Wieters v. Timmons

• Decision Date: 22 November 1886
• Citation: 25 S.C. 488,1 S.E. 1
• Parties: Wieters v. Timmons and others.
• Court: South Carolina Supreme Court

1 S.E. 1

(25 S.C. 488)

Wieters

v.Timmons and others.

Supreme Court of South Carolina.

November 22, 1886

Trusts—Family Settlement—Statute of Uses — Estate of Beneficiaries.

A party, by deed, after marriage, conveyed certain land in trust, during the life of the grantor, for the support and maintenance of the grantor's wife and her issue, and upon the death of the grantor, if his wife survived him, and there should also be issue, then as to one moiety in trust for the sole and separate use of such wife for life, and as to the other moiety to the use of such issue and their heirs, forever. The deed also provided that, upon the joint request of the grantor and wife, or of the survivor, the said trustee should sell the whole or any part of the said property, and reinvest, etc. The grantor died, leaving his wife, and two children by said wife. Held, in an action for partition brought by a purchaser of the interest of one of the children under an execution sale, that the moiety given to the issue vested in them immediately upon the grantor's death, under the statute of uses, discharged from the trust, and the operation of the statute was not delayed by the provision in the trust for the sale of the whole or any part of the property on the joint request of the grantor and his wife, or of the survivor of them; the trust being extended thereby only as to the moiety given for life to the widow.

Appeal from common pleas, Marion county. Partition.

Johnson & Johnson, for appellants,

Timmons and others. C. A. Woods, for respondent, Wieters.

Simpson, C. J. The plaintiff demanded judgment below, that a certain tract of land situate in Marion county, and described in the complaint, be partitioned between himself and the defendant, James Maxey Timmons; the plaintiff claiming three-fourths during the lifetime of the defendant, Josephine B. Norwood, and one-half in fee as purchaser of the interest of the said Josephine and of the interest of defendant, John M. Timmons, and alleging that James Maxey Timmons was entitled to the remaining fourth of the life-interest of Josephine, and to one-half in fee after the death of the said Josephine, and he prayed partition according to their said respective rights.

The rights of the parties depended upon the construction of a certain deed, set out in the case, executed by one J. Morgan Timmons, now deceased, in 1858, who was the husband of the defendant, Josephine, and the father of the two Timmons, defendants. This deed conveyed the land upon^. certain trusts to one Cannon, for the use of the said Josephine, and to the issue of the said J. Morgan Timmons and of his wife, the said Josephine.

The plaintiff alleged in his complaint that the defendant J. M. Timmons had become the purchaser of the interest of his mother, the said Josephine, and that afterwards the interest of the said J. M. Timmons had been sold at sheriff's sale, at which he, the plaintiff, was purchaser, and, as stated, the action below was instituted for partition; the plaintiff claiming, as above mentioned, the interests of the said Josephine and of the said John M. Timmons. Purvis, the other defendant, was tenant of the other parties, and was made a party on that account. It appeared in the progress of the case that John M. Timmons had never purchased the interest of his mother. The claim of the plaintiff, therefore, to that extent, had no foundation. It was'not denied, however, that the individual interest of John M. Timmons had been levied upon and sold to the plaintiff, but whether this was such an interest as could be levied upon and sold was one of the questions in the case. It further appeared that the trustee, Cannon, was dead, and his heir at law was not made a party. The circuit judge construed the deed, adjudging that Josephine was entitled to one moiety to be held, under the terms of the deed, for her use, and that the other moiety belonged in fee one-half to James Maxey, and the other half to J. M. Timmons, which latter interest had passed to the plaintiff at the sheriff's sale; this interest being, in his opinion, a leviable interest, and passing under said sale; but whether the plaintiff, upon the death of Josephine, would have a share in her moiety under his purchase, he held could not now be determined, as this depended upon future developments. The circuit judge, however, declined to order the partition, holding, as he did, that the legal title of Josephine in the land had vested in the trustee under the deed, who being dead, this title was now in his oldest male heir, who should be made a party defendant in order that the partition should be final and conclusive. He therefore suspended final judgment until the eldest male heir of T. J. Cannon, the deceased trustee, be made a party, and left the case standing in that condition.

The defendants appealed upon two grounds: (1) Because his honor erred in holding that the defendant John M. Timmons had an estate in the said tract of land "subject to levy and sale under the ⁺erms of the deed, and...