GARY
A. J.
This
action was commenced on the 8th of July, 1901, to recover the
possession of a small tract of land. The complaint alleges
"(1) That Henry Du Rant, late of the county of Horry, in
the state of South Carolina, departed this life on or about
the 6th day of June, in the year 1837, leaving of force his
last will and testament, which was duly admitted to probate
and is recorded in the office of the judge of probate for the
county of Horry, a copy of which will is attached and made a
part of this complaint. (2) That under the terms of said will
his son, William W. Du Rant, took a life estate in the rents
and profits of his estate, real and personal, with remainder
in fee to a son of William W. Du Rant, who shall survive him
and be called Henry, but, in default of such male child, then
to the child or children of William W. Du Rant living at the
death of the life tenant. (3) That the life tenant departed
this life on or about the 15th day of December, 1896, leaving
no son surviving him called Henry, but leaving as
remaindermen under the will of Henry Du Rant his children, as
follows: Laura E., who first intermarried with one Covington
and afterwards with W. H. Wade; Virginia D
who intermarried with W. J. Young; Gertrude, who intermarried
with W. H. Lide; Louisa, who intermarried with J. T. Brown;
Florence D., who intermarried with Junius H. Evans;
Fleetwood, who intermarried with C. B. Whilden; Pauline, and
Claudia. (4) That since the death of the life tenant, to wit,
during the month of November, 1898, Laura E. Wade has
departed this life, leaving as her only heirs at law her
children, Harrison W. Covington and Jessie W., who
intermarried with James Liles. (5) That among the numerous
tracts of land devised under the will of Henry Du Rant, and
which falls to these plaintiffs as remaindermen under said
will, is a certain tract of land, situate in Horry district
(now county), on the north side of Waccamaw river, adjoining
the village of Conwayboro (now Conway), more particularly
described in a plat and grant to John Du Rant, of date July
6, 1818, and by John Du Rant conveyed to Henry Du Rant,
January 17, 1821; also some town lots in the village of
Conwayboro. (6) That the said William W. Du Rant did some
time in the month of November, 1838, convey to one James
Beaty the aforementioned tract of land, with the exception of
29 acres, and that the said James Beaty did at various times
and to divers persons convey portions of said tract of land.
(7) That the defendant is in possession of and claims all
that certain lot or tract of land in the county of Horry and
state of South Carolina, containing 3 1/3 acres-the same
being a part of the lands granted
to John Du Rant, and by him conveyed to Henry Du Rant, and by
William W. Du Rant conveyed to James Beaty, as above
mentioned, and through James Beaty to defendant. That the
plaintiffs herein, as remaindermen under the will of Henry Du
Rant, are the owners of and entitled to the immediate
possession of the above-described tract of land, with the
rents and profits from the death of William W. Du Rant, and,
although demand has been made upon the defendant for the
possession of the said tract and $400 rents and profits, he
wrongfully withheld the same, and refused to give possession,
or to pay said rents and profits." The defendant denied
generally the allegations of the complaint, and set up the
defenses of the statute of limitations, adverse possession,
possession long enough to presume a grant, and section 109 of
the Code of Civil Procedure of 1902, as a perpetual bar. The
jury under the direction of his honor, the presiding judge,
rendered a verdict in favor of the plaintiffs, and the
defendant appealed.
1. The
first question that will be considered is whether the legal
title was executed under the statute of uses, in those
holding the beneficial interests. The provision of the will
out of which this question arises is as follows: "I
hereby give to my brother, John Du Rant, and my friend
Eleaser Waterman, all the estate I die possessed of, with the
following exceptions and limitation, that is to say, in trust
to the intent that William W. Du Rant do be permitted to
take, use and enjoy all the profits and income of my estate,
real and personal, without let or hinderance, from the period
of my decease, during his natural life, it being my express
will and intention, that no part or parcel of the said estate
shall in anywise be subject to the debts or contracts of the
said William W. Du Rant, that do now or may hereafter exist,
and it is further my will that after the decease of the said
William W. Du Rant, then and in that case, the estate
aforesaid shall descend to the son of the said William W. Du
Rant, should any such be then living and called Henry, and in
default of such male child, then to such other child or
children of the said William W. Du Rant as may then be
living." The following authorities show the inclination
of the courts to protect the contingent remainders as far as
possible: " The Court of Chancery will
never execute the estate in law to tenant for life of a trust
to enable him to destroy contingent remainders." Fearne
on Rem. 320. "Before I dismiss the notice of estates in
trustees to support contingent remainders, it may be proper
to observe that although equity does not interpose in cases
of the destruction of contingent remainders, by tenant for
life, where there is no trust in the case to bring it within
the cognizance of a court of equity, yet it views such
destruction of contingent remainders in the light of a wrong
or tort which it is anxious to prevent, and consequently
seizes every occasion and makes every possible stretch for
extending its protection against it." Fearne on Rem.
337. "When the tenant for life is only a cestui que
trust, he cannot forfeit or bar a remainder by feoffment; the
legal title being in the trustee." Dehon v. Redfern,
Dud. Eq. 115. "The destruction of contingent
remainders by tenant for life is considered as a wrong with
remedy, and so strongly a tort that it is a forfeiture of his
own estate, and thereupon works destruction of the remainder.
Now, if equity never suffers any wrongful act, or anything
similar, to gain or defeat the trust estate, whilst the
trustee is in possession, why should this take place, or the
court strive to preserve a power to cestui que trust for
life, the execution whereof the law calls a wrong?" 1
Atkyns Rep. 694. "Another difference between the rules
regulating legal estates and trusts applies to contingent
remainders. By the common law, if the particular estate by
which such remainder is supported is destroyed by the act of
the tenant before the remainder becomes vested, the remainder
is itself destroyed. But no such consequence will follow, in
respect to a contingent remainder of the equitable ownership,
by any act proceeding from the tenant of a prior particular
estate of the same equitable ownership. *** In short, the
equitable effect of the trust is commensurate with the legal
effect of an executory use (as distinguished from a
contingent remainder), both equally rejecting
the strict rules of the common law." 2 Wash. on Real
Prop. § 1458. "In trust estates, though generally
governed, so far as contingent remainders are concerned, by
the same rules as estates at common law, a rule prevails that
a legal estate of freehold in the trustee will support a
contingent limitation of the estate of a cestui que trust,
although this may not vest by the time the preceding
equitable limitation in trust expires. Nor can any cestui que
trust, having a prior trust estate, destroy a contingent
remainder expectant upon his estate by any mode of
conveyance, since the legal estate in the trustee will
support the remainders as they rise." 2 Wash. on Real
Prop. § 1594. Realizing the injustice of permitting a life
tenant to destroy a contingent remainder, a statute was
enacted in 1883, providing that "no estate in remainder,
whether vested or contingent, shall be defeated by any deed
of feoffment with livery of seisin." That statute,
however, only applies to cases arising since its enactment.
In the case of Posey v. Cook, 1 Hill, 413, the
plaintiff claimed the land as trustee under a deed of
conveyance executed by Thomas Posey in trust, for the use and
benefit of Charles Posey, "until his youngest son,
William Posey, shall arrive at the age of twenty-one years,
or if the said Charles Posey should die before that period,
then for the benefit of his family until that time; as a
house for his wife and children; but it is expressly
understood that the said tract of land and premises, is not
to be liable for the present debts or future contracts of the
said Charles Posey," etc. The presiding judge nonsuited
the plaintiff on the ground that the legal estate was not in
the trustee. The court, per Harper, J., used this language:
"In Gregory v. Henderson, 5 Taunt. 772, the devise was
to trustees, to permit testator's wife to occupy,
possess, and enjoy the premises, and to receive the rents,
her receipts for which, with the approbation of the trustees,
to be good. This was held not to be executed. The court puts
it on the intention that the legal estate
should not vest in the wife, and laid hold of the
circumstance of the...
