Green v. Cannady
| Decision Date | 28 March 1907 |
| Citation | 57 S.E. 832,77 S.C. 193 |
| Parties | GREEN v. CANNADY et al. |
| Court | South Carolina Supreme Court |
On Rehearing, June 5, 1907.
Appeal from Common Pleas Circuit Court of Laurens County; Prince Judge.
Action by Mary E. N. Green against T. W. Cannady and others. Decree for plaintiff, and defendants appeal. Affirmed.
T. W Cannady, for appellants. Ferguson & Featherstone, for respondent.
The plaintiff brought this action for the partition of 2 3/4 acres of land in Laurens county, alleging that she is entitled to five-sixteenths thereof, as tenant in common with Thomas W. Cannady, whose interest was seven-sixteenths, and with William A. Cannady and Nancy E. Rhodes, each of whom was alleged to own two-sixteenths. It is now conceded that the defendant Thomas W. Cannady has acquired the interests of William A. Cannady and Nancy E. Rhodes, and owns all of the whole except what may be found to belong to plaintiff. The defendant denied that plaintiff had any interest whatever in the land, and the question of title was submitted to a jury who rendered a verdict in favor of the plaintiff for five-sixteenths interest, as claimed. Judge Prince, on May 5, 1906, made his decree affirming the verdict of the jury, and adjudging that plaintiff as owner of five-sixteenths of the premises was entitled to partition; and, having taken testimony as to whether it was practicable to partition the property in kind, and concluding that it was impracticable to do so, he decreed that the land be sold, and, after paying liens, costs, and expenses, that five-sixteenths of the remainder be paid to the plaintiff and the remaining eleven-sixteenths be paid to defendant Thomas W. Cannady, after retaining therefrom $150 to be held to pay an alleged claim of Dr. M. C. Cox and other outstanding indebtedness against the estate of Thomas Cannady, whose one-third interest in the property had been devised to the defendant Thomas W. Cannady, who was also his executor.
Thomas W. Cannady, although not a lawyer, conducted his own case in the circuit court, and now appeals upon the following exceptions, which, if they lack perspicuity, certainly have the very great merit of being few and short: "
The record fails to disclose any basis for the first exception, as it does not appear that the court allowed any parol testimony to vary or contradict any written instrument.
1. With reference to the third exception, rule 55 of the circuit court requires that, if it does not appear that the debts are fully paid, due provision must be made in the decree for partition for the payment of the debts. In this case Dr. M. C. Cox brought to the attention of the court by petition that there were outstanding debts against the estate of Thomas Cannady, to whose interest defendant Thomas W. Cannady succeeded as devisee and executor. It was therefore proper to make provision for payment of such debts. By consent the record has been amended so as to incorporate therein a receipt of Dr. M. C. Cox in full payment of all claims against said estate given after the trial and judgment below. This, however, could not operate to make the decree of Judge Prince in this regard erroneous and reversible.
2. In so far as the fourth exception may be construed to question the power of the court to decree for a sale in partition instead of issuing the usual writ for partition in kind with right of commissioners to recommend sale if partition in kind cannot be had with out injury to parties, it cannot be sustained. The evidence showed that the small lot of land contained a dwelling house. Before making decree Judge Prince took testimony for the purpose of ascertaining whether partition in kind was practicable, and upon the testimony given found that it was impracticable, and we sustain his ruling. A court of equity has power to make decree for sale in partition without issuing writ in partition. McCrady v. Jones, 36 S.C. 136, 15 S.E. 430.
3. The second exception is very general and vague, and might be wholly disregarded; but respondent does not invoke the rule against general exceptions, and we will not, in the circumstances. Respondent's attorney, with commendable frankness, argues the second exception on the supposition that appellant thereby intended to question the construction Judge Prince gave to the deed of Betsy Maddox, under which plaintiff claims, and, as this construction really controlled the rights of the parties in the premises, we will not refuse to review it.
Both plaintiffs and defendants claim from a common source, Elizabeth C. Maddox, commonly known as "Betsy Maddox." The plaintiff claims under the will, dated June 26, 1886, of Elizabeth C. Maddox, who died in October, 1900. By her will she devised all the real and personal property she owned at her death to Nancy Maddox, John L. Maddox, and Thomas Cannady during their lives, with remainder to plaintiff and her bodily heirs. The life tenants all predeceased the testatrix, except Thomas Cannady, who died in 1901. The defendant Thomas W. Cannady claims under the will of Thomas Cannady, who devised all his real property to Thomas W. Cannady, William A. Cannady, and Nancy E. Rhodes. Testator Thomas Cannady had acquired an interest in the premises in dispute under a deed executed by Elizabeth C. Maddox on December 25, 1882, conveying the premises "unto Thomas Cannady, Jane Cannady, Nancy Maddox and Betsy Maddox"--the last named being the grantor herself--with habendum and warranty clauses to "Thomas and Jane Cannady, Nancy Maddox and Betsy Maddox, their heirs and assigns forever." The defendant Thomas Cannady was one of the witnesses to this deed. The case then turned on the construction of this deed; for, if Betsy Maddox had conveyed away all her interest in the premises before her death, no interest therein could pass to plaintiff under her will. There was evidence that Thomas Cannady and Jane Cannady were husband and wife when the deed was executed in 1882, and that Jane Cannady died before her husband. Judge Prince, in his charge, instructed the jury that, if Thomas and Jane Cannady were husband and wife, they took an interest of one-third by entirety, and that the legal effect of the deed of Betsy Maddox to herself with others was to retain, reserve, or except to herself one-third interest in the premises.
An estate by the entirety is thus defined in 1 Sharswood's Blackstone, 181: ""If an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common; for, husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my, the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor." Such an estate was recognized in Bomar v. Mullins, 4 Rich. Eq. (S. C.) 80, and referred to in Railway Company v. Scott, 38 S.C. 34, 16 S.E. 185, 839, McLeod v. Tarrant, 39 S.C. 275, 17 S.E. 773, 20 L. R. A. 846, and De Loach v. Sarratt, 55 S.C. 283, 33 S.E. 2, 35 S.E. 441. But the question which now arises is whether this ancient doctrine of the common law was applicable in this state in 1882, when the deed in question was executed, in view of the Constitution and statutes as to property rights of married women.
Section 2436, Civ. Code 1902, makes partition between joint tenants compellable, and section 2473 destroys the right of the survivor to take the whole on the death of a joint tenant. Varn v. Varn, 32 S.C. 77, 10 S.E. 829. But the distinction between a joint tenancy which does not involve the unity of person and a tenancy by entirety which does involve such unity, based upon the common-law theory as to the oneness of husband and wife, is generally regarded as a sufficient reason for holding that tenancy by entirety may exist, notwithstanding such legislation as to joint tenancy. Freeman on Co-Tenancy and Partition, § 63 et seq; note to Hardenbargh v. Hardenberg, 18 Am. Dec 371, citing cases. With respect to the effect of statutes in reference to the separate estate of a married woman, the authorities are conflicting, some holding that even such statutes do not destroy estates by entirety, as for example Bramberry's Appeal, 156 Pa. 628, 27 A. 405, 36 Am. St. Rep. 64, 22 L. R. A. 594; Baker v. Stewart, 19 P. 904, 40 Kan. 442, 2 L. R. A. 434, 10 Am. St. Rep. 213. In New Jersey (Butlar v. Rosenbath, 9 Atl. 695, 42 N. J. Eq. 651, 59 Am. Rep. 52), and in New York (Hiles v. Fisher, 39 N.E. 337, 144 N.Y. 306, 43 Am. St. Rep. 762, 30 L. R. A. 305), the courts do not follow the Pennsylvania rule entirely, but hold that the married woman's statutes have the effect of depriving the husband of the sole control of his wife's interest, but do not destroy survivorship. In West Virginia the statute of 1849 destroyed survivorship in estates of entirety, and the separate property statute had the effect of depriving the husband of the right to control and take the profits and convey for his life the interest of the wife in entirety estates. McNeely v. South Penn. Oil Co., 44 S.E. 508, 52 W.Va. 616, 62 L. R. A. 562. But in other jurisdictions it is held that tenancy by entirety is abolished by statutes enlarging the property rights of married women, as, for...
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