First Carolinas Joint Stock Land Bank of Columbia v. Ford

• Decision Date: 28 June 1935
• Docket Number: 14100.
• Citation: 180 S.E. 562,177 S.C. 40
• Parties: FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. FORD et al.
• Court: South Carolina Supreme Court

180 S.E. 562

177 S.C. 40

FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. FORD et al.

No. 14100.

Supreme Court of South Carolina

June 28, 1935

Appeal from Common Pleas Circuit Court of Kershaw County; W. H Townsend, Judge.

Action by the First Carolinas Joint Stock Land Bank of Columbia against Maggie Pate Ford and others. From the judgment, the defendants appeal.

Reversed.

Gettys & Shannon and M. M. Johnson, all of Camden, for appellants.

Melton & Belser, of Columbia, for respondent.

FISHBURNE Justice.

On November 20, 1880, W. W. Stokes executed and delivered a certain deed, the parts of which pertinent to this appeal read as follows:

"The State of South Carolina, County of Kershaw

Know all men by these presents that I, W. W. Stokes, for and in consideration of the natural love and affection which I have and bear to my children, viz: Joseph F. Stokes, John H Stokes, Eliza A. Stokes, Julia V. Stokes, Henry F. Stokes, and Chas. T. Stokes, do give, grant, alien, release, convey and confirm unto the said Joseph F. Stokes, John H. Stokes, Eliza A. Stokes, Julia V. Stokes, Henry F. Stokes and Charles T. Stokes all that plantation or tract of land situate, lying and being in said county containing five hundred and thirty acres, more or less, bounded North by estate of J. Holland, etc.

Also all my personal property including all my stock, household kitchen furniture, etc. 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 the said premises for and during their natural lives, and at their death to their children or issue, share and share alike. If any of the above named children should die leaving no child or children, then the share of such child or children shall be equally divided among such children, then living.

Saving and reserving however to the said grantor and his said wife, Mary A. Stokes for and during the period of their natural lives and to the survivor during the life of such survivor (provided my wife Mary A. Stokes remain a widow) the right to have, hold, use, occupy and possess the same to their own proper use and benefit. And the said Mary A. Stokes, the wife of W. W. Stokes hereby approves and confirms the above deed."

At the time of the execution of this deed, the grantors were in possession and occupancy of the land, the children named were all alive and in esse; their ages ranging from 1 to 14 years. Henry F. Stokes, one of the grantees, died when about 16 years of age, intestate and unmarried, and prior to the year 1898. W. W. Stokes died in 1891, intestate, and Mary A. Stokes died intestate in 1916. In the year 1892, Eliza Stokes married Frank Peeples, and in 1894 Julia V. Stokes married L. T. Pate. In the year 1898, all of the grantees named in the deed, except Henry F. Stokes, who had died, entered into a partition arrangement whereby the tract of land was partitioned among themselves, and in pursuance of this arrangement Joseph F. Stokes, John H. Stokes, Chas. T. Stokes, and Eliza Stokes Peeples executed their deed conveying all their right, title, and interest in 109 acres of the tract of land to Julia V. (Stokes) Pate, which deed was dated November 14, 1898, and was recorded in the clerk's office for Kershaw county on November 24, 1898.

On February 16, 1926, Julia V. Pate executed her mortgage covering the 109-acre tract (a survey showed it to contain 107 acres) to the plaintiff, the First Carolinas Joint Stock Land Bank of Columbia, as security for her note to said bank in the sum of $2,000. This mortgage was the usual fee-simple mortgage with general warranty.

Default was made in the payment of the mortgage debt, the mortgage was foreclosed, the land sold and bid in by the plaintiff, who, on November 14, 1929, received a deed to the tract of land from the master for Kershaw county in pursuance of the decree and sale, and immediately went into possession of the premises.

All of the children of W. W. Stokes and Mary A. Stokes, except Henry F. Stokes, who died unmarried and intestate, had children born to them. Julia V. Stokes Pate died on March 3, 1933, leaving eleven children, all of whom are defendants herein.

Subsequent to the death of Julia V. Pate, one of her children, the defendant Eugene Samuel Pate, entered upon the tract of 107 acres, occupied and has since occupied the dwelling thereon, and has cultivated a portion of the land, basing his claim of right to occupy said property under the deed of W. W. Stokes and Mary Stokes.

This action was commenced against the children and grandchildren of W. W. Stokes and Mary A. Stokes to construe the said deed, to remove the cloud on plaintiff's title, and for an injunction against the alleged trespass; the contention set forth in the complaint being that said deed conveyed to the grantees a fee conditional which became a fee absolute upon the birth of issue, and that under the mortgage of Julia V. Pate and the master's deed to plaintiff bank resulting from a foreclosure of said mortgage, the plaintiff bank acquired a fee simple absolute. The children of Julia V. Pate, above named, together with the defendants Carl Stokes, Willie Stokes, and Hanson Stokes, answered on behalf of themselves and other defendants who might join in the defense, setting up that under the aforesaid deed the grantees took only a life estate, with remainder in fee to their children, and upon the death of Julia V. Pate the rights of plaintiff bank in the premises terminated, and her children, as remaindermen, became entitled to the immediate possession of the land.

The cause was heard by Judge W. H. Townsend, at chambers, on an agreed statement of facts, who on June 6, 1934, filed his decree, holding and finding that under the rule in Shelley's Case the deed created a fee conditional in the grantees named, and hence, after condition performed, that the respondent bank had an absolute fee-simple title to the land involved.

After entry of judgment, the answering defendants duly appealed to this court, and by their exceptions raise two questions; namely: (a) The deed conveyed only a life estate, and the rule in Shelley's case does not apply.

(b) The deed should be construed to be a covenant to stand seized to uses, and the grantees took a life estate with remainder in fee to their children.

We proceed to consider the first question.

The rule in Shelley's Case is not a rule of construction, but a rule of law or property. Therefore, it is not properly a matter to be considered until the meaning of the instrument has been ascertained under the rules of construction. When the intention of the grantor has been ascertained under the ordinary rules of construction, then the question properly arises, Does that intention so ascertained violate the rule of law in Shelley's Case?

Therefore, our first concern in passing upon the issues here presented is to determine the real intention of the grantor in the deed which is before us on appeal. And to this end the following principles, adjudicated by this court in previous cases, shall guide us:

The paramount and cardinal rule of construction of a deed is to ascertain the intention of the grantor as expressed by him in the deed, and then to give effect to that intention if it can be done without violating an established rule of law. Rhodes v. Black, 170 S.C. 193, 170 S.E. 158.

Larger and more sensible rules of construction require that the whole deed should be considered together, and effect be given to every part, if all can stand together consistently with law; that an exposition favorable to the intention should be made, if not contrary to law; that the intention should be regarded as looking rather to the effect to be produced than the mode of producing it; that too minute a stress should not be laid on particular words, if the intention be clear, and that, if the deed cannot operate in the mode contemplated by the parties, it should be construed in such manner as to operate, if possible, in some other way. Chancellor v. Windham, 1 Rich. 161, 42 Am. Dec. 411.

The object of construction as to deeds, in fact, as to all papers in contest before the courts, is to reach the intention of the parties, because it is this which must control; otherwise, the contract would be the contract of the court and not of the parties. McCown v. King, 23 S.C. 232.

If a question of law arises upon the construction of a deed, it is the province of the court to construe it, and to decide from the language what the intention of the party was. When the intention of the parties can be plainly ascertained, arbitrary rules are not to be resorted to. The rule is that the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, if practicable, when not contrary to law. Pope v. Patterson, 78 S.C. 334, 58 S.E. 945; Crawford v. Lumber Company, 79 S.C. 166, 60 S.E. 445; Smith v. Clinkscales, 102 S.C. 227, 85 S.E. 1064; Antley v. Antley, 132 S.C. 306, 128 S.E. 31.

Subordinate to the foregoing fundamental rules of construction, and as guides to the court in ascertaining and giving effect to the intention of the grantor as expressed in a deed, are the following rules:

If there are two incompatible, repugnant, or contradictory clauses the first will prevail over the latter. Smith v. Clinkscales, supra; Crawford v. Lumber Co., supra.

The clauses of a deed may be transposed in order to give effect to the intention of the grantor. McCown v. King, supra.

To give effect to the grantor's intention, one word may be construed as another. Rhodes v. Black, supra; Bank v Dominick, 116 S.C....