Bank of Prosperity v. Dominick

• Decision Date: 30 June 1921
• Docket Number: 10651.
• Parties: BANK OF PROSPERITY v. DOMINICK ET AL.
• Court: South Carolina Supreme Court

107 S.E. 914

116 S.C. 228

BANK OF PROSPERITY v. DOMINICK ET AL.

No. 10651.

Supreme Court of South Carolina

June 30, 1921

Appeal from Common Pleas Circuit Court of Newberry County; Frank B Gary, Judge.

Action by the Bank of Prosperity against Louisa Dominick and others. From decree for defendants, plaintiff appeals. Modified affirmed, and remanded.

The agreed statement of facts referred to in the opinion was as follows:

The question raised by the return in this action is what effect would the deeds made by Henry P. Dominick to Louisa Dominick, dated March 18, 1889, have, and what kind of title they conveyed to the said Louisa Dominick? The said two deeds are identical in form, with the exception of the description of the property. The first deed conveyed 224 acres from a 320-acre tract. The second deed conveyed 76 acres, more or less. For the purpose of a hearing on this matter, we, the undersigned attorneys, agree that the following are the facts necessary to the construction of said deeds:

That the 224-acre tract was a part of a 320-acre tract, which was conveyed to Henry P. Dominick and Louisa Dominick as tenants in common some time prior to the execution of the two deeds in question. Louisa Dominick was the owner of an undivided one-half interest in said 224 acres.

That at the time of the execution of the said two deeds Henry P. Dominick and Louisa had a number of children, who were living at said time, and there was born to them after the execution of said deeds two children, who are still living.

That the 40-acre tract of land sold by the master was a part of the 224-acre tract and the 19-acre tract of land sold by the master was a part of the 76 acres covered by the deeds copies of which are attached to the return, and which are to be construed herein.

Hunt Hunt & Hunter, of Newberry, for appellant.

H. C. Holloway, G. G. Sale, and Blease & Blease, all of Newberry, for respondents.

COTHRAN J.

This action was brought originally against Louisa Dominick for the purpose of foreclosing a mortgage given by her to the plaintiff bank. Other defendants were joined as holders of mortgages upon the same land. The cause proceeded to judgment of foreclosure and sale. At the sale the premises were bid off by Ada Dominick, whose relationship to the main defendant does not appear in the record, nor is it material. The purchaser refused to comply, upon the ground that by the deeds under which the mortgagor Louisa Dominick claimed she had only a life estate, the remainder in fee being vested in her children. A rule was issued, requiring the purchaser, Ada Dominick, to show cause why she should not be required to comply with the bid. Upon return to that rule Hon. T. G. McLeod, special judge, signed a decree, holding that under the deeds in question Louisa Dominick held a fee conditional and that as there were living children at the time of her death, her mortgage was valid and the sale under foreclosure would carry the fee to the purchaser. He accordingly dismissed the return of Ada Dominick and required her to comply with her bid. From this decree there was an appeal to this court. This court (106 S.C. 120, 90 S.E. 264) reversed the circuit decree upon the ground that a decision of the main point in the appeal would necessarily affect the interest of the children of Louisa Dominick, and that as they had not been made parties to the action or to the rule, the case should be remanded to the circuit court that said children be made parties and be allowed to set up such claim to the land as they might be advised and have the same adjudicated. The court specifically and expressly refrained from intimating any opinion as to the merits of the controversy.

Thereafter the plaintiff served an amended complaint, making the bodily issue of Henry P. Dominick and Louisa Dominick parties, and alleging such facts as raised the issue of the validity of the title offered to the purchaser. To this complaint all of the defendants filed answers except the mortgagor, Louisa Dominick, the purchaser, Ada Dominick, and the heirs of Henry P. Dominick and Louisa Dominick making the contention that the interest of Louisa Dominick in the premises was only a life estate, the remainder in fee vesting in them upon the death of the life tenant, or, more accurately speaking, vesting in them at the time of the execution of the deeds, the possession being postponed until the efflux of the life estate.

The case was heard by Hon. Frank B. Gary, circuit judge, upon the pleadings and an agreed statement of facts, which will be reported. On June 16, 1920, the circuit judge filed a decree, determining that Louisa Dominick had only a life estate in the premises, "with remainder after death of Mr. and Mrs. Dominick to the 'body issue' of Mr. and Mrs. Dominick as purchasers." We assume he meant to lodge the fee simple in remainder in the bodily heirs. He further ordered that the interested defendants have leave to apply for such further orders as would carry the decree into effect. The effect of this decree was to discharge the rule against Ada Dominick, the purchaser, and to render void the sale by the master under the foreclosure decree. It, however, suspended in the air whatever rights the several mortgagees had against the interest of Louisa Dominick. It appears that she is still living, and if it should be determined that she has only a life estate in the land, the mortgagees are entitled to have that interest sold and applied to their debts.

There is another matter that has escaped the attention of the circuit judge: The plaintiff's mortgage covered two separate tracts, one of 40 acres and...