Williams v. Cudd

• Decision Date: 04 March 1887
• Citation: 2 S.E. 14,26 S.C. 213
• Parties: WILLIAMS and others v. CUDD.
• Court: South Carolina Supreme Court

2 S.E. 14

26 S.C. 213

WILLIAMS and others v. CUDD.

Supreme Court of South Carolina

March 4, 1887

McGOWAN J.

Mrs Eliza T. Bishop, while the wife of H. J. Bishop, was seized of a small tract of land containing 190 acres, and husband and wife agreed to sell the land to one Alexander Wingo, and on August 20, 1860, they joined in the execution of a conveyance to him for full and valuable consideration. More than seven days after, viz., on September 7, 1860, Mrs Bishop signed an instrument, purporting to be the relinquishment of her inheritance, which was attached to the deed, and was as follows:

" The State of South Carolina, Spartanburg District. I, John W. Carlisle, notary public and ex off mag., do hereby certify unto all whom it may concern that Eliza T. Bishop, the wife of the within-named H. J. Bishop, did this day appear before me, and, upon being privately and separately examined by me, did declare that she did, at least seven days before this examination, actually join her husband in executing such release, and did then, and still freely and voluntarily, and without any manner of compulsion, dread, or fear of any person or persons whomsoever, renounce, release, and forever relinquish unto the within-named Alexander Wingo, his heirs and assigns, all her interest and estate of, in, or to all and singular the premises within mentioned and released; and, further, said Eliza T. Bishop did declare that the within deed or conveyance was positively and bona fide executed at least seven days before her present examination.

"ELIZA T. x (her mark.) BISHOP.

"Given under my hand and seal this seventeenth day of September, A. D. 1860.

"JOHN W. CARLISLE, [L. S.]

Not. Pub. & Ex Off. Mag."

The purchaser, Wingo, went into possession, but afterwards, dying intestate, the land was sold for partition, and at that sale the defendant, Cudd, became the purchaser and is now in possession of it. In the mean time (1884) Mrs. Bishop died, and this action was brought by her heirs (except her husband who survived her) to recover from the defendant two-thirds of the land, and for partition among themselves, upon the ground, as they allege, that the paper executed by Mrs. Bishop on the deed to Wingo, purporting to be the relinquishment of her inheritance, was not such a relinquishment as the law required, and, being absolutely void, did not convey her estate in the land, which at her death descended to her distributees,--one-third to her surviving husband, and the other two-thirds to her other heirs, the plaintiffs.

The defendant, among other things, claimed that he purchased the land for full value, and that the relinquishment, having been carefully prepared by a lawyer, was regular, valid, and binding. But, if not, he prayed the court to reform it, so as to make it conform precisely to the requirements of the statute, and the intention of the parties. It was referred to J. K. Jennings, Esq., as referee, who took the testimony, and reported that there was nothing in the evidence to show that there was any defect whatever in the execution and delivery of the deed, and that the relinquishment was in the exact form laid down by Thornton on Conveyancing, and a substantial compliance in every particular with the statute of 1795, with the exception of the omission of the word "inheritance." He held, under our decided cases, that the omission was a fatal defect, but, as it was clearly a mistake, caused by taking the form from a law-book, and there could be no doubt as to the intention of the parties, equity could and should reform the instrument so as to conform to the terms of the law. Upon exceptions to this report, the cause was heard by Judge HUDSON, who reversed the report of the referee, ordered the writ of partition to issue, and recommitted the case, that inquiry might be made as to the rents and betterments, etc.

The defendant appeals to this court on the grounds: "(1) Because the circuit judge erred in not holding that the relinquishment of inheritance by Eliza T. Bishop in 1860 was a good relinquishment, and that the act had been sufficiently complied with; (2) because the circuit judge erred in not holding that the court of equity should consider that done which was intended to be done, and that, as it clearly appeared from the evidence that Mrs. Bishop intended to relinquish her inheritance, she did in fact and in law relinquish her inheritance, and her heirs have no interest now in...