Little v. Little

• Decision Date: 02 June 1949
• Docket Number: 16227.
• Parties: LITTLE v. LITTLE et al.
• Court: South Carolina Supreme Court

53 S.E.2d 884

215 S.C. 52

LITTLE v. LITTLE et al.

No. 16227.

Supreme Court of South Carolina

June 2, 1949

J. A. Knight, Chesterfield, John D. Nock, Cheraw for appellant.

James E. Leppard and William P. Gulledge, Chesterfield, for respondent.

STUKES, Justice.

The respondent, Mrs. Lila W. Little, is the mother of the other parties to this action. At the instance of still another son she consulted a tax accountant in December 1942 who advised her that she might avoid or minimize inheritance taxes by making gifts to her children and the exemption that year was $4000 to each child which he warned would be decreased to $3000 the next year. From this advisor she went to the office of C. P. Laney, an attorney now deceased, and employed and instructed him to prepare several deeds to various of her children, including that in controversy in this litigation carefully telling him what property to put in each deed. Mr Laney told her that it would be next day before the deeds could be completed and she returned as told on December 31 1942, and executed the deeds. She thereupon took them to the Clerk of Court at Chesterfield who recorded them as of that day. That to plaintiff-appellant was dated December 30, 1942, recited consideration of $5 and love and affection and conveyed in fee the following:

'All that certain piece, parcel or tract of land in the above state and county, and being a part of the Lila W. Little home plantation, containing fifty (50) acres, more or less, and being bounded as follows: On the North by lands of George T Little; on the East by the right-of-way of the Atlantic R. E. Co., which Railroad separates said lands from other lands of grantor; on the South by lands of Campbell P. Laney, Jr., and on the West by further side of woods adjoining Laney line as far as woods extend, thence continuing in a Northern direction over cultivated area, parallel to said Railroad to George T. Little line.'

Other deeds executed and recorded simultaneously with the above were to other children of the grantor, as follows: To George T. Little, an undivided one-half interest in 235 acres; to J. W. Little, all grantor's right, title and interest in 812 acres (shown by other evidence to be an undivided one-sixth interest); and to Ada Herrmann, an undivided one-half interest in the timber upon two tracts of 35 acres and 20 acres. Shortly thereafter, but in the next tax year, on January 30, 1943, Mrs. Little conveyed to Julian Little, appellant, an additional 50 acres east of the railroad; and on the same date to J. W. Little another and separate tract of 50 acres. Finally (so far as the record shows) on December 9, 1944, she conveyed an additional 42 acres to Julian, the appellant. (These other deeds are not denied.)

He, unmarried, lived at the family homestead with his mother and even slept in the same room, before the conveyance, continuously afterward and until the time of trial. She was a large farmer but decided in the fall of 1942 to discontinue operations and notified her sons who are the other parties to this action that they could take over and operate the home place, from which there was carved the acreage now in dispute. James W. Little declined at that time, being otherwise engaged in extensive farm operations, so Julian at once took over and operated the entire home place, which contained about 300 arable acres. Mrs. Little gave him livestock and farm equipment, including tractors and other implements. He paid no rent and annually paid the taxes which, however, were assessed in her name, as before. He also repaired the buildings. This arrangement continued until 1947 when appellant's brother, James W., decided to farm half of the home place and a difference immediately arose between him and appellant as to the location of the boundary between appellant's acreage described in the questioned deed, on the west or southwest, and other lands of Mrs. Little.

Appellant then employed an engineer to survey and plat the land described in the deed, description copied above. When notified of this Mrs. Little sought out the surveyor on the land and told him to disregard the deed description with reference to the disputed line and run the latter in accord with her direction, which resulted in an acreage of 40.5. Appellant was dissatisfied with this and had the engineer survey the line and prepare a plat in accord with the description in the deed and this resulted in 70.9 acres which the engineer certified on the plat to be, 'Map of land prepared for Julian Little. Content 70.9 acres. Situate in Chesterfield County, S. C., located by deed recorded in Chesterfield Court House * * *.' After the survey appellant returned the land separately for taxes in his name.

Action was brought on March 23, 1948, by Julian Little as plaintiff against his brother, James W. Little, defendant, upon a complaint in which it was alleged that plaintiff is the owner and in possession of the land described in the deed and the plat above mentioned; that defendant has trespassed upon the property by cultivating it to plaintiff's damage in the sum of $1000. and the trespass continues. Prayer was for the stated amount and for injunction against further trespasses. The mother of the original parties to the action was thereafter made a defendant, answered by general denial and also affirmatively, that the deed under which appellant claims was never delivered but was made in contemplation of partial distribution of her lands in 1942 for tax purposes and she delivered the deed for record without knowledge of the resultant presumption of delivery, without the knowledge of appellant and without intent to effect delivery; that she decided against the distribution of the property and never delivered the deed which has been in her possession and control and she retained exclusive possession of the premises and appellant has been her tenant; that the deed is invalid and constitutes a could upon her title and a court of equity should decree cancellation, for which she prayed judgment.

The decree of the trial judge contains the following recital, from which there was no appeal: 'This case was upon the roster for trial by jury, but upon examination of the pleadings I brought to the attention of counsel that the issues raised by the answer of Lila W. Little, wherein she seeks equitable relief, should first be tried; and by agreement of counsel for the respective parties the same were submitted to me for trial without a jury, the testimony being then taken before me, and counsel duly heard in argument.'

This can only mean that the case was treated by all concerned as one in equity with the result that this court has jurisdiction to review the findings of fact which will be determined on appeal in accord with our view of the preponderance or greater weight of the evidence. Art. V, Sec. 4, Constitution of 1895; Bates v. Bates, 213 S.C. 26, 48 S.E.2d 612.

Appellant and his mother testified at length and there are naturally some contradictions in their testimonies but it may be said to the credit of both of them that there are no sharp conflicts and no name-callings so the litigation promises not to rupture their close relation, closer even than the ordinary mother and son relationship. She testified that the day after her execution of the deed and when it was yet in the hands of the recording officer, she decided that the western or southwestern boundary fixed in the deed would cause 'trouble' and for that reason the deed should not become effective. However, she said and did nothing about it during a period of over five years except, she says, to retain possession of the deed after it came...