Outlaw v. Barnes

• Decision Date: 18 January 1918
• Docket Number: 9855.
• Citation: 94 S.E. 868,108 S.C. 451
• Parties: OUTLAW ET AL. v. BARNES ET AL.
• Court: South Carolina Supreme Court

94 S.E. 868

108 S.C. 451

OUTLAW ET AL. v. BARNES ET AL.

No. 9855.

Supreme Court of South Carolina

January 18, 1918

Appeal from Common Pleas Circuit Court of Lee County; J. W. De Vore Judge.

Action by W. Lawrence Outlaw and others against Henry N. Barnes and others. From the judgment rendered, plaintiffs appeal. New trial granted.

A Brooks Stuckey, of Sumter, for appellants.

T. H Tatum and Ruffin & McGowan, all of Bishopville, for respondents.

WATTS J.

This is an action for partition of land. The defendants by their answer raised the issue of title. The case was tried before Judge De Vore and a jury at the spring term of court, 1916 for Lee county, and resulted in a verdict for the defendants of the land in question, and from judgment entered thereon plaintiffs appeal.

The main issue made by the exceptions and involved in the appeal is the holding of his honor at the trial of the case as to the effect of the deed made by the executor in 1871 and after the adoption of Constitution of 1868, which changed the existing law as to property rights of husband and wife. His honor held, and so charged, that the purchaser was bound by the law as it existed at the time of the making and delivery of the deed, were estopped to deny that they took the land as tenants in common because they accepted and recorded a deed given them after the law as to husband and wife had been changed by the Constitution of 1868, but holding that, if they had accepted no deed at all, there might be something in plaintiffs' contention that the husband and wife took an estate by the entirety; plaintiffs contending that the acceptance of a deed after they had purchased and acquired a right to it could not destroy their right; that regarding the Constitution, which as to this matter was retrospective and retroactive, the real contract to be enforced being the sale in 1863, the executor was bound by his sale and delivery of possession, and if equity had been invoked, it would have compelled such a deed for the same force and effect as plaintiffs are contending for; that in order for them to own and hold the land as tenants by the entirety according to their purchase, it was not necessary or proper for them to refuse to accept any deed at all because of the change in the law between the day of the sale and making of the deed in pursuance of said sale; that they had purchased the land, and were entitled to a deed upon payment of the purchase price, and any change of the law afterwards could not change their vested rights; that when they purchased the land and paid the...