McMichael v. McMichael

• Decision Date: 23 March 1898
• Citation: 29 S.E. 403,51 S.C. 555
• Parties: McMICHAEL et al. v. McMICHAEL et al.
• Court: South Carolina Supreme Court

29 S.E. 403

51 S.C. 555

McMICHAEL et al. v. McMICHAEL et al.

Supreme Court of South Carolina

March 23, 1898

Gary A. J., dissenting.

Appeal from common pleas circuit court of Orangeburg county; R. C Watts, Judge.

Action by John C. McMichael and others against Eva J. McMichael and others for partition. An order was made requiring one Joseph B. Traywick to comply with his bid for land sold for partition, and he appeals. Reversed.

Raysor & Summers, for appellant.

Wm. C Wolfe, for respondents.

JONES J.

The appellant, Joseph B. Traywick, became a purchaser of a tract of land in Orangeburg county sold for partition in the above-entitled case, and, he having refused to comply with his bid, a rule was issued requiring him to show cause why he should not be compelled to complete his purchase. In his return he alleged that he could not get a good title in fee to the premises sold as reason for his refusal to comply. Judge Watts decreed that the purchaser's title under said sale was reasonably clear and marketable, and ordered him to comply.

The only question presented here is whether the purchaser's title under said sale would be reasonably clear and marketable, and this question depends upon the construction of the deed of A. K. McMichael to R. V. McMichael, under which plaintiffs and defendants claim title in fee to the premises sold. The deed, in consideration of one dollar and love and affection, conveys "unto the said R. V McMichael, during his natural lifetime, and after his death to his children," the premises described, "to have and to hold all and singular the said premises unto the said R. V. McMichael during his natural life time, and after his death to his children and assigns, forever," with warranty "unto the said R. V. McMichael, and after his death to his children, executors, administrators, and assigns, against myself, my heirs," etc. The plaintiffs and the defendants Eva J. McMichael and Lula E. McMichael are children of R. V. McMichael, and these children, except Eva J. and Lula E., were living at the time of the execution of the deed. The defendants Willie S. McMichael and Annie E McMichael are grandchildren of R. V. McMichael, being children of a predeceased son. By this deed the children of R. V. McMichael, living at the time of its execution, took an estate for life only, after the death of R. V. McMichael. The technical rule of the common law makes it essential to the creation of an estate in fee simple in a natural person by deed that there be in the deed an express limitation to such person and his "heirs." This rule is generally and inflexibly enforced in the United States, except where abrogated or modified by statute. While many states have altered this rule by statute, no such statute, as applicable to deeds, has been adopted in this state, and our courts have repeatedly and uniformly recognized and enforced the strict rule of the common law. Knotts v. Hydrick, 12 Rich. 318; Bratton v. Massey, 15 S.C. 284; Varn v. Varn, 32 S.C. 85, 10 S.E. 829; Jordan v. Neece, 36 S.C. 298, 15 S.E. 202; Harrelson v. Sarvis, 39 S.C. 18, 17 S.E. 368; Bradford v. Griffin, 40 S.C. 468, 19 S.E. 76; Wilson v. Walkins, 48 S.C. 341, 26 S.E. 663. An exception to this rule is recognized in this state in the case of trust deeds, where the purposes of the trust require that the trustee or cestui que trust shall take an estate of inheritance, in which case the word "heirs" is not essential to create such an estate. A court of equity, in its jurisdiction over trusts, not being bound by the technical rules of the common law, will seek the intention of the grantor from the whole instrument, and, if it contains words other than "heirs" indicating an intention to convey a fee simple, may so declare the intent in order to effectuate the trust. This distinction is clearly shown in Bratton v. Massey, 15 S.C. 284, and in Foster v. Glover, 46 S.C. 538, 24 S.E. 370. The case of Hunt v. Nolen, 46 S.C. 356, 24 S.E. 310, upon which the circuit judge relied, related to the construction of a trust deed, and thus the circuit judge fell into the error of applying the exceptional construction permitted as to trust deeds to the deed in question, which is not a trust deed. In Fuller v. Missroon, 35 S.C. 314, 14 S.E. 714, cited to sustain the circuit decree, the deed construed was a trust deed. The use of the words "assigns forever" in the habendum clause cannot enlarge the life estate granted to the "children" into a fee simple. Wright v. Herron, 5 Rich. Eq. 449. These words may have their full technical meaning, and yet be consistent with the...