Campbell v. Williams

• Decision Date: 07 December 1933
• Docket Number: 13729.
• Parties: CAMPBELL et al. v. WILLIAMS et al.
• Court: South Carolina Supreme Court

172 S.E. 142

171 S.C. 279

CAMPBELL et al. v. WILLIAMS et al.

No. 13729.

Supreme Court of South Carolina

December 7, 1933

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by R. E. Campbell, Jr., and others against Albert Williams and others. From a decree in favor of the plaintiffs, the defendant named appeals.

Affirmed.

The decree of Judge Townsend, directed to be reported, follows:

This is an action by the plaintiffs against the defendant Albert Williams for the specific performance of a contract to convey, dated May 12, 1932, covering property, with the improvements thereon located on Main street, in the city of Columbia, S. C., the total purchase price, as set forth in the contract, being $26,000. Under an order dated November 26, 1932, I sustained the contention of the plaintiffs and decreed a specific performance. The defendant Albert Williams appealed to the Supreme Court of South Carolina, and, under an order of the Supreme Court, the cause was remanded for the purpose of making other parties defendant. The defendants city of Columbia, county of Richland, and state of South Carolina were made parties defendant by reason of lien they might claim for the unpaid state and county taxes on the property for the years 1929 to 1932, inclusive, and the unpaid city taxes for the years 1928 to 1932, inclusive. The other defendants were made parties defendant because of certain judgments. This matter was heard before me on an agreed statement of facts.

All parties have been duly served and are properly before the court. The defendant the state of South Carolina demurred to the complaint on the ground that the taxes due to the state for the years 1929 to 1932, inclusive constitute a lien on the property in question. This demurrer was overruled and the state has filed no other pleading.

The defendants city of Columbia and county of Richland filed answer, setting up the lien of the taxes on the lands in question.

The defendant Standard Building & Loan Association filed an answer, setting up the lien of a judgment of Standard Building & Loan Association against the plaintiff Alma Morris, which judgment is admitted by the plaintiffs to be a lien on the interest of Alma Morris in the premises in question, namely, her one-third interest.

All the other defendants, with the exception of Albert Williams, are in default.

The complaint alleges, in brief, that the three plaintiffs, R. E Campbell, Jr., Alma C. Morris, and Lucy J. Campbell, the younger, are seized and possessed in fee of the premises in question; the execution of the contract, performance of the terms thereof by the plaintiffs; tender of deed to the defendant; admission that certain judgments set forth in paragraph "nine" of the complaint constitute liens on the one-third interest of the plaintiff Alma C. Morris and that said judgments would be released or satisfied upon a compliance by the defendant Albert Williams; that the taxes of county of Richland and state of South Carolina on the property in question for the years 1929, 1930, 1931, and 1932 are marked unpaid on the records; that the city of Columbia taxes for the years 1928 to 1932, inclusive, are marked unpaid on the records; but that the taxes for these years do not constitute a lien upon the lands in question, nor the interests therein of the plaintiffs, by reason of the fact that the property during all of those years was in the possession of the life tenant, Lucinda J. Campbell, the elder; that during all of those years the property in question was assessed in the name of Lucinda J. Campbell, the elder, who died on January 27, 1932, at which time the interests of the plaintiffs, as tenants in common, in fee simple, in equal shares, as remaindermen, vested and that by reason of the statutes of this state the said taxes do not constitute a lien on the lands in question and that certain judgments against Lucinda J. Campbell, the elder, as set forth in paragraph "eight" of the complaint claimed by the defendants Exchange Investment Company, Ramelle H. Sims, David G. Ellison, and James Y. Perry, attorney, do not constitute a lien upon the lands in question, because of the termination of the life estate; that the pretended claims or liens of said judgments and said taxes constitute a cloud on plaintiffs' title and should be removed.

The defendant Albert Williams alleges, in justification of his failure to comply, the following:

1. That the premises in question is subject to outstanding state and county taxes for the years 1929, 1930, and 1931 in the aggregate amount of $1,081.08; city taxes for the years 1928, 1929, 1930, and 1931 in the aggregate amount of $983.76; also 1932 state, county, and city taxes, aggregating approximately $531.20; that the plaintiffs have failed to pay said taxes on the ground that same do not constitute a lien upon the premises in question in that the said taxes assessed against Lucinda J. Campbell, the elder, a life tenant of the premises in question.

2. That the plaintiffs R. E. Campbell, Jr., and Lucy J. Campbell, the younger, have no interest in the property in question, by reason of the fact that Lucinda J. Campbell, the elder, under the deed hereinafter referred to, acquired a fee-simple title, and that Lucinda J. Campbell, the elder, who died January 27, 1932, by her last will and testament, devised the premises in question to the plaintiff Alma C. Morris, who, it is contended by the defendant, has a fee-simple title; that certain judgments have been taken against Lucinda J. Campbell, the elder, and that the same constitute a lien over the premises in question.

3. That if Lucinda J. Campbell, the elder, did not take a fee-simple title, under the deed in question, she acquired a fee-conditional title, and that, by virtue of said deed, the plaintiffs, as the surviving heirs of the body of Lucinda J. Campbell, the elder, have a fee-conditional estate, and, since there has been no birth of issue to the plaintiffs, or either of them, the plaintiffs have no legal capacity to convey a fee-simple title to the defendant, and that plaintiffs do not have a good and marketable title in fee simple.

4. The deed to be construed, as set forth in the agreed statement of facts, was executed and delivered by Robert Y. Jones, under the following limitation: "For and in consideration of the natural love and affection which I have and bear unto my daughter, Lucinda J. Campbell and her children, Robert Ernest Campbell, Norman W. Campbell and James Henry Campbell, and in further consideration of the sum of Three ($3.00) Dollars," etc. The granting clause is "unto the said Lucinda J. Campbell." The habendum reads as follows:

"To have and to hold all and singular the premises before mentioned unto the said Lucinda J. Campbell, her heirs and assigns forever, in trust nevertheless and to and for the uses, intents and purposes hereinafter expressed and declared of and concerning the same; that is to say: In trust and to and for the sole and separate use, benefit and behoof of her the said Lucinda J. Campbell for and during the term of her natural life and from and immediately after her death then in trust to and for the use, benefit and behoof of the issue of her body, begotten by James S. Campbell, her present husband upon her body, who shall be alive at the time of her death, as tenants in common and not as joint tenants to be equally divided among them share and share alike, per stirpes and not per capita; that is to say; the issue of any deceased child of her the said Lucinda J. Campbell to take amongst them the share to which his, her or their parent would have been entitled if alive, to him, her or their heirs and assigns forever, free and discharged of and from all trusts and limitations whatsoever."

At the time this deed was executed, Lucinda J. Campbell had three children, Robert E. Campbell, who died about two years ago, leaving his only heir at law, his son, Robert E. Campbell, Jr., one of the plaintiffs; Norman W. Campbell, who died about twenty years ago, leaving as his only heirs at law, his widow and a daughter, Lucy J. Campbell, the younger, one of the plaintiffs; James Henry Campbell, who died about thirty years ago, leaving no widow or issue. One other child was born to Lucinda J. Campbell, the elder, and James S. Campbell, namely, Alma C. Morris, one of the plaintiffs. Lucinda J. Campbell, the elder, died January 27, 1932, and under her will, which was duly admitted to probate in Richland county, S. C., January, 1932, Alma C. Morris, one of the plaintiffs, was the sole devisee. It is admitted that the property in question was returned and assessed in the name of Lucinda J. Campbell, the elder, for the years 1928, 1929, 1930, 1931, and 1932.

Did Lucinda J. Campbell, the elder, take a fee simple under this deed? The limitation in the granting clause is "to Lucinda J. Campbell"--not to Lucinda J. Campbell, her heirs and assigns. The limitation in the habendum, in substance, is to Lucinda J. Campbell, for the term of her life and at her death for the use and benefit of the issue of her body begotten by James S. Campbell, her present husband, upon her body, who shall be alive at the time of her death," etc. The words "issue of her body" and "heirs of her body" are apt words for the creation of a fee conditional but not a fee simple. Barksdale v. Gamage, 3 Rich. Eq. 271. Under no possible theory could it be said that Lucinda J. Campbell took a fee simple.

There are only two other possible constructions of the deed: First a fee conditional in Lucinda J. Campbell; or, second, a life estate in Lucinda J. Campbell with remainder in fee simple to the issue of her body begotten by James S. Campbell, who shall be alive at the...