Wilson v. Poston

• Decision Date: 18 April 1922
• Docket Number: (No. 10868.)
• Citation: 111 S.E. 873
• Parties: WILSON et al. v. POSTON et al.
• Court: South Carolina Supreme Court

111 S.E. 873

WILSON et al.

v.POSTON et al.

(No. 10868.)

Supreme Court of South Carolina.

April 18, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Die Without Issue.]

Appeal from Common Pleas Circuit Court of Williamsburg County; Jas. E. Peurifoy, Judge.

Action by J. H. Wilson and other against L. J. Poston and others.Judgment for plaintiffs, and defendants appeal.Reversed and remanded for new trial.

Agreed statement of facts on which the case was tried by the circuit judge:

"This is an action brought by the plaintiffs against the defendants for the recovery of the tract of land described in the complaint, and it is agreed by and between the undersigned attorneys representing all the parties to this action that the legal issues involved in this case shall be tried upon the pleadings and the following admitted facts, to wit:

"T. R. Wilson and M. F. Wilson were husband and wife, and were residents of the county of Williamsburg and state of South Carolina.On or about the 13th day of July, 1911, and for a number of years prior thereto, the said T. R. Wilson and M. F. Wilson owned and possessed in fee simple a tract of 940 acres of land situate in said county and state, of which the tract of land described in paragraph 1 of the complaint herein formed a part.Of the marriage of T. R. Wilson and M. F. Wilson the following children were born, namely: J. H. Wilson; J. D. Wilson; Maggie Wilson, who afterwards married one S. F. Epps; Stella Wilson, who afterwards married a Mr. Burgess; Martha Ella Wilson, who afterwards married a Mr. Burgess; Louise Wilson, who afterwards married a Mr. Coker; J. C. Wilson, Addie Wilson, T. M. Wilson, Jessie Wilson, who afterwards married the defendantL. J. Poston; Robert Wilson, who died about 20 years ago, before his father and mother, without marrying and leaving no children; and Mat Wilson, who also died before his father and mother without marrying and leaving no children.

"Maggie Epps died before her father and mother, but left surviving her the following children: Mattie Hughes, Lucile Dennis, Effle Ryan, Maria Haselden, Charlton Epps, and Mildred Lilyander.After the death of T. R. Wilson and M. F. Wilson, and before the death of Mrs. Jessie Wilson Poston, Lucile Dennis died, leaving as her heirs at law her children, Margaret Dennis, Walter E. Dennis, Mildred Lucile Dennis, and her husband, W. W. Dennis.

"Charlton Epps and Mildred Lilyander are infants over the age of 14 years.

"The said children of Lucile Dennis are all infants under the age of 14 years and reside with their father, W. W. Dennis, in the town of Kingstree, county of Williamsburg and state aforesaid.

"On or about the said 13th day of July, 1911, the said T. R. Wilson and M. F. Wilson, desiring to divide said tract of land among their nine living children and the heirs of their predeceased daughter, Maggie Epps, so as to effect a settlement of their estates in their lifetime, called in a surveyor, and divided the said 940-acre tract of land into 10 smaller lots, each containing 94 acres, and on said date conveyed one of said smaller lots to each of their nine living children, and one to the heirs of their predeceased daughter, Maggie Epps; the deeds of conveyance therefor being thereafter, to wit, on or about the 7th day of October, 1911, duly recorded in the office of the clerk of court for Williamsburg county.The 94-acre tract of land described in paragraph 1 of the complaint herein is the tract of land that was conveyed by the said T. R. Wilson and M. F. Wilson totheir daughter Jessie M. Wilson(who thereafter intermarried with defendantL. J. Poston) at the time and for the purpose mentioned above, her deed therefor being dated the 13th day of July, 1911, and recorded in the office of the clerk of court for Williamsburg county in Book A-7at page 499, which said deed is hereto annexed and marked 'Exhibit A, ' and made a part and parcel hereof, to which reference may be made as often and for such purpose as may be necessary.

"After intermarrying with the defendantL. J. Poston, the said Jessie M. Wilson, on or about the 12th day of January, 1920, conveyed said tract of land unto the said defendantL. J. Poston by her deed of conveyance bearing said date and duly recorded in the office of the clerk of court of said county in Deed Book A-16, at page 119, which said deed is hereto annexed, marked 'Exhibit B, ' and made a part and parcel hereof, to which reference is craved as often and for such purpose as may be necessary.

"T. R. Wilson died about 10 years ago, and M. F. Wilson died about 3 years ago.

"The said Jessie M. Poston(n6e Wilson) died on the 4th day of May, 1920, without leaving any child, and did not during her lifetime give birth to any living child or children.At the time the deed for the 94-acre tract of land in question was executed to her, the said Jessie M. Wilson, in addition to her eight brothers and sisters, had a number of nieces and nephews and uncles and aunts and numerous cousins, and upon the execution of said deed of conveyance she took possession of said tract of land and held the same until she conveyed it to her husband, the defendantL. J. Poston, and he has had the possession thereof ever since.

"The defendantL J. Poston is in possession of the said tract of land, and claims to be the owner thereof in fee, and the defendantE. L. Baylor is in possession of said tract of land, claiming to be the lessee of the said L. J. Poston.

"The plaintiffs and the infant defendants claim that, by reason of the terms, provisions, and limitations contained in the said deed from the said T. R. Wilson and M. F. Wilson to the said Jessie M. Wilson, they, as the heirs at law of the said T. R. Wilson and M. F. Wilson, are the owners in fee simple of the tract of land described in paragraph 1 of said complaint, and entitled to the possession of the same."

Copy of Deed, Exhibit A:

"The State of South Carolina, Williamsburg County.

"Know all men by these presents, that we, M. F. Wilson and T. R. Wilson, of Williamsburg county, in the state aforesaid, for and in consideration of the sum of fifty dollars to us in hand paid at and before the sealing of these presents by J. M. Wilson, of Williamsburg county, in the state aforesaid, the receipt whereof is hereby acknowledged, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release unto the said J. M. Wilson, of Williamsburg county, in the state aforesaid, all that certain piece, parcel or tract of land lying, being and situated in Williamsburg county, in the state aforesaid, containing ninety-four (94) acres, more or less, and bounded as follows, to wit: North by lands of J. D. Wilson, east by lands of E. A. Wilson, south by lands of E. L. Wilson and J. C. Wilson, west by lands of the estate of W. H. McElveen and known as tract No. 3 in the division of our estate.

"And it is furthermore understood that this title is null and void until after our death, then to remain in full force; and 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 he equally divided among our heirs.

"Together with all and singular, the rights, members, hereditaments and appurtenances to the said premises belonging, or in anywise incident or appertaining.

"To have and to hold, all and singular the said premises before mentioned unto the said J. M. Wilson, her heirs and assigns forever.

"And we do hereby bind our heirs, executors and administrators to warrant and forever defend, all and singular, the said premises unto the said J. M. Wilson, her heirs and assigns, against us and our heirs, or any other person lawfully claiming or to claim the same, or any part thereof.

"Witness our hand and seal this 13th day of July iu the year of our Lord one thousand nine hundred and eleven, in the one hundred and thirty-fifth year of the sovereignty and independence of the United States of America.

"M. F. Wilson.[L. S.]

"T. R. Wilson.[L. S.]

"Signed, sealed and delivered in the presence of J. E. Coker, J. T. Gibbons."

Probate omitted.

Exhibit B:

Deed of conveyance of Jessie M. Poston(the same as J. M. Wilson mentioned above) to L. J. Poston, dated the 12th day of February, 1920, recorded in the clerk's office of said county on the 10th day of May, 1920, in Deed Book A-16, at page 119.This deed conveys the 94-acre tract of land referred to, and is in the usual form of a fee-simple, general warranty deed of conveyance, and, if Jessie M. Poston(the same as J. M. Wilson) owned the fee to this tract of land, then it passed to the defendantL. J. Poston under this deed.

Decree of Judge Peurifoy(caption and signature omitted):

"This is an action for the recovery of the possession of the tract of land described in the complaint.The case was heard by me at the regular spring term, 1921, of the court of common pleas for Williamsburg county upon an agreed statement of facts.The entire case, as admitted by counsel on both sides, turns upon the construction of the deed from T. R. Wilson and M. F. Wilson to Jessie M. Wilson, dated the 13th day of July, 1911, and recorded in the office of the clerk of court for Williamsburg county in Book A-7, at page 499.This deed contains the usual granting clause: 'Unto Jessie M. Wilson.'Following the granting clause is the description of the land.Immediately after the description is the following: 'And, it is further understood that this title is null and void until after our death, then to remain infull force; and 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 clause is in the usual terms: ...