Rhodes v. Black
| Decision Date | 08 July 1933 |
| Docket Number | 13661. |
| Citation | 170 S.E. 158,170 S.C. 193 |
| Parties | RHODES et al. v. BLACK et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Anderson County; G. B Greene, Judge.
Trespass to try title by Sallie Rhodes and others against John C Black and others. From a decree for plaintiffs, defendants appeal.
Affirmed.
The decree of the circuit judge, directed to be reported, is as follows:
The plaintiffs in this action are the widow and children of John Newton Rhodes, who was the only child of John C. Rhodes. The defendant John C. Black is the grantee of Sytha P. Rhodes, who is the widow of John C. Rhodes and the mother of John Newton Rhodes. The remaining two defendants are the agents and servants of the defendant Black. On November 24, 1897, John C. Rhodes executed and delivered to Sytha P. Rhodes (then Sytha P. Black) and John Newton Rhodes a deed conveying to them certain land in Anderson county, and on November 7, 1898, he executed and delivered to them another deed conveying to them other land in Anderson county. Sytha P. Rhodes lived with her husband, John C. Rhodes, on the land conveyed by the deeds until his death in 1925, and then lived with her son, John Newton Rhodes, and his family until his death intestate in 1930, and after his death continued to live with his family until December of 1931 when she moved to the home of the defendant John C. Black. On the day, or the day after, she moved into Black's home she executed and delivered to him a deed whereby she conveyed to him all her right, title, and interest in the lands conveyed by the two deeds of John C. Rhodes above referred to. This action was commenced in February, 1932. The complaint alleges that the plaintiffs are the owners in fee simple of the lands conveyed by the two deeds of John C. Rhodes subject to a life estate in an undivided one-half interest therein in Sytha P. Rhodes, and are in possession thereof, and that the defendants were trespassing on the lands and were cutting and removing timber therefrom, and prays damages for the trespass and for the timber cut and removed and that the defendants be enjoined from trespassing and from cutting and removing timber. The defendant John C. Black answered the complaint admitting entering on the land and cutting and removing timber therefrom, denying title in the plaintiffs, alleging title in himself as grantee of Sytha P. Rhodes, alleging that the title in John C. Rhodes, under whom the plaintiffs claim, was on condition subsequent and a breach of the condition, alleging title by adverse possession, and alleging right to partition. With the consent of the parties, the case was tried by the court without a jury. The action is therefore an action of trespass to try title or of the nature thereof, and has been so regarded by the parties and their attorneys.
As to the defense of the breach of a condition, the defendant contends that the two deeds were made on condition that the grantor should be maintained and supported by the grantees and that John Newton Rhodes failed to perform the condition. The evidence fails to support this defense. The provisions for support and maintenance are not expressed as conditions but as part of the consideration for the deeds; the remaining parts of the consideration being care and attention already rendered and money paid by the grantees to the grantor. If it is a condition, it is a condition subsequent, and such conditions are not favored and are strictly construed, and no one but the grantor or his heirs can take advantage of the breach thereof (McManaway v. Clapp, 150 S.C. 249, 148 S.E. 18; First Presbyterian Church v. Elliott, 65 S.C. 251, 43 S.E. 674; Hammond v. Railway Co., 15 S.C. 10), and there is authority to the effect that the breach of a condition for the support and maintenance of the grantor can be taken advantage of only by the grantor, and, if the grantor does not claim a breach during his lifetime, his heirs cannot claim a breach after his death. See 18 C.J. at page 170, and note 15B at page 365, and the authorities there cited. The defendant Black is not an heir of the grantor, and cannot take advantage of the breach of the condition even if it is a condition, and, regarding it as a condition, the evidence wholly fails to show a breach, but, on the contrary, shows that the grantor was in possession of the lands, lived thereon, and received the rents and profits therefrom during his life and was comfortably supported and maintained. There is therefore no merit in this defense.
As to the defense of title by adverse possession, the defendant claims that his grantee, Sytha P. Rhodes, was in possession of the lands holding adversely to her cograntee for the required period of time, and therefore acquired title against him by adverse possession, which title she conveyed to the defendant. The evidence wholly fails to support this defense. The evidence is that the grantor, John C. Rhodes, who in one deed expressly reserved to himself a home on and a support from the land and in the other provided for his support, remained in possession of the lands from the times of the deeds to his death in 1925. His wife, the said Sytha P. Rhodes, lived with him, and his son, John Newton Rhodes, lived on other lands, until his death in 1925, and then she went to live with her son and remained with him and his family until the latter part of 1931. The possession of one cotenant is presumed to be the possession of all, and can become adverse only upon some unequivocable act clearly showing the claim of exclusive possession in himself and repudiation and ouster of the others. Whitaker v. Jeffcoat, 128 S.C. 404, 122 S.E. 495; Sheffield v. Grieg, 105 S.C. 219, 89 S.E. 664; Green v. Cannady, 71 S.C. 317, 51 S.E. 92; Odom v. Weathersbee, 26 S.C. 244, 1 S.E. 890. There is no evidence that Sytha P. Rhodes acquired title by adverse possession, and this defense is not sustained.
The action therefore resolves itself into a trial of the titles of the plaintiffs as heirs of John Newton Rhodes and of the defendant Black as the grantee of Sytha P. Rhodes, and, as the plaintiffs and the defendant claim under the two deeds of John C. Rhodes as their common source of title, the action further resolves itself into one for the construction of these two deeds, both of which have been properly executed, witnessed, probated, and recorded, and which were admittedly drawn by laymen.
Omitting the formal parts, the deed of November 24, 1897, which is of record in the office of the clerk of court for Anderson County, in Deed Book QQQ (3Q), at page 265, reads as follows:
Likewise omitting the formal parts, the deed of November 7, 1898, which is of record in the same office in Deed Book UUUUU (5U), at page 241, reads as follows:
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