Few v. Few
| Decision Date | 30 May 1963 |
| Docket Number | No. 18075,18075 |
| Court | South Carolina Supreme Court |
| Parties | Caroline W. FEW, Appellant, v. M. L. FEW, Respondent. |
Wright, Scott, Blackwell & Powers, Florence, for appellant.
Connor & Connor, Kingstree, for respondent.
In 1941 Ben F. Few, who is the husband of the plaintiff, Caroline W. Few, and a brother of the defendant, Marion L. Few, purchased a 773 acre farm, the subject of this action for partition, and a 1000 acre tract of woods land in Williamsburg County. Ben Few lived in New York and his brother in Kingstree. This purchase was made after Marion Few had called Ben's attention to the opportunity to buy the land at about $10.000 per acre and after they had reached some agreement that the farm would be operated by Marion and, according to Marion's testimony, that he would be given one-half interest in the land after Ben Few had realized his investment. Marion Few took charge of the farm, receiving a salary of $100.00 per month, and Ben provided funds for its operation and improvement. Timber was sold for approximately the purchase price of the land and in 1944 Caroline W. Few, to whom her husband had conveyed the farm, conveyed a one-half, undivided interest therein to Marion Few and Ben conveyed to him a similar interest in the woods tract.
The farming operation was continued from 1944 through 1957, with rather consistent losses. Large sums were expended for improvements, including new buildings, ditching, fencing, re-establishing abandoned fields, soil improvement, etc. Ben Few furnished the money in accordance with their agreement, which was thus stated by Marion:
* * *
* * *
'The agreement that we had was I would do the work and he would furnish the money to have the work done with, and that is what I did, win, lose, or draw.'
The defendant does not challenge plaintiff's claim that from 1944 to the commencement of this action plaintiff advanced $131,135.58 for the operation and improvement of the farm, of which she received back $27,953.27, leaving plaintiff out of pocket $103,182.31. This figure does not include large sums expended prior to the execution of the deed to the defendant, nor does it include contributions toward the construction of the dwelling hereafter considered.
A disagreement arose between the brothers in 1957, and defendant has had exclusive possession of the farm since that year.
This action for partition was commenced by Caroline W. Few in 1959. The complaint alleged that the premises could not be divided in kind without injury to the parties and sought a sale thereof for division. An accounting for rent for the years 1958 and 1959 (later amended to include 1960) was demanded.
The answer of the defendant alleged that he had, with the consent of plaintiff, constructed a $65,000.00 dwelling on the property with his own funds, except for 'a small amount contributed by plaintiff and/or her husband, B. F. Few.' As to the dwelling, the answer further alleged:
Plaintiff filed a reply to this answer by which she alleged that the dwelling had been constructed under an agreement between the parties that each should pay one-half of the cost; that large sums were turned over to defendant by plaintiff's husband to be used in such construction, for which he has never accounted and which she believes to have far exceeded one-half of the cost of the dwelling. The reply asks for an accounting for such funds and for judgment against the defendant for any sum in excess of plaintiff share of the cost under the agreement.
The action was referred to a referee, before whom a voluminous record was compiled. The referee found that the cost of the dwelling was $65,000.00, which necessarily included an allowance for the services of the defendant in constructing the house without a general contractor, because an itemized list of materials and labor furnished by him shows expenditures of $57,196.86. The referee made no finding as to the amounts contributed by the respective parties. However, he found that the defendant had sold a 'nice home' in Kingstree when he moved to the farm; that the dwelling had been occupied by him as a home since 1956; that it enhanced the value of the property by only $25,000.00; and that, quoting from the report:
'From all of the facts and circumstances as shown by the testimony it is my considered opinion that the equities of the case would dictate that the dwelling house and curtilage there around, with a way of ingress and egress from the public highway, should be set off to the defendant at a value of $25,000.00, that being the value as placed thereon by plaintiff's witnesses.'
The referee further recommended that the balance of the property be sold for division and that 'out of the half going to the defendant the value of the dwelling house as herein fixed be deducted.'
This report was filed September 16, 1961. On the same day the referee filed a supplemental report in which he stated that he had not intended to recommend that the value of the dwelling be deducted from Marion's share of the proceeds of the land. Instead, he recommended 'that this value should not be deducted from the defendant's one-half interest in the remaining lands, but that only one-half of the value of the land itself whereon the dwelling stands, and the land encompassed by the curtilage of the dwelling should be deducted from the one-half of the proceeds of sale going to the defendant.'
In his original report, the referee stated that it was his 'understanding that defendant and plaintiff have agreed upon a rental for the year 1961.' (This is not supported by the record.) He recommended that the defendant be charged with rent for 1958, 1959 and 1960 at the same rate.
The plaintiff excepted to the recommendation that the dwelling be allotted to the defendant and the defendant excepted to the recommendation that the remainder of the property be sold for division. Both parties excepted to the recommendation with respect to rent.
The circuit decree, apparently disregarding the supplemental report, approved the referee's original recommendation that the dwelling be allotted to defendant at a valuation of $25,000.00, stating:
(Emphasis added.)
This conclusion was based upon the following considerations which are either summarized or quoted from the decree:
Actual disbursements for labor and material in the construction of the house amounted to $57,196.87, an amount substantially less than it would have cost except for the services of the defendant in buying materials, hiring labor, etc. 'Of this amount the plaintiff * * *, according to the testimony of the defendant, contributed the sum of approximately $14,000.00.' (Emphasis added.) The dwelling was built as a home for the defendant who had sold his home in Kingstree prior to moving on the farm at the request of plaintiff. 'The defendant and his wife have no other home other than this particular dwelling, and I think that equity would demand that under the circumstances, that they be allowed to retain this home.'
Although the replacement value of the house is approximately $65,000.00, 'the undisputed testimony of the plaintiff and the defendant' establishes that it does not enhance the value of the property by more than $25,000.00.
'To sell this house worth $65,000.00 at...
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