Benbow v. Harvin

• Decision Date: 07 August 1912
• Parties: BENBOW et al. v. HARVIN et al.
• Court: South Carolina Supreme Court

75 S.E. 414

92 S.C. 180

BENBOW et al. v. HARVIN et al.

Supreme Court of South Carolina

August 7, 1912

Appeal from Common Pleas Circuit Court of Clarendon County; Geo. E Prince, Judge.

"To be officially reported."

Action by Joel Benbow and others against J. R. Harvin and others. Judgment for plaintiffs, and defendant H. L. B. Wells appeals. Affirmed.

Lee & Moise, of Sumter, for appellant. Charlton Du Pont, of Manning, for respondents.

HYDRICK J.

In the year 1838 Amorintha L. Anderson, widow of Thomas Anderson being about to contract matrimony with J. R. Thames, executed a marriage settlement, wherein she conveyed to trustees her interest in the estate of her deceased husband, in trust for her sole use during her life, and at her death, Thames surviving, to divide the same into two parts, and distribute one part among her three daughters by Anderson, or the survivor or survivors of them, the issue, if any, of any deceased daughter taking the parent's share, and to permit Thames to use the other part during his life, and at his death to divide the same among her daughters, the same as the other half. Other provisions of the deed, depending on contingencies which did not happen, need not be recited.

Mrs Thames died about 1872. Emeline, one of her daughters, had married Bochette, and died, leaving issue. The other two survived. Ellen T. had married Harvin, and had children. The other, Sarah, never married at all. About 1873, after the death of Mrs. Thames, the trustees divided a tract containing 271 acres between her daughters and Thames, but, so far as the evidence shows, left no record of that division, and from their failure to do so this litigation and its principal difficulties arose.

There is testimony tending to prove that the trustees went upon the land, and, beginning at a point on the southern boundary, and about midway thereof, ran a line through the tract approximately north, which divided it into two halves, and assigned the eastern half to Thames, and divided the western half among the two daughters and the Bochette heirs, giving each of the daughters a third and the Bochette heirs together a third of that half, and that the northernmost tract of that half, containing 45 acres, nearly all of which lies north of Duck branch, which extends entirely across the whole tract from east to west, was assigned to Sarah Anderson. This is the division which the defendants contend was made.

On the other hand, there is evidence tending to show that they began on the eastern boundary and ran a line westward across, or at least partly across, the tract, and along and near Duck branch, and that all the land north of that branch was assigned to Sarah Anderson; and this is the contention of the plaintiff.

The plaintiff, who claims as devisee of Sarah Anderson, proved by a number of witnesses that her devisor had possession of the land north of Duck branch for from 15 to 17 years before her death. She devised her estate, without particularly describing it, to her sister, Mrs. Harvin, for life, and, at her death, to the plaintiff, who is a daughter of Mrs. Harvin.

Sarah Anderson died in 1892; Thames died in 1898; and Mrs. Harvin died in 1907. After the death of Thames, the original trustees being dead, their successors undertook to make a second division. The evidence is not clear whether they undertook at that time to make a new division of the entire tract, or whether they simply divided the part which had been assigned to Thames in the first division between the Bochette heirs and Mrs. Harvin; Miss Anderson being then dead. But there is in evidence a plat, dated March 2, 1899, of the whole tract, which is divided thereon into six parcels; and the surveyor certifies on the plat that it was made according to the instructions of J. P. Brock and R. R. Dingle, who were, according to the testimony, acting as trustees, being the heirs and successors of the original trustees. This plat shows a north and south line, which, the defendants contend, was the line made by the trustees at the first division, and which divided the tract into the two halves, one of which was divided among the two daughters and the Bochette heirs, and the other assigned to Thames. On a tract of 45 acres in the northwest corner of this plat is the notation, "set off to Miss Sarah Anderson," and the tract east of it, and lying mostly north of Duck branch, is marked, "set off to Mrs. E. T. Harvin."

The defendants concede the plaintiff's right to recover the 45 acres which was so "set off" to her devisor; but the plaintiff contends that this was not the first division made, and that, under the first division, Sarah Anderson took all the tract north of Duck branch.

Another complication arises from the fact that, after the death of Sarah Anderson in 1892, and while Mrs. Harvin was in possession of her share as life tenant under her will, the Bochette heirs, by the defendant Wells, as their attorney brought suit against Mrs. Harvin for partition of the Sarah Anderson land, presumably on the supposition that she had only a life estate therein, and that upon her death it went to Mrs. Harvin and the Bochette heirs under the deed of trust. In that complaint, which is signed by the defendant Wells, as plaintiff's attorney, the share of Sarah Anderson is described as containing 100 acres, more or less, and, according to the evidence and the boundaries given in that complaint, it comprised all of the original tract north of Duck branch. That suit resulted in a compromise, by which Mrs. Harvin conveyed to the defendant Wells and J. F. Bochette, whose interest Wells acquired afterwards, 71 acres of the tract, which, according to the plat made for Wells and Bochette, and dated January 6, 1898, lies wholly north of Duck branch, and which includes not only the 45 acres, which, the defendants contend, was originally set off to Sarah Anderson, and which they concede the plaintiff's right to recover, but 26 acres more of the land north of...