Cannon v. Lomax

• Decision Date: 11 October 1888
• Citation: 7 S.E. 529,29 S.C. 369
• Parties: CANNON et al. v. LOMAX.
• Court: South Carolina Supreme Court

7 S.E. 529

29 S.C. 369

CANNON et al. v. LOMAX.

Supreme Court of South Carolina

October 11, 1888

Appeal from common pleas circuit court of Abbeville county; NORTON Judge.

W. C Benet and E. B. Gary, for appellants.

Cason & Bonham, for respondents.

McGOWAN J.

Samuel R. Lomax died intestate in the year 1886,--the precise day is not stated,--seized and possessed of a respectable estate and, among other things, a plantation containing 600 acres of land. His heirs at law were five children, viz., G. W. Lomax J. J. Lomax, Augustus B. Lomax, Julia E. Lomax, and Josephine E. Cannon. Soon after the death of the intestate, Josephine E. Cannon and the other distributees commenced an action to partition the land against J. W. Lomax and J. J. Lomax, who answered, denying that the parties could have partition, upon the ground that the intestate, before his death, on December 23, 1885, entered into a written contract whereby he conveyed to them, by way of lease, the aforesaid plantation, at a specified rent therein mentioned, for 10 years, the term to commence on January 1, 1887, which was after the death of the said intestate; that they are now in possession of the land, and are ready to comply with their part of the contract by payment of rent, notwithstanding the death of the lessor. The issues were referred to the master, J. C. Klugh, Esq. The plaintiffs interposed a verbal demurrer that the answer did not state facts sufficient to constitute a defense, which was sustained by the master, who ruled "that the court will not suffer the lessees under a valid lease to be interfered with by the partition. It may be right enough for the defendants to set up their lease in this proceeding, in order that the court may protect their rights under it, but I do not think it can bar the partition. I sustain the demurrer." Both parties excepted, and, the matter being heard by the circuit judge, he held "that the defendants have the right to hold the land for the term of ten years, as set forth in the lease, and no partition or sale shall affect such holding. Further ordered, that the cause be referred to the master, under the original order of reference, with the right to plaintiffs to attack said lease if they desire to do so," etc. From this decree the plaintiffs appeal to this court upon the grounds: "(1) Because the presiding judge erred in sustaining defendants' exceptions, and in overruling the plaintiffs'; (2) because the judge erred in ordering that the defendants have the right to hold the land described for the term of ten years, as set forth in their lease, and no partition or sale shall affect such holding; (3) because the judge erred in ordering that the case be referred to the master under the original order of reference; (4) because, as the plaintiffs and defendants were tenants in common, the lease held by the defendants could not have the effect of preventing partition, even though it might, under proper allegations, have given the defendants a greater interest in the land than the plaintiffs had; (5) because the judge erred in failing to order partition of the lands, when it appeared from the allegations, which were not denied, that the plaintiffs and defendants were tenants in...