Reeves v. Cook

• Citation: 71 S.C. 275,51 S.E. 93
• Court: United States State Supreme Court of South Carolina
• Decision Date: 31 March 1905
• Parties: REEVES et al. v. COOK.

71 S.C. 275

51 S.E. 93

REEVES et al.

v.COOK.

Supreme Court of South Carolina.

March 31, 1905.

Deed—Construction—Estate Conveyed.

Deeds conveying land to A. "and the heirs of her body which she has or may have by B., " her husband, and to A. and the heirs of her body which "she has now or may have by B., my son, " convey a fee simple to A. and her children by B. as tenants in common.

Appeal from Common Pleas Circuit Court of Lancaster County; Watts, Judge.

Action by Mary M. Reeves and others against George R. Cook. Decree for defendant, and plaintiffs appeal. Reversed.

The following are the deeds in question:

"Know all men by these presents that I, William Gardner of the State and county aforesaid, for the love and affection which I have for Gilly Ann Gardner, my daughter-in-law, bargain, sell and release a certain tract of land in said county on the waters of Dry Creek (description here) 250 acres, more or less, together with all and singular the rights, members, hereditaments, to have and to hold the same. I, William Gardner do give and grant unto the said Gilly Ann Gardner and the heirs of her body which she has or may have by M. L. Gardner, herhusband, against myself, my heirs, executors, administrators or assigns, unto Gilly Ann Gardner and the heirs of her body as above named. I do now warrant and forever defend the same against myself, my heirs, executors, administrators and assigns or any other person or persons lawfully claiming same or any part thereof.

"In testimony whereof I have hereunto set my hand and seal this February 26th, 1868.

"William Gardner. [L. S.]"

"Know all men by these presents that I, William Gardner, of the State and county aforesaid, do this day for and in consideration of the sum of six hundred to me in hand paid by Gilly Ann Gardner, of the same State and county; and also she is to care for me and my wife in old age, bargain, sell and release, and by these presents have granted, bargained, sold, released and conveyed unto the said Gilly Ann Gardner and her heirs, that she has now or may have by M. L. Gardner, my son, a certain tract, piece or parcel of land, (description here), 147 acres more or less; together with all and singular the hereditaments, appurtenances and premises above mentioned unto Gilly Ann Gardner and her heirs that she has now or may have by M. L. Gardner, my son; against myself, my heirs, executors, administrators or assigns.

"I warrant and forever defend the same against myself, or any other person or persons lawfully claiming the same or any part thereof. In testimony whereof I have hereunto set and affixed my hand and seal this May 29th, in the year of our Lord, A. D. 1875.

"Signed, sealed and delivered in the presence of us.

"William Gardner. [L. S.]"

Green & Hines, for appellant.

T. Y. Williams, for respondent.

WOODS, J. William Gardner, on February 26, 1868, executed a deed conveying a tract of land containing 250 acres to "Gilly Ann Gardner and the heirs of her body which she has or may have by M. L. Gardner, her husband, against myself, my heirs, executors, administrators or assigns, unto Gilly Ann Gardner and the heirs of her body as above named." On May 29, 1875, William Gardner conveyed another tract of land containing 147 acres to "Gilly Ann Gardner and her heirs that she has now or may have by M. L. Gardner, my son, * * * together with all and singular the hereditaments, appurtenances, and premises above mentioned unto Gilly Ann Gardner and her heirs that she has now or may have by M. L. Gardner, my son." Gilly Ann Gardner had children by her husband, M. L. Gardner, when these deeds were executed, and other children were born afterward. M. L. Gardner the father, William Gardner, the grandfather, and eight of the children, died after the execution of the deeds, the children dying without issue and unmarried. The plaintiffs are the surviving children of Gilly Ann Gardner and M. L. Gardner, and the only heirs of their grandfather, William Gardner. On January 22, 1878, Gilly Ann Gardner, M. L. Gardner, and William Gardner undertook to convey 167 acres of the land in fee simple to the defendant, who is now in possession; and on February 22, 1878, Gilly Ann Gardner and M. L. Gardner undertook to convey 153 acres in fee simple to D. L. Blackwell, and defendant is now in possession of this land also under a deed from Blackwell's grantee. The plaintiffs brought this action for partition, claiming that under the terms of the deeds from William Gardner above recited they took the land as tenants in common with their mother. The referee, to whom the cause was by consent referred, dismissed the complaint, holding that Gilly Ann Gardner took a fee conditional, and consequently her conveyance after issue born to her and M. L....