Larisey v. Larisey

• Decision Date: 03 February 1913
• Citation: 77 S.E. 129,93 S.C. 450
• Parties: LARISEY v. LARISEY.
• Court: South Carolina Supreme Court

77 S.E. 129

93 S.C. 450

LARISEY v. LARISEY.

Supreme Court of South Carolina

February 3, 1913

Appeal from Common Pleas Circuit Court of Colleton County; Frank B Gary, Judge.

"To be officially reported."

Action by W. N. Larisey against M. L. Larisey. Judgment for defendant, and plaintiff appeals. Reversed.

Fishburne & Fishburne, of Walterboro, for appellant. Padgett, Lemacks & Moores, of Walterboro, for respondent.

HYDRICK J.

The rights of the parties to this action, in which plaintiff sues to recover a tract of land, arise out of the following facts On July 9, 1903, W. N. Larisey, Sr., bought and paid for the land in dispute, but took the title in the name of his nephew and namesake, W. N. Larisey, Jr. At that time the elder Larisey was a bachelor, who thought it improbable that he would ever marry, and he had the title made to his nephew because, as he said at the time, he wanted his nephew to have his property after his death. The title deed was delivered to W. N. Larisey, Sr., upon the execution thereof, and he had it recorded on July 13, 1903. After recording, it was returned to him, and he kept it until his death. After the purchase he took possession of the land, returned it for taxation in his own name, paid the taxes, made permanent improvements on it such as buildings, etc., worth something over $1,000, and used it in all respects as his own until his death, which occurred May 26, 1910. In the meantime, on June 5, 1907, W. N. Larisey, Sr., married the defendant, Mrs. M. L. Larisey. She furnished something over $400 of the money used in making the improvements above mentioned. It does not appear that the younger Larisey knew anything of the transaction until a short time before the death of his uncle.

The evidence establishes the intention of W. N. Larisey, Sr., at the time of the conveyance, beyond dispute. The only living witness to the deed (the other being Mr. Larisey himself) testified to the following conversation between them on that occasion: "I said: 'Newt, you are making these papers to little Newt now. Suppose you were to make up your mind to get married, then what? This property would belong to your nephew.' 'Oh,' he said, 'I never expect to get married, but in case I should I have the papers, and can change them any time I want to with little Newt. He is named for me, and I want to leave him something.' And he also said: 'I may fail in my business, and in that case I would have the home. They could not touch it."' The intention then expressed to the witness was reiterated in a letter to his nephew, dated May 4, 1910, which reads: "Dear Newt: Some years ago, before I was married, I bought the eight acres of land on which I live. I did not then think of getting married, and hence had the title made in your name instead of mine, so that the place would be yours after my death. I am now married and think that I ought to leave this place to my wife during her life, and after her death to you. This is fair, and I know you will have no objections. I have so arranged it that you will finally get the property. Please sign the inclosed deed according to the instructions inclosed, and return to me at once. I am in bed, and hence have had this letter written for me. Your prompt attention will oblige me. Your uncle, [Signed] W. N. Larisey." When his nephew refused to execute the deed to Mrs. Larisey, as requested in the letter, W. N. Larisey, Sr., executed and delivered to her his deed, which bears date May 24, 1910, two days before his death, whereby he undertook to convey to her the said premises. She claims under that deed.

The circuit court held that there was no delivery of the deed to W. N. Larisey, Jr., such as would vest the title to the...