with the said Samuel Fair one-half of the net profits arising from said plantation. And the said Samuel Fair and J. Foster Marshall, trustees as aforesaid, doth on their several parts accept the trust aforesaid and covenant and agree to and with the said Jesse De Bruhl and they hereby bind their heirs, executors and administrators to execute and carry out the above-mentioned trusts, according to the true intent and meaning of these presents."

By a declaration of trust dated 16th of June, 1863, Samuel Fair, one of the trustees, undertook to substitute for trust funds used by him certain lots in the city of Columbia. These are the lots which the plaintiff has contracted to convey to the defendant. In Brazel v. Fair, 26 S.C. 370, 2 S.E. 293, it is held that the substitution was attempted without authority, but that the lots became a part of the trust property by election of the cestui que trust to affirm the substitution.

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