Mellichamp v. Mellichamp

• Decision Date: 23 February 1888
• Citation: 5 S.E. 333,28 S.C. 125
• Parties: MELLICHAMP v. MELLICHAMP et al.
• Court: South Carolina Supreme Court

5 S.E. 333

28 S.C. 125

MELLICHAMP v. MELLICHAMP et al.

Supreme Court of South Carolina

February 23, 1888

Appeal from common pleas circuit court of Fairfield county; J. H HUDSON, Judge.

P. C Mellichamp instituted this action against Marion R Mellichamp, Kate S. Mellichamp, Thomas G. Patrick, Robert A Patrick, Marion R. Mobley, E. P. Mobley, Jr., Moses H. Mobley, Marion Mobley, Jones Mobley, Hattie Mobley, Nancy Mobley, and Berry H. Mobley, to obtain a partition of a certain tract of land. From the decree entered in the case Thomas G. Patrick, Robert A. Patrick, Marion R. Mellichamp, and Kate S. Mellichamp appeal.

Henry & Gage, for appellants Thomas G. Patrick and Robert A. Patrick. Ragsdale & Ragsdale, for appellants Marion R. Mellichamp and Kate S. Mellichamp. McDonald & Douglass, for P. C. Mellichamp, plaintiff and respondent.

W. C. Rion, for respondent Marion R. Mobley.

H. N. Obear, for respondents

Edward P. Mobley, Jr., and Moses H. Mobley. Obear & Rion, for respondents Harriet W. Mobley, Jones Mobley, Marion Mobley, Nancy J. Mobley, and Berry H. Mobley.

McIVER J.

This action was instituted for the purpose of obtaining partition of a certain tract of land described in the complaint, containing 3,771 acres, and the several questions raised by the appellants grow out of the following facts: On the 15th of January, 1878, one John Mobley conveyed the tract of land described in the complaint to the defendant "Marion R. Mobley and the children she already has and may hereafter bear by her husband," Edward P. Mobley, Sr. At the time of the execution of this deed, Mrs. Mobley had borne to her said husband the following children, viz., Edward P., Jr., Moses H., Kate, (who had intermarried with the plaintiff,) Marion, Jones, Hattie, and Nancy,--seven in number, -- all of whom were then living. After the said deed was executed, another child -- the defendant Berry H. Mobley--was born to the said Marion R. and Edward P. Mobley, Sr., whose right to participate in the partition is disputed by some of the parties. Some time after the marriage of the plaintiff with Kate Mobley they went into possession of a tract of land, known as the "Bucklick Place," which had previously been conveyed to Mrs. Marion R. Mobley by the said John Mobley, under an alleged gift, but no title was then executed. Kate Mellichamp died intestate, some time in the year 1880, leaving as her heirs at law, her husband, the plaintiff, and her two children, Marion R. Mellichamp and Kate S. Mellichamp, defendants herein. Shortly before the commencement of this action, proceedings were instituted by the plaintiff herein, with his two children, against Marion R. Mobley, to enforce specific performance of her agreement to convey the Bucklick place to the plaintiff and his wife, which resulted in a decree, by consent, that Marion R. Mobley should convey to the plaintiff and his two children, as tenants in common, the said Bucklick place, the decree providing "that the tract of land hereby required to be conveyed to the plaintiffs (in the action for specific performance) shall be taken by them and held by them, as aforesaid, in lieu and bar of all their interests in and to the real estate of the said Marion R. Mobley" by virtue of their heirship to the said Kate Mellichamp, deceased. This, it was insisted by some of the parties, deprived the Mellichamps of the right to participate in the partition of the tract of land described in the complaint, upon the ground that they had accepted the Bucklick place in lieu of such interest. It also appears that shortly before the commencement of this action a judgment was recovered by one Mockbee against the defendants Marion R. Mobley, Moses H. Mobley, and Edward P. Mobley, Jr., and that when the sheriff was proceeding to enforce the execution issued upon such judgment, the defendants just named interposed their claim of homestead, under which the commissioners named for that purpose undertook to set off to said Edward P. Mobley, Jr., 300 acres of the tract in controversy, valuing the same at nearly $1,000; to said Moses H. Mobley 150 acres, valued at the same amount; and to said Marion R. Mobley 120 acres, valued at nearly $800, after which the sheriff levied on and sold the interests of these parties in the remainder of the tract, and the same was bought by the defendants T. G. Patrick and R. A. Patrick, who now hold sheriff's titles for the same.

The circuit judge held that Berry H. Mobley, though born after the execution of the deed from John Mobley to Marion R. Mobley and her children, was entitled to share in the partition, and that the Mellichamps were not excluded from any interest in the land in controversy by reason of the conveyance of the Bucklick place to them. He therefore ordered "that a writ of partition do issue *** to divide the same into nine parcels of equal value, and that three of said parcels do conform as near as may be to the boundaries of the homesteads assigned respectively to Marion R. Mobley, Edward P. Mobley, Jr., and Moses H. Mobley, so that each of such three parcels shall include the whole of each of said respective homesteads in case the same shall be of less value than the several distributive shares of the said Marion R. Mobley, Edward P. Mobley, Jr., and Moses H. Mobley; and if said homesteads shall exceed in value such shares, then each of the said three parcels shall include so much of each respective homestead as shall be equal to the value of a share; and to allot to the said Marion R. Mobley, Edward P. Mobley, Jr., and Moses H. Mobley, respectively, the parcels containing their respective homesteads, provided the same do not exceed their respective shares in the premises; and if such parcels, or either of them, shall exceed the homesteads of said defendants, to allot such excess to the defendants Thomas G. Patrick and Robert A. Patrick; to allot one of the remaining parcels to the plaintiff and the defendants Marion R. Mellichamp and Kate S. Mellichamp, and to allot one of the remaining parcels to each of the other defendants." To this decree the parties named above as appellants except on the several grounds set out in the record, which need not be repeated here, as these exceptions really present but three inquiries, viz.: (1) Whether the after-born child, Berry H. Mobley, took any interest under the deed from John Mobley to Marion R. Mobley and her children; (2) whether the Mellichamps can be excluded from participation in the partition of the tract of land described in the complaint; (3) whether there was any error in the mode prescribed for ascertaining the homestead interests of the defendants setting up such claim.

As to the first question there can be no doubt that the intention was to include after-born children, for the language is "Unto the said Marion R. Mobley and the children she already has and may hereafter bear by her husband, the said Edward P. Mobley, Sr.," and it is difficult to conceive what language could have been employed more expressive of an intention to include after-born children. It is true that this question arises under a deed, and not under a will, where it is supposed greater weight is given to the intention; but as we understand it, when a court is called upon to construe any paper, the first effort should be to ascertain the intention of the parties from the language which they have...