Mattison v. Mattison

• Decision Date: 24 March 1903
• Citation: 43 S.E. 874,65 S. C. 345
• Parties: MATTISON. v. MATTISON.
• Court: South Carolina Supreme Court

43 S.E. 874

65 S. C. 345

MATTISON.

v.MATTISON.

Supreme Court of South Carolina.

March 24, 1903.

DEED—CONSTRUCTION—ESTATE ACQUIRED. 1. Under a deed conveying land to M., "to have and to hold all * * * unto the said M. and the heirs of his body lawfully begotten, during his or their life or lives and should he and his heirs as aforesaid become extinct then the estate aforesaid to revert to my lawful heirs, " M. acquires a conditional fee.

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

Action by Elip Mattison against Milton Mattison. Decree for plaintiff, and defendant appeals. Reversed.

Tribble & Prince, for appellant.

Bonham & Watkins, for respondent.

POPE, C. J. At the March term, 1902, at Anderson, S. C, a cause, without action, upon an agreed statement of facts, was submitted to his honor Judge Gage, under section 374 of the Code of Procedure. The following was the agreed statement of facts: "On the 2d day of February, 1886, W. P. and N. C. Mattison executed a mortgage to H. I. Epting on the tract of land, containing eighty-six acres, more or less, situated in Anderson county, on waters of Saluda river, bounded by lands of Joel Kay. M. Smith, H. Austin, and others. Mortgage was duly recorded in Book 25, page 389, and does not make any reference to the source of title. On January 11, 1888, H. I. Epting brought suit to foreclose said mortgage; and on October 26, 1888, judgment of foreclosure was entered and sale ordered, and in pursuance thereof the land was bid off by R. T. Chamblee, who transferred his bid to J. R. Vandiver and J. L. Tribble, and the sale was confirmed by order of the court, bearing date June 28, 1889. The purchasers entered into possession of the same. Subsequently J. R. Vandiver transferred his interest to J. L. Tribble, who became sole owner under deed from the master, and afterwards he conveyed said land to the defendant, Milton Mattison, who is now in possession of it. The plaintiff, Elip Mattison. sets up title to the land in possession of the defendant, basing his right thereto under a deed from Wyatt Mattison, bearing date September 5, 1871, of which the following is a copy: 'State of South Carolina. Know all men by these presents, that I, Wyatt Mattison, of Anderson county, in the state of South Carolina, in consideration of natural love for my son, Wm. P. Mattison, of Anderson county, in the state aforesaid, do hereby deed and give to my said son all that land now owned by me, on the east side of the public road leading from Calhoun in said county, to Irwin's mill which boundary contains 87 acres, more or less. The courses and distances of which land will be found in the title of Nim-rod Smith to James Mattison, dated 1803, and title to Nancy Leech, dated 1863, and title of Geer and Jane Kay, dated since 1865, for twenty-six acres, lost title. Together with all and singular the rights members hereditaments and appurtenances to the said premises belonging or in any wise incident or appertaining. To have and to hold all and singular the said premises unto the said William P. Mattison and the heirs of his body lawfully begotten, during his or their life or lives and should he and his heirs as aforesaid become extinct then the estate aforesaid to revert to my lawful heirs. Provided always nevertheless that Caroline the wife of my said son be allowed a support out of said land-during her natural life.' The warranty clause is to the said Wm. P. Mattison and his lawful heirs. It is admitted that Wm. P. Mattison and his wife, Caroline, are both dead, and the plaintiff, Elip Mattison, is the only lawful heir of the body of the said Wm. P. Mattison, and was in esse at the date of the execution of the deed. This deed was duly recorded in Book LL, p. 394. That the land described in this deed is the same land mortgaged to H. I. Epting, and sold under foreclosure, as above stated, after the birthof issue to Win. O. Mattison, lawfully begotten. In pursuance to section 374 of the Code of Procedure, the foregoing facts are agreed upon, and are presented to the court for a determination of the rights of the parties to the land in controversy."

The decree of the circuit judge was as follows:

"This is a controversy without action. The controversy is about eighty-six acres of land. Both parties claim from a common source, and that is one Wyatt Mattison. The issue of law is about the construction of a deed made in September, 1871, by Wyatt Mattison to his son Wm. P. Mattison. The son, Wm. P., alienated the land by mortgage, and defendant claims title thereunder. The plaintiff is the only child and heir of William P. He claims the land by purchase under the deed of Wyatt, above referred to.

"The deed was manifestly drawn by one not familiar with legal phraseology, and the words of doubtful meaning are those which have so often been the subject of judicial discussion —'heirs of his body lawfully begotten.' The deed in issue in the granting clause reads thus: 'In consideration of natural love for my son, William P. Mattison, * * * do hereby deed and give to my said son all that land, ' etc. The habendum clause is in this language: 'To have and to hold all and singular the said premises * * * unto the said William P. Mattison and the heirs of his body lawfully begotten.' 'During his or their life or lives'—'And should he and his heirs as aforesaid become extinct then the estate shall revert to my lawful heirs.' (The breaks are my own.)

"Next following is a proviso in this language: 'Provided, nevertheless, that Caroline, the wife of my said son, be allowed a support out of the said land during her natural life.' The warranty clause is to the said William P. Mattison and his lawfully begotten heirs. The object of all construction is the ascertainment of the intent of the maker of the deed. That is sometimes impossible, on account of the use by the maker of words which mean one thing to him, and another thing to the expounder. If, however, in the whole paper the intent of the maker is manifest, it should be carried out, unless violence be thereby done to the rules of law.

"When the deed in issue was made, William P. had one child, the plaintiff, Elip Mattison. The contention of the defendant is that the deed to 'William P. Mattison and the heirs of his body' created in William P. a fee conditional. If there were no other words in the deed, that contention would be manifestly correct. The words 'during his or their life or lives, and should he and his heirs as aforesaid become extinct, then, ' etc., modify the language first quoted. I apprehend the maker, Wyatt Mattison, intended to say: 'I give this 86 acres to my son, Wm. P., and his children to enjoy during their lives, and if Wm. P. should die, and if Wm. P.'s chil dren should die without leaving children, then the land shall go to the heirs at law of Wm. P.' The intent of Wyatt was that the land should be enjoyed by his lineal descendants as long as the strain held out. He gave no consideration to the technical thing known as 'title.' The granting clause gives to Wm. P. a life estate, though in not so many words. The habendum clause runs to Wm. P. during his life, and to the heirs of his body during their lives, and, in the event of his death and the death of his heirs aforesaid, then over. It seems plain to me the intent was that Wm. P. and his children should have the land, or, in legal parlance, 'heirs of his body' was employed not to denote the character of Wm. P.'s title, but to describe another beneficiary, to wit, children of Wm. P. I do not think this view is antagonistic to the decision in Simms v. Buist, 52 S. C. 559, 30 S. E. 400, or to Ex parte Yown, 17 S. C. 533. It seems to me to accord with Simons v. Bryce, 10 S. C. 365, and McCown v. King, 23 S. C. 238.

"The inquiry here is not who owns the fee, but who has the better title of the parties to this controversy? Defendant has none. Plaintiff has at least a life estate. To hold he had a larger title would be useless, for it would bind nobody. I am of the opinion, therefore, the plaintiff is entitled to recover of the defendant possession of the lands described in the submission, and it is so ordered."

The appellant appealed on the following exceptions:

"(1) Because his honor erred in his construction of the deed in controversy, made by Wyatt Mattison to William P. Mattison, September, 1871, under which plaintiff claims title to the land in dispute, whereas his honor should have held that said deed conveyed a fee conditional to said William P. Mattison, and that the mortgage executed by him, and the judgment of foreclosure and sale thereunder by the master, under which defendant claims, barred the plaintiff, as sole heir of the body of W. P. Mattison, from a recovery of said tract of land.

"(2) Because his honor erred in holding that the subsequent words in the habendum clause operated to cut down the fee conditional, previously conveyed, to a life estate in William P. Mattison, whereas he should have held that the grantor could not cut down the fee to a life estate in the same clause, as the clause 'during his or their life or lives' is wholly repugnant to the previous clause, 'To have and to hold all and singular the said premises unto the said William P. Mattison and the heirs of his body lawfully begotten;' and, since one contradicts the other, the rule of construction requires that the fee first granted shall not be cut down to a life estate.

"(3) Because the presiding judge, in order to make the deed conform to his own idea of what the grantor intended, had to supplywords and entire sentences not found in the deed, thereby making a new contract for the parties after both the grantor and grantee are dead. The...