Kirton v. Howard

• Decision Date: 26 August 1926
• Docket Number: 12059.
• Parties: KIRTON et al. v. HOWARD et al.
• Court: South Carolina Supreme Court

134 S.E. 859

137 S.C. 11

KIRTON et al. v. HOWARD et al.

No. 12059.

Supreme Court of South Carolina

August 26, 1926

Appeal from Common Pleas Circuit Court of Williamsburg County; J. K Henry, Judge.

Action by J. M. Kirton and others against D. C. Howard and others. Judgment on directed verdict for defendants, and plaintiffs appeal. Reversed, and cause remanded for entry of judgment for plaintiffs.

Philip H. Stoll, of Kingstree, for appellants.

A. C Hinds and Lee & Shuler, all of Kingstree, for respondents.

BLEASE J.

The appellants, as plaintiffs, brought action in the court of common pleas of Williamsburg county for the recovery of the possession of a tract of land, situate in that county containing 142 acres, more or less. The complaint is in the usual form of complaints for the recovery of real property. The defendant D. C. Howard, claiming to be the owner of the lands in dispute, in his answer, after alleging that he is in possession of the land and that he is seized in fee thereof, also pleaded, as shown in the "case," the following defenses: (1) The 10-year statute of limitations. (2) Adverse possession. (3) The 20-year statute. (4) The 40-year statute. (5) Purchaser for value without notice.

The defendant Federal Land Bank of Columbia in its answer alleged the first four defenses, stated above, of the defendant Howard, and as another defense set up that it was an innocent incumbrancer for value without notice. The defendant Rhem Real Estate Company, made default.

At the conclusion of all the testimony in the cause, the plaintiff's moved for a directed verdict in their favor, and, the defendants Howard and Federal Land Bank of Columbia made a similar motion for such verdict in their favor. The presiding judge, Hon. J. K. Henry, refused the motion of plaintiffs and granted that of the defendants.

From the refusal to grant their motion, and from the granting of the motion for the defendants, the plaintiffs have appealed to this court.

The facts of the controversy, as brought out in the trial below, shown in the record before this court, are these:

Robert T. B. Abrams, then owner of a tract of land in Williamsburg county, containing about 900 acres, known as "the Black River tract," on September 24, 1856, executed and delivered his deed of trust, conveying thereby said tract of land to William J. Cooper, as trustee, for the uses and purposes set forth in the deed, as follows:

"In trust and confidence, nevertheless, and for the following uses and purposes and for no other, that is to say, for the joint use and benefit of my said children Robert Abrams and Agnes T. Abrams and the survivors of them until they arrive at the age of twenty-one years and upon their arrival at the age of twenty-one years then in trust to divide the said land into two equal moieties and to assign and convey one part or moiety thereof to the said Robert Abrams and to assign and convey the other part or moiety thereof to the said Agnes T. Abrams in such manner that each of my said children shall have, hold, use and enjoy, respectively the shares which may be allotted to them respectively during their respective natural lives and upon the death of either of my children then in trust to convey the said moiety or part of such child so dying to such child or children as such deceased child shall have living at his or her death and in case either of my said children shall die without leaving a child or children living at his or her death then in trust to convey the said moiety or part to the survivor of them and in case both shall die without leaving a child or children living then in trust to convey the said land respectively to me, the said Robert T. B. Abrams, discharged from further trust."

The consideration of the deed was "the natural love and affection" which the grantor had for his children, Robert and Agnes, the latter having later married James M. Kirton. This deed was duly recorded in the office of the clerk of court for Williamsburg county November 25, 1856.

In the year 1862 the said Robert T. B. Abrams, the grantor in the said trust deed, filed his petition in the court of equity for Williamsburg county, and alleged therein that, since the execution and delivery of the deed to Cooper, as trustee, the said Cooper had died; that the petitioner, Robert T. B. Abrams, and his two children, Robert and Agnes, had continued to live on the tract of land conveyed by the deed and had continued to use and cultivate the same; that one Joseph B. Allston desired to purchase the tract and offered therefor the sum of $6,000, if proper title thereto could be procured; that it was to the advantage of his children, Robert and Agnes, the cestuis que trustent, that the offer of Allston be accepted. The petitioner prayed that a new trustee be appointed, who should be given authority to invest the purchase money of the lands to be sold to Allston, said money to be held by the said newly appointed trustee subject to the same trusts and limitations expressed in the deed from himself to Cooper as trustee, hereinbefore referred to. The children, Robert and Agnes, and the heirs at law of Cooper, the deceased trustee, were properly made parties to this proceeding.

The cause in equity was referred to R. C. Logan, Esq., then commissioner in equity. He found the facts alleged in the petition to be true, and recommended the sale to Allston and the investment of the proceeds of sale as prayed for in the petition, and, he recommended the appointment of one James C. Sanders as trustee. Sanders consented to act in that capacity. Following the report of the commissioner, on December 22, 1862, Chancellor John A. Inglis, after a hearing of the cause, made his order, the pertinent portions of which are as follows:

"It is ordered that the said James C. Sanders be appointed trustee in the room and stead of the said William J. Cooper, deceased, under the trust deed of the said Robert T. B. Abrams, mentioned in the said petition in this case, upon his entering into a bond payable to the commissioner of this court and his successors in office in the penal sum of $12,000, with two good sureties to be approved by said commissioner conditioned for the faithful discharge of his duties as such trustee, and making and recording the proper indorsement of the deed as required by law.

It is further ordered that the commissioner of this court do execute and deliver to the said Joseph B. Allston, his heirs, executors, or assigns, a title deed for the said tract of land in the said petition mentioned, conveying the interests of the respective parties therein to him, the said Joseph B. Allston, his heirs, executors, and administrators and assigns, upon the said Joseph B. Allston paying to him $2,000 with the interest which may be due thereon as stipulated in the agreement mentioned in the petition, and also entering into bond payable to the said commissioner in the penal sum of $8,000 conditioned for the payment of $4,000 with the interest thereon as stipulated in the said agreement, and executing a mortgage of the land mentioned in the petition to secure the payment of the purchase money.

It is further ordered that out of the cash portion of the purchase money, when received by him, the said commissioner pay the costs and expenses of these proceedings to be taxed and allowed by him, and that he pay over the balance of the cash, and assign over the bond and the mortgage of the said purchaser, to the said James C. Sanders, upon his complying with the terms of this order, to be by him invested in such manner as shall be hereafter directed by the order of this court, but if upon the compliance of the said Allston the said Sanders shall not have consummated his appointment by filing an approved bond, that the commissioner do without delay invest the residue of the cash (after in that event paying thereout a reasonable fee to the solicitor in this proceeding to be approved by the court) in state or Confederate securities bearing interest of not less than 7 per centum."

On May 11, 1863, Logan, commissioner, executed and delivered to Allston a deed to said tract of land. On the same day Allston paid on the purchase price the sum of $2,000, and executed to the commissioner a mortgage of the premises to secure the payment of $4,000, balance of the purchase price. Allston failed to pay the balance of the purchase price, secured by his mortgage. Thereupon, an agreement was entered into by him, Robert T. B. Abrams, the trustor, Robert Abrams, and Agnes T. Kirton (née Abrams), to the effect that the sum of $2,000, paid on the purchase price by Allston, should be applied as rent for the lands during the period he had been in possession thereof; that the mortgage from Allston to the commissioner should be canceled; that Allston was to convey the land to Sanders, as trustee, upon the same trusts and limitations as contained in the original deed of trust from Robert T. B. Abrams to William J. Cooper, trustee; and that the commissioner was to deliver to Allston his bond for the balance due on the purchase money and was to satisfy the purchase-money mortgage.

Carrying out the terms of this last-mentioned agreement, Chancellor Inglis, on November 13, 1865, passed the following order:

"It appearing to the satisfaction of the court that under the former proceedings in this case the lands mentioned in the trust deed of Robert T. B. Abrams, dated September 24 1856, and which he conveyed thereby to W. J. Cooper in trust for the uses therein mentioned, were conveyed to Joseph B. Allston by the commissioner of this court, and that the bond and mortgage, executed by the said Joseph B. Allston in conformity with the order of this court made, remain still in the hands of the commissioner, upon which

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