Church v. Moody

• Decision Date: 17 July 1914
• Docket Number: 8895.
• Citation: 82 S.E. 428,98 S.C. 234
• Parties: CHURCH v. MOODY ET AL.
• Court: South Carolina Supreme Court

82 S.E. 428

98 S.C. 234

CHURCH v. MOODY ET AL.

No. 8895.

Supreme Court of South Carolina

July 17, 1914

Appeal from Common Pleas Circuit Court of Dillon County; T. H Spain, Judge.

Suit by Laler Church, by J. R. Church, her guardian ad litem, against W. T. Moody and another. From the decree, the defendant named appeals. Affirmed.

The deed mentioned in the opinion reads as follows:

"The State of South Carolina, County of Marion:

Know all men by these presents that I, Nathan T. Scott in the state aforesaid, county of Marion, in consideration of the sum of ten dollars and other valuable consideration to me paid by Margaret Scott in the state aforesaid, Marion county have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Margaret Scott and the heirs of my body begotten in wedlock with my wife, Margaret Scott, a certain tract of land containing sixty acres situate on southwest side of Bear swamp, Marion county, S. C., bounded north by Owens land east by land of Frank Elvington, south by land of W. H. Breeden and John L. Scott, west by land of Redding Owens' estate, said land is shown by a compiled plat made Dec. 17th, 1890 by E. D. Carmichael, surveyor, together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in anywise incident or appertaining. To have and to hold all and singular the said premises before mentioned unto the said Margaret Scott and the heirs of my body begotten in wedlock with my wife, Margaret Scott. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Margaret Scott and her heirs as above stated and her heirs and assigns against myself and my heirs and against every person lawfully claiming or to claim the same or any part thereof. Witness my hand and seal this the 12th day of November in the year of our Lord one thousand eight hundred and ninety-two and in the one hundred and sixteenth year of the sovereignty and independence of the United States of America.

N. T. Scott [L. S.]

Signed, sealed, and delivered in the presence of (all interlinings before signing):

F. C. Rogers,

E. D. Carmichael."

The following is the decree of the court below:

"By consent of all parties this action for partition was heard by me at chambers upon an agreed statement of facts, a jury trial upon the issue of title having been waived.

"Briefly stated, the facts are as follows: On November 12, 1892, Nathan Scott, then being the owner of the land sought to be partitioned in this action, conveyed the same to his wife, Margaret Scott, 'and the heirs of my body begotten in wedlock with my wife, Margaret Scott,' with habendum to 'Margaret Scott and the heirs of my body begotten in wedlock with my wife, Margaret Scott.' This deed was duly recorded in the proper office. At the date of this deed Margaret Scott and Nathan Scott had one child living, the plaintiff, Laler Church, and subsequently another child was born to Margaret Scott and Nathan Scott, the defendant Clyde Scott. Margaret Scott continued to hold the land without making any disposition of it until her death intestate in 1907. She left surviving her in addition to her husband, Nathan Scott, her two children born of her marriage with Nathan Scott, namely, Laler Church and Clyde Scott. On December 31, 1908, Nathan Scott made a straight fee-simple deed for the premises to the defendant W. T. Moody. Subsequently Laler Church brought this action, alleging that she and Clyde Scott were seised in fee of the premises as tenants in common in equal proportions, and praying that the land be partitioned equally between her and Clyde Scott. W. T. Moody was made a party defendant, and it was alleged that he claimed some interest in the premises. The answer of Clyde Scott admitted the allegations of the complaint, and joined in the prayer for relief. The answer of W. T. Moody alleges that, as the grantee of Nathan Scott, he is the owner in fee of the entire tract of land, subject to plaintiff's ownership of a life estate in one-half of the land, and that the defendant Clyde Scott has no interest. The issues thus made depend upon the proper construction of the deed of Nathan Scott to Margaret Scott. W. T. Moody contends that the deed only conveyed a life estate to Margaret Scott and Laler Church, the only child of Margaret Scott and Nathan Scott living at the date of the deed, while the plaintiff Laler Church, and the defendant Clyde Scott contend that the deed conveyed a fee conditional special, and, Margaret Scott having died without having made any disposition of the land, they take the entire estate. So therefore the only question for determination by the court is the construction of the deed.

"Under the construction contended for by W. T. Moody the grant would have to be construed as a grant to Margaret Scott and her children living at the date of the deed, while under the construction contended for by Laler Church and Clyde Scott the words under consideration must be construed as if the grant had been to Margaret Scott and the heirs of her body begotten by her husband, Nathan Scott. This deed was evidently written by one wholly without experience in the drafting of legal instruments, and I feel sure there is no exact precedent by which the court may be governed in the construction of the deed. In such a case it is the plain duty of the court to so construe the deed as to give effect to the manifest intent, unless by so doing some rule of law will be violated. Shaw v. Robinson, 42 S.C. 345, 20 S.E. 161; Duckett v. Butler, 67 S.C. 130, 45 S.E. 137. When the entire deed and the situation of the parties are considered, I have no doubt that this instrument was intended to convey a fee conditional special to Margaret Scott.

"The difficulty in this case seems to arise from the fact that Nathan Scott has apparently conveyed

the premises to Margaret Scott and the heirs of his own body by Margaret Scott, rather than to the heirs of the body of Margaret Scott by Nathan Scott. If the grant had been unto Margaret Scott and the heirs of her body by Nathan Scott, it most likely never would have been questioned that Margaret Scott took a fee conditional special. Lipscomb v. Hammett, 56 S.C. 549, 35 S.E. 194. Yet from a consideration of all parts of the deed and the situation of the parties, I think beyond doubt Nathan Scott intended to divest himself of all estate in the premises, and to limit it to such heirs as Margaret Scott should have by him. The word 'heirs' is so circumscribed in the deed as to make it plain in any event that no person could take under such designation who did not spring from the union of Margaret Scott and Nathan Scott, and, since they were husband and wife, no person could by any possibility be an heir of the body of Nathan Scott by Margaret Scott without also being an heir of the body of Margaret Scott by Nathan Scott. I think the anxiety of Nathan Scott was, not so much to refrain from parting with the entire estate and from granting an estate in indefinite succession to Margaret Scott and the heirs of her body, as to be sure that the estate should be limited to such heirs of Margaret Scott as should be born of his body, and when resort is had to the warranty it seems absolutely conclusive that such was his intention, for the warranty is to 'Margaret Scott and her heirs as above stated.' Of course the warranty cannot enlarge the estate granted; yet it is always permissible to consider the warranty for the purpose of ascertaining the intention. Austin v. Hunter, 85 S.C. 472, 67 S.E. 734.

Although awkwardly expressed, the intention is the important consideration. The warranty shows beyond a question the heirs described by Nathan Scott in the habendum were intended to be the heirs of Margaret Scott, provided, only, that such heirs should spring from the body of Nathan Scott. Although not expressly in point, the situation in this case is well expressed by the Supreme Court of Missouri in the case of Reed v. Lane, 122 Mo. 311, 26 S.W. 957. In that case the deed was to 'Martha May, and unto her heirs by the body of Silas May only, and assigns forever.' In discussing the proper construction of this deed, which was held a fee

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