Boykin v. Springs

• Decision Date: 05 June 1903
• Citation: 44 S.E. 934,66 S.C. 362
• Parties: BOYKIN v. SPRINGS et al.
• Court: South Carolina Supreme Court

44 S.E. 934

66 S.C. 362

BOYKIN v. SPRINGS et al.

Supreme Court of South Carolina

June 5, 1903

Appeal from Common Pleas Circuit Court of Kershaw County.

Action by Mary C. Boykin against Leroy Springs and Charles J Shannon, Jr., for apportionment of dower. From a decree of the circuit court reversing the probate court, defendants appeal. Reversed.

Gary A. J., dissenting.

The circuit decree reversing probate court is as follows:

"This cause came before me at the June term, A. D. 1901 of the court for Kershaw county, on an appeal from the probate court of said county. It is a suit for dower, brought by Mary C. Boykin, who is the widow of Edward M. Boykin, late of Kershaw county. The only point passed upon by the probate judge was as to the seisin of Edward M Boykin, and, as to that, he announced the conclusion 'that Edward M. Boykin was not at any time seised in fee of the lands described in the petition, or any part thereof, and his widow is not entitled to dower in said lands, or any part thereof.' The grounds of appeal served by the plaintiff, demandant in dower, question, in different forms, the correctness of this ruling and decree. Upon the hearing of the appeal there was submitted to me some oral evidence, which had been taken down in writing by the probate judge, and is not denied or contradicted; an instrument entered into between W. W. Lang, Sarah Lang, Serena C. Lang, Mary E. Lang, Sally W. Lang, C. A. Boykin, K. L. Boykin, and Edward M. Boykin, dated August 1, 1846; a conveyance of real estate from C. A. Boykin, K. L. Boykin, J. A. Boykin, and Edward M. Boykin to Thomas Lang, dated January 15, 1849; and the bill, reports of commissioner, orders of the chancellor in equity for Kershaw district to Thomas Lang, made in pursuance of such orders, in a proceeding instituted in the court of equity for Kershaw district by Wm. W. Lang and wife et al. v. C. A. Boykin et al., in the year 1850. These papers all concern the same real estate, which is that out of which the demandant claims dower. It may be said that the facts in this case are admitted, as they are not disputed, and the questions involved rise upon the proper legal construction of the written instruments offered in evidence. The land in which dower is claimed originally belonged to Duncan McRae, and, in the division of his estate under his will, fell to his daughter Mrs. Sarah Lang, wife of Wm. W. Lang. All the parties to this controversy hold and claim under this common source.

The question submitted to me under this appeal from the judgment of the probate court is, did Edward M. Boykin, the husband of demandant in dower, have such an estate or interest in fee in the land mentioned in petition as that his widow is entitled to dower therein? Mary C. Boykin, the plaintiff, demandant, was on August 1, 1846, the wife of Edward M. Boykin, and is now his widow. My construction of the instrument in writing entered into between W. W. Lang, Sarah Lang, Serena C. Lang, Mary E. Lang, Sally W. Lang, C. A. Boykin, K. L. Boykin, and Edward M. Boykin on August 1, 1846, is that it passed an estate in fee simple to the said C. A. Boykin, K. L. Boykin, Edward M. Boykin, and John A. Boykin. Apt words are used to pass such an estate, and there is nothing in the instrument showing a contrary intention. The Boykins above named on January 15, 1849, executed to Thomas Lang an absolute deed of conveyance in fee simple of some land, with full covenants of warranty; but there is no renunciation of dower by Mary C. Boykin, the wife of Edward M. Boykin. I should have remarked above that Edward M. Boykin went into possession of the land out of which dower is demanded, under the conveyance of August 1, 1846, and cultivated the land; remaining in possession until the conveyance to Thomas Lang in January, 1849. It would appear that the parties interested came to the conclusion that it was best to apply to the court of equity to confirm what had been done, and validate an exchange of property which had been made, and the bill of W. W. Lang and wife et al. v. C. A. Boykin et al., above referred to, was filed.

The defendants in this action for dower contend that, because the commissioner in equity was directed to, and did, convey the land to Thomas Lang under these proceedings in equity, the conclusion follows that the Boykins were never seised in fee of the land, and that Thomas Lang, under whom Springs & Shannon claim, derived his title from the commissioner in equity, and not from the Boykins. But an examination and proper construction of these proceedings in equity will show that the lands were treated and considered therein as having been conveyed in fee by the Langs to the Boykins. The status of Thomas Lang and his right to the lands is based upon the fact that he had derived title from the Boykins. This title of the Boykins is recognized by all parties, and the land is ordered to be conveyed to Thomas Lang as the property of the Boykins. But even if it had been attempted in these proceedings to put a different construction upon the dealings between the Langs and Boykins as to the land, Mary C. Boykin, then the wife of Edward M. Boykin, could not be affected thereby, as she was not a party to the bill in equity. Under the title derived by him from the Boykins, Thomas Lang went into possession of the land in 1849, and he and those holding under him, including Springs & Shannon, the defendants in this proceeding in dower, have held the land ever since.

My conclusion, therefore, is that Edward M. Boykin, the husband of the plaintiff, demandant in dower, was seised of an estate in fee simple in an undivided interest of one-fourth (1/4) in the lands described in the proceedings herein, during his coverture with the plaintiff, demandant, and that she is entitled to dower therein."

This case was argued at the November term, 1902; but, on account of a difference of opinion between the three justices then on the bench, no judgment could be pronounced, and a reargument was ordered during the April term, 1903.

W. M. Shannon, for appellants. B. B. Clarke and J. T. Hay, for respondent.

JONES J.

The plaintiff, as widow of Edward M. Boykin, deceased, instituted proceedings in the court of probate for Kershaw county, demanding dower in certain lands in the possession of the defendants. The probate court denied the claim, holding that demandant's husband was not at any time during coverture seised in fee of the land described, but had only an equity therein. The circuit court, on appeal, reversed the probate court, holding that demandant's husband was seised in fee of the one-fourth interest in said land, and decreed that plaintiff was entitled to dower therein. The decree of the circuit is officially reported herewith.

From this decree the defendants now appeal on exceptions which raise practically but one question--whether demandant's husband was ever, during coverture, seised of such an estate in the land as would entitle plaintiff to dower therein. It appears that the land in question was originally owned by Duncan McRae, who by his will in 1824 devised the same to his daughter Sarah Lang during her natural life, and after her death to the heirs of her body surviving her. Sarah Lang was the wife of W. W. Lang, and, at the time of the proceedings hereinafter mentioned, had eight children, four of whom were of age, viz., Serena C., Mary E., Sally W., Duncan M., and four who were minors, viz., J. B., William, Kitty B., and Scota McRae. On the 21st day of August, 1846, Sarah Lang, with her husband and the three first named children, entered into a covenant with Edward M. Boykin, demandant's husband, C. A. Boykin, and K. L. Boykin. The Boykins owned certain lands in Alabama, and it was desired by the parties to effect an exchange of lands, so that the Langs should take the Alabama lands, and the Boykins take the South Carolina lands. The covenant was as follows:

"Whereas the undersigned, William W. Lang, is in the use and occupation of a certain real estate situated on the west side of the Wateree river, in the district and state aforesaid (hereinafter more particularly described) which has been devised by the undersigned Sarah Lang from the last will and testament of her late father Duncan McRae, which is therein limited to the said Sarah Lang during her natural life and from and after her death to the heirs of her body, her surviving, and of those remaindermen, Serena C. Lang, Duncan M. Lang, Mary McRae Lang, and Sally W. Lang, (children of the said William W. Lang and Sarah Lang) are now of full age; and whereas the undersigned, Charlotte A. Boykin, John A. Boykin, Edward M. Boykin, and Kitty L. Boykin, heirs at law of the late John Boykin, are seized and possessed of certain real estate, situated in the state of Alabama, in the counties of Wilcox and Dallas, (hereinafter more particularly described); and whereas the said parties have agreed to exchange the real estate aforesaid. Now therefore know all men by these presents, that in consideration of the premises and covenants and agreement of the parties of the second part hereinafter set forth, the said William W. Lang, Sarah Lang (his wife,) Serena C. Lang, Duncan McRae Lang, Mary McRae Lang, and Sally W. Lang, parties of the first part to those presents, for themselves and in behalf of the other remaindermen (not of age) under the said will of Duncan McRae, deceased, intending to remove to the state of Alabama, have covenanted and agreed, and do hereby covenant and agree, to and with the said Charlotte A. Boykin, John A. Boykin, Edward M. Boykin and Kitty L. Boykin, parties to the second part to these presents, as follows, to wit: The said parties of the first part do hereby grant, bargain, sell and release to the said parties of the second

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