Vause v. Mikell by Solomonic

• Decision Date: 19 May 1986
• Docket Number: No. 0784,0784
• Citation: 290 S.C. 65,348 S.E.2d 187
• Court: South Carolina Court of Appeals
• Parties: Samuel P. VAUSE, Sr., Respondent-Appellant, v. A. Miller MIKELL, by his Guardian ad Litem, Betty SOLOMONIC, Appellant- Respondent. . Heard

Page 187

348 S.E.2d 187

290 S.C. 65

Samuel P. VAUSE, Sr., Respondent-Appellant, v. A. Miller MIKELL, by his Guardian ad Litem, Betty SOLOMONIC Appellant- Respondent.

No. 0784.

Court of Appeals of South Carolina.

Heard May 19, 1986.

Decided Aug. 25, 1986.

Eddie R. Harbin, Greenville, for appellant-respondent.

David W. Holmes, of Farr & Holmes, Greenville, for respondent-appellant.

SANDERS, Chief Judge.

This is an appeal from an order of the trial judge partitioning certain real property between appellant-respondent A. Miller Mikell and respondent-appellant Samuel P. Vause, Sr., as tenants in common and awarding Mr. Vause reimbursement for a portion of the funds which he contends were spent by him on the property. Both parties appeal. We affirm in part and reverse in part.

The issues presented are whether the trial judge erred in: (1) finding Mr. Mikell and Mr. Vause owned the property as tenants in common; (2) in awarding Mr. Vause reimbursement in the amount of $852.56 and in not awarding him at least $12,000; and (3) in refusing to admit into evidence certain check stubs to show amounts spent by Mr. Vause on the property.

I

Both parties except to the finding of the trial judge that they own the property as tenants in common.

Mr. Mikell deeded an interest in property which he owned to his mother Mamie Miller Mikell. The deed specified the interest to be "all my undivided one-half interest." Mrs. Mikell deeded her interest in the property to Mr. Vause and his wife, her son-in-law and daughter, reserving for herself a life estate in the property. Mrs. Vause died testate leaving her interest in the property to Mr. Vause. Mrs. Mikell died terminating her life estate in the property.

Mr. Vause then filed this action seeking an order declaring him to be the sole owner of the property, or if it should be determined that title to the property was not vested solely in him, an order declaring him and Mr. Mikell to be tenants in common and partitioning the property between them.

Mr. Mikell, who is mentally incompetent, filed an answer and counterclaim through his guardian ad litem seeking an order declaring him to be the sole owner of the property.

The matter was heard before a Special Circuit Judge sitting without a jury. The judge issued his order finding Mr. Mikell and Mr. Vause to be tenants in common and partitioning the property by a sale at public auction.

A

Mr. Mikell argues that the trial judge erred in not finding Mr. Vause held the property in constructive trust for him and in not allowing certain cross-examination which he argues would have proved the existence of a constructive trust.

We cannot address this argument because Mr. Mikell did not make it before the trial judge. Rather, he attempted to prove the existence of an express trust. We cannot grant relief on an issue argued for the first time on appeal. Talley v. South Carolina Higher Education Tuition Grants Committee, 347 S.E.2d 99 (S.C.1986).

B

Mr. Vause argues that the trial judge erred in not finding he owns the property in fee simple. We reject this argument.

Mr. Vause argues that, by using the words "all my" to modify the words "undivided one-half interest" in the deed to Mrs. Mikell, Mr. Mikell indicated his belief that he owned only an undivided one-half interest in the property. Mr. Vause further argues that the evidence proves Mr. Mikell intended to deed Mrs. Mikell all of his interest, whatever that interest may have been, and since the interest of Mr. Mikell was a fee simple interest, the deed to Mrs. Mikell should be construed to convey a fee simple interest to her, which she in turn conveyed to Mr. Vause and her daughter subject only to her life estate.

In the construction of a deed, the intention of the grantor must be ascertained and effectuated, unless that intention contravenes some well settled rule of law or public policy. Wayburn v. Smith, 270 S.C. 38, 239 S.E.2d 890 (1977). The construction of an unambiguous deed is a question of law, not fact. Hammond v. Lindsay, 277 S.C. 182, 284 S.E.2d 581 (1981). The terms of such a deed may not be varied or contradicted by evidence drawn from sources other than the deed itself. See Smith v. DuRant, 236 S.C. 80, 113 S.E.2d 349 (1960).

In our opinion, the deed to Mrs. Mikell unambiguously conveys a one-half undivided interest and no ambiguity is created as to the intention of Mr. Mikell by his use of the words "all my" before the words "undivided one-half interest." We therefore conclude that the trial judge did not err in finding that Mr. Mikell and Mr. Vause own the property as tenants in common. ¹

II

Both parties also except to the finding of the trial judge that Mr. Vause is entitled to a reimbursement in the amount of $852.56.

The trial judge found "that the Plaintiff, Samuel P. Vause, has expended the sum of Eight Hundred Fifty-Two and 56/100ths Dollars ($852.56) for the payment of taxes and insurance covering the real property and that, upon the sale of the subject property, the Plaintiff is entitled to reimbursement for said sum."

A

Mr. Mikell argues that the trial judge erred in awarding Mr. Vause this reimbursement. We agree.

There is no evidence of any specific amounts paid by Mr. Vause for insurance on the property.

The only evidence of any specific amounts paid by Mr. Vause for taxes on the property are two cancelled checks totaling $218.48. Both of these checks are dated during the period that he was a remainderman to the life estate of Mrs. Mikell. There is no evidence that it was necessary for Mr. Vause to pay these taxes for the protection of his remainder interest. Rather, it appears from the evidence that Mr. Vause paid these taxes as a volunteer.

A remainderman is not entitled to reimbursement for property taxes paid as a volunteer. See Smith v. McNaughton, 378 So.2d 703 (Ala.1979); Barrera v. Barrera, 294 S.W.2d 865 (Tex.Civ.App.1956); Huddleston v. Washington, 136 Cal. 514, 69 P. 146 (1902); Booth v. Booth, 114 Iowa 78, 86 N.W. 51 (1901).

We therefore conclude that Mr. Vause is not entitled to reimbursement for taxes and insurance paid on the property.

B

Mr. Vause argues that the trial judge erred in not awarding him a reimbursement of at least $12,000, including payments he made on a mortgage given on the property by Mr. Mikell. We reject this argument.

Mr. Vause testified that the total amount he paid on the property "was more or less an estimated figure from twelve to fifteen thousand [dollars]." But, other than the two checks showing the taxes he paid, the only evidence of any specific payments by him on the property is a series of cancelled checks which he introduced to show payments he made on the mortgage given by Mr. Mikell. ²

Obviously, we cannot decide whether Mr. Vause is entitled to reimbursement for payments made on the property...