Landrum v. Branyon

• Decision Date: 10 June 1931
• Docket Number: 13172.
• Citation: 159 S.E. 546,161 S.C. 235
• Parties: LANDRUM et al. v. BRANYON.
• Court: South Carolina Supreme Court

159 S.E. 546

161 S.C. 235

LANDRUM et al. v. BRANYON.

No. 13172.

Supreme Court of South Carolina

June 10, 1931

Appeal from Common Pleas Circuit Court of Anderson County; M. M Mann, Judge.

Action by Mrs. Leslie Landrum and others against Elizabeth C Branyon. From an order sustaining a demurrer to the complaint, plaintiffs appeal.

Appeal dismissed, and order affirmed.

The complaint and exceptions, directed to be reported, were as follows:

Complaint.

The plaintiffs complaining of the above-named defendants would respectfully show to the court:

1. That Thomas M. Branyon departed this life testate on or about May 15, 1882, leaving as his sole heirs at law his wife, Lucinda Branyon, and his son, W. C. Branyon, and at the time of his death was seized and possessed of the tract of land containing 180 acres, more or less, referred to and described in his will; that a copy of said will is attached hereto and marked "Exhibit A" and made a part hereof. The allegations of this paragraph are on information and belief. The said will was drawn by a layman.

2. That the said Lucinda Branyon, wife of Thomas M. Branyon, died intestate on or about April 22, 1888; and the said W. C Branyon died intestate on or about September --, 1927, leaving no lawful children surviving him at his death, but leaving surviving him his wife, Elizabeth C. Branyon, one of the defendants herein, who is in possession of the real estate that is the subject of this action, claiming fee-simple title thereto. The allegations of this paragraph are on information and belief. Rosanna Branyon, widow of John M. G. Branyon, died in 1900, and in the action below the heirs of John M. G. Branyon were alleged to be R. O. Branyon, J. L. Branyon, Emily Pruitt, and Talullah Darby.

3. That the said W. C. Branyon married, but not until some time after the death of the said Thos. M. Branyon, testator, and two sons were born to the said W. C. Branyon, both of whom died several years prior to the death of the said W. C. Branyon. The allegations of this paragraph are on information and belief.

4. The plaintiffs allege: That the John M. G. Branyon, mentioned in the will of Thos. M. Branyon, was his brother, and that he predeceased the said Thos. M. Branyon by several years, dying in 1866, leaving him surviving as his only heirs, his wife, Rosanna, who died intestate in 1900, having never remarried, and leaving five children, to wit, John Thomas Branyon, Margaret Emily Branyon, later Pruitt, James L. Branyon, Talullah Branyon, later Darby, and Reuben Oliver Branyon. Of these, John Thomas Branyon died intestate in 1876, having never married; Margaret Emily Branyon Pruitt died intestate prior to 1900, leaving as her heirs at law, her husband, --, and her children, R. Perry Pruitt, Monroe Pruitt, Beulah Bannister, Lula Lowe, Lillie Callaham, Reid Pruitt, and Olin Moffitt Pruitt; and Reuben Oliver Branyon died intestate on or about March 1, 1923, leaving surviving him as his only heirs at law, twelve children, to wit, Mrs. Leslie Landrum, R. L. Branyon, Luther C. Branyon, James O. Branyon, Rosa May Green, Maud Keenan, Julia Erwin, Winnie Derrick, Gypsie McCarter, B. C. Branyon, Ollie Branyon, and Harold Branyon, plaintiffs herein, the youngest of whom was born prior to 1900, most of them having always lived in the state aforesaid, in Anderson and nearby counties. That heretofore, on the -- day of January, 1930, as plaintiffs are informed and believe, J. L. Branyon, son of said John M. G. Branyon, departed this life, and Mrs. Talullah Darby is still living; and prior to 1921 defendant acquired the interests of said Talullah Darby, J. L. Branyon, and the heirs of Mrs. Pruitt, in all an undivided three-fourths interest in the land below described. At that time, and for some time after, the testator's death, Martha Shirley was still living, dying intestate in 1888.

5. That on or about the dates indicated in the deeds referred to in this paragraph, the said W. C. Branyon undertook by gift to convey to the defendant, Elizabeth C. Branyon, the tracts of land therein described. By one deed he undertook to convey a tract of 27.3 acres, more or less, on or about January 15, 1921, said deed being recorded in the office of R. M. C. for Anderson county, state of South Carolina, in Book R-5, at page 583, copy of same being attached hereto, marked "Exhibit B" and made a part of this complaint; by another deed he undertook to convey to her a tract of 273 3/4 acres, more or less, on or about the 28th day of December, 1921, said deed being recorded in said office in Book 5-M at page 297, copy of same being attached hereto, marked "Exhibit C" and made a part of this complaint; and plaintiffs allege upon information and belief that the tract of 27.3 acres described in the first deed above mentioned is part of the tract of 180 acres referred to in the will of Thos. M. Branyon. They further allege, upon information and belief, that a portion of the 278 3/4 acres, more or less, described in the second deed above referred to, is also included in the said tract of 180 acres referred to in the will of Thos. M. Branyon, as appears more fully by plat of W. L. Mitchell, surveyor.

6. Upon information and belief, the plaintiffs allege that the defendant, Elizabeth C. Branyon, is in possession of those parts of the said 180-acre tract of land that were undertaken to be conveyed to her by the said W. C. Branyon, claiming good fee-simple title thereto, said W. C. Branyon having gone into possession of same under the will of his father, Thos. M. Branyon, and claiming title through him; excepted from her possession are those lots that have been reconveyed by him and by her, as shown by the title records of the aforesaid county.

7. The lots of land from the said 180 acres so reconveyed by the said Elizabeth C. Branyon, as plaintiffs are informed and believe, are as follows: (1) To town of Honea Path, 3 acres, by deed dated March 4, 1925, recorded in Book T-5, page 537; (2) to Ansel W. Putman one small lot by deed dated February 24, 1928, recorded in Book B-6, page 444; (3) to J. A. Pinson 3.03 acres, deed dated March 4, 1925, recorded in Book T-5, page 535; (4) to J. A. Pinson 86/100 acre, by deed dated March 4, 1925, recorded in Book T-5, page 536.

These lots of land from the said 180 acres so reconveyed by said W. C. Branyon, as plaintiffs are informed and believe, are as follows: (1) To J. Furman Evans 21.8 acres, deed dated December 17, 1907, recorded in Book G-4, page 120; (2) to J. Furman Evans 4/10 acre, deed dated October 6, 1908, recorded in Book I-4, page 34; (3) to M. B. Dunlap 11.05 acres, deed dated April 7, 1911, recorded in Book P-4, page 192 (refers to Featherstone decree); (4) to L. M. Wilson 1 lot, deed dated May 15, 1912, recorded in Book R-4, page 708.

8. Plaintiffs are informed that defendant claims title to the entire fee in said real estate, claiming same through Thos. M. Branyon, but that the plaintiffs have the better title to an undivided one-fourth interest in said lands under said common source of title. They are informed and believe that on or about May 9, 1904, W. C. Branyon exhibited his summons and complaint in the court of common pleas for the county of Anderson, state of South Carolina, seeking construction of the will of the said Thomas M. Branyon, and claiming fee-simple title thereunder; none of these plaintiffs were made parties thereto, although all of them were living at the time, but their father, R. O. Branyon, was made a party to the said action, and said action proceeded to the decree of the court by Special Judge C. C. Featherstone, February 3, 1905, adjudicating that the said W. C. Branyon had fee-simple title to the real estate herein involved; that the plaintiffs are informed and believe that this was an erroneous decision, and is not binding upon them because there was no effort made to make them parties to the said action. They were all living at that time in the state of South Carolina, and most of them in Anderson county. Plaintiffs allege that they were executory devisees under the will of Thos. M. Branyon, and that the said executory devise was of itself uncertain of necessity, as W. C. Branyon was married, and had a living child on the date of Judge Featherstone's decree. Not only the estate, but the persons who were to take same under said will were not fixed or determined, but were wholly uncertain; said estate in their said father, R. O. Branyon, not being transmissible by him. The record of said action in 1904 in the office of the clerk of court in the county aforesaid, is herein referred to as often as it may be necessary for the purpose of this action. The number of judgment roll is 6628 in said office.

9. The plaintiffs allege that the said Elizabeth C. Branyon and the said plaintiffs are tenants in common of said property, each and all of them having an undivided interest therein, as appears from the above statement and the proportions appearing from the facts above set out; that the defendant, Elizabeth C. Branyon, claims to be the owner in fee simple of the said property and is in sole possession, denying the right of these plaintiffs to any interest therein; and that, since the date of said deeds to her, she has been in possession of said property, receiving the rents and profits therefrom; and that a reasonable allowance for the rents and profits, as they are informed and believe, would be $2,000 per year from the dates of said deeds up to the date of final accounting.

Wherefore plaintiffs pray judgment that the court construe the will and adjudicate the rights of these plaintiffs herein; that they be declared to be tenants in common with the defendant, of the lands referred to; that Elizabeth C. Branyon be required to account for the...