Berry v. Marion County Lumber Co.

• Decision Date: 17 July 1917
• Docket Number: 9776.
• Citation: 93 S.E. 328,108 S.C. 108
• Parties: BERRY v. MARION COUNTY LUMBER CO.
• Court: South Carolina Supreme Court

93 S.E. 328

108 S.C. 108

BERRY v. MARION COUNTY LUMBER CO.

No. 9776.

Supreme Court of South Carolina

July 17, 1917

Appeal from Common Pleas Circuit Court of Dillon County; S.W. G Shipp, Judge.

Action by Mary Ellen Berry against the Marion County Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Henry E. Davis, of Florence, and M. C. Woods, of Marion, for appellant.

L. D Lide and Henry Buck, both of Marion, for respondent.

FRASER J.

E. Lide Berry, as administrator of the estate of Elihu Berry executed to the Cape Fear Lumber Company, defendant's grantor, five options covering the timber on several tracts of land; the timber on the land described in the complaint being covered by one of them. These lands were owned by the children and grandchildren of Elihu Berry, some of whom were infants. The options provided for a limited time within which to cut and remove the timber. Inasmuch as there were minors in the case, it was necessary to ask the aid of the court to convey their interests. The suit was brought to carry out the contract set out in the option. The whole proceeding was based on the terms set out in the option. The master's deed made in the case has been the source of trouble. The appellant claims that the master's deed conveys a fee to the timber, and the respondent claims that the deed merely conveys the interests covered by the option. This suit was brought to declare that the rights under the deed had expired, to enjoin the exercise of any further rights under the deed, and for damages. The defendant lost on circuit. Hence this appeal.

There are two habendum clauses, which read:

"To have and to hold, all the short straw, poplar and cypress on the said five tracts of land in said five options above described and named, together with all the rights and privileges, members, rights and privileges stipulated in said option to be given to the said Cape Fear Lumber Company, their successors and assigns."

"To have and to hold all and singular, the said premises before mentioned unto the said Cape Fear Lumber Company, their successors and assigns forever."

I. The appellant claims that, as a deed progresses, the grantor may relinquish, in a subsequent clause, any rights he may have reserved in former clauses, and that, under the application of this rule, the second habendum conveys a fee. Even if that rule applies to a judicial sale, it would not avail the appellant here, inasmuch as the second habendum does not convey a fee. The grantee is "to have and to hold all and singular the said premises." What is the meaning of the word "premises" as here used?

3 Washburn on Real Property (5th Ed.) p. 466: "The term 'premises,' it will be perceived, has thus far been used as embracing all that part of a deed which precedes the habendum; and this is the proper technical sense of the term as used in conveyancing. In its etymological sense, the term applies to that which has been before mentioned, and includes facts recited in the instrument in which it is used."

22 Am. & Eng. Ency. (N. E.) p. 1176: "The technical meaning of the word 'premises' in a deed is all that precedes the habendum."

It is needless to multiply authorities.

The second habendum is to have and to hold that which has gone before. In the previous part of the master's deed the option is referred to in the preamble and the granting clause.

It is not necessary to incumber this opinion with authority to show that, when one instrument refers to another for its terms, it takes both instruments to show the entire contract.

In Herlong v. Lumber Co., 93 S.C. 529, 77 S.E. 219, a written instrument referred to a parol agreement for its terms, and the parol agreement was proved as a part of the contract. It was made so by the parties themselves. In this case the master's deed does not state what the "privileges" and "rights" are, but refers to the option as recorded in the office of the clerk of the court. The option did not convey a fee, and the deed did not convey or attempt to convey a fee, but only such privileges and rights as were set forth in the option. The appellant is on the land claiming all the advantages of the option, and it cannot claim the advantages and repudiate the disadvantages.

The proceedings were taken, on account of the infancy of some of the parties in interest, to carry out the provisions of the option. The judgment directed that the conveyance should be so made, and, if the master had attempted to exceed his authority, the excess would have been void. See Iseman v. McMillan, 36 S.C. 27, 15 S.E. 336; and Bank v. McMahon, 37 S.C. 309, 16 S.E. 31. The case of Corbett v. Fogle, 72 S.C. 312, 51 S.E. 884, is not in conflict with these cases, for the reason that in Corbett v. Fogle, supra, there was a lapse of more than 20 years and the sale was confirmed and was res adjudicata. There was not a sufficient lapse of time in this case, nor was the sale confirmed. This exception is overruled.

II. The second and third exceptions are argued together.

"The position here taken is threefold: (1) That the deed is a fee-simple conveyance; (2) that it cannot be reformed in the absence of appropriate allegations in the complaint addressed

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