Des Champs v. Mims
| Decision Date | 22 November 1928 |
| Docket Number | 12529. |
| Citation | 145 S.E. 623,148 S.C. 52 |
| Parties | DES CHAMPS v. MIMS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; M. M. Mann Judge.
Action by Armand Des Champs, by guardian, etc., against T. B. Mims. Defendant's motion for nonsuit was granted, and plaintiff appeals. Reversed and remanded, with directions.
The portions of the record directed to be reported follow:
Will of L. H. Des Champs.
Filed in Probate Office, Clarendon county, bundle 29, package 3.
Item I (Devise to wife of testator of Oakland plantation, with all personal property on it, also money; land to her for natural life, and at her death to testator's children.)
Item II. "I also give and bequeath to my children all of my other real estate, that is the 'Walnut Grove' plantation and the 'Baywood' plantation, to be equally divided between them my living children to belong to them during there natural lives, and after there death to belong to there children, this property not to be liable to there debts in no wise and if any of my children should die without heirs then there share of the property of real estate is to be equally divided between the other living heers."
Item III. (Appoints wife executrix.)
Report of H. C. Curtis, special referee, dated January 16, 1914 recommended to court that relief asked for be granted.
Decree of Judge John S. Wilson, at chambers, Manning, S. C., dated February 21, 1914:
It appears from proceedings herein that the plaintiff desires to sell the tract of land hereinafter described. He alleges in his complaint that this is a part of a tract of land devised to me under the will of his father and in order to support himself it has become necessary to put a mortgage upon the entire tract of land, and that he has contracted for his support debts of pressing necessity, and he has small means of subsistence.
He alleges further that after paying the debts so contracted he desires to use the remainder of the fund for the improvement of the remainder of the land.
While it is difficult to draw the line between granting and refusing a request of this kind, I am impressed with the dire necessity in this case of granting relief to the plaintiff in order to prevent the loss of the use of his entire property. It is manifest from the devise, that while the testator sought to provide against extravagance and mismanagement at the same time his design was to give a support to the plaintiff.
The plaintiff has come to that situation in which he finds himself in dire need and the necessity is all the greater since he has recently married. Under all the circumstances and having in view the yielding of a larger income from the remainder of the property, I think that I am exercising my discretion wisely in granting the relief sought.
All of the parties in being who could by any possibility have any interest in the property have been made parties, and all have appeared and answered except one, and all of the adults save the same one have consented to the relief prayed for. There can be no serious objection on his part to the granting of the relief, else an answer would have been filed by him.
It is therefore ordered, adjudged and decreed, that the tract of land described be sold and conveyed to any person who may be named by plaintiff at a sum not less than $40 per acre, and that, upon complying with the terms of sale, the clerk of this court do make and execute unto the purchaser a deed in fee simple to said tract of land, freed from all trusts and limitations, and that from and after such conveyance all the parties to this action and all persons who might otherwise have had an interest therein under the terms of said will, or otherwise, be and they are hereby forever barred of all interest at law or in equity in or to the same.
Out of the proceeds of sale the clerk of this court shall deduct the costs and disbursements, and shall pay all liens and incumbrances of every kind upon said premises, including the taxes on the whole property, if not paid, and any incumbrances that may be upon the whole property of the plaintiff, and shall then pay a reasonable fee to plaintiff's attorneys, and to the attorneys for the guardian ad litem for the minors, if any be incurred, as sanctioned by plaintiff, the remainder will be paid to plaintiff, the same to be expended by him in erecting improvements upon the remainder of the tract of land from which the tract of land hereinafter described is taken.
Defendant's Motion for a Nonsuit.
Mr. Epps: May it please your Honor, at this stage, the defendant moves for a nonsuit on the following grounds:
Judge Mann's Order of Nonsuit.
This case came on to be tried before me and a jury in the court of common pleas for Sumter county, March 31, 1927.
At the close of plaintiff's testimony, the defendant moved for a nonsuit on several grounds taken down by the stenographer.
After hearing argument for and against the same, and after carefully considering the matter, I am clearly of the opinion that the court of common pleas had jurisdiction to render the decree which was rendered in the case of Claude D. Des Champs v. Mrs. Henry Des Champs Green et al., filed in Clarendon county as judgment roll No. 4,682, this being the proceeding by virtue of which the deed was made by A. I. Barron as clerk of court to Charles H. Broadway, who is the predecessor in title to the defendant T. B. Mims.
Having arrived at this conclusion, I do not deem it necessary to specifically pass upon each of the other grounds contained in the motion, but this order may be considered as sustaining all of said grounds which are not in conflict herewith.
Let the reasons in full as taken down by the stenographer be reported with and attached hereto as the grounds in detail upon which this order is granted .
Harby, Nash & Hodges, of Sumter, for appellant.
Epps & Levy, of Sumter, for respondent.
This is an action for the recovery of real estate and for damages for its use and occupation.
The plaintiff traces his title to his grandfather L. H. Des Champs, who devised certain real estate, of which that in controversy was a part, to his living children for life, remainder to their children.
The father of the plaintiff was C. D. Des Champs, a son of the testator; the plaintiff was his only child.
After the death of the testator, the children partitioned the land among themselves; the father of the plaintiff was allotted a tract of 150 acres, which included the particular tract, containing 60 acres now in controversy.
The defendant traces his title by successive conveyances, in reverse order, as follows:
T. B. Mims, the defendant, from J. J. Touchberry, December 22, 1919; he from C. R. Touchberry, January 8, 1919; he from C. H. Broadway in 1917, recorded October 24, 1917; he from A. I. Barron, clerk of court, March 26, 1914.
The deed from A. I. Barron, clerk of court to C. H. Broadway, dated March 26, 1914, was executed in pursuance of a decree of his honor, Judge Wilson, dated February 21, 1914, in an action instituted in 1913 by C. D. Des Champs, father of the plaintiff, against his brothers, sisters, nieces, and nephews, alleging, in substance, that he was unable to make a living upon the 152-acre tract; that he had mortgaged the same and was unable to pay the mortgage; that the remainder of the tract could be made more profitable by the erection of improvements. He prayed for judgment that he be allowed to sell 60 of the 152 acres, and out of the proceeds of the sale that his mortgage indebtedness be paid, and that, after the payment of the costs of the proceeding and attorney's fees, the remainder be paid to him, to be expended in making improvements upon the remaining 92 acres of the tract.
The parties defendant were the only persons in esse at that time having an interest in the land. C. D. Des Champs had married, as stated in the transcript, "at some time prior to February 2, 1914," and at that time there were no children born of that marriage. The case was referred to a special referee, who made a report recommending that the prayer of the complaint be granted, the...
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