Alexander v. McDaniel

• Decision Date: 28 November 1899
• Citation: 34 S.E. 405,56 S.C. 252
• Parties: ALEXANDER v. McDANIEL et al.
• Court: South Carolina Supreme Court

34 S.E. 405

56 S.C. 252

ALEXANDER v. McDANIEL et al.

Supreme Court of South Carolina

November 28, 1899

Appeal from common pleas circuit court of Aiken county; James Aldrich, Judge.

Action by William Alexander against Jefferson McDaniel and another for specific performance. Judgment for plaintiff, and defendants appeal. Modified.

Gary A. J., dissenting.

M. B Woodward, for appellants.

Hendersons for respondent.

POPE J.

In the year 1879, Jefferson McDaniel conveyed two parcels of land one containing 80 acres and the other 119 acres, to his three grandchildren, William Alexander, George Miller McDaniel, and Annie Belle McDaniel reserving to himself a life estate in the same, and also the usufruct thereof, during his life, to his son, B. F. McDaniel. Jefferson McDaniel remained in possession of both tracts. The two grandchildren George Miller McDaniel and Annie Belle McDaniel departed this life while minors, unmarried, without issue, and their estates vested in their father, the said B. F. McDaniel, in fee simple, as sole heir at law. The deed of conveyance in question is in the "case," and from its terms the fee in the two tracts of land was vested one-third in William Alexander, and one-third each in George Miller McDaniel and Annie Belle McDaniel; so that, after the death of George and Annie, B. F. McDaniel had two-thirds and William Alexander had one-third. In the year 1897 the said Jefferson McDaniel, although 80 years of age, began to agitate the matter of having his son, B. F. McDaniel, and his grandson William Alexander convey by deed their fee-simple estate in said two tracts to him. No one questions this fact, nor the further fact that his son, B. F. McDaniel, cheerfully, and, as he says, unconditionally, conveyed his two-thirds interest in said tracts to his father, the said Jefferson McDaniel. The trouble in the case comes from William Alexander. He admits that he united with B. F. McDaniel in the deed of conveyance, as desired by his grandfather, but he says that his uncle, B. F. McDaniel, told him that his grandfather was beginning to give way to old age; that he suffered from vertigo; that he felt anxious to so arrange the matters of his lands that after his death there would be no trouble in dividing them; that he wanted to divide the lands himself between his son and grandson, who were his only heirs; that his grandfather talked to him on the same line; that he promised him that, if he would unite with B. F. McDaniel in a deed of said lands to him, he would, soon after he got title, divide the lands between the said B. F. McDaniel and William Alexander in equal portions; that not only did his grandfather in person importune him as to making the deed, but that, at the old gentleman's request, John Bates and B. R. Dixon also urged him to make the deed, using the same inducements to his doing so that his grandfather had done; that finally, upon the distinct agreement that Jefferson McDaniel would divide the land equally between himself (William Alexander) and B. F. McDaniel as soon as it could be done after he (Jefferson McDaniel) received a conveyance therefor, he executed the deed. The plaintiff's (William Alexander's) version of the matter is about the same as his witnesses John Bates, William Dixon, and Hampton Irvin; but the defendants, who deny any parol agreement to divide the lands equally between B. F. and William as the consideration for the deed of conveyance from William Alexander to his grandfather, made in 1897, are supported, negatively at least, by the testimony of B. R. Dixon. The complaint and answers and the testimony set forth the foregoing history of the transactions between the parties, except that it should be stated that, after William Alexander had made his deed to his grandfather, and when the latter was afterwards requested by William Alexander to carry out his agreement, he denied making any agreement, or, as Alexander states it, this is what passed between him and his grandfather in this connection: "I went to him about April [1898], and asked him what he was going to do about the land. I had heard so much talk about it. He said, 'I haven't done anything,' and didn't know that he ever would, except that he might sell the land for his own benefit, as he was old, and couldn't work. I told him if that was the decision that he had fell on, I thanked him, and told him good-bye." This action was commenced 29th July, 1898. Judge Aldrich, after a full hearing, decreed in favor of the plaintiff, and required Jefferson McDaniel to specifically execute his contract by conveying one-half of the two parcels of land to the plaintiff, and required Jefferson and B. F. McDaniel to pay the costs between them; for he in his decree found, "B. F. McDaniel is as much responsible for this litigation as Jefferson McDaniel, and that he should pay half of the costs," but denied B. F. McDaniel any relief. From this decree Jefferson McDaniel appeals.

Exceptions: "Take notice that the defendant Jefferson McDaniel excepts to the decree of his honor, Judge Aldrich, herein, and to his findings of fact and conclusions of law, and will move the supreme court of this state to reverse the decree herein upon the following grounds: First. That his honor erred in his conclusion of fact that there was an agreement entered into between Jefferson McDaniel on the one side and the plaintiff and B. F. McDaniel on the other, under and in pursuance of which plaintiff and B. F. McDaniel were to convey their interest in the land described in the complaint to Jefferson McDaniel, and in consideration of such conveyance the said Jefferson McDaniel was to divide the said lands into two parts, as near equal as possible, and to make the deed of conveyance of one half thereof to the plaintiff and the other half to the defendant B. F. McDaniel; that these acts were to be done as soon as practicable. Second. That his honor erred in his conclusion of fact that the plaintiff in good faith, and in pursuance of said contract with B. F. McDaniel, did make the deed called for by said agreement. Third. That his honor erred in his conclusion of fact that Jefferson McDaniel has failed and refused to carry out said contract, but retains the deed of the plaintiff and the land. Fourth. That his honor erred in holding that the defendant could not take advantage of the statute of frauds in this case. Fifth. That his honor erred in holding that the variation between the contract as alleged and proven is not of substance, and, if at all, is as to immaterial matters. Sixth. That his honor erred in holding that the giving of the deed of the plaintiff to Jefferson McDaniel was a valuable consideration of the contract. Seventh. That his honor erred in decreeing specific performance in this case, when the contract, if any was made, was hard, and destitute of all equity, and the evidence exceedingly contradictory. Eighth. That his honor erred in decreeing specific performance in this case, when the contract, if any was made, was uncertain, inexplicit, unfair in all its parts, and the contract incapable of being enforced. Ninth. Because his honor erred in considering the testimony of William Dixon, the same being irrelevant and incompetent. Tenth. Because his honor erred in not deciding what testimony was competent and what was incompetent, when the testimony was objected to, and its incompetency insisted on. Eleventh. That his honor erred in finding that the deed from the plaintiff and the defendant B. F. McDaniel was made on the 11th day of January, 1897, when the deed, the testimony, and the admissions made by the plaintiff and his counsel at the taking of the testimony show that it was made on the 11th of December, 1897 ."

Exceptions of defendant B. F. McDaniel: "That the defendant B. F. McDaniel excepts to the decree of his honor, Judge Aldrich, herein, and will move the supreme court to reverse the same as to him upon the following grounds: First. That his honor erred in holding that the defendant B. F. McDaniel is as much responsible for this litigation as Jefferson McDaniel, and that he should pay half the costs, when the evidence shows that he was forced into the suit against his will, and he seeks no relief in the case."

The findings of fact by the circuit judge, as covered by the first exception, relating to a parol agreement between Jefferson McDaniel on one side and the plaintiff and B. F McDaniel on the other side, is clearly sustained by the preponderance of the testimony. the plaintiff is clear and distinct in his statement as to such parol contract embracing its terms. He is sustained by three witnesses,--John Bates, Jr., Hampton Irvin, and William Dixon. When B. R. Dixon seeks by his testimony to negative this parol agreement, he is flatly contradicted by M. E. Stallings, who swears that Dixon told him, just before this suit was commenced, that he (B. R. Dixon) told witness that at the time the deed was signed "he...