Dillard v. Yarboro

• Citation: 57 S.E. 841,77 S.C. 227
• Parties: DILLARD et al. v. YARBORO.
• Decision Date: 26 June 1907
• Court: United States State Supreme Court of South Carolina

57 S.E. 841

77 S.C. 227

DILLARD et al. v. YARBORO.

Supreme Court of South Carolina

June 26, 1907

Appeal from Common Pleas Circuit Court of Spartanburg County Aldrich, Judge.

Controversy without action between Lou Dillard and others and May S Yarboro. From the decree, plaintiffs appeal. Affirmed.

S. M Wetmore, for appellants. Simpson & Bomar, for respondent.

GARY A. J.

The facts are thus stated in the record: "In 1903 J. A. Cantrell owned a good title in fee to the lot hereinabove described, and, in making a conveyance thereof to the said Miss May S. Yarboro, he conveyed the same to her 'to have and to hold all and singular the premises before mentioned unto the said May S. Yarboro, her and her children and her assigns, forever.' He warranted the premises to 'May S. Yarboro, her and her children and her assigns,' against himself and his heirs, and all other persons, etc. In all other respects the deed was in usual form for deeds in this state. He has since conveyed any interest he may have in possession, remainder, or reversion to Mrs. Lou Dillard, C. F. Thompson, and A. J. Dillard. The question in the case now is, whether or not, taking this conveyance in the language just quoted, Miss May S. Yarboro took a title therein which she could legally convey to another, so as to cut off her children, if she should ever have children, from any claim to the premises so conveyed, or, if not, whether Cantrell's deed, with hers, makes a good title." The defendant, Miss May S. Yarboro, conveyed said land to the plaintiffs.

After setting out the facts, his honor, the circuit judge concludes his decree as follows: "Under the view that I take of this deed, and the evidence submitted, I think that the word 'children' was inserted by mistake, and that the word 'heirs' was intended by both grantor and grantee, and that the deed should read: 'To her and her heirs and assignees.' This is, I think, shown and proven by the language of said deed 'to her and her children and assigns.' If the intention had been to grant the premises to the defendant and her children alike, as tenants in common, or as owners of a common or equal estate, then the words 'her assignees' should have been written 'their assignees.' (2) Miss Yarboro paid a full, valuable consideration to Mr. Cantrell for an absolute, fee-simple estate in the premises which Mr. Cantrell owned and could have conveyed, and that he intended so to do is conclusively evidenced by his deed to plaintiff. (3) The defendant at the date of said deed was unmarried and childless, and is so now. It is hardly conceivable that the defendant, or Mr. Cantrell, under the circumstances, should needlessly, and without reason, limit the title or estate. (4) That the defendant intended the deed to be to her absolutely, and so believed it was, is conclusively shown by her execution and tender of a fee-simple title to plaintiff. (5) That Mr. Cantrell intended his deed to the defendant to be a fee-simple title, and so intended it to be, is conclusively shown by his fee-simple title of the premises made to plaintiffs, at the instance of defendant, conveying all of his rights and estates therein. In this view of the case, it is needless to decide whether said deed of Cantrell to defendant conveyed to her and her children, if any she might thereafter have, only a life estate, or whether the word 'children' should be construed as 'heirs of the body.' All of the title to the premises, present and in possible reversion, are in the plaintiff. The deed of Mr. Cantrell to plaintiffs, made to them at defendant's solicitation, has the effect of binding him just as though he were a party to this controversy. This being true, the defendant, Miss May S. Yarboro, had the right to convey to 'her assignees'--the plaintiffs--a perfect title to the premises, and by causing the grantor, J. A. Cantrell, to convey all of its right and interest in the lot, she has cut off any reversion of the title, or any need of making him a party thereto. My conclusion is,...