Bethea v. Bass

• Decision Date: 12 June 1962
• Docket Number: No. 17930,17930
• Citation: 240 S.C. 398,126 S.E.2d 354
• Parties: Thomas Manning BETHEA, Jr., Respondent, v. Sallie C. BASS, C. G. Bass, Lula B. Manning and Sara B. Gardner, Appellants.
• Court: South Carolina Supreme Court

Page 354

126 S.E.2d 354

240 S.C. 398

Thomas Manning BETHEA, Jr., Respondent, v. Sallie C. BASS, C. G. Bass, Lula B. Manning and Sara B Gardner, Appellants.

No. 17930.

Supreme Court of South Carolina.

June 12, 1962.

G. G. McLaurin, Jr., W. B. Hawkins, Dillon, for appellants.

J. B. Gibson, Dillon, for respondent.

LEGGE, Acting Justice.

In this action for recovery of a tract of land in Dillon County the facts are not in dispute, and the main controversy is with regard to the construction of the deed next referred to, which is the common source from which the contending parties derive their claims of title.

In June, 1919, Sarah Anne Bethea conveyed to her son Thomas M. Bethea, for the recited consideration of her love and affection for him, certain real estate, including the tract in question containing some one hundred two acres and known as the 'Lane Place'. In 1925, Thomas M. Bethea gave to the Bank of Latta a mortgage of this tract as security for his note in the sum of five thousand five hundred forty-three & 38/100 ($5,543.38) dollars. The bank thereafter assigned the note and mortgage to Howard H. Bass; and in 1927 Bass brought action to foreclose the mortgage. In that action the defendant Thomas M. Bethea did not answer and was adjudged in default. Pursuant to the decree of foreclosure the property was sold in November, 1929, and bid in by Bass for five hundred ($500.00) dollars; and it was thereafter conveyed to him by Master's deed in March, 1931.

Thomas M. Bethea had one child, Thomas M. Bethea, Jr., who was born on August 20, 1918, and who was not a party to the foreclosure proceedings.

Howard H. Bass went into possession under the Master's deed and continued to own and possess the property until his death in May, 1954, when his interest in the property passed to his wife, Sallie C. Bass, his son, C. G. Bass, and his daughters, Lula B. Manning and Sara B. Gardner, who have been in possession since his death, and who are the appellants in this action.

Thomas M. Bethea died on November 29, 1959, and his son, Thomas M. Bethea, Jr. thereupon for the first time notified appellants of his claim of ownership, and demanded possession. Appellants refused to surrender possession, claiming that they owned the property in fee simple; and shortly thereafter he commenced this action.

In the deed from Sarah Anne Bethea to Thomas M. Bethea, the granting clause was 'unto the said Thomas M. Bethea, for and during the term of his natural life'. The habendum and subsequent clauses of the deed were as follows:

'To have and to hold all and singular the said premises before mentioned unto the said Thomas M. Bethea, for and during the term of his natural life, and at his death to his issue then living, taking per stirpes, to them their heirs and assigns forever.

'But if he leaves no issue surviving him, then to his brothers and sisters, their heirs and assigns forever. Subject, however, to the following express conditions:

'1. That the grantee herein shall pay all taxes upon any of the said property within described when due.

'2. That no timber, standing or fallen, on the country lands herein conveyed, shall, during the life of the said Thomas M. Bethea, be sold, nor shall any be cut during the same time, except for the use on said plantations, and except further that in order, from time to time to bring additional land under cultivation, the timber on land desired to be cleared may be sold or cut off upon the express condition that such land shall be brought into cultivation within three years from either the date of sale or the date of the cutting of the timber thereon, whichever may be first in time.

'3. And upon the further express condition that the grantees herein shall, on or before October 15th, of each and every year during the life of the grantor, time being of the essence of this condition, pay to the said grantor nineteen hundred and eighty (1980) pounds of lint cotton, or middling grade, the same to be delivered to me, the said grantor, at my residence, at Latta, S. C., free of any charge.

'4. And on failure to perform and carry out all of said conditions at the time and in the manner stipulated, this conveyance shall determine and become void and the title to all of said property herein conveyed shall revert to the grantor and her heirs and they may enter and take possession of same.

'And I do bind myself, my heirs and executors, and administrators, to warrant and forever defend, all and singular the said premises unto the said Thomas M. Bethea, his heirs and assigns, against me and my heirs and all other persons lawfully claiming or to claim the same or any part thereof.

'Witness my hand and seal this ___ day of June, in the year of our Lord one thousand nine hundred and nineteen in the one hundred and forty-third year of the Sovereignity and Independence of the United States of America.'

Had the conveyance been simply 'unto the said Thomas M. Bethea, for and during the term of his natural life, and at his death to his issue', the rule in Shelley's case, which was in force in this state when the deed was executed, would have applied. But the rule is not applicable if, upon consideration of the deed as a whole, it is manifest that the word 'issue' was used not as a word of limitation, but as descriptive of a class of persons who are to take in their own right from the grantor. Hutto v. Ray, 192 S.C. 364, 6 S.E.2d 747; Woodle v. Tilghman, 234 S.C. 123, 107 S.E.2d 4.

The superadded expressions in the deed before us, from which the lower court concluded that the word 'issue' in the habendum had been used as a word of purchase and not of limitation, are these:

1. The restriction of the remainder to the life tenant's surviving issue;

2. The provision that such issue should take in fee per stirpes;

3. The limitation over in the event that the life tenant should leave no issue surviving him;

4. The requirement that the 'grantee' pay taxes;

5. The restriction upon the cutting or sale of timber during the life tenancy; and

6. The requirement that the 'grantees' pay to the grantor annually throughout her lifetime nineteen hundred and eighty pounds of cotton.

The effect, upon the applicability of the rule in Shelley's case, of provision for remainder, upon the life tenant's death, to his 'surviving heirs' or 'surviving issue', has been many times considered by the courts of this state.

In Whitworth v. Stuckey, 1 Rich.Eq. (18 S.C.Eq.) 404, a devise to the testator's son 'for and during his natural life; at his death to the lawful issue of his body; and if he should die without lawful issue living at the time of his death,' over, was held to pass a fee conditional.

In Hull v. Hull, 2 Strob.Eq. (21 S.C.Eq.) 174, it was held that the testator's daughter took a fee conditional under a devise to her for life and 'upon her death, then the property is to go to the heirs of her body, if any, or should she die without issue,' over.

In McLure v. Young, 3 Rich.Eq. (24 S.C.Eq.) 559, the devise was to the testator's daughter for life 'and at her death to her lineal descendants; and in case she should die without lineal descendants (one or more) living at the time of her death, then it is my will that the whole of said real estate revert to may estate and be disposed of as hereinafter directed.' The Court of Errors held that the daughter took a life estate, with remainder to her surviving lineal descendants as purchasers.

McIntyre v. McIntyre, 16 S.C. 290, held that in a devise to one for life with remainder to his issue, the addition, after the word 'issue', of the words 'and their heirs forever' sufficiently evinced the intention that the word 'issue' should be taken to indicate a new stock of inheritance, and therefore took the case out of the operation of the rule in Shelley's case.

In Boykin v. Ancrum, 28 S.C. 486, 6 S.E. 305, 13 Am.St.Rep. 698, the court, following McIntyre v. McIntyre, supra, held that where the remainder was to the life tenant's 'lawful issue', the addition to the words 'absolutely and in fee simple' sufficed to take the devise out of the rule; and added, as another reason for so holding, that there was a limitation over in the event that the life tenant should die 'leaving no lawful issue at the time of his decease.'

In Gadsden v. Desportes, 39 S.C. 131, 17 S.E. 706, the court, construing a devise to one for life 'and at her death to the issue of her body who may be then living,' held that restriction of 'issue' to those who should survive the life tenant unquestionably showed that the testator intended such issue to take as purchasers and not by descent.

In Davenport v. Eskew, 69 S.C. 292, 48 S.E. 223, 104 Am.St.Rep. 798, the deed, which was to the grantor's wife, was an ordinary conveyance in fee simple with general warranty, except for the following provision at the conclusion of the first paragraph describing and granting the land 'The above-named land to be held by Matilda Roberts during her natural life, then to be distributed equally between her remaining heirs.' It was contended, among other things, that the expression 'remaining' should be construed to mean 'surviving', and that the rule in Shelley's case was therefore not applicable. But the court held otherwise. Mr. Justice Woods, who wrote the opinion, pointed out that since there can be no heirs except 'surviving' or 'remaining' heirs, the quoted words could have no effect when used, as they were in that case, in connection with the general term 'heirs'. But he said also, in language not necessary for the decision there, but of interest in our consideration of the question now under discussion: 'When a grant or devise is to surviving children or surviving issue, as distinguished from children or issue generally, it is manifest that the intention is to take a particular class from a general class--to include those children or issue who survive and exclude those who do not. The word 'surviving' in such case has...