Erskine v. Erskine

• Decision Date: 17 May 1917
• Docket Number: 9681.
• Citation: 92 S.E. 465,107 S.C. 233
• Parties: ERSKINE v. ERSKINE ET AL.
• Court: South Carolina Supreme Court

92 S.E. 465

107 S.C. 233

ERSKINE v. ERSKINE ET AL.

No. 9681.

Supreme Court of South Carolina

May 17, 1917

Appeal from Common Pleas Circuit Court of Anderson County; Geo. E Prince, Judge.

Action by Joseph N. Erskine against J. J. Erskine and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The opinion of the circuit court is as follows:

The plaintiff seeks by this action to enforce against the executors and legatees of the estate of his mother, Mrs. Margaret M. Erskine, an alleged contract made between him and his mother. The substance of his claim is that Mrs. Erskine on the 8th day of April, 1905, conveyed to him the tract of land described in the complaint, and that thereafter, at her urgent request, he entered into an agreement with her whereby he was to convey the said tract of land back to her and she was at her death to bequeath and devise to him by will an equal share of her estate with her other children, and that pursuant to this contract he conveyed the said tract of land back to her on December 24 1910, and that the last-mentioned deed expresses as the consideration thereof "love and affection," and the sum of $10, but that the real consideration was the said contract that she would make him equal by her will with her other children, and that she died leaving her last will and testament and bequeathed him the sum of $500 only, which was less than an equal share with the other children, and that she had thereby breached her contract with him.

The answer of the minor, Pierce McConnell, is the usual formal answer of his guardian ad litem. The answers of the other defendants deny the alleged contract, and also allege that after Mrs. Erskine signed the paper dated April 8, 1905 whereby the said tract of land was conveyed to the plaintiff she was about to bring suit against him to cancel and set the same aside, and that the plaintiff in order to avoid such suit being brought against him by his mother and in order to satisfy her as recited in his deed to her and in consideration also of his love and affection for her executed the deed of December 24, 1910, conveying the land back to her, and that this was the real consideration of this deed, and not the consideration stated by plaintiff in his complaint. The answers further set forth as a second defense the statute of frauds in regard to real estate, and as a third defense the statute of frauds in regard to personal property.

The plaintiff made a motion in accordance with rule 28 of this court to refer certain issues of fact to a jury, and this motion was resisted by the defendant. After hearing argument upon the motion, I came to the conclusion that issues should not be referred to a jury under the statute of this state providing for submitting issues to a jury in equity cases. I then refused and overruled the plaintiff's motion to submit issues to a jury. The plaintiff's counsel then suggested that the chancellor might desire as the cause progressed to refer issues to a jury of his motion for the enlightenment of his conscience, and that it would save delay in the hearing of the cause for the chancellor to refer such issues at that time before the juries were discharged, and thus probably avoid a continuance of the case. In this view of the matter, I decided to refer to a jury on my own motion under the general power of the court as a court of equity, and for the enlightenment of my conscience sitting as the chancellor in the cause, two issues of fact, as follows, to wit: (1) Did Joseph N. Erskine and his mother mutually agree that if Joseph would reconvey to her the tract of land described in the complaint she would, in consideration of such conveyance, give him by her will an equal share in her estate along with her other children? (2) If there was such an agreement, was it oral or in writing?

The testimony in the cause was then taken, and the jury answered the first question in the affirmative, and in answer to the second question stated that the agreement was oral. The verdict of the jury being merely advisory, the case was then heard by me sitting as chancellor, upon all of the testimony and evidence in the cause, and was fully argued by counsel on both sides.

There are certain facts in the cause that are undisputed, and are as follows:

On April 8, 1905, the decedent, Mrs. Margaret M. Erskine, conveyed to her son, the plaintiff, the tract of land described in the complaint (reserving to herself a life estate), upon condition that within three months after her death the plaintiff should pay to her son, J. J. Erskine, or his heirs or assigns, $500, and to her daughter, Mary McConnell, or her heirs or assigns, $500, and to the children of a predeceased daughter, their heirs and assigns, $500, and it is not claimed that the plaintiff paid any money for this deed, or that there was any consideration for it, other than what is expressed in the deed itself. Afterwards she became dissatisfied about the matter, and some time during the year 1910 employed the firm of Quattlebaum & Cochran to obtain a conveyance to this land, or to bring suit for the cancellation of this deed. Mr. Quattlebaum had an interview with plaintiff, and it appears from the dates in the letters and documents hereinafter referred to that this interview took place on Saturday, December 17, 1910. The plaintiff agreed with Mr. Quattlebaum at that time to execute a deed reconveying the property to his mother, and it appeared that this deed was to be executed on the following Monday, but for some reason was not executed at that time, and on the following Wednesday, December 21st, Mr. Quattlebaum wrote the plaintiff a letter, which has been put in evidence, and in this letter stated, among other things, that unless the deed was executed before December 28, 1910, suit would be brought to cancel the deed Mrs. Erskine had executed to plaintiff. On the following Saturday, December 24, 1910, the plaintiff went to Mr. K. P. Smith and stated that he felt offended with Mr. Quattlebaum on account of some statement in the letter, and requested Mr. Smith to obtain the deed which Mr. Quattlebaum had prepared for him to sign. Mr. Smith went to Mr. Quattlebaum, obtained the deed which he had prepared, and thereupon on the same date, December 24th, plaintiff executed the deed before Mr. Smith, and it was probated on the same date, to wit, December 24th, before Mr. Smith as notary public. The body of the deed is in Mr. Quattlebaum's handwriting, with the exception of the figures in the date of the deed, viz. "24th," and these figures are in Mr. Smith's handwriting. The date of the probate is December 24, 1910, before Mr. Smith as notary public, and the probate is in his handwriting. The renunciation of dower is in Mr. Smith's handwriting, and is dated December 30, 1910. From Mr. Smith's testimony it appears that the plaintiff's wife was not present on the 24th day of December when the deed was executed, but came in later and renounced her dower, and shortly thereafter Mr. Smith delivered the deed to Mr. Quattlebaum, who had it recorded for Mrs. Erskine.

Mrs. Erkine died some time in the month of April, 1915. By her will, which is dated April 23, 1912, she directs that all of her estate, real and personal, should be sold by her executors, and after the payment of debts and expenses, etc., her executors should pay the plaintiff, Joseph N. Erskine, the sum of $500, and the balance should be divided equally among her other living children and the children of a deceased daughter; that is, one share to her daughter, Mary McConnell, one share to her son, J. J. Erskine, who lives in Texas, and the third share should go to the children of the deceased daughter. The will also makes bequests of certain wearing apparel and personal effects, etc., which it is not necessary to set forth in detail. At the time of her death Mrs. Erskine owned and possessed the tract of land mentioned in the complaint containing about 119 acres and worth in round numbers about $10,000. She also owned personal property which, according to the returns of the executors, was of the gross value of $3,531.86, subject to a deduction of $466.84, the amount paid out in debts, expenses, and commissions.

The facts above set forth are practically undisputed, and the real contest is over the question whether the plaintiff had a contract with his mother, whereby, in consideration of his reconveying to her the land in question, she was to make him equal with her other children by her will. Before considering this question, I will first consider the question of admissibility of certain testimony which was objected to by the defendants.

At the trial of the cause, the plaintiff introduced in evidence both of the deeds hereinabove referred to, and then offered testimony of certain witnesses of a certain statement or admission of Mrs. Erskine in her lifetime, to show that the real consideration of the deed by which he reconveyed the land to her was a contract or agreement on her part with him to make him equal by her will with her other children. The defendants' attorney objected to any parol testimony on that line on the ground that it was not competent to show by parol any consideration for the deed by which plaintiff reconveyed the land to his mother, other than the consideration stated therein, that the consideration stated in the deed was love and affection, which is a good consideration, and a nominal consideration of $10, and that the defendant could not show that the real consideration of the deed was the contract in question, as that would be a valuable consideration, and would contradict or vary the deed.

The defendant's attorneys cited in support of their objection the case of Latimer v. Latimer, 53 S.C. 483, 31 S.E 304, ...