Holly Hill Lumber Co. v. McCoy

• Decision Date: 13 July 1944
• Docket Number: 15661.
• Citation: 30 S.E.2d 856,205 S.C. 60
• Parties: HOLLY HILL LUMBER CO., Inc., v. McCOY et al.
• Court: South Carolina Supreme Court

30 S.E.2d 856

205 S.C. 60

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

No. 15661.

Supreme Court of South Carolina

July 13, 1944

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

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

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, and203 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 exampleCode 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;Wannamaker 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 appellantSara 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 specifically performed.See the former decisions cited, supra.The defendants demurred which was properly overruled upon the authority of the former decisions; they then answered, the wife under-taking to set up fraud in the procurement of the contract, and demurrer to that defense was sustained upon the well-taken ground that she was not a party to the contract or privy thereto and that defense when set up by her husband, the vendor, had been decided against him, affirmed by this Court in the first appeal.

The case then came on for trial before the Honorable Arthur L. Gaston, Circuit Judge, who, sitting as a chancellor, heard the evidence (this mode of trial having been first consented to by all the counsel) and thereafter rendered his decree and judgment in which he found the value of the land in July 1941, the time of the making of the contract or option for sale, to be $10,000, the contract price; and he found that the value of Mrs. McCoy's inchoate dower was equal to one-sixth of the value of the fee, to wit, $1666.67, which he directed be withheld from the purchase price and, should she fail to formally renounce her dower, as directed by him, then the plaintiff will retain the portion of the consideration allotted to dower and execute its bond unto the defendants therefor, secured by its duly executed first mortgage upon the premises, with interest thereon at the rate of six per cent per annum, payable annually to the husband, the vendor, as long as his wife lives, and should she predecease him, then the principal shall be payable to him, and should his wife survive him the principal shall be payable to her upon his death.In accord with another provision of the decree the plaintiff has paid the full amount of the consideration to the clerk of court and has been let into possession of the premises, notwithstanding appeal of the defendants from the decree and pending exercise by the defendants of the option of renouncing dower and obtaining the full consideration from the clerk.

The present appeal is upon numerous exceptions which appellants in their brief have embodied in nine questions which are all answered adversely to them in what is herein said, but they will not be considered seriatim and some of them need not be expressly stated.

The appellant wife was not a party to the action at the time of the former appeals and adjudication of the constitutional contention, now made by her and fully considered again in her behalf, but she has advanced no argument effective to induce a different result.Reference may be had to the above quotation from the last former decision, which is conclusive of the issue with respect to both appellants.

However, it may be said that Courts have been divesting the dower interests of married women for many a day, in order to compel the specific performance of the contracts of husbands who have under-taken to convey the unencumbered title to real estate which they owned.It is interesting to note that the early English equity courts followed the practice of imprisoning the husband-vendor until his wife relented from her refusal to renounce or convey her interests in the land conveyed.46 A.L.R. 748.Thus the wife was deprived of the support, companionship, etc., of her husband, and gradually the Court got away from so severe a remedy, and that now afforded is more lenient and yet rarely less protective of the purchaser.The obvious answer to the contention that the procedure is violative of the provisions of our statute, Sec. 8578 et seq., Code of 1942, for the voluntary relinquishment of the dower right of a spouse is that her interest is not in fact relinquished, but only transferred from the real estate, of which she refuses to join in the conveyance, to the fund created by the Court to take its place.

This and former decisions of this Court upon the question are in accord with the majority, and we think better reasoned, rule as is seen by reference to the annotations in 46 A.L.R. 748and148 A.L.R. 292.The latter is supplementary to the former and follows the full report of our decision upon the second appeal of this case.

Appellants argue at length that a Court cannot bar the claim of inchoate dower but what has already been said...