Oliver v. McWhirter

• Decision Date: 20 March 1918
• Docket Number: 9930.
• Citation: 96 S.E. 140,109 S.C. 358
• Parties: OLIVER ET AL. v. MCWHIRTER ET AL.
• Court: South Carolina Supreme Court

96 S.E. 140

109 S.C. 358

OLIVER ET AL. v. MCWHIRTER ET AL.

No. 9930.

Supreme Court of South Carolina

March 20, 1918

Appeal from Common Pleas Circuit Court of Union County; James E Peurifoy, Judge.

Action by Mrs. N.C. Oliver and others against C. M. McWhirter and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

L. L Rice, of Anderson, A. C. Mann, of Greenville, and Jno. K Hamblin, of Union, for appellants.

Wallace & Barron and J. A. Sawyer, all of Union, for respondents.

GARY C.J.

This action was commenced on the 14th of January, 1914, to recover possession of a house and lot, in Jonesville, S. C., and for partition among the plaintiffs and the defendant Mrs. H. H Williams.

William Price departed this life in 1886, leaving of force a last will and testament, which was admitted to probate in Richland county, during that year, containing, among others, this provision:

"I will and bequeath to William C. Pennington, Benjamin F. Pennington, Maria E. Anderson and Isabella C. Hair, to each $1,000 worth of real estate in value, during their natural lives, and after their decease, to revert and go to their lawful children."

On the ______ day of ______, 1887, Joseph R. Price and Isabella M. Burns, as executor and executrix of William Price's will, commenced an action in the court of common pleas for Lexington county, alleging:

"That William Price owned a large tract of land in Lexington county, and that the purpose of said action was to determine whether it was his intention for the legatees to take this specific land under the will or whether the land should be sold, and the sum of $1,000 invested in land under the same condition."

William J. Assman was appointed special referee to hear and determine all questions raised by the pleadings, and especially to inquire and report as to what would be for the best interest of the infant remaindermen with respect to the devises made to them under the will of the said testator. The special referee made his report with the following recommendation in regard to the rights of B. F. Pennington and his children:

" For the defendant B. F. Pennington a lot of land with a dwelling thereon, in the town of Jonesville in Union county, in which he has been living for a term of years, has been purchased at a price of $1,000, and the plaintiffs now hold title for the same, and are ready to convey the property to the use of the said B. F. Pennington, in accordance with the terms of the will."

This report was confirmed and made the judgment of the court by an order signed by his honor Judge Kershaw on the 29th day of February, 1888. On the 21st of February, 1887, B. F. Pennington purchased from Charles R. Long the said house and lot. The deed was regular in form so as to convey the fee, and was duly recorded. On the 10th of February, 1888, B. F. Pennington executed a deed regular in form in every respect, except that there was only one subscribing witness, purporting to convey the fee to Joseph R. Price and Isabella M. Burns. This conveyance was not recorded. On the 7th of March, 1888, Joseph R. Price and Isabella M. Burns executed the following deed signed, sealed, and delivered in the presence of two subscribing witnesses:

"The State of South Carolina, know all men by these presents, that we, Joseph R. Price and Isabella M. Burns, in pursuance of the judgment of the court of common pleas in and for the county of Lexington, entitled, 'Joseph R. Price, executor, and Isabella M. Burns, executrix, of the will of William Price deceased, against William C. Pennington and other,' and in consideration of the sum of $1 to us paid by Benjamin F. Pennington, the receipt whereof is hereby acknowledged, have granted, bargained, sold and released and by these presents do grant, bargain, sell and release unto the said Benjamin F. Pennington, all that piece, parcel or lot of land situate, lying and being in the town of Jonesville. * * * Together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in any wise incident or appertaining; to have and to hold all and singular the premises before mentioned unto the said Benjamin F. Pennington, his heirs and assigns for and during his natural life, and after his decease to revert and go to his lawful children, and we do hereby bind ourselves and our heirs, executors and administrators to warrant and forever defend all and singular the premises, unto the said Benjamin F. Pennington, his heirs and assigns, against

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