All v. Prillaman

• Decision Date: 11 June 1942
• Docket Number: 15426.
• Parties: ALL v. PRILLAMAN et al.
• Court: South Carolina Supreme Court

20 S.E.2d 741

200 S.C. 279

ALL v. PRILLAMAN et al.

No. 15426.

Supreme Court of South Carolina

June 11, 1942

[Copyrighted Material Omitted]

Charles B. Elliott, of Columbia, Thomas M. Boulware, of Barnwell, and DuBose Boylston, of Allendale, for appellant.

George Warren, of Hampton, for respondents.

STUKES Justice.

This action was commenced on July 31, 1939, by service of the summons and complaint, which latter was usual in form for the recovery of the possession of a lot of land and improvements in Allendale, part of the former residence lot of Mrs Gertrude All, deceased, and contained allegations of title in the plaintiff and that the defendant, Mrs. Gladys Prillaman was in possession which she unlawfully withheld from plaintiff after demand, and on information and belief that the other defendants also unlawfully claimed the right to possession.

The named defendant answered for herself and for the other four defendants, who are her sisters, all of whom claim the property under a devise in the will of Mrs. All, their mother, and set up as a defense estoppel based upon the contest of the will by the plaintiff and the prior decision of the Court of Common Pleas in favor of the validity of that instrument. The last stated has now passed out of the case for the trial Judge discarded it and there is no pertinent appeal.

Other defenses contained in the answer necessary to mention were adverse possession of the property by the defendants for a period of more than ten years before the commencement of the action; and also, in the nature of a counterclaim, that Mrs. All conveyed the premises described in the complaint, other town property and several tracts of farm land to the plaintiff by deed dated September 4, 1922, and recorded on the next day "entirely without consideration *** (and) without any purpose or intent to surrender title to the property *** which purpose and intent was well known to the plaintiff and he accepted the deed with full knowledge of the purpose and intent of the grantor not to surrender title to the property *** (and that the purpose and the intent of the plaintiff were the same, that the title, possession and control of the property would remain in Mrs. All and her heirs) *** (and that such rights of possession as have been exercised by the plaintiff were trespasses and that he has collected rents which he should pay over to the defendants)." The prayer of the answer was that the complaint be dismissed and that the defendant and her sisters, the devisees under their mother's will, should be declared the owners in fee of all of the property and awarded judgment for the amount of the rentals collected by the plaintiff, and for other appropriate relief, and costs.

The answer has been several times read in search of some allegation of fraud, duress or undue influence or facts from which one or the other might be inferred, but there is none. Instead, respondents rely upon the doctrine of a constructive trust which they contend was created by the relation of the parties, the circumstances of the conveyance and the lack of money consideration, which they say their evidence establishes. However, the judgment in their favor was founded by the trial Court upon the "family settlement" doctrine, as will be seen.

The plaintiff replied to the answer and counterclaim and denied the allegations of the latter except the substantial accuracy of the description of the various parcels of real estate conveyed to him by his mother, and set up the bar of the Statute of Limitations and of the Statute of Frauds and alleged adverse possession in himself of all of the property for more than ten years, conveyances of some of it, and that his possession had been undisturbed except as to that described in the complaint of which the defendants had taken possession about two years prior; that he had paid taxes, made improvements and contracted various obligations in connection with the operation of the farms and mortgaged some of the land to the Federal Land Bank; and the reply concluded with a prayer that the counterclaim be dismissed and that the cloud on plaintiff's title thereby created be removed and that he be adjudged to be the owner of all of the property described in the counterclaim, and for other proper relief.

The testimony has been very carefully considered and it discloses that plaintiff's parents were engaged in large farming operations but lived in town on a spacious lot on which were also situate a cotton gin and some rental property. They provided an unusually extensive education for plaintiff who attended several northern universities, finished in law and was employed in the office of a practitioner in New York City for about a year, after which he returned to his parental home in 1922.

The title to the home and the other property was in the name of his mother but his father was then living and apparently operated the properties in his name. They had become heavily financially involved due to the deflation and crop failures of that era and conceived themselves to be about to lose their property, including the home, and after consultation among themselves and an older son, the deed which gave rise to this controversy was executed, whereby all of the property of Mrs. All was conveyed to the plaintiff upon a recited consideration of $2,760, acknowledged by the terms of the deed to have been paid, "and in the further consideration of assuming (by the grantee, the plaintiff,) the encumbrances on the lands ***."

The plaintiff was then living in the home and continued to reside there with his mother even after his marriage in 1929, and until 1932, when he purchased another home at Allendale. The parents lived on in the home until their respective deaths in 1937, and meanwhile Mrs. Prillaman moved in about 1931, and from time to time other of the children and their children lived in the home.

Mrs. All left a will dated December 19, 1936, above referred to and relied upon by the defendants, which contains the following recital and attempted disposition of the property:

"Heretofore, at the suggestion of certain members of my family, and for reasons which they deemed expedient at the time, I conveyed, without consideration, unto my son, Fred H. All, certain real property, among which was included the home in which I am now living, and certain lots adjoining thereto. It was never my intention to surrender title to my home property, nor to the property hereinafter mentioned, and I have continued since the date of said conveyance to remain in possession of said property and to exercise control thereof, the same as if said conveyance mentioned above had never been executed, which said conveyance is no longer of any force and effect.

"The said property in question, besides the home place, extends from what is now known as the Bus Station to a line fence bounding the land of my son, H. W. All, and including the house and land known as Martha's House, and from Martha's House facing Esther Street, to the fence boundary of Dr. F. H. Boyd.

"I give, devise and bequeath, absolutely and in fee simple, unto my five daughters, Mrs. Gertrude Douglass, Mrs. Bessie Hogan, Mrs. Blanche Marshe, Mrs. Sara Abernethy, Jr., and Mrs. Gladys Prillaman, all of my property both real and personal. The real property includes the home in which I am now living, the land upon which it is situated, and adjoining lands. The personal property consists of my household furniture, as follows: 'I piano, what-nots, pictures, china, silver, bookcases, vases, rugs, linens, blankets, bedding, bedroom suits, cooking utensils, range, chairs, and all other property that I may die seized of.'

"It is my desire that the house in which I now live be allowed to remain in use as it now is, that is to say, that the house and furnishings therein shall be kept intact, and my children shall come and go as heretofore. If this is not agreeable to my five daughters named above, then it is my desire that any or all of them shall be allowed to purchase, at a price-agreeable to all of them, any article of furniture or other item of personal property of which I may die seized, the balance of my household furnishings and personal property, the house in which I now live, and the lot upon which same is located, to be disposed of as may be determined by my said five daughters, and the proceeds thereof to be divided equally among them.

"It is my desire that all real property of which I may die seized, other than the propperty upon which my home is located, shall be sold at and for a sum acceptable to my five daughters above-named, and that the proceeds thereof shall be divided equally among them."

The evidence is clear that at the time of the questioned conveyance all of the property was subject to large mortgage liens, amounting in all to some Forty-Five to Sixty Thousand Dollars, and a large part of the farm property was subsequently conveyed by the plaintiff to the mortgagee in settlement of certain of the indebtedness. Some of it including the home now in dispute, was subsequently again mortgaged to a local bank in the execution of which Mrs. All joined, but afterward the lot containing the cotton gin was conveyed to the elder brother of the plaintiff for a consideration of $4,000 and in that connection Southern Cotton Oil Company required the execution by Mrs. All of a so-called "release" of the real estate and personal property comprising "All's Ginnery" in which she recited that she at first refused to sign the instrument upon the ground that she had no interest whatever in the property, but in view of her prior execution along with plaintiff of a mortgage over the property (which she recited was in order to avoid friction in her family) she proceeded to...