Vaughn v. Lanford

• Decision Date: 09 September 1908
• Citation: 62 S.E. 316,81 S.C. 282
• Parties: VAUGHN et al. v. LANFORD et al.
• Court: South Carolina Supreme Court

62 S.E. 316

81 S.C. 282

VAUGHN et al. v. LANFORD et al.

Supreme Court of South Carolina

September 9, 1908

Appeal from Common Pleas Circuit Court of Spartanburg County; R. O Purdy, Judge.

Action for partition by Margaret Vaughn and others against Leannie Lanford and others. From a judgment for plaintiffs defendants appeal. Affirmed.

Simpson & Bomar and S. M. Pilgram, for appellants.

Haynsworth & Patterson and Stanyarne Wilson, for respondents.

WOODS J.

The action is for partition. The land described in the complaint was owned by William Jones, who on 21st August 1868, conveyed it to his daughter, Eliza Jones, "and the lawful heirs of her body." Eliza Jones, on the 21st December, 1882, executed to E. L. Lanford a deed of conveyance containing a full warranty clause, and afterwards on 28th March, 1895, died without having had heirs of her body. The plaintiffs allege that Eliza Jones held a fee conditional in the land, and that when she died without having had heirs of her body there was a reverter to the heirs of William Jones living at the time of her death. The known heirs of William Jones were the plaintiffs, a daughter Frances, who died 31st July, 1895, unmarried and childless. William Jones had another daughter, Mary, who predeceased her father, leaving four children, Frances, John, Judith A., and William Long, who left the state about 1848. William returned to the state about 20 years ago, and said his brother and sisters had all died childless. A year or two later a report came back that he also had died childless, and nothing has been heard of him since. The plaintiffs admit that the defendants own one-third of the land in fee by reason of the fact that Frances Jones, one of the heirs of William Jones, living at the time of the death of Eliza, who was entitled to one-third of the reversion, had joined Eliza in the conveyance made to E. L. Lanford, with a general warranty of title, thus estopping herself and her heirs from setting up claim to her interest in the land. The plaintiffs claimed an accounting for rents and profits, at the rate of $150 a year. The defendants alleged: (1) That they were the owners of the land, and that the plaintiffs had no title or interest therein; (2) that the purchase money paid by E. L. Lanford to Eliza Jones had been invested in other lands, which the plaintiffs had taken as her heirs; (3) that they were protected by adverse possession; and (4) that they were entitled, in any event, to betterments to the amount of $1,500. The second and third defenses are not involved in the appeal.

We do not understand any question to be made that, under the deed from her father, Eliza Jones took a fee conditional. The defendants contend, however, that William Jones, the grantor, by his will made after the conveyance to Eliza, devised to her the reversion as a part of his residuary estate, or if not that, the will shows that he had previously released the reversion to her, or, at least, that he did not intend the plaintiffs should have the reversion or any other interest in his estate. It is clear from the will that the testator meant to dispose of all the property then in his possession, each item of which he mentions; but it is equally clear, from the fact that he makes mention of the several items, and saying they constituted all the property he possessed, and making no reference to the reverter, that he did not have in mind, and did not intend, to attempt to devise the possibility of reverter created by his deed to Eliza. The possibility of a reverter, after the termination of a fee conditional, being a mere possibility, is not an estate. It is thus described in Blount v. Walker, 31 S.C. 27, 9 S.E. 804: "It is neither a present nor a future right, but a mere possibility that a right may arise upon the happening of a contingency, which is not the subject of either devise or inheritance. This is because the grant or devise of a fee conditional passes the whole estate to the tenant in fee, leaving nothing in the grantor or devisor which can be the subject of devise or inheritance; and hence it is settled that, upon the termination of such an estate, it goes to those who can bring themselves into the class of heirs of the person creating the estate at the time when the estate terminates, and not to those who were heirs at the time of the death of such person." Adams v. Chaplin, 1 Hill, Eq. 265; Deas v. Horry, 2 Hill, Eq. 244; Pearse v. Killian, McMul. Eq. 231. In the case last cited the court, through Chancellor Harper, holds that he who would be entitled to the estate, if the fee conditional should presently determine, cannot devise or convey it; yet he may release it to the tenant in fee conditional, so as to make his estate an absolute fee simple. We are inclined, however, to the opinion that such a release could not be made effective by will, for the reason that a will could have no legal effect until the death of the testator; and at the moment of death the possibility of reverter passes from the testator, and beyond his control, to his heir. But it is not necessary to decide that point, because the will of William Jones shows on its face that it had no reference whatever to the possibility of reverter. Certain it is that there are no words in the will which could possibly be construed as an attempt to release the possibility of reverter to Eliza; and, though there are words signifying an intention to exclude the plaintiffs from participation in other property than that devised to them, that cannot have the effect of excluding them as heirs from participating in any property, not disposed of. Blackman v. Gordon, 2 Rich. Eq. 43, 44 Am. Dec. 241.

With respect to their fourth defense, the defendants complain that the Circuit Court, in allowing them credit for betterments put upon the land by E. L. Lanford, decreed that the rent of the land for the time that E. L. Lanford had it should be deducted. The objections urged against this method of adjustment are that the defendants should not be charged with the debt of E. L. Lanford for rent, that the rents and profits chargeable against E. L. Lanford are barred by the statute of limitations, and that there is no claim made in the complaint for rents and profits for the time the land was held by E. L. Lanford. None of these objections have any substantial foundation. Assuming that the defendants are entitled to receive compensation for the betterments made by E. L. Lanford they cannot claim more than Lanford himself would have been entitled to had he remained in possession; and it is obvious he could not have recovered the value of the betterments put upon the land without having credited thereon against him the value of the use of the land. This is the equitable rule by which the case is governed. Sutton v. Sutton, 26 S.C. 33, 1 S.E. 19; Tribble v. Poore, 28 S.C. 565, 6 S.E. 577; McGee v. Hall, 28 S.C. 562, 6 S.E. 566; Cain v. Cain, 53 S.C. 350, 31 S.E. 278, 69 Am. St. Rep. 863. The statute of limitations has no application; for the reason that, in an accounting between co-tenants, betterments are to be regarded paid for pro tanto by the rents as they accrue. There is no proof here that...