Kirkland v. Moseley

• Decision Date: 26 March 1918
• Docket Number: 9942.
• Citation: 96 S.E. 608,109 S.C. 477
• Parties: KIRKLAND ET AL. v. MOSELEY ET AL.
• Court: South Carolina Supreme Court

96 S.E. 608

109 S.C. 477

KIRKLAND ET AL. v. MOSELEY ET AL.

No. 9942.

Supreme Court of South Carolina

March 26, 1918

Appeal from Common Pleas Circuit Court of Edgefield County; John S Wilson, Judge.

Suit by Ione T. Kirkland and others against John S. Moseley, as executor of Angelina Bacon, deceased, and others. Decree dismissing the complaint, and plaintiffs appeal. Modified affirmed, and remanded.

D. W Robinson, of Columbia, J. W. Thurmond, of Edgefield, J. W Cox, of Johnston, and Grier, Park & Nicholson, of Greenwood, for appellants.

Hendersons and Croft & Croft, all of Aiken, for respondents.

GAGE J.

Action to set aside a written agreement between sundry persons upon the ground that it was entered into under a mistaken impression of the law on the part of some of the contractors. The circuit court denied the relief prayed for and dismissed the complaint. The plaintiffs have appealed from that judgment.

The primary issue in the cause is whether, as matter of fact and law, there was such a mistake as ought to be relieved. That question decided, other issues in the case arise out of the construction of Mrs. Bacon's will. Those we denominate secondary issues.

There are exceptions by nearly all the parties; these we shall compass, not by number or in detail, but in substance. The cause is sequel to another cause. The counsel for plaintiff stated at the bar that this cause is the result of the court's conclusion in Boyce v. Mosely, 102 S.C. 364, 86 S. E. 771. A history of the transactions out of which the instant cause springs is sufficiently stated in the above cause, and will not be repeated here. It now definitely appears that when Mrs. Bacon devised the lands in issue to Toneys she conveyed to them a title in fee simple. Boyce v. Mosely, supra. And had the Toneys before the decision of that cause stood their ground and asserted that title in them from Mrs. Bacon against Boyce and his coplaintiffs and against Moseley too, they would have won the valuable stake which was at issue--some 500 acres of land worth some $25,000.

Beyond cavil there are cases where parties have been relieved from mistakes, both of fact and of law; but there are not many such in this state. It would be an idle performance to review the cases which have been cited both to sustain and to reverse the decree. We are of the settled opinion, upon consideration of the testimony, that the plaintiffs are not entitled to the relief they ask. The law is always predicated on the facts; we turn therefore to the testimony.

Soon after Mrs. Bacon's death on December 6, 1913, Moseley took possession of the land in dispute and claimed it for himself. In the same month, December 30, 1913, the instant agreement was entered into by the Toneys and Moseleys, and pursuant to that agreement the parties in the following month of January, 1914, executed each to the other mutual quitclaim deeds. Thereby Moseley got 490 acres and the Toneys got 69 acres of the home place and some 400 they had aforetime acquired by purchase. Within a few months thereafter the Boyces sued Moseleys and the Toneys to recover the two parcels of land first referred to, and the Toneys and Moseleys made a common cause to defeat the Boyces, and did so.

It was argued in Boyce v. Mosely for the Toneys, amongst other and contrary contentions, it is true, and as one of the defendant's postulates, that Mrs. Bacon was the sole heir at law of Gallman and had the fee; that she conveyed it by will to the Toneys; and that they conveyed it by deed to Moseley. That view was sustained by this court, and for the reason stated it was not new to the Toneys, and the decision in Boyce v. Mosely could not have surprised them. We revert now to the agreement and the circumstances under which it was made, as mainly revealed by the testimony of Governor Sheppard. And in this connection it was altogether proper that the circuit court ordered the testimony of this gentleman and of Mr. Henderson to be printed as it was delivered on the stand, for much depends on the testimony. The plaintiffs' exceptions thereabouts are overruled.

Governor Sheppard's character as a man and as a lawyer gives to his testimony very high value. Referring to what took place betwixt himself and the Toneys just prior to the making of the agreement, he said:

"My opinion was that the strongest view of that deed from Harmon Gallman was that Mrs. Angeline Bacon, upon the death of her father, became the owner under the statute of distributions of the whole estate, notwithstanding the provisions of the deed; and I believed that that was the strongest view of it. I was not certain about it. I apprehended that I might be mistaken; but it was the dominating view of my judgment. I found out in the investigation that Mr. D. S. Henderson was of a different opinion. And I regarded him as one of the best lawyers in this state, and the knowledge that he differed with me shook to that extent my confidence in my opinion. I ascertained that J. W. Thurmond of this bar, one of the best lawyers that has been at the bar since I have been practicing here, was of the opinion that my view could not be sustained, and he told me so out of his own mouth. I remember the place; he met me in front of the store occupied by Mr. Reeves at that time, and he said: 'Don't be too certain about that merger decision you are depending upon.' And Mr. Henderson's and Mr. Thurmond's opinion--and Mr. Nicholson I knew to be of the same doubt as to the construction of the deed--and I knew that Tompkins & Wells were then contemplating a suit to the contrary, and that subsequently before this settlement was made Mr. Evans was of the same opinion--and the whole bar was against me and my view of the matter--and, of course, I was in doubt. It would have been a piece of reprehensible presumption for me not to have doubt, in view of the opinion of these other distinguished lawyers, that my opinion was not the proper view of the case.

I went to Columbia to consult Robert W. Shand, who has been a devoted personal friend of mine since 1879, when I married my wife in the town he lived. And I have time and again in the course of my somewhat important professional experience taken the trouble to go to Columbia and

get Mr. Shand's view upon cases in which I had deepest concern. * * * And when that question came up, and these gentlemen all differing with me about my view of that deed, I went to Columbia, and I went with my brief of authorities with me, and Mr. Shand and myself, in his office, read the case of Rochell v. Tompkins; and the leading case that distressed me in my consideration of the matter was the case of McCreary v. Coggeshall, 74 S.C. 42, 53 S.E. 978, 7 L. R. A. (N. S.) 433, 7 Ann. Cas. 693. When I read that case from start to finish, and re-read it time and time again, my apprehension that my first view of this matter began more and more to disappear, to my judgment. And when I appeared before Mr. Spann Toney, Mr. Boatwright, in Mr. Nicholson's office, and Mr. Kirkland and Mr. J. W. Cox were present, representing some of the parties, in my recollection, when we met to consider whether or not we should have a settlement with Mr. Moseley and Mr. Henderson (with Mr. Moseley through Mr. Henderson), as they were claiming the whole of it, as I understood, the second tract upon the principle that there were no words of limitation in the grant to Mrs. Bacon. And in connection with that view of Mr. Henderson, Mr. Kirkland, who is now in my presence, phoned to me from his home, wherever it was, and asked me if I had read the case of McMillan v. Hughes, 88 S.C. 296, 70 S.E. 804. I told him that I had. He says, 'In my judgment under that case we have got no case at all.' I said, 'Mr. Kirkland, don't let that disturb your mind; that case isn't bothering me a bit.' He is present here. The case of McMillan v. Hughes, 88 S.C. 296, 70 S.E. 804. I told him he need not be disturbed about that case affecting one tract.

When we met in Mr. Nicholson's office to consider this matter, I told them that the leaning of my judgment was that we could win the whole business, notwithstanding the opinion of these other lawyers to the contrary--the opinion of these other good lawyers. I told them that I had gone to Mr. Shand in Columbia and submitted it to him, and that Mr. Shand had told me that he agreed with me, but that he told me he did not know what view the court would take of the case, and that if my clients could get without litigation one-half of that whole estate, in his judgment, it would be advisable to take it. I stated that that was Mr. Shand's view, and I left it to them to determine whether or not they should fight for the whole of it or get one-half of it for the other in settlement.

I told them then and there: 'If you gentlemen say so, I will fight for the whole of it, and if I don't win I will have no compensation for my services. I will make the issue for the whole land upon the basis of 10 per cent. of what I win of it.' I told them that, sir, and repeated it. And after the decision of the Supreme Court had been rendered, and after they had decided as they decided, Mr. Kirkland, in Mr. Nicholson's office, in the presence of Spann Toney, Mr. Boatwright, and Mr. Nicholson, stated, 'You can't blame Mr. Sheppard for it, because he told you at the start that in his opinion he could get the whole business.' That was after the decision was rendered."

Wise men are not dogmatic about the construction of deeds to land. Those who write them oftener than otherwise use words and phrases which they do not understand. Judges professing to understand these words and phrases declare the maker's--we shall call it constructive--intention when there is often grave doubt if such was the maker's real...