Piegler v. Jefferies

• Decision Date: 28 February 1924
• Docket Number: 11430.
• Citation: 121 S.E. 783,128 S.C. 254
• Parties: PIEGLER v. JEFFERIES.
• Court: South Carolina Supreme Court

121 S.E. 783

128 S.C. 254

PIEGLER v. JEFFERIES.

No. 11430.

Supreme Court of South Carolina

February 28, 1924

Appeal from Common Pleas Circuit Court of Union County; J. Henry Johnson, Judge.

Suit by Lillie D. Piegler against Davis Jefferies. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed.

The circuit decree follows:

This controversy submitted without action upon an agreed statement of facts, and is for the specific performance of a contract for the sale of land. The facts are, briefly:

That on the ______ day of March, 1922, the plaintiff agreed and contracted with the defendant to sell and convey to defendant a certain lot of land situate in the city of Union, county and state aforesaid, in consideration of the sum of $1,000 cash, and to execute and deliver a good title in fee to the said lot, fully described in the said statement. That defendant paid part of the purchase money, but refuses to complete the payment, contending that he is advised that plaintiff cannot make a good title to the lot, while insisting that he is ready and willing to complete the payment for same, if it is determined that plaintiff can convey a good and marketable title to the lot in question.

The lot in question is a part of "the residence [lot] in the town of Union, S. C.," referred to in the "declaration of trust" by the late Mr. Robert W Shand of date the 23d day of March, A. D. 1893, and also in the case of Mrs. Mary Lily Dawkins Piegler v. W. W. Johnson as trustee, judgment roll No. 9026, office of the clerk of the court for Union county, S.C. That the plaintiff herein is the same person plaintiff in said case, and in said declaration of trust by Mr. Shand as "M. Lily Dawkins," she having since married B. F. Piegler.

In 190--, Robert W. Shand was properly relieved of the duties of trustee under said declaration, and one J. F. McLure submitted with all the powers, etc., as the original trustee. Later McLure was relieved as trustee, and ______ Miller substituted. Subsequently, upon the death of Miller, by proper proceedings therefor W. W. Johnson, Esq. was duly substituted as such trustee. During the terms of office each of said trustees except Mr. Shand, at the written request of the plaintiff, conveyed certain lots cut off the said "residence [lot] in the town of Union, S. C." That plaintiff has recently had the remaining portion of said property surveyed and cut into city lots, and is selling, or trying to sell, the same.

In 1920 the plaintiff brought suit in this court against the then trustee under the said declaration of trust by Mr. Shand, W. W. Johnson, Esq., to set aside the said trust. The same was not seriously contested, Mr. Johnson being anxious to be relieved of the duties of said trustee, and on the 30th day of December, 1920, his honor, Judge T. S. Sease, passed a decree, by consent, setting aside the said trust and vesting the title to the remaining portion of said "residence [lot] in the town of Union, S. C., in the plaintiff; a copy of said record, as well as a copy of the declaration of trust by Mr. Shand, being attached to the agreement of submission herein as exhibits, and made a part thereof."

Two questions are presented by said agreed statement for decision:

First. The proper construction of the "declaration of trust" by Robert W. Shand, dated the 23d day of March, A. D. 1893. It being admitted that both Mary P. Dawkins and Charlotte Poulton named in said declaration died some 10 years or more ago, and that all conditions stated in said declaration in reference to them or either of them, and the payments required to be made in reference to the "Pacolet Plantation," have been made and complied with fully, and that M. Lily Dawkins (the plaintiff herein) is now quite old and past child-bearing, what interest, therefore, has the said M. Lily Dawkins (the plaintiff herein) in said "residence in the town of Union, S. C."?

Second. Does the decree of his honor, Judge T. S. Sease, dated the 30th day of December, 1920, and the proceedings therein, vest the legal title in fee simple to the remaining portions of said original "residence [lot] in the town of Union, S. C.," in the plaintiff, who was the plaintiff in that suit? Or, were the proceedings in that case a nullity?

Upon careful consideration of the record herein, I am of the opinion that a decree for specific performance should be entered.

Passing specifically upon the questions as presented by the record; As to the first question, I hold that, since the statute of uses will not execute the trust where the trustee has some discretion to be exercised in relation to the estate ( Laurens v. Jenny, 1 Speers [28 S.C. Law] 356), since "it has been uniformly held 'that the statute will not execute the use as long as there is anything remaining for the trustee to do, which renders it necessary that he should retain the legal title in order fully to perform the duties imposed upon him.' " (Ayer v. Ritter, 29 S.C. 135, 7 S.E. 53), and since, in the declaration of trust in question, there was expressly reserved unto the trustee the power (which he bound himself to exercise) "to sell and convey all or any part of the premises whenever in my judgment expedient," and also when "requested in writing by the said M. P. Dawkins, M. L. Dawkins, and Charlotte Poulton, or the survivors or last survivor of them, and to reinvest the proceeds of such sale on the same trusts," I am clearly of the opinion that the statute did not execute the use or trust. See, also, Spann v. Carson (S. C.) 116 S.E. 427, reaffirming Ayer v. Ritter, supra, which held that so much of Laurens v. Jenny, supra, as declared that "it is not sufficient, to prevent the estate from being executed, that there may be something for the trustee to do," was contrary to the unbroken line of decisions in this state.

Notwithstanding my opinion on this particular phase of the matter, it is to be observed that, in the action by the present plaintiff against the trustee, W. W. Johnson, which action was instituted to have the trust declared to be ended and no longer binding, and to have the legal title thereby affected declared to be vested in plaintiff, freed and discharged of all further trusts, both the trustee and the cestui que trust, as well as the subject of the action, were before the court, and that Judge Sease, in his decree of December 30, 1920, found as matters of fact that the property in question was purchased by Robert W. Shand, trustee, wholly with funds of the present plaintiff, that the object and purposes of the trust had been accomplished, that plaintiff has, under the declaration of trust, the absolute right and power to dispose of the property in question as she may see fit by her last will and testament, that the residence upon the premises is old and badly in need of repair, that such property is producing very little income and is wholly insufficient to maintain and support the plaintiff, that she is advanced in years and has passed the age in life where there is any likelihood of child-bearing, and has no descendants or other near relatives, and no one dependent upon her for support.

In Dumas v. Carroll, 112 S.C. 284, at page 295, 99 S.E. 801, at pages 803, 804, the court intimated that, where the court had jurisdiction of the trustee, the cestui que trust, and the subject of the action, it could, under its general power over trust estates, do just what was done by Judge Sease, and, since "a judgment of the court, having jurisdiction of the parties in interest, is binding upon them, until set aside in some manner prescribed by law," to wit, by appeal, and since, in the present action, I have no jurisdiction to review and reverse or modify his decree (the judgment not being void, in which event I might properly disregard it), I am of the opinion that I must recognize the judgment in the former action, from which no appeal was taken. It is therefore, ordered, adjudged, and decreed that, upon the plaintiff tendering to the defendant a deed to the said premises in question in due form conveying the fee-simple title with general warranty, the defendant pay to the plaintiff the remaining portion of the purchase price of said lot, as contracted for. Further ordered, that the plaintiff pay the costs of this proceeding.

W. W. Johnson, of Union, for appellant.

Sawyer & Kennedy, of Union, for respondent.

COTHRAN J.

This appears to be a friendly suit, instituted by the plaintiff to enforce specific performance of a contract entered into by her and the defendant for the sale and purchase of a certain lot in the city of Union. The plaintiff is ready to convey, and the defendant to pay the agreed purchase price. Some question, however, as to the validity of the title which she proposes to convey having arisen, the real purpose of the suit is to determine that question. The matter was heard by his honor, Judge Johnson, upon an agreed statement of facts, a controversy submitted without action as provided for in the Code (§ 675, Code Civ. Proc. 1922) resulting in a decree for the plaintiff, from which the defendant appeals.

It appears that in October, 1892, the property of which the lot in question is a part was sold under order of the court of common pleas in the case of A. G. Rice against Mary L Dawkins et al. in settlement of the estate of the late Judge T. N. Dawkins, a circuit judge of this state elected in 1865, and retired in the reorganization of the courts under radical rule in 1868. At that sale the property was bid off by Hon. Robert W. Shand a distinguished lawyer of this state, an honorable counselor, and for nearly 20 years the reporter of this court. He did not comply with the terms of sale, for some reason, until March 23, 1893, at which time h...