South Carolina Sav. Bank v. Stansell

• Decision Date: 10 April 1931
• Docket Number: 13114.
• Citation: 158 S.E. 131,160 S.C. 81
• Parties: SOUTH CAROLINA SAV. BANK v. STANSELL. SAME v. BOGGS et al.
• Court: South Carolina Supreme Court

158 S.E. 131

160 S.C. 81

SOUTH CAROLINA SAV. BANK v. STANSELL.

SAME v. BOGGS et al.

No. 13114.

Supreme Court of South Carolina

April 10, 1931

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin, Judge.

Partition action by the South Carolina Savings Bank, as receiver for the People's Bank of Fountain Inn, against Rosa Stansell Boggs and others. At the partition sale, the property was bid off by one F. M. Stansell, who refused to comply with his bid. From an order directing the bidder to comply with the bid, he appeals.

Affirmed.

Mauldin & Love, of Greenville, for appellant.

James M. Richardson, of Greenville, for respondent.

STABLER J.

About twelve years ago Mrs. Lula Ann Stansell and four of her children who were above the age of 21 years, mortgaged their "interests" in 48 acres of land located in Greenville county to the People's Bank of Fountain Inn. This property had been deeded to her by one J. J. Slaton, her father, "for the term of her natural life and at her death to her bodily heirs and their heirs and assigns." The mortgage came into the hands of the South Carolina Savings Bank, as receiver for the People's Bank, and the mortgagors, being unable to pay the debt, conveyed by deed to the savings bank as receiver, in settlement of the claim their "interests" in the premises. The bank thereupon went into possession of the land, claiming, under the deed, to be the owner of an estate in the entire premises for the life of Mrs. Stansell and to be a tenant in common as to the fee, with her remaining six children. It brought an action against the six children, some of whom are minors, for the purpose of compelling partition among the owners of the fee. The complaint sought also that the "interest" which the plaintiff acquired from the life tenant, Mrs. Stansell, "should be determined by the laws of this State, laid down in such cases." The defendants were all served; and all answered the complaint the minor defendants by their properly appointed guardian ad litem.

The case was referred to the master, who found and reported that the property was in a run-down condition and was deteriorating badly, owing to the fact that the life tenant was unwilling to make any repairs and the remaindermen were not in possession of the premises. He concluded that the plaintiff, under section 5292 of volume 3 of the Code of 1922, was entitled to the relief prayed for, and recommended sale of the property for a division. To this report no exception was taken.

On October 18, 1929, Judge Henry passed an order, consented to by all parties, including the attorney representing the guardian ad litem of the infant defendants, which provided for the sale of the lands and a division of the proceeds among the parties in interest, fixing the value of the life estate at $1,000 as found by the master. Under this decree, the premises were advertised and offered for sale on sales day in November, 1929, and were bid off for $2,150 by one F. M. Stansell, who, however, refused to comply with his bid. The plaintiff thereupon secured an order from Judge T. J. Mauldin directing Stansell to show cause why he should not be required to comply. He made return to the rule, alleging that he had purchased the tract of land in good faith, but did not believe the master could convey good marketable title thereto for the following reasons: (1) That the plaintiff was without authority to maintain the action in partition and to have the lands sold for such purpose during the lifetime of Mrs. Lula Ann Stansell; and (2) that the fixing of the value of the life estate at $1,000 was inequitable and unjust to the minor defendants and deprived them of their valuable estates in the land.

Upon a hearing of the matter, Judge Mauldin concluded that the plaintiff, under section 5292 of the Code, had a right to maintain the action, and that the partition had was fair and to the best interest of all parties, including the minor defendants. He therefore held the return to be insufficient, and directed compliance with the bid. From this order Stansell appeals.

Under the early common law of England, the right of partition was confined altogether to lands held in parcenary, and, as parceners acquired title by inheritance only, the right extended to estates in fee alone. 21 Am. & Eng. Ency. of Law 1145. Later, however, under the Statutes of 31 and 32 Henry VIII, the remedy was extended to joint tenants and tenants in common of estates of inheritance, of freehold, or for years. The early common law, thus modified, became a part of our common law, and was recognized by colonial statutes. The general rule now is that every cotenant may demand partition as a matter of right, if there is a present right of possession. 20 R. C. L. 743.

In 47 C.J. 336, the writer says: "In the absence of positive statutory authorization *** one having an estate for years or for life in the property sought to be partitioned cannot maintain an action for partition thereof, either in kind or by sale for division against the remaindermen or reversioners."

At page 344 of the same volume, we find: "In the absence of special statutory authorization, remaindermen or reversioners are not entitled to maintain proceedings at law or in equity for partition either in kind or by sale for division against a tenant for years, or against one who has a life estate in the entire property, even though such life tenant has also an undivided interest in remainder."

In 20 R. C. L. at page 747, it is said: "The more difficult question is, where there are two cotenancies, one of the estate in possession and the other of an estate in reversion, whether a cotenant of either by acquiring a moiety of the other, and thus becoming an owner of a moiety in fee, may compel partition of both estates and thus acquire title in fee and in severalty. In some of the states he doubtless can, but the right to do so is statutory, and, in the absence of Statutes creating it, does not exist. Of course partition may be made by suit where all the parties consent, though some of them might, from the nature of their estate, resist with success; therefore if a life tenant consents to a partition or sale of the property by remaindermen and to take the value of his life estate in money, and, if it appears to the court that it will not be to the prejudice of the other parties in interest, a partition and sale may be had."

It is clear, from the foregoing general principles, that the plaintiff in this case, in the absence of statutory authorization, could not maintain its action in partition. It claims, however, that such authority is given by section 5292 of the Code, which reads as follows: "All joint tenants and tenants in common, and every of them, which now hold or hereafter shall hold, jointly or in common, for term of life, year or years, or joint tenant or tenants in common, where one or some of them have or shall have estate or estates for term of life or years, with the other that have or shall have estate or estates of inheritance or freehold in any lands, tenements, or hereditaments, shall and may be compellable to make severance and partition of all such lands, tenements, and hereditaments, which they hold jointly or in common for term of life or lives, year or years, where one or some of them hold jointly or in common for term of life or years with other, or that have an estate or estates of inheritance or freehold."

This statute was passed many years ago, and, while its wording is somewhat involved and confused, it was no doubt intended as a recognition of the common law, as modified and extended under the Statutes of 31 and 32 Henry VIII. We do not find, from an examination of our decisions, that the exact...