Arthur v. Anderson
| Decision Date | 05 February 1878 |
| Citation | 9 S.C. 234 |
| Parties | ARTHUR v. ANDERSON. |
| Court | South Carolina Supreme Court |
Proof of the execution of a deed, with proof of acknowledgment, is not conclusive evidence of delivery.
Where a deed shows upon its face that it was intended to be jointly executed, so that all parties should be bound by the covenants, an execution and delivery by some of the parties only is incomplete and does not bind them.
Specific performance refused, on the ground that the evidence of a contract to convey was insufficient.
BEFORE COOKE, J., AT COLUMBIA, MAY, 1876.
This was an action by Jesse Arthur, William L. Arthur, John F Arthur, F. H. Mitchell and Mary L. Mitchell, his wife against Robert Anderson, Eliza Anderson, Margaret A Meeker and Cornelia Arthur.
The case is fully stated in the Referee's report, which is as follows:
I. John W. Arthur, the father of plaintiffs, died on or about March 9, 1862, intestate, leaving surviving him, as stated in the complaint, four, but, as appears in evidence, five children all infants under the age of twenty-one years, and one of whom died shortly afterwards, the time of her death not appearing in evidence. The intestate also left his widow, the defendant Cornelia Arthur.
II. The intestate died possessed of some considerable property, for a description of which reference may be had to the evidence herewith submitted. It also appears that he died considerably in debt. A portion of his estate was the lot of land in the city of Columbia which is the subject matter of litigation in this action.
III. Mrs. Cornelia Arthur, some time in the year 1863, contracted with one Robert Anderson, the younger, for the sale to him of the lot in question, for what price does not appear. Received from him the purchase money, pet him in possession of the premises, and executed to him a bond, with one G. V. Antwerp as surety, in the penalty of nine thousand dollars conditioned to procure for him good and sufficient titles to the lot, through the Court of Equity, within one year from the date of the bond, which bears date June 24, 1863.
IV. The defendant, John F. Arthur, attained the age of twenty-one years September 20, 1869, and William L., December 16, 1871; the others were older.
V. Robert Anderson, the younger, took possession of the land in 1863 and held possession till 1866, when he assigned or transferred the bond and surrendered possession of the land to his father, Robert Anderson, the elder, who held possession till his death, the date of which does not appear. He died leaving the defendants, Robert Anderson, the younger, Eliza Anderson and Margaret A. Meeker, his heirs-at-law and distributees of his estate.
VI. A deed bearing date July 14, 1873, at which time William L. Arthur, the youngest of the plaintiffs, was between twenty-two and twenty-three years, and John F., the next youngest, was between twenty-four and twenty-five years of age, was prepared by Mr. Bachman, the attorney of the defendants Anderson and Meeker, reciting the alleged circumstances under which the contract of sale had been made and the bond given by Mrs. Cornelia Arthur to Robert Anderson, the younger, the assignment of the bond and transfer of the premises from Robert Anderson, the younger, to Robert Anderson, the elder, the death of Robert Anderson, the elder, leaving his heirs-at-law and distributees as above stated, and further reciting that: " Whereas the heirs-at-law and distributees of John W. Arthur, deceased, are now all of full age, and desire and are willing to execute the title to the land hereinafter described, in accordance with the requirement of the bond above mentioned; " and proceeding to convey the premises in question, in consideration of the premises and of the bond and of one dollar by the heirs-at-law and distributees of John W. Arthur (naming them) to the heirs-at-law and distributees of Robert Anderson, the elder, (naming them,) in the statutory form of release of real estate of use in this State, with general warranty. This deed purports to have been " signed, sealed and delivered" by the parties executing the same, in the presence of the witnesses, (two to each signature). And it is proved to have been so " signed, sealed and delivered" by the oath of one of the witnesses to each signature, as follows: i. e. , as to John F. Arthur, before a Notary Public of Richland County, July 14, 1873; as to William L. Arthur, before a Trial Justice of Kershaw County, July 23, 1873; and as to F. H. Mitchell and Mary L. Mitchell, before a Commissioner for South Carolina residing at Wilmington, North Carolina, May 11, 1874. There further appears upon the deed the certificate of a Commissioner of Deeds for South Carolina, residing at Wilmington, North Carolina, that Mrs. Mary L. Mitchell, wife of F. H. Mitchell, renounced her inheritance in the premises mentioned in the deed. This certificate bears date May 11, 1874, and is signed by Mrs. Mitchell and by the Commissioner under his official seal. The signatures of Mr. and Mrs. Mitchell, and of their witnesses, and of the Commissioner who took the probate of the deed in Wilmington and the renunciation of inheritance, are erased from the deed. The names of the witnesses in the body of the certificate of probate and the name of the Commissioner, together with the words " at least seven days," in the body of the renunciation of inheritance, are also erased; but none of these words are so much obliterated that they cannot be deciphered. The deed is not signed by Jesse Arthur.
VII. From the testimony of John F. Arthur, W. K. Bachman, William L. Arthur and J. T. Hay, I think it is clear that John F. and William L. delivered the deed for the purposes therein expressed, and according to its legal effect.
VIII. It is alleged in the complaint and controverted in the answer that John F. and William L. Arthur were surprised to learn, after they had signed the deed, that the defendants had proposed to pay to Jesse and Mitchell and wife, outside the deed, considerable sums of money, as the real consideration offered to them upon which they were to sign the deed. The only evidence to this point is that of Mr. Bachman, who says that John F. not only knew that Jesse demanded pay but expressed disapprobation of his making the claim. The facts in regard to this seem to be that the deed was presented first to John F. and William L., residents of this State, and executed by them, and afterwards communicated to the others, who demanded compensation as a consideration for their signatures; and that Jesse afterwards refused to sign the deed because his younger brothers had not been compensated, and Mitchell and wife erased their signatures at the instance of Jesse.
IX. The allegations of the ninth paragraph of the complaint denied by the answer in so far as they state facts have been already considered, and in so far as they raise a question of law will be considered hereafter.
X. The interest of Mrs. Cornelia Arthur in the property was one-third as the widow of the intestate, and one-fifth of one-fifth, or one twenty-fifth, as co-distributee with her surviving children of the share of her deceased child.
XI. As to rents and profits, it appears that they were extremely inconsiderable, (three dollars per month for about three years,) except the rent of the house built by defendants; while the taxes paid by defendants from 1866 to 1875, inclusive, amounted to $416.30, and repairs $260. I shall, therefore, not entertain the question of rents and profits. The dwelling house erected on the premises by defendants was destroyed by fire in 1873. Since the fire there has been no tenant.
The plaintiffs demand judgment: 1. For partition, claiming two-thirds of the premises; and 2d. For rents and profits.
The defendants, by way of defense, allege: 1. That a full price was paid for the property, and that the same was applied by Mrs. Cornelia Arthur to the payment of the debts of her intestate and the support of the family. 2. That a conveyance of the property to the defendants was executed and delivered to defendants by John F. and William L. Arthur; and that the said Jesse Arthur agreed to execute the deed upon the payment to him of three hundred dollars, and the said Mitchell and wife upon the payment to them of two hundred dollars; and it was urged in evidence and argument, though not distinctly stated in the answer, without objection. The question of a valid contract, under the Statute of Frauds, though not raised by the pleadings, was one of the chief, if not the chief, questions considered both in evidence and argument.
The issues of law presented are:
1. Was the contract between Mrs. Cornelia Arthur and Robert Anderson, the younger, such a one as the Court of Equity would confirm?
2. Was there such an agreement in writing on the part of Jesse Arthur, under the Statute of Frauds, as the Court would enforce?
3. Was there such a contract on the part of Mitchell and wife?
4. Was there a legal execution and delivery of the deed by Mitchell and wife?
5. Are John F. and William L. bound by their execution and delivery of the deed, in the event it shall be determined that Jesse Arthur and Mitchell and wife, or either of them, are free from the obligation of executing it? In other words, whether the deed is joint, and only to be enforced against all on its execution by all, or several and binding on each one separately?
1. There is no question that Mrs. Cornelia Arthur, whether as administratrix or distributee, had no right or power to convey more than her undivided interest, and that her bond to Anderson did no more than to constitute him a tenant in common with the plaintiffs to the extent of that interest. It is true that circumstances may exist under which the Court...
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