Fuller v. Missroon

• Decision Date: 19 February 1892
• Citation: 14 S.E. 714,35 S.C. 314
• Parties: FULLER v. MISSROON et al.
• Court: South Carolina Supreme Court

14 S.E. 714

35 S.C. 314

FULLER v. MISSROON et al.

Supreme Court of South Carolina

February 19, 1892

Appeal from common pleas circuit court of Charleston county; J. J NORTON, Judge.

Under the decree for partition in the case of Susan J. Fuller against Anna C. Missroon and others, the master in chancery sold the premises to J. H. Heinsohn on a contract which Heinsohn afterwards refused to perform; and on the hearing of a rule to show cause specific performance was decreed, from which Heinsohn appeals. Affirmed.

Simons Siegling & Cappelmann, for appellant.

A. G Magrath, Jr., A. G. Magrath, A. M. Huger, and Henry E. Young for respondent.

POPE J.

On the 6th day of February, 1829, Thomas Hauscome, of the city of Charleston, executed his deed, whereby he conveyed unto Dr. Thomas Logan, his heirs and assigns, forever, a certain house and lot situate in Charleston county, upon the following trusts: "To suffer and permit Mrs. Ann Holmes and her husband, for and during their joint lives, to occupy and enjoy said premises, or to receive the income thereof, and upon the death of either of said parties, viz., Mrs. Ann Holmes or her said husband, then in trust to suffer and permit the survivor to enjoy the income thereof during his or her life, and, upon the death of the survivor, then in trust to be absolutely vested in such issue of their present marriage as may be living at the death of the survivor aforesaid, to be held by them, if more than one, as tenants in common; and I, the said Thomas Hauscome, do hereby authorize and empower the said Dr. Thomas Logan, at any time hereafter, at the request of the said Mr. and Mrs. Holmes or the survivor, in writing, to that effect, to sell and dispose of the said property in such way as they may so direct, and to vest the proceeds in any other species of property, to be held, however, subject to the trusts mentioned in the deed." Dr. Logan, the trustee, was the father of Mrs. Ann Holmes. The consideration mentioned in the deed was regard for Mrs. Holmes, and the sum of five dollars paid by the trustee. This deed was recorded in the office of the register of mesne conveyances for Charleston district on the 16th day of February, 1829, upon the following probate. "State of South Carolina, Charleston county. Personally appeared before me Thomas P. Allen, and made oath that he saw Thomas Hauscome sign, seal, and deliver this deed for the purposes therein mentioned, and that he, with Thomas S. Grimke, witnessed the same. Sworn to before me this 16th day of February, 1829. MAURICE SIMONS, Jr., Notary Public." James W. Holmes died before his wife, Ann Holmes. The latter died in October, 1889. Twelve children were born unto them, ten of whom died unmarried. All of the issue of the said James W. Holmes and Ann Holmes, his wife, in October, 1889, are as follows: Susan J. Fuller, Anna C. Missroon, William B. Holmes, who are grandchildren; Claudia H. Butler, Clelia Porcher Missroon, James Missroon, Edward Nathaniel Fuller, Jr., Maud Eola Holmes, and Mabel Wanan Holmes, who are great-grandchildren; and Rutledge Parker Butler, who is a great-great-grandchild. Henry E. Young is the owner of the interest of the grandchild William B. Holmes. An action was begun in the court of common pleas for Charleston county for partition of the land in controversy among the issue of said James W. Holmes and Ann, his wife, by Susan J. Fuller, as plaintiff, against Anna C. Missroon, William B. Holmes, James A. Holmes, and Henry E. Young, as defendants, on the 12th day of March, 1890; and a decree for the sale of the house and lot was made by Judge JAMES F. IZLAR at his chambers, in Orangeburg in this state, on the 22d day of March, 1890, directing a sale of the same to be made by C. R. Miles, Esq., as master. An attempt was made by such officer to sell such house and lot at public auction, at $1,800, to H. J. O'Neill. This failed because it was discovered that all the issue of the marriage of James W. Holmes and Ann, his wife, were not parties to the action. An amended complaint was duly exhibited, and all of the issue were legally made parties. After such had been done an order for sale was made, by which the master was directed to sell at public outery the premises in question. To this order, however, was added this provision. "The master is authorized, with the assent of the counsel in the case, to convey the said premises to any person or persons who may pay the sum of eighteen hundred dollars therefor before the day of sale." The master employed James F. Redding to act as his agent in securing such purchaser; and on the 12th day of November, 1890, J. H. Heinsohn, of the city of Charleston, agreed to and with said James F. Redding, as agent, to pay $2,000 therefor, to be paid in cash upon the tender to him of good and sufficient title-deeds for the same,--two weeks being allowed for the examination of the title; all of which was in writing and signed by Mr. Heinsohn. These facts were reported to the court by the master, and a decretal order was passed, confirming the sale to Heinsohn upon his compliance with the terms. On the 7th January, 1891, when the master tendered him a deed of conveyance for the property, he declined to accept the same and comply with his agreement. On the 9th March, 1891, Mr. Miles, as master, reported these facts to the court; and on the same day a rule was issued out of the court against Mr. Heinsohn, requiring him to show cause on the 11th March why he had not complied with his contract of sale and purchase of the premises in question. In the return to the rule, among other things, Mr. Heinsohn agreed to take the premises in question at the price fixed, provided the titles thereto are free from objection, and that such objections should be submitted to the court, waiving any objection to the form of the proceeding, or any other objection, except those relating to the validity of the title, in consideration of which it was agreed by counsel on both sides that no costs by either party to the action should be charged against the other parties to the action, but that each party should pay his own costs. Objections were made to the title by said Heinsohn, and the same were heard and considered by his honor, Judge NORTON, and who thereafter, to-wit, on 7th May, 1891, filed his decree, in which he overruled such objections, and ordered that the rule be made absolute, and that the said Heinsohn should comply with the terms of his bargain within 20 days from notice of the filing of the order, or be attached as for a contempt of the court.

J. H Heinsohn has appealed from this decretal order of his honor, Judge NORTON, upon the following grounds: "(1) Because his honor erred in holding the deed of Thomas Hauscome to Thomas Logan as trustee, dated 6th February, 1829, to have been made on valuable consideration; the only evidence of its consideration being the statement thereof in the deed. (2) Because his honor erred in holding that by the said deed of Hauscome to Logan, trustee, the issue of the marriage of Mrs. Ann Holmes and her husband, living at the death of the survivor, took a fee-simple, and in not holding that they took life-estates as tenants in common. (3) Because his honor erred in holding that 'where there is a conveyance in fee to a trustee, without any beneficial interest, without any specific limitation to the beneficiary, the latter takes a beneficial interest in fee, whether the use be or be not executed by the statute; and this proposition is supported by stronger reason and more authorities where the quantity of the estate of a remainder-man after an unexecuted trust, specially limited to another for life, is in issue.' (4) Because his honor erred is not holding that under the deed of Hauscome to Logan, trustee, the estate in the issue of Mr. and Mrs. Holmes, living at the death of the survivor, was a legal estate; that the word 'heirs' is necessary in a deed to make such an estate a fee-simple: and that the word 'heirs' is wanting in the limitation to the issue in the deed, and therefore such issue only take life-estates as tenants in common. (5) Because his honor erred in not holding that if the estates limited in the deed of Hauscome to Logan, trustee, to the issue of Mr. and Mrs. Holmes living at the death of the survivor, was an equitable estate, the word 'heirs' is necessary to make a fee-simple in them, and that there are no equivalent word or words expressing a fee-simple interest, as regards them, anywhere in the deed. (6) Because his honor erred in holding that the deed from Hauscome to Logan, trustee, and his heirs, and limiting the precedent estate to Mr. and Mrs. Holmes to their lives, and the life of the survivor, and then to the issue without specific limitation, shows intent on the part of the grantor that the issue should have a beneficial interest in fee, and that the power to direct a sale, and the words, 'to be vested absolutely' and 'to be held as tenants in common,' are sufficient in themselves to show such intent. (7) Because his honor erred in holding that because the deed of Hauscome to Logan, trustee showed a payment of five dollars by the trustee to the grantor, this was sufficient to prevent a reverter. (8) Because his honor erred in holding that the title to J. H. Heinsohn is a fee-simple title, whereas such title is proposed to be made under the decreed in this action of Susan J. Fuller, plaintiff, against Anna C. Missroon and others, to which action only the issue of Mrs. Ann Holmes and her husband, James W. Holmes, living at the death of the survivor, and those claiming under such issue, are parties, and such issue claim title under the deed of Hauscome to Logan, trustee, by the terms of which such issue have only life-estates as tenants in common,...