Young v. Edwards

• Citation: 11 S.E. 1066,33 S.C. 404
• Parties: YOUNG et al. v. EDWARDS et al.
• Decision Date: 14 October 1890
• Court: South Carolina Supreme Court

11 S.E. 1066

33 S.C. 404

YOUNG et al. v. EDWARDS et al.

Supreme Court of South Carolina

October 14, 1890

Appeal from common pleas circuit court of Aiken county; WITHERSPOON Judge.

Croft & Chafee, for appellants.

Henderson Bros., for respondents.

McIVER J.

This was a proceeding for partition of real estate, and the controversy grows out of the following state of facts: On the 3d of April, 1871, a certain lot of land in the town of Aiken was duly conveyed to one John Young, the father of the plaintiffs, and the husband of the defendant Elizabeth. Soon after this conveyance was made, John Young died intestate leaving as his heirs at law his widow, the defendant Elizabeth, (who subsequently intermarried with one Peter Howard,) and his children, the plaintiffs. On the 3d of April, 1883, the defendant joined her second husband, Peter Howard, in a deed with full covenants of warranty, conveying to one Frank Edwards a part of said lot of land by metes and bounds, and the said Frank Edwards, by his will, devised the same to the defendant Patience Edwards, who is now in possession thereof. The action below was commenced by plaintiffs against Patience Edwards alone for the partition of that portion of the original lot conveyed to said Frank Edwards by the said Peter Howard and his wife, Elizabeth. The plaintiffs were required to amend by making said Elizabeth Howard a party defendant, which having been done, the case was referred to a referee to hear and determine the issues. The referee reported that, while no money passed between the parties at the time the deed to Frank Edwards, above referred to, was made, yet there was other consideration moving the said Elizabeth Howard to make said deed, and he found that said deed operated as a conveyance of the whole interest of the said Elizabeth in the original lot of land to the said Frank Edwards, which, by his will, passed to the defendant Patience Edwards, and as a consequence he held that the plaintiffs and the defendant Patience Edwards were tenants in common of the entire lot, and entitled to share therein in the following proportions, viz.: Patience Edwards one-third and the plaintiffs one-sixth each. He further held that while one of several co-tenants could not convey his share, by metes and bounds, to a third person, so as thereby to prejudice the rights or interests of his co-tenants, yet where such conveyance does not operate to the prejudice of the other co-tenants, it should be respected and given its full force in any partition that might be ordered. And having found that the portion of the original lot conveyed to Frank Edwards by the said Elizabeth Howard did not exceed, either in area or value, the share to which said Elizabeth was entitled, (to which finding of fact there was no exception,) he recommended that a writ of partition do issue to divide the entire lot among the parties named in the proportions above specified, and that in making such partition the portion of the lot conveyed to Frank Edwards be allotted to defendant Patience Edwards, and that the costs of the action be paid by said parties in the same proportions. To this report both parties excepted, and the case was heard by his honor, Judge WITHERSPOON, upon the report and exceptions, who rendered judgment overruling all the exceptions, and confirming the report. From this judgment both parties appeal upon the several grounds set out in the record. The appeal of the defendant Patience Edwards rests solely on the ground that it was error to impose upon her any of the costs. To this it is only necessary to say that the matter of costs in...