78 S.E. 85 (S.C. 1913), May v. Thomas

Citation:78 S.E. 85, 94 S.C. 158
Opinion Judge:FRASER, J.
Party Name:MAY et al. v. THOMAS et al.
Attorney:J. Clough Wallace, of Union, for appellants. J. L. Glenn and J. H. Manon, both of Chester, and P. D. Barron, of Union, for respondents.
Case Date:March 27, 1913
Court:Supreme Court of South Carolina

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78 S.E. 85 (S.C. 1913)

94 S.C. 158

MAY et al.


THOMAS et al.

Supreme Court of South Carolina

March 27, 1913

Appeal from Common Pleas Circuit Court of Union County; Geo. W. Gage, Judge.

Suit by Jeannette Hill May and others against Margaret S. Thomas and others. Judgment for defendants, and plaintiffs appeal. Modified.

The following are the master's report, decree, and exceptions referred to in the opinion:

Master's Report.

"This is the second report made in this case; the first report being dated June 20, 1910, and being on file in the office of the clerk of the court for this county, which report determined among other special matters under the order of reference the interests of the various parties to this action. The second and final reference herein I held on the

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24th day of January, 1911, and this is a report thereon.

"George W. Hill held a life estate in the lands described in the complaint herein, the partition of which and the rents and profits of which are at issue in this case. The question of partition, interests of the parties, etc., has already been settled under my previous report, and the matter of accounting for rents and profits was heard by me at the above-mentioned reference held on the 24th day of January, 1911.

"George W. Hill died on the 2d day of May, 1909. Some years previous to his death his daughter, Mrs. Margaret S. Thomas, and others purchased his life estate in certain tracts of land involved in this suit. The status of these parties other than Mrs. Thomas will not be considered in this report, as they were not made parties to this suit.

"George C. Wood, a son-in-law of George W. Hill, held from Mr. Hill a lease of other lands in which Mr. Hill had not been divested of his life estate up to the time of his death. This lease by its terms covered the year 1909, and provided that Mrs. W. B. May, a daughter, and Reuben S. Thomas, a son-in-law of Mr. Hill, should have such lands for use as George C. Wood saw fit to let them have. Under this arrangement there was assigned to Mrs. May a seven-horse farm, which she rented out with the exception of a one-horse farm managed by her husband, W. B. May; and to Reuben S. Thomas a two-horse farm which he rented out. Wood himself worked on shares with his tenants a six-horse farm and rented out 7 1/2-horse farms, one of which it seems that he personally managed.

"[94 S.C. 160] Just here it might be well to state that it appears from the testimony that in all these transactions Geo. C. Wood was acting for his wife, Mrs. Ruth Hill Wood, W. B. May for his wife, Mrs. Jeannette Hill May, and Reuben S. Thomas for his children, Guy Hill Thomas and Roland Farr Thomas. So hereafter in this report these representative parties will be referred to in order to simplify matters, and the court will understand that they are referred to in such representative capacity.

"I think that there can be no doubt that up to the 1st of May, 1909, Mrs. Margaret S. Thomas was protected in the holding of the land under her charge by the life interest therein of George W. Hill, which interest she had purchased. Again George C. Wood, W. B. May, and Reuben S. Thomas were protected for the same period under the lease of George W. Hill to George C. Wood. So for the first third of the year 1909 the question is easily disposed of. However, then arises a complication as to the interest of the parties in possession, who are remaindermen, and others who are also remaindermen, as to what shall be the basis of accounting as to rents and profits by those in possession--the parties in possession and other remaindermen being tenants in common. The positions of the parties to this suit are very much at variance, and I cannot accept in full the contentions of any one of them.

"It seems to be a well-settled principle of law in this state that where the tenant in common is in possession of lands and his holding is not tortious, and there is no ouster--and in this case there is no evidence of tortious holding or ouster--that tenant in common is liable to account to his cotenants only for their pro rata share of the net profits arising from his use and occupation of the premises actually utilized by him or under his management. He would be held accountable for rental value only when his use and occupation is tortious. This seems to be the law as recognized[94 S.C. 161] in this state. Jones v. Massey, 14 S.C. 307; Cain v. Cain, 53 S.C. 355, 31 S.E. 278, 69 Am. St. Rep. 863.

"However, when one tenant in common leases the premises to a stranger and collects rents thereon, such tenant in common must account to the other tenants in common for the rents so collected. He becomes a trustee to this extent for the benefit of all.

"It is conceded by all interested, I believe, that, where there are several tenants in common, each is entitled to cultivate his pro rata share of the lands owned jointly independently of the others. In this case this principle applies to the year 1910, where all the tenants in common had an opportunity of proceeding on this plan at the beginning of the year; and it appears that the parties to this suit did that for the year 1910, and there is no ground for contention as to the rents and profits for that year. However, for the year 1909 at the beginning Geo. W. Hill, the life tenant, was alive; and at his death in May after the year was considerably advanced some of the remaindermen were in possession and were cultivating the lands. It was then too late for all the remaindermen to take charge of their pro rata shares, and the statutes of this state protecting a person who had gone into possession under the life tenant would have prevented such a procedure. So plainly there was no equal opportunity to all the cotenants or remaindermen in 1909, and in law and equity the same principle cannot be applied to 1909 as to 1910.

"In the case at issue, immediately upon the death of George W. Hill, the title of the lands in question vested in the remaindermen, and they became tenants in common. The parties in possession were protected for one-third of the year--up to the 1st of May, 1909--by the life estate of and the lease from George W. Hill. But from that time on they became accountable to all the tenants in common upon the principles already set forth.

"[94 S.C. 162] To take them up in order:

"Mrs. Margaret S. Thomas must account for 6,650 pounds of cotton collected in 1909

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as rent from tenants, less a deduction of one-third on account of her right to the life estate up to the death of George W. Hill by reason of purchase. She should be credited with taxes paid as follows: 1909, $86; 1910 $70.64.

"Geo C. Wood held 13 1/2-horse farms. Six of these he cultivated himself with laborers on shares of crops and on them made no profit, and consequently cannot be held liable thereon to the other cotenants of his wife. Seven and one-half horse farms he rented and collected rents thereon to the extent of 7,500 pounds of cotton, for which he must account, less a deduction of one-third on account of the lease from George W. Hill which was good and valid for the first third of the year. He should be credited with taxes paid to the extent of $187.04; funeral expenses of Geo. W. Hill, $80; one-half cost of drainage lands as required by the county commissioners $12.50; also, I think it proper to allow him $16.66 (two-thirds of $25, the value of services as testified of managing a one-horse farm) for management of one of these 7 1/2-horse farms which he worked himself and on which he made the rent.

"W. B. May had a seven-horse farm, one of which he worked himself and on which he made the rent, and rented out the others to six others. He collected 7,000 less 338 pounds of cotton in rents for which he must account, less a deduction of one-third on account of the lease from Geo. W. Hill to George C. Wood. He should be credited with one-half the cost of drainage required by the county commissioners $12.50, insurance paid on buildings $20, town taxes paid in Carlisle $1.50, and an allowance of $16.66 (two-thirds of $25) for management of the farm he worked and on which he made the rent.

"Reuben S. Thomas held a two-horse farm from which he collected in rents 2,000 pounds of cotton, for which he should account, less one-third deduction under the lease from Geo. W. Hill to Geo. C. Wood.

"The testimony is uncontradicted that 1,000 pounds of lint cotton is the standard rent for a one-horse farm in the community where the lands in question are located, and the parties renting out the lands testified that they rented it for that standard rent. It is admitted that the cotton to be accounted for shall be so done at the price of 12 1/2 cents per pound. Of course, the amounts to be accounted for by the various parties mentioned are to be paid into the general fund for distribution, and they are to be credited with or to receive back from the fund their pro rata shares.

"I herewith transmit to the court the testimony and exhibits introduced at the reference held on the 24th day of January, 1911."


"This is a contest betwixt the heirs at law of the late Geo. W. Hill, deceased, about a division between them of the rents off the estate lands for the year 1909-1910. More particularly, the contest is betwixt the widow and children of his dead son, Roland, on the one side, and three living daughters on the other side. These daughters are Mrs. Margaret S. Thomas, Mrs. Wood, and Mrs. May. All parties have excepted to the report of the special master, and the exceptions are too numerous to set out here. But there are few issues of law, and practically no issues of fact.

"The late George W. Hill held only an estate...

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