Carson v. Coleman

• Decision Date: 16 May 1946
• Docket Number: 15840.
• Citation: 38 S.E.2d 147,208 S.C. 406
• Parties: CARSON et al. v. COLEMAN
• Court: South Carolina Supreme Court

38 S.E.2d 147

208 S.C. 406

CARSON et al. v. COLEMAN

No. 15840.

Supreme Court of South Carolina

May 16, 1946

M. L. Meadors, of Florence, for appellants.

McEachin & Townsend, of Florence, for respondent.

OXNER Justice.

Alleging that they owned as tenants in common a certain tract of land in Florence County, containing approximately 270 acres, and that A. L. Coleman claimed some interest in the western half of said tract, the validity of which was denied, Edith Poston Carson and Eleida Poston brought this action in November 1944 for the purpose of determining such adverse claim and quieting the title to said premises. An answer was duly filed by A. L. Coleman in which he claimed that he was the owner of the western half of said tract of land, consisting of approximately 135 acres, and denied that the plaintiffs had any interest therein. He alleged that the 270-acre tract of land was formerly owned by Bertram C Poston and his sister, Edith Poston Carson, who made an equal division of same, Mrs. Carson receiving the western half that thereafter Mrs. Carson sold to him the 135 acres allotted to her for the sum of $750 (the testimony, however shows $740); that at the time of the sale he paid to Mrs. Carson the sum of $500 on the purchase price, immediately went into possession, and has since continuously remained in possession of said 135-acre tract; that he has from time to time tendered to Mrs. Carson the remainder of the purchase price and demanded a deed for the premises, but she has declined to accept the money, stating that she wished him to retain same until she had further need of it; and that consequently no deed has ever been made. The prayer of the answer is that the Court require Mrs. Carson to execute and deliver to the defendant a fee-simple deed for the land so purchased by him.

Testimony on the issues raised by the pleadings was taken before Honorable L. D. Lide, Judge of the Twelfth Circuit, on July 6, 1945. At this hearing defendant sought to prove by parol the alleged contract set out in his answer. Plaintiffs denied that Mrs. Carson had ever entered into any such contract and further contended that any such parol contract was unenforceable by reason of the Statute of Frauds. Accordingly, plaintiffs' counsel objected to all testimony offered to prove the alleged contract. Thereafter in a well-reasoned decree filed on August 15, 1945, Judge Lide found that defendant had established all the terms of the parol contract set up in his answer by clear and convincing testimony and that there had been a sufficient part performance by the defendant to remove the contract from the operation of the Statute of Frauds. He accordingly directed specific performance of the contract by Mrs. Carson upon payment to her by defendant of the sum of $240, the balance found to be due on the purchase price, plus interest on said amount in the sum of $157.80, together with taxes paid on said property for the year 1944. The plaintiffs have appealed from this decree upon nineteen exceptions, but the questions to be determined are stated in appellants' brief as follows: '1. Was there a contract? 2. Was there such part performance as to prevent the operation of the Statute of Frauds?'

Before a Court of Equity will specifically enforce a parol contract on the ground of part performance, all the material terms of the contract must be established to the satisfaction of the Court by proof that is clear, definite and certain. Blackwell v. Ryan, 21 S.C. 112; Hammassapoulo et al. v. Hammassapoulo et al., 134 S.C. 54, 131 S.E. 319; Finklea v. Carolina Farms Co., 196 S.C. 466, 13 S.E.2d 596. Equally well settled is the rule that in equity causes the burden is upon the appellants to satisfy this Court that the preponderance of the evidence is against the findings of fact by the Circuit Judge, particularly when the testimony has been taken before him. We shall now approach a consideration of the evidence with these well-established principles in mind.

The 270-acre tract of land described in the complaint was conveyed in 1926 to Bertram C. Poston and Edith Poston (who later married H. G. Carson) by the Master pursuant to a decree of the Court in certain partition proceedings. The judgment roll in those proceedings contains a plat of the 270-acre tract which was made in 1917. Bertram C. Poston died intestate in 1934, leaving as his sole heirs at law his sisters, Edith Poston Carson and Eleida Poston, plaintiffs-appellants in this case. Three or four years prior to his death, Bertram C. Poston requested a surveyor to make an equal division of said 270-acre tract. This surveyor ran the division line on the ground and the line was also indicated by him in pencil on the plat above referred to. This plat was introduced in evidence and shows the pencil line as running N. 5 W. and it appears to divide the tract into two equal parcels. This entire tract consists of woods lands without any cleared land and without any buildings of any consequence whatever. According to the testimony of this surveyor, Bertram C. Poston was present when the line was run, but neither Mrs. Carson nor any representative of hers was present. Although Mrs. Carson testified that she knew nothing about this division until after the death of her brother, Bertram C. Poston, she admitted that she then accepted the division and claimed as her own individual property the western half of the tract which was allotted to her. It is undisputed that the division was equitable in every respect. Judge Lide correctly held 'that while this partition was by parol, it has been acquiesced in and recognized by the respective parties for a period of approximately ten years, and * * * should therefore be confirmed by the Court.'

Appellants are nieces of respondent's first wife. Respondent lived in Florence County and appellant Mrs. Carson resided with her husband in Columbia. Respondent and the Carson family were on very friendly terms and visited each other quite frequently. Appellant Eleida Poston has resided in California for a number of years. It appears that respondent worked the turpentine rights on the entire tract for approximately twenty years. During a portion of this time he worked for certain lessees of the turpentine rights but for the last seven years the rights were in his name.

The only witnesses who testified in the case, other than the surveyor mentioned, were respondent and appellant Mrs Carson. Respondent testified that some time after the 270-acre tract was divided (he was unable to fix the exact year), he entered into a verbal agreement with H. G. Carson, acting for and in behalf of his wife, to purchase the western half of said tract, which had been allotted to Mrs. Carson in the division, for the agreed price of $740; that a portion of the purchase price was paid at the time and shortly thereafter other payments were made, the total aggregating $500; that thereafter on several occasions he offered to pay the balance of $240 but Mrs. Carson declined to accept it, stating that she wished him to keep the money until she needed it for her daughter's education; that immediately after purchasing the property, he discontinued paying Mrs. Carson rent on same and since that time has neither paid nor been asked to pay any rent; that in 1942 he sold some poles from the entire tract and accounted to appellants for those sold from the eastern...