Windham v. Howell

• Decision Date: 10 July 1907
• Citation: 59 S.E. 852,78 S.C. 187
• Parties: WINDHAM et al. v. HOWELL et al.
• Court: South Carolina Supreme Court

59 S.E. 852

78 S.C. 187

WINDHAM et al. v. HOWELL et al.

Supreme Court of South Carolina

July 10, 1907

On Rehearing, September 17, 1907.

Appeal from Common Pleas Circuit Court of Darlington County; Gage Judge.

Action by H. H. Windham and others against George C. Howell and others. Judgment for plaintiffs, and defendants George C Howell and Louisiana Howell appeal. Affirmed.

Woods J., dissenting.

E. O. Woods and Stevenson & Matheson, for appellants.

Geo. W. Brown and R. W. Shand, for respondents.

JONES J.

This action was commenced for the partition of certain lands in Darlington county. The defendants, George C. Howell and Louisiana Howell, answered, denying the allegations of the complaint and setting up title to the land described. The first trial of this issue of title was before Judge Townsend and a jury, and resulted in a verdict for the defendants, under the direction of the court. On appeal this court reversed said judgment and remanded the case "for trial of the issue of title as made by the pleadings." 68 S.C. 478, 47 S.E. 715. Thereafter the case came on for trial before Judge Gage and a jury. After considerable testimony was introduced for plaintiffs and defendants, Judge Gage, stating what he conceived to be the issue in the case, submitted in his charge the following special issue to the jury: "Were the names of John W. Windham, C. M. Windham, Mary L. Wadford, and Eliza Troublefield in the deed in issue there written before James Windham signed and delivered the deed, or after he signed and delivered the deed?" Upon this issue the jury found that the names were written in the deed "before" its execution, judgment was entered accordingly, and order granted by Judge Gage referring all the equitable issues to the master, from which this appeal is taken. In his order Judge Gage, among other things, said: "Both parties claimed under the deed of James Windham to Eliza Windham and others. That deed created only a life estate, and it has been so held by the Supreme Court on appeal in this case in a former judgment herein. That being so, and the uncontradicted testimony showing that some of the plaintiffs and defendant Louisiana Howell have interests in the property that is subject to partition, the plaintiffs are entitled to proceed on the equity side of this court for such further proceedings as may be necessary and proper to effectuate the partition."

1. We first consider the exceptions to Judge Gage's construction of the deed of James Windham to Eliza J. Windham and others, dated December 14, 1857, under which both parties claim. The deed conveyed the land "unto the said Eliza J. Windham forever, and at her death to her children [and also to John W. Windham, C. M. Windham, Mary E. Wadford, Eliza Troublefield, wife of Thomas Troublefield] *** to have and to hold *** said premises, ***" with clause of warranty "unto the said Eliza J. Windham and her heirs." The question submitted to the jury was whether the words we have placed in brackets above were in the deed when executed. In disposing of the former appeal, this court assumed as the proper construction of this deed that Eliza J. Windham did not take in fee simple, but a life estate, and that on her death in 1900 her children, Lula Windham, plaintiff, and Louisiana Howell, defendant, became tenants in common for life with Eliza Troublefield; hence there were tenants in common for life before the court entitled to partition. The appellants contend that the construction of the deed was not necessarily involved in the former appeal, and that a proper construction would give Eliza J. Windham the fee. We do not so hold. This being a deed as distinguished from a will, and involving no element of trust, it is to be construed under the strict rules of common law. The word "forever" after the name of Eliza Windham, not being a word of inheritance, cannot operate to enlarge her estate beyond a life estate. Varn v. Varn, 32 S.C. 77, 10 S.E. 829; Harrelson v. Sarvis, 39 S.C. 18, 17 S.E. 368; Jones v. Swearingen, 42 S.C. 65, 19 S.E. 947. There is nothing in the habendum clause to enlarge the estate conveyed in the granting clause so as to bring the case within the rule in Chavis v. Chavis, 57 S.C. 173, 35 S.E. 507. There being no words of inheritance in the granting clause, the life estate therein conveyed cannot be enlarged into a fee by the warranty clause. Jordan v. Neece, 36 S.C. 295, 15 S.E. 202, 31 Am. St. Rep. 869; McMichael v. McMichael, 51 S.C. 558, 29 S.E. 403. Cases construing wills and deeds involving trusts are not in point.

2. We next consider the exceptions alleging error in submitting to the jury the special issue instead of the general issue of title. It is settled by many cases in this state that this is an equity cause. When defendant's answer raises an issue of paramount title to land, such as would, if established, defeat plaintiff's action, it is the duty of the court to submit to a jury the issue of title as raised by the pleadings. McGee v. Hall, 23 S.C. 392; Sale v. Meggett, 25 S.C. 72; Reams v. Spann, 28 S.C. 533, 6 S.E. 325; Carrigan v. Evans, 31 S.C. 265, 9 S.E. 852; Capell v. Moses, 36 S.C. 561, 15 S.E. 711; Bank v. Peterkin, 52 S.C. 236, 29 S.E. 546, 68 Am. St. Rep. 900; Tyler v. Williams, 53 S.C. 375, 31 S.E. 298; Barnes v. Rodgers, 54 S.C. 123, 31 S.E. 885. In such cases, when each of two or more defendants sets up as against the plaintiff and the other codefendant independent title in himself, it should be submitted to the jury to determine the issue, not only as between plaintiff and defendants, but also as between the codefendants, if this is essential to an effective partition. Sumner v. Harrison, 54 S.C. 359, 32 S.E. 572. The appellants invoke these rules to overthrow the action of the circuit court, and it is necessary to inquire whether the case made falls within these rules. Is there anything tending to show such independent, exclusive, paramount title in themselves as would defeat plaintiff's right of partition? It was undisputed that both sides claimed under the deed which we have construed above. It is true appellants were in possession of the land claiming exclusive title in fee under said deed and the conveyance to them by Eliza J. Windham; but, as Eliza J. Windham could only convey her life estate and died in 1900, her deed, as matter of law was of no avail against those having right of partition as tenants in common for her life under the deed of James Windham. On this issue, depending alone upon the construction of a written instrument and undisputed facts leaving room for but one conclusion, the court had the power to direct a verdict finding against defendant's claim of independent title. Barnes v. Rodgers, 54 S.C. 123, 31 S.E. 885; Gilreath v. Furman, 57 S.C. 289, 35 S.E. 516; Sudduth v. Sumeral, 61 S.C. 287, 39 S.E. 534, 85 Am. St. Rep. 883. This may have been, strictly speaking, the most regular procedure, but the appellant having utterly failed to show any evidence of independent, paramount title, but, on the contrary, showing reliance on the same title under which partition is sought, the court would be stickling for mere form to remand the case for resubmission to the jury when the inevitable result would be a direction of verdict against appellant on the general issue of paramount title. In such circumstances the appellant received no prejudice by the withdrawal of the general issue from the jury.

3. At this point we will consider the exception alleging error in refusing the motion to direct a verdict against the plaintiff A. H. Windham. The complaint alleged that Eliza Troublefield has conveyed her estate in the premises to A. H. Windham, and this was denied by the answer of Eliza Troublefield and the appellants. No evidence was offered to prove this allegation. But it was not material to any interest of the appellant to determine by jury whether A. H. Windham had acquired the interest of Eliza Troublefield claimed to be tenant in common with appellants. Eliza Troublefield has not excepted to the action of the court, and therefore acquiesces in the reservation of the matter for determination by the court of equity. Moreover, the question whether Eliza Troublefield as a tenant in common has transferred her interest to A. H. Windham has no reference whatever to the question whether appellants had such paramount title as would defeat the action for partition. With reference to the special issue submitted to the jury, the action of the circuit court may be sustained on the ground that in an equity case the chancellor may refer issues to a jury for the enlightenment of his conscience. Hammond v. Foreman, 43 S.C. 264, 21 S.E. 3; Mortgage Co. v. Gilliam, 49 S.C. 355, 26 S.E. 990, 29 S.E. 203. Judge Gage having affirmed the special finding of the jury, this finding of fact must stand, unless the exceptions to the rulings as to the admissibility of testimony show such material error as should work a reversal.

4. It is excepted that it was error to refuse to allow Mrs. Howell to state what reason her father, Eli Windham, gave to Mr. Atkinson for inserting the names in the deed made by James Windham; she having testified that Eli Windham accomplished the interlineation through Atkinson. The ruling was correct. The witness having testified that the interlineation was made by Eli Windham, his declarations as to his reasons therefor were not material, when the issue was whether the interlineation was, in fact, made subsequent to the execution of the deed.

5. It is further excepted that there was error in refusing to permit Mrs. Odem to state a conversation between Eliza Troublefield and Mrs. Howell, as Eliza Troublefield is a party to the action and her declarations against interest should be admissible. On the...