Smith v. Tanner Et. Al

• Decision Date: 08 March 1890
• Parties: Smith et al. v. Tanner et. al.
• Court: South Carolina Supreme Court

10 S.E. 1008

(32 S.C. 259)

Smith et al.

v.Tanner et. al.

Supreme Court of South Carolina.

March 8, 1890.

Conveyances By Makkied Women—Family Settlements.

Where a mother conveys her land to her children to be equally divided among them, on her death, by three disinterested persons, an agreement between the children after her death to sell the land by agents appointed for that purpose, being in the nature of a family settlement, the title of a married daughter, whose husband received her share of the proceeds, will be held to have passed by the conveyance of the agents, especially after the lapse of over 30 years, though she failed to join in the conveyance as required by statute to pass the inheritance of a married woman.

Appeal from common pleas circuit court of Spartanburg county; W. H. Wallace, Judge.

Thomson, Nicholls & Moore and Stan-yarne Wilson, for appellant. Duncan & Sanders, for respondents.

Simpson, C. J. Mary Lindler, In 1848, conveyed her property, including the real estate in question here, to her 10 children, upon certain terms, etc., the land to be divided at her death into lots, as nearly equal as possible, by three disinterested men. She died in 1854. Soon afterwards the children and their husbands, Charity Smith, plaintiff, being one of said children, and at that time the wife of A. E. Smith, entered into a written agreement, by which they appointed two agents, authorizing them to sell the property, and to divide the proceeds among the grantees, and at the same time entering into bond to abide the agreement. In October, 1854, the agents sold the land in two lots, A. E. Smith, the husband of Charity, becoming the purchaser of one of them, and it seems that A. E. Smith received his wife's share in both tracts. This tract bought by A. E. Smith was afterwards sold as his land by the sheriff. The other tract was bought by one Simpson Lindler, which by subsequent transfers finally went into the possession of the defendant Tanner. In the deed of the children to Simpson Lindler, Charity did not join. A. E. Smith, husband of Charity, died in 1886; and in June, 1887, the action below was commenced by the said Charity and the other two plaintiffs, children of a deceased daughter of Mary Lindler, to recover their alleged interest in the lands in possession of Tanner. At the trial his honor, Judge Wallace, dismissed the complaint. Charity Smith has alone appealed. The circuit judge in his decree, after stating the facts as above, concluded as follows: "This brief statement of facts is decisive of the case, and the complaint must be dismissed. Although Charity Smith did not sign the deed, she is bound by her agents' act, duly appointed, who sold the land and received the purchase money. Besides, it has been more than thirty years since the purchaser, and those who held under him, have been in possession of the land under proper title. The two minors were both of age in 1864, and any right they may have had to a recovery is long since barred by lapse of time. It is ordered and adjudged that the complaint be dismissed."

It is proper to state here that, the question of title having been set up by Tanner, several issues were referred to a jury, all of which were affirmed in favor of Tanner. Appellant's exceptions raise several questions on the charge of his honor, and also assail the correctness of the decree. The argument of appellant's counsel, however, is addressed principally to two alleged errors in the decree, to-wit: That his honor erred in holding (1) that the family agreement appointing agents to sell the land, etc., referred to above, bound the plaintiff Charity, and therefore she could not recover; and (2) that there had been more than 30 years since the purchaser, and those holding under him, had been in possession, etc., which barred plaintiff's claim. There is no doubt but that the agreement referred to was made, all parties signing it, and that the agents appointed acted by selling the land without opposition or protest from any one, and that the proceeds were divided, the hus-band of the appellant receiving her share. It was also in evidence that the appellant did not join in the deeds executed to the purchasers, as the law required, so as to convey the...