Holly Hill Lumber Co. Inc v. Mccoy, 15661.

CourtUnited States State Supreme Court of South Carolina
Citation30 S.E.2d 856
Decision Date13 July 1944
Docket NumberNo. 15661.,15661.
PartiesHOLLY HILL LUMBER CO., Inc. v. McCOY et al.

30 S.E.2d 856

HOLLY HILL LUMBER CO., Inc.
v.
McCOY et al.

No. 15661.

Supreme Court of South Carolina.

July 13, 1944.


Appeal from Common Pleas Court of Orangeburg County; A. L. Gaston and M. M. Mann, Judges.

Action by the Holly Hill Lumber Company, Inc., against Addison E. McCoy and Sara S. McCoy for specific performance of an executory contract to convey land. Judgment for the plaintiff, and the defendants appeal.

Judgment affirmed.

C. T. Graydon, of Columbia, and M. W. Seabrook, of Sumter, for appellants.

T. B. Bryant, Jr., of Orangeburg, for respondent.

[30 S.E.2d 857]

STUKES, Justice.

It is necessary for a full understanding of this judgment to first read the two former decisions resulting from prior appeals in this case, reported, respectively, in 201 S.C. 427, 23 S.E.2d 372, and 203 S.C. 59, 26 S.E.2d 175, 148 A.L.R. 285.

The last cited left the controversy within narrow compass. It was remanded for the purpose of making the wife of the vendor, who refused to renounce her dower, a party, to adjudge the value of the real estate irrespective of the contract price and determine the proper method of evaluating the inchoate dower interest and protecting it. The following is quoted from that decision (203 S.C. at page 66, 26 S.E.2d at page 177, 148 A.L.R. 285):

"We reject as utterly untenable the argument of appellant that constitutional issues preclude the Courts of this State from giving effect to a decree for specific performance, by making proper provision to protect the vendee against future litigation on the part of a grantor's wife who refuses to renounce dower. The age of appellant's wife is in the record. Long before her marriage and indeed many decades before she was born, it was an established rule of property in this State that the dower right of the wife can be vested in the purchaser of real estate from the husband by judicial decree, upon the making of stated provisions for the payment to her of the value of her dower right in the event that she outlives her husband.

"The dower right in South Carolina is a creature of the common law, recognized however by numerous statutory provisions relating to the same. See for example Code 1942, Sec. 8578 et seq. The decisions of this Court giving effect to the dower right and providing for its involuntary relinquishment in cases of the present character are an integral part of the law defining and protecting the dower right, so that when the dower right of the appellant's wife arose out of the marriage relationship of the parties, it was a right that had already been well defined by law. Wright v. Jennings, 1829, 1 Bailey 277; Stewart v. Pearson, 1872, 4 S.C. 4; Payne v. Melton, 1904, 69 S.C. 370, 48 S.E. 277; Wanna-maker v. Brown, 1907, 77 S.C. 64, 57 S.E. 665; Brown v. Brown, 1913, 94 S.C. 492, 78 S.E. 447; Armstrong v. Henson, 1927, 139 S.C. 156, 137 S.E. 439; Ladshaw v. Drake, 1937, 183 S.C. 536, 191 S.E. 713, 716. "There is accordingly no juridical basis upon which to contend, as the appellant does here, that to take away the inchoate dower right of appellant's wife in the present case, so as to give effect to the decree for specific performance heretofore granted, upon terms that will assure her full compensation in accordance with the applicable decisions of this Court, will deprive either her or her husband of property without due process of law."

Upon the remanding of the case to the Circuit Court the summons and complaint were amended, after leave granted by order of the Court on application; the wife, the present appellant Sara S. McCoy, was made a defendant upon proper allegations for the adjudication of her inchoate right and the barring of her claim on that account in the premises which her husband had contracted to sell and which contract had been ordered to be...

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