| S.C. | Feb 27, 1894
The opinion of the court was delivered by
The plaintiff and defendant, on the 5th day of January, 1893, under their hands and seals, entered into an agreement whereby the plaintiff covenanted to convey by deed to the defendant in fee simple a tract of land, containing 520 acres, more or less, situate in Sumter County, in this State, at the price of $5,000, and whereby the defendant covenanted to pay the said sum of $5,000 therefor. Both covenants were to be performed simultaneously on the 10th day of January, 1893. On the last mentioned date, the plaintiff tendered to the defendant his deed of conveyance, wherein he conveyed said lands to the defendant in fee simple, but the defendant declined to accept said deed and perform his covenants, because he alleged such title was defective in this, namely, that the plaintiff obtained title from one John D. Ashmore, who in turn obtained title thereto from Martha Ashmore, his mother, by two deeds, one dated 16th June, 1844, and the other dated 5th September, 1854; that by the first deed it was provided, “for and in consideration of the natural love and affection which I (Martha Ashmore) bear unto my son, John D. Ashmore, of Sumter District, have given, granted, and conveyed, and by these presents do give, grant, and convey, unto the said John D. Ash-more for life, and after his death to the issue of his body, all that plantation,” &c. (including the land now in dispute). Aud in the second deed it was provided, “have bargained, sold, released, granted, and confirmed, and by these presents doth bargain, sell, release, grant, and confirm, unto the said John D. Ashmore and his heirs forever, all the right, title, interest, and
The issues were heard by Judge Hudson, and he filed his decree on the 9th day of September, 1893, wherein he held that the title tendered by the plaintiff to the defendant was a good marketable title, which the defendant was bound to accept, for by the two deeds from Martha Ashmore to her son, John D. Ashmore, the said John D. Ashmore became invested with a fee simple title to said lands. From this decree the defendant now appeals on two grounds: 1. Because it is respectfully submitted that his honor erred in adjudging that the plaintiff is the owner in fee of the tract of land in controversy. 2. Because his honor erred in not holding that John D. Ashmore could only convey a life estate to the plaintiff.
The decisions of our courts certainly regard it as elementary law, that in conveyances of lands by deed there must be some words of inheritance to enable the grantee to claim a greater •estate than a life estate. Massey ads. Bratton, 15 S. C., 284; Varn v. Varn, 32 Id., 85; McLeod v. Tarrant, 39 S. C., 271. We regard it as settled that John D. Ashmore had vested in him no greater power than a life estate. Besides, the deed of 1844 itself in the premises, in the habendum and in the warranty, expressly limited his interest in the lands to a life estate. The same decisions would restrict the words, “the issue of his body,” without-words of inheritance in such deed (and there being an entire absence of other words in the deed whereby its construction could be so made as to supply the word heirs) to a life estate in such issue of the body. The only difficulty in the case is presented by this view of the rights of the parties, both grantor and the two sets of grantees — we mean John D. Ash-more, df the one part, and the issue of his body, of the other part — to wit: Martha Ashmore, having conveyed a life estate only to the said John D., and after his death a life estate only to his issue, held the legal title all the time, and, as is said in íaw, will be construed to have covenanted to stand seized to their respective uses in said lands.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.