McIntosh v. Kolb

• Decision Date: 29 April 1919
• Docket Number: 10195.
• Citation: 99 S.E. 356,112 S.C. 1
• Parties: McINTOSH et al. v. KOLB et al.
• Court: South Carolina Supreme Court

99 S.E. 356

112 S.C. 1

McINTOSH et al. v. KOLB et al.

No. 10195.

Supreme Court of South Carolina

April 29, 1919

Appeal from Common Pleas Circuit Court of Sumter County; T. S Sease, Judge.

Action by Adelaide McIntosh and another against Theodosia R. Kolb and others. From an order of nonsuit, plaintiffs appeal. Affirmed.

Marion W. Seabrook, of Sumter, for appellants.

L. D Jennings and A. S. Harby, both of Sumter, for respondents.

HYDRICK J.

Plaintiffs appeal from an order of nonsuit. They sued in 1915 for partition of a tract of land, claiming six-sevenths thereof. Defendants denied that plaintiffs had any interest, and pleaded the statute of limitations and title in themselves by adverse possession. The sole issue made by the pleadings and evidence was the issue of title in defendants, and that issue was tried before the court and a jury.

From plaintiffs' evidence it appeared that on October 26 1831, W. W. Weeks and Harriet E. Harvin, for $100 paid by Mary A. Weeks, conveyed the tract to Mary A. Weeks and her children--habendum, "unto the said Mary A. Weeks, her children and assigns forever." The word "heirs," printed in the habendum, was stricken out.

At date of this deed Mary A. Weeks had three children living, one of whom is the plaintiff Mrs. McIntosh. The other two died in infancy. After the deed she had five other children, one of whom is the plaintiff Mrs. Geddings. The other four conveyed all their interest in the land to plaintiffs.

On February 17, 1892, Mary A. Weeks conveyed the entire estate in the tract to Ann J. Ardis "her heirs and assigns forever." On November 19, 1892, Ann J. Ardis conveyed it to defendants. These deeds were all duly recorded. Defendants have been in possession, claiming adversely, since November 19, 1892.

The controlling question is whether the children born to Mrs. Weeks after the execution of the deed to her took under it. If they did, they became cotenants of Mrs McIntosh, and the minority of some of them prevented the running of the statute against her, under the rule of this state that the minority of one cotenant will prevent the running of the statute against the adults; otherwise the defenses were made out by the undisputed evidence.

A deed takes effect at its execution; hence the rule of construction is that, in case of a deed to a mother and her children (where there are children living at date of the deed), the mother and children then living take, and after-born children are excluded, unless there is something in the deed to show a contrary intention. Mellichamp v. Mellichamp, 28 S.C. 125, 5 S.E. 33, and cases cited. See, also, Folk v. Hughes, 100 S.C. 220, 84 S.E. 713.

Appellants earnestly insist that this case ought to be distinguished, on the ground that in all cases in which that rule was applied the deeds construed were deeds of gift from parents to their children and living grand-children, for whom a grandparent would naturally have more affection and inclination to provide than for unborn grandchildren; while in this case the deed was made at the instance of the mother for valuable consideration paid by her, and it should be presumed that a mother would naturally intend to benefit all her children alike, those to be born as well as those already born.

Without conceding the truth of the premise as to any difference in the natural affection of grandparents, so far as it affects their respective inclination to make provision for the benefit of the offspring, the ground of distinction is unsound. It wóuld lead us away from the intention expressed in the deed into the realm of conjecture. The rule is rested upon the ground that it gives effect to the intention expressed, and that is the main purpose of construction. In construing the deed, we are not to inquire what provisions, in our opinion, should have been...