Wilson v. Poston

• Decision Date: 07 August 1924
• Docket Number: 11567.
• Citation: 123 S.E. 849,129 S.C. 345
• Parties: WILSON ET AL. v. POSTON ET AL.
• Court: South Carolina Supreme Court

123 S.E. 849

129 S.C. 345

WILSON ET AL. v. POSTON ET AL.

No. 11567.

Supreme Court of South Carolina

August 7, 1924

Appeal from Common Pleas Circuit Court of Williamsburg County; R. W Memminger, Judge.

Action by J. H. Wilson and others against L. J. Poston and others. From the judgment rendered, the named defendant appeals. Affirmed.

The circuit decree follows:

"This cause was argued before me orally at Kingstree during the term time, and elaborate and able written arguments have been submitted. I have studied the case out carefully and feel no doubt about the conclusion I have reached.

The temptation to a judge in these is to write an elaborate opinion covering the whole sphere of real estate law pertaining thereto, with quotations from decided cases already well known to the profession, and yet no two cases can be found where the facts and circumstances are exactly alike or precisely the same as the case for decision, so that, after all, each case has to be decided upon its facts under general principles about which there is no dispute and no lack of knowledge among the members of the bar. This case has already been decided by a circuit judge one way and reversed by the Supreme Court another (see 119 S.C. 67, 111 S.E. 873); and all of the facts have been carefully set out.

The Supreme Court decided that the deed in question did not create a fee condition; but as it had not been passed upon by the circuit judge as to whether it conveys a fee simple absolute, or a fee simple defeasible, it must be sent back for a decision upon that point.

Without setting forth the facts or going into and quoting from the various decisions which have been cited, and which will again be before the Supreme Court if there is another appeal, I am satisfied that, taking into consideration the entire instrument, and giving effect to all parts of the deed, as required by the fundamental rules of construction, it is plainly apparent, and clearly manifested that the grantors did not intend that their daughter, Jessie Wilson, the grantee, should take a fee simple absolute from the language employed by them in the deed, and in the light of the facts and circumstances surrounding them at the time the deed was executed, as set forth in the agreed statement of facts, and considering the purpose for which the deed was executed, the conclusion is irresistible that the grantors did intend that the title to the land conveyed should revert to their heirs at law, in case the grantee should die without offspring. The deed was executed in the settlement of the estates of the grantors among their children. The unmistakable object of the parents in inserting the clause in the premises of the deed was to prevent the happening of the very thing which has taken place, and this intent can be and is carried out without any violation of any rule of law. The adoption of the construction for which the defendant Poston contends necessitates the utter defeat of the manifest intention of the grantors, and complete rejection and total disregarding of an entire clause in the deed, and that is not to be admitted, except from unavoidable necessity. No such necessity exists in this case.

The two clauses in this deed may be made to harmonize by the application of a reasonable and common sense construction, to wit: That the grantee took a fee defeasible estate, whereby the fee to the land vested in her, subject to its being defeated by her dying without leaving direct offspring.

In response to the question sent from the Supreme Court, the decision of this court is: That the deed does not convey a fee simple absolute, and does convey a fee simple defeasible.

Let a formal decree be prepared on the posting of this opinion and for carrying out the same, be prepared on behalf of plaintiffs' attorney and submitted for signature. And it is so ordered, adjudged, and decreed." Lee & Shuler, of Kingstree, for appellant.

Kelley & Hinds, of Kingstree, for respondents.

COTHRAN J.

Action for the recovery of the possession of a tract of land containing 94 acres, a part of a tract containing 940 acres, which belonged at one time to Thomas R. Wilson and Mary F. Wilson, his wife. The plaintiff, and all of the defendants, except L. J. Poston and E. L. Baylor (a tenant of Poston), are heirs at law of said former owners. L. J. Poston is the grantee under a deed executed and delivered to him by Jessie M. Poston, his wife, formerly Jessie M. Wilson.

The issue of title between the parties depends upon the construction to be given to a deed by Thomas R. Wilson and Mary F. Wilson to Jessie M. Wilson, their daughter, dated July 13, 1911. The granting clause is, "Unto the said J. M. Wilson," without words of inheritance, followed by this provision: "It is furthermore understood that if the said J. M. Wilson dies without lawful heirs, the above-named tract of land must return to our estate and be equally divided among our heirs." The habendum is, "Unto the said J. M. Wilson, her heirs and assigns forever." The warranty is general, "Unto the said J. M. Wilson, her heirs and assigns."

The plaintiffs contend that the deed should be construed as conveying to Jessie M. Wilson a fee simple defeasible, and that Jessie M. Wilson having died without children, under the terms of the deed the estate became vested in them as the heirs at law of the grantors; the tenants other than L. J. Poston and E. L. Baylor, his tenant, are in accord with the plaintiffs. The defendant L. J. Poston contends that the deed should be construed as conveying to Jessie M. Wilson a fee simple absolute, and that he being in possession under a fee-simple deed from her, dated January 12, 1920, is entitled to the fee.

The case was first tried before his honor, Judge Peurifoy, who filed a decree construing the deed as conveying a fee conditional to Jessie M. Wilson, and holding that as she died without issue, the land reverted to the heirs at law of the grantors. He accordingly rendered judgment in favor of the plaintiffs and the defendants other than L. J. Poston and E. L. Baylor, for the recovery of the possession of the land. From that decree the defendant L. J. Poston appealed, and on April 22, 1922, this court handed down an opinion reversing the decree of Judge Peurifoy and remanding the case for the purpose of having the question determined whether the deed conveyed to Jessie M. Wilson a fee simple defeasible, or a fee simple absolute, a question not passed upon below. 119 S.C. 67, 111 S.E. 873. Reference to the report of that appeal may be had for the agreed statement of facts which sets out in full the deed under consideration.

The case then came on to be heard by his Honor, Judge Memminger, upon the same agreed statement as before. See 119 S.C. 67, 111 S.E. 873. On December 14, 1923, Judge Memminger filed a decree, in which he held that the deed in question conveyed a fee simple defeasible and not a fee simple absolute, the effect of which is to justify a judgment for the recovery of the possession of the land in dispute, in favor of the plaintiffs and the defendants other than L. J. Poston and his tenant. From the decree of Judge Memminger, which will be reported, the defendant L. J. Poston has appealed upon exceptions which raise practically the single question of the correctness of his honor's construction of the deed.

We do not think that there can be a doubt that the words "lawful heirs," contained in the limitation, mean immediate offspring, children, heirs of the body or issue, which under the act of 1853 would be referred, in point of time, to the death of Jessie M. Wilson. In her situation, so far as family relations were concerned, it was a practical impossibility for Jessie M. Wilson to have died without a single legal heir, in the technical sense of the word. At the time of the execution of the deed she had a father and mother, eight brothers and sisters, uncles, aunts, nieces, nephews, and cousins without number. The parties who were to take upon the happening of the breach of the condition were the heirs of her father and mother; these heirs in large measure would also have been her heirs. To construe the words in their technical sense would place the grantors in the absurd attitude of creating a limitation over in favor of their heirs, upon the impossible theory that the persons answering that description would not be at the same time, necessarily, the heirs of their daughter Jessie, the grantee; in which event, of course, Jessie would not have died without lawful heirs, and the limitation over, dependent upon that contingency, could not go into effect. In fact, the counsel for the appellant concedes that construction of the words. Du Bose v. Flemming, 93 S.C. 182, 76 S.E. 277; Hayne v. Irvine, 25 S.C. 289; McCown v. King, 23 S.C. 232; Swann v. Poag, 4 S. C. 16; Cloud v. Calhoun, 10 Rich. Eq. 358; Holeman v. Fort, 3 Strob. Eq. 66, 51 Am. Dec. 665; Moone v. Henderson, 4 Desaus, 459; Bailey v. Patterson, 3 Rich. Eq. 158; Ramsay v. Joyce, McMul. Eq. 236, 37 Am. Dec. 550.

Construing the words "lawful heirs," then, as "children," we come to this question:

"In a deed, where the granting clause contains no words of inheritance, but the habendum is to the grantee and his heirs, what is the effect of a limitation in the granting clause that if the grantee should die without children the estate shall go over?"

We have no doubt that it was the intention of the grantors that Jessie M. Wilson should have the fee-simple title to the land, but that, if she died without leaving children, her fee-simple title should terminate and the land should be equally divided among the heirs of the grantors. We concede however, that this intention, so plainly indicated, cannot be allowed effect, if in so doing the established...