Boyce v. Mosely

• Decision Date: 30 October 1915
• Docket Number: 9225.
• Citation: 86 S.E. 771,102 S.C. 361
• Parties: BOYCE v. MOSELY ET AL.
• Court: South Carolina Supreme Court

86 S.E. 771

102 S.C. 361

BOYCE v. MOSELY ET AL.

No. 9225.

Supreme Court of South Carolina

October 30, 1915

Appeal from Common Pleas Circuit Court of Edgefield County; R. W Memminger, Judge.

Action by W. S. Boyce against Harmon C. Mosely and others. From an adverse judgment, plaintiff appeals. Affirmed.

Thurmond & Ramage, of Saluda, and S. McG. Simkins, N. G. Evans, and S M. Smith, all of Edgefield, for appellant.

Hendersons and Croft & Croft, all of Aiken, J. W. Cox, of Johnston, and B. E. Nicholson and Sheppard Bros., all of Edgefield, for respondents.

GAGE J.

Action to recover the possession of 559 acres of valuable lands, situate in Edgefield near Johnston, and of which Mosely claims and occupies 490 acres and the other defendants, called the Toneys, occupy 69 acres. At the close of all the testimony the court directed a verdict for the defendants, and the plaintiff appealed.

There are seven exceptions, but there are not so many issues to be decided. These are the issues made by the exceptions:

(1) What is the meaning of the deed to be gathered from its words and the testimony, and are the plaintiffs the owners of the fee under its limitations?

(2) Did the deed create a trust for those to take after the life tenants?

(3) What construction did Mrs. Bacon put on the deed, and was that for the jury?

(4) Did Mrs. Bacon's conduct thereabout estop her to claim a fee which she undertook to pass by will, and was that for the jury?

The land was confessedly owned and occupied by Harmon Gallman up to his death in 1871. It was occupied--and whether or not owned is an issue--by his daughter and only heir at law Angelina Bacon, until her death in 1913. This Angelina in 1907, by will then made, undertook to devise the land in fee to the defendants other than Mosely, referred to as the Toneys, and the Toneys conveyed it by deed to Mosely, except 69 acres. How those two last transactions came about it is not relevant to inquire. That devise, however, is set up by Mosely as one of his sources of title, and, as we conceive it, the controlling source. Directly after Angelina's death in 1913 Mosely, early in 1914, took possession of the land, claiming that he was the "next of kin" of Gallman referred to in the deed of 1870. It is now conceded that Mosely is the son of Gallman's sister Martha, and was sole next kin to Gallman, at least at the date of Angelina's death. The plaintiff is a child of America Boyce, who was a niece of Gallman; and there are 30 or 40 of such kindred, all grandnieces and grandnephews of Gallman, and the plaintiff sues for himself and for all of the others.

The case arises out of the meaning of a deed made by Gallman to his daughter, Angelina, and her husband, Thos. G. Bacon, in 1870, a half century ago lacking 5 years, and just the year before Gallman died. That instrument conveyed two parcels of land of practically 400 acres and 500 acres, the habendum to each of which was in different words. No helpful reference may be made to the words of the deed which conveyed the first parcel. The conveyor undertook by proper words to convey the two parcels of land in one deed, and the only thing which concerns this case is the meaning of that part of the deed which undertook to dispose of land put in issue by this case, the second parcel. The conveyor's intention with reference to the first parcel is not now in issue. The two grants are separate and distinct, and are in no manner interdependent. The appellants do suggest that it is apparent from the entire deed that the grantor intended to convey the first parcel of land to his daughter or to her husband, in fee simple, and he intended to convey the second parcel of land to his daughter and her husband only for their lives, with remainder in fee, not to the daughter, but to the grantor's next of kin. That view would compel a construction of the grant of the first parcel, a matter which is not before us, and a matter about which there might be two opinions by counsel. The habendum to the second parcel, the only matter of controversy in the deed, is these words:

"To have and to hold the last named tract (1) to the said Angelina and Thos. G. Bacon during the terms of their natural lives, or the lives of either of them, (2) and afterwards to revert back to my estate and (3) be distributable amongst my next of kin."

The italics and numerals are supplied.

The legal effect of this language is reasonably plain.

1. Speaking about the meaning of the words used, the appellant's counsel (Mr. Thurmond) said at the bar:

"The grantor's real intent was that the daughter should not take as heir, for he had conveyed the first parcel to her in fee; his idea was to provide for his other kin. The only issue is, Can that be done according to the rules of law?"

Speaking about the same subject, counsel for the respondents (Mr. Henderson) says in his printed brief:

"Of course, Mr. Gallman never intended by his deed to give Mrs. Bacon the fee. That we admit. And it is also admitted that if she got a fee, she got it by mere operation of law."

So counsel on both sides agree that the inquiry is not so much what Gallman intended to do, but what he did do. It is likely that any English scholar, unfamiliar with legal terminology, would reach the same conclusion about the meaning of the deed as that suggested by counsel for appellant. But if the grantor has used words which he did not understand, but words which we do profess to understand, then the intention he had will be imputed to the words he used, and as we understand them. The grantor held in his hand the fee, and he was compelled, by the rules of law when he undertook to convey it by deed, to use the vernacular of the law. In a law deed, the fee wears one garb and none other. The case of McMillan v. Hughes settled that by this court, and against the expressed view of the writer of this opinion. 88 S.C. 298, 70 S.E. 804. Henceforth, if courts must give effect to what is called "real intent" as expressed in deed by nontechnical words, the Legislature must intervene by a statute, as it did long since in the case of wills.

2. We come now down to the numeral (2) in the quoted clause hitherto all is plain. So much of the words of the clause as directs a reversion to the grantor's estate are fruitless; for reversion "arises by the operation of law, and not by deed or will." The words "to revert back to my estate" may therefore be read out, for they are inapt. The other words of the clause, "and afterwards distributable amongst my next of kin," were employed to create a vested remainder. Whether they did create any remainder at all, or only a life estate, is a matter yet to be inquired of. ...