Miller v. Graham

• Decision Date: 22 July 1896
• Citation: 25 S.E. 165,47 S.C. 288
• Court: South Carolina Supreme Court
• Parties: MILLER et al. v. GRAHAM.

47 S.C. 288

25 S.E. 165

MILLER et al.

v.GRAHAM.

Supreme Court of South Carolina.

July 22, 1896.

Deed—Construction—Fee Conditional, — Alienation. A deed granting land to a woman and "the heirs of her body, " to have and to hold the same unto said woman "and the heirs of her body, to her and their heirs and assigns, forever, " creates a fee conditional in said woman, and therefore, after issue born, she had power to convey the estate in fee simple, and it does not create a fee simple in said woman and her children, share and share alike.

Appeal from common pleas circuit court of Barnwell county; Aldrich, Judge.

Action by B. E. Miller and others against Benjamin Graham for partition of pertain land. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

The judgment and grounds of appeal referred to in the opinion are as follows:

Judgment

"This is an action in partition, brought by the plaintiffs, who are the children of India J. Miller, alleging that they are each entitled to one undivided one-fifth portion of the premises described in the complaint, and the defendant to the remaining fifth. The defendant answers, denying the title of the plaintiffs, and alleging absolute title in himself; and an issue is thus raised on the law side of the court. A jury trial is waived, and the case comes on to be heard before me upon such waiver and the agreement of counsel, by which it appears that both plaintiffs and defendant claim from a common source, —the deed of Bryant Weathersbee, dated 25th March, 1882; the plaintiffs contending that under that deed they are tenants in common with their mother, India J. Miller, and the defendant, that no estate was conveyed to them by said deed, but, on the contrary, that the deed conveyed an estate in fee conditional to their mother, and he being the purchaser at the foreclosure sale of the premises under a mortgage executed by the said India J. Miller, she having issue alive at the time, he is the owner of the absolute fee. The practical question, therefore, is the proper construction of the deed of 25th March, 1882.

"The deed in question is written on the ordinary printed form of conveyance used in this state, and the effort of the draftsman to fill the blanks may in some degree account for the grounds for contention. The deed purports, 'in consideration of the sum of five hundred dollars, and love and affection, to me in hand paid at and before the sealing and delivery of these presents by my daughter, India J. Miller, ' to convey 'to the said India J. Mill-er and the heirs of her body the premises described therein; 'to have and to hold, etc., unto the said India J. Miller and the heirs of her body, to her and their heirs and assigns, forever.' The warranty Is to 'the said India J. Miller and the heirs of her body, and their heirs and assigns, ' etc. The contention is as to the proper construction of the words I have taken from the habendum and warranty clauses; plaintiffs contending they show an intention to use technical words, 'heirs of her body, ' as words of purchase, 'children, ' in analogy to the use of such words in this connection in those cases where the rule in Shelley's Case would otherwise apply. There Is no precedent life estate in the case under consideration, and therefore it could never fall under the rules adopted to take a case out of the operation of that celebrated case; and the deed in question must be construed by the ordinary rules applicable to such instruments, the first of which is to ascertain the Intention of the grantor from the terms used under the rules of law, giving the technical words their technical meaning, unless some other meaning is forced from the context. The words 'heirs of her body' are never equivalent to or synonymous with 'children' where they 'follow and are attached to terms granting an estate to the ancestor. Here these terms are words of limitation, and indicate the grantee takes a fee conditional at common law.' McCown v. King, 23 S. C. 235.

"The granting clause, the habendum, and the warranty clause are all to India J. Miller and the heirs of her body, '—the most apt words to convey a fee conditional. So, unless the words 'to her and their heirs and assigns, ' which are superadded, have the effect of cutting down the estate granted, by the interposition of new grantees, the plaintiff must fail. I do not think, as used in this case, they have any such effect. In Jordan v. Neece, 36 S. C. 301, 15 S. E. 202, it is held the warranty clause cannot enlarge the estate granted; in Wright v. Herron, 5 Rich. Eq. 441, that the word 'assign' cannot have such effect; and in Danner v. Trescot, Id. 356, that the words 'their heirs and assigns, ' following the 'right heirs of the said S. P., ' have no such effect, and this although a life estate was interposed, and the words occurred in the limitation over after the death of the life tenant. The words 'her heirs, ' in this connection are construed in Burnett v. Burnett, 17 S. C. 545, to mean the same class of heirs; that is, heirs of the body. So that the deed, read in the light of those authorities, will convey the premises to 'India J. Miller and the heirs of her body, to her and their said heirs and assigns, forever, ' etc., which is strictly per formam doni, and every part of the deed will be given effect, and there is no repugnance between the premises, habendum, and warranty. I am of opinion that India J. Miller took a fee conditional under this deed, and, having aliened after the birth of issue, the defendant has a fee-simple estate in the premises." Exceptions.

"(1) Because his honor erred in holding that the words 'heirs of the body, ' as used in the deed of Bryant Weathersbee, were words of limitation, and that India J. Miller took a fee conditional estate at common law under said deed to said land. (2) Because his honor should have held that the words 'heirs of the body, ' as used in said deed, were words of purchase, and meant 'children'; and that, therefore, the plaintiffs were tenants in common with the defendant, who is now the owner of the interest of said India J. Miller under said deed. (3) Because his honor erred in holding that the plaintiffs had shown no tide to the land in question in said action; whereas his honor should have held that the plaintiffs took as purchasers directly under the Bryant Weathersbee deed, and not through or under India J. Miller. (4) Because his honor should have held that as the plaintiffs and defendant claim from a common source of title [the deed of Bryant Weathersbee], that they were tenants in common under the limitations contained in the said deed, and were therefore entided to partition of said land."

Patterson & Holman, for appellants.

Allen J. Green, Bates & Simms, and Halcott P. Green, for respondent.

POPE, J. This action was commenced in September, 1895, in the court of common pleas for Barnwell county, In this state, for partition of a tract of land among the plaintiffs and defendant as tenants in common therein. The defendant, in his answer, denied such tenancy in common, and alleged that he was in sole and exclusive possession of said tract of land, as the sole owner in fee simple thereof. It seems that Bryant Weathersbee made a deed to said tract of land on the 20th day of March, 1892, to his daughter, Mrs. India J. Miller, who was the mother of the plaintiffs. Mrs. India J. Miller made a deed by way of mortgage, wherein she undertook to convey the entire tract of land, as her own, to the American Freehold Land Mortgage...