Bishop v. Tinsley

• Citation: 41 S.E. 895,64 S.C. 180
• Parties: BISHOP et al. v. TINSLEY.
• Decision Date: 12 May 1902
• Court: South Carolina Supreme Court

41 S.E. 895

64 S.C. 180

BISHOP et al. v. TINSLEY.

Supreme Court of South Carolina

May 12, 1902

Appeal from common pleas circuit court of Spartanburg county Townsend, Judge.

Action by Leander C. Bishop and others against J. R. Tinsley. Decree for plaintiffs, and defendant appeals. Affirmed.

The following is the circuit decree:

"The plaintiffs brought this action against the defendant for the partition of a tract of land in Spartanburg county, alleging that the plaintiffs owned two-thirds and the defendant one-third thereof, and that they derived title from the same common source, and that the defendant was in possession, receiving the rents and profits thereof. The defendant answered, admitting that he was in possession, but denying the other allegations, and alleging that he is sole owner of the land. It was admitted before me that the parties all claim from the same common source, to wit, a sheriff's deed to Martha A. Pope, Harriet Reagan, and Alice Bishop. On January 17, 1880, these tenants in common partitioned this land among themselves, making mutual deeds to each other. Alice Bishop executed to her co-tenants Harriet Reagan and Martha Pope, deeds in fee simple to her interests in the tracts of land set off to them; but she took from them a deed to their interest in the tract set off to her, in the following terms: 'State of South Carolina County of Spartanburg. Whereas, Alice Bishop, Martha A. Pope and Harriet Reagan have become joint owners by purchase at sheriff's sale of the tract of land known as the homestead of M. A. Reagan, deceased, lying and being in the county and state aforesaid, on both sides of Bird's creek, containing 280 acres; and whereas, the said parties have become desirous of a partition and division of said tract according to their respective interests in the same, and, after having caused a valuation and survey of said premises to be made, have covenanted, granted, and agreed between themselves for the partition and division of the said tract of land to be had and made into lots in manner and form following: That is to say, it is covenanted and granted between the said parties that Alice Bishop shall have for her part and purparty of the aforesaid lands, tenements, and hereditaments all that tract or lot No. 1 as described below: Now, know all men by these presents that we, Martha A. Pope and Harriet Reagan, of the county of Spartanburg, in the state aforesaid, in the consideration of the sum of $100 to us paid by Alice Bishop, of the county of Spartanburg, in the state aforesaid, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, to Alice Bishop, all that tract or lot of land No. 1. All that tract of land in Spartanburg county, South Carolina, known as lot 1 of the M. A. Reagan homestead, on both sides of Bird creek, waters of South Pacolet river, beginning at a stake in the fork of the spring branch on the Howard Gap road, and running thence N., 79 1/4 E., 15 chains, to a stake; thence S., 36 1/2 E., 10 chains, to a stake in the original line; thence N., 79 1/4 E., 6.50 chains, to a dead red oak; thence N., 10 E., 22.50 chains, to a black oak; thence N., 83 3/4 W., 38.50 chains, to a black oak in the middle of the field; thence S., 82 1/2 W., 12 chains, to a rock on Howard Gap road; thence along said road S., 44 E., 21.37 chains, to a turn in the road; thence S., 36 1/2 E., 6.60 chains, to the beginning corner,--containing eighty acres, more or less. Together with, all and singular, the rights, members, hereditaments, and appurtenances to the said premises belonging, or in any wise incident or appertaining. To have and to hold, all and singular, the premises before mentioned unto the said Alice Bishop during the term of her natural life; and from and after her decease the land and premises above described shall belong in fee simple and absolute to her husband, Isaac Bishop, if he be alive, and to his lawful heirs, to and for their sole use and benefit, forever. And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend, all and singular, the said premises unto the said Alice Bishop during the term of her natural life, and after her death to Isaac Bishop, if he be alive, and to his lawful heirs and their heirs and assigns, against us and our heirs, and every person whomsoever lawfully claiming or to claim the same or any part thereof. Witness our hands and seals this 17th day of January in the year of our Lord one thousand eight hundred and eighty, and in the one hundred and fourth year of the sovereignty and independence of the United States of America. Martha A. Pope. Harriet her X mark Reagan. Signed, sealed, and delivered in the presence of R. M. Tinsley, Elijah Dill.' Isaac Bishop died before his wife, Alice Bishop, and the plaintiffs claim the two-thirds interest conveyed in this deed as the heirs of Isaac Bishop. It was conceded that they are his heirs. After his death, Martha Pope and Harriet Reagan, or their heirs, deeded to Alice Bishop any interest that they may have had in this land, and on the same day she conveyed the land to the defendant, J. R. Tinsley. These facts being admitted, the case was not given to a jury, but was submitted to the court for the construction of the deed, for on that the issue depends.

"Had Isaac Bishop survived his wife, there could have been no question as to who owned the fee in remainder. The deed expressly provides that after her decease it shall belong in fee simple and absolute to her husband, Issac Bishop, if he be alive, and to his lawful heirs, to and for their sole use and benefit, forever. The defendant claims, however, that as Isaac Bishop predeceased his wife, Alice, the fee did not go into 'his heirs, for their sole use and benefit, forever,' but that it either reverted to the grantors, or vested in Alice Bishop or her assign, the defendant herein.

(1) Did the ultimate fee remain in Martha Pope and Harriet Reagan, or revert to them on the death of Isaac Bishop? I cannot so hold. The whole tract was divided into three lots, and appraised and valued; and the deed shows that Alice Bishop paid $100, presumably to equalize her co-tenants in the division. She made a fee-simple title to her co-tenants to her interest in the lots she deeded to them, and I must conclude, in the absence of

any words indicating a reversion to them, that they intended to part with, and did part with, the fee by the deed which they executed to Alice Bishop and others in remainder. This view is strengthened by the fact that the deed contains a general warranty to 'Alice Bishop during the term of her natural life, and after her death to Isaac Bishop, if he be alive, and to his lawful heirs and their heirs and assigns, against us and our heirs, and against every person whomsoever claiming or to claim the same or any part thereof.' This warranty negatives the idea that they intended the land ever to revert to them. Mr. Hydrick, counsel for the

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