19 S.E.2d 904 | S.C. | 1942
April 15, 1942. The opinion of the Court was delivered by The action in this case was commenced in the Court of Common Pleas for Spartanburg County by service of the summons and complaint of the plaintiff, Nannie M. Burnett, upon the above-named defendants-respondents, on September 14, 1939. The complaint is a creditor's bill, and seeks to subject to the payment of the plaintiff's judgment certain real estate which had been held by one Harry Snoddy, until his death, under a fee-conditional estate which he had acquired by deed from his father, J.R. Snoddy. The fee-conditional estate terminated upon the death of Harry Snoddy, in September, 1938, he being a bachelor without heirs of his body. The plaintiff's judgment was acquired against the executors of the estate of J.R. Snoddy, some years after the fee-conditional estate had been created in favor of Harry Snoddy. The action in this case is based upon the theory that upon the termination of the fee conditional in Harry Snoddy, the land reverted to the estate of the donor, J.R. Snoddy, the judgment debtor, and would thus be charged with the payment of his debts.
The defendants-respondents demurred on the ground that, under the allegations of the complaint, the plaintiff's conclusion of law was erroneous in that the whole estate in the land was vested in Harry Snoddy in fee conditional, and that no estate was left in J.R. Snoddy, there being only a mere possibility of reverter which was not an estate and was neither a present nor a future right, and could not be devised, transmitted or conveyed by J.R. Snoddy, from whom there was nothing to inherit. The demurrer alleged further that *409 the complaint shows that at the time of the death of Harry Snoddy, the only living heirs at law of the original donor were J.R. Snoddy, Jr., and Sam M. Snoddy, and that such heirs at law of the original donor took a fee-simple title in the land upon the death of Harry Snoddy, thus eliminating any reversion to the estate of the donor, and eliminating the land from the charge of the debts of the donor, J.R. Snoddy.
The demurrer was heard by the Honorable A.L. Gaston, presiding Judge who, on February 1, 1940, in an able and comprehensive order which sets forth the salient facts and arguments, and the controlling law and authorities, decreed that the demurrer be sustained. From this order the case comes before us upon exceptions which raise the following questions as stated by the appellant:
"1. Does real property conveyed by voluntary deed in fee conditional revert to the donor's estate upon death of the holder of the fee conditional after the death of the donor?
"2. Does the Complaint state a cause of action to set aside voluntary deed as to creditors?"
The writer of this opinion has for many years held the belief that when a fee-conditional estate terminates as a result of the failure of the particular class of heirs designated, the estate reverted to the donor or to the donor's estate. But upon a thorough consideration of the sound reasoning of the learned Circuit Judge, and of the uncontrovertible authorities upon which he relies, the correctness of his determination of this issue is inescapable.
It is true that in the case of Lucas v. Shumpert et al.,
It would appear from the italicized portion above quoted that this Court thus implied that if the four daughters of John F. Shumpert took a fee-conditional estate in the lands devised to them, that upon the failure of issue born the land would revert to the estate of the testator. However, in that case there was no such question, as is presented here, as to distinguishing between the legal effect of a taking by the heirs at law by inheritance from the donor, and a taking by such of the donor's heirs at law as were living upon the termination of the fee-conditional estate. In the quoted case, the question was whether the parties held a fee-conditional estate or a fee conditional with a limitation over by way of executory devise. Since the all-important question in this case was not even raised in the case of Lucas v. Shumpert,supra, the following italicized part of the opinion in that case, at page 215 of 192 S.C. at page 20 of 6 S.E.2d, cannot be considered as a controlling authority in the present case: "* * * Since the daughters other than Sarah Ann E. Berry died without having had issue, the property set offto them reverted to the estate of the testator." (Emphasis added.)
Since the question in the present case did not there exist, and was not under consideration, the foregoing italicized phrase can scarcely be regarded as more than incidental language, insofar as it provides authority in the case at bar.
We are confronted with a similar situation in the very recent case of Bonds et al. v. Hutchison et al.,
But here, again, the facts of the case and the question involved are utterly different from those now before us, and the language used in that case must be considered in the light of its subject-matter. In that case the will, under which the devisee took, contained the following provision with reference to the tract of land involved therein: "* * * If he dies without bodily heirs, the same to revert back to and become the property of my estate and to be disposed of as set forth in the last clause of Section 2 of this my last will and testament."
The clause adverted to reads "* * * In case any of them die without children, then such share is to revert back to, and become a part of my estate and is to be equally divided between my surviving children upon the same terms and conditions expressed above."
In the present case the donor made no such provision, and therefore the language which we have quoted from the opinion in the Bonds case, supra, cannot be controlling in this case in which the donor did not provide that the specified land should revert to his estate.
The order of Judge Gaston clearly defines and analyzes the force and effect of a deed conveying a fee-conditional estate in real estate, which is the main legal issue presented by this appeal, and his order will therefore be reported herein, except the first two paragraphs which will not be necessary here.
Appellant's second ground of appeal was not argued, either by counsel for appellant or for the respondents, at the hearing before this Court, and is touched upon only briefly in the appellant's printed argument.
In view of the allegations of the complaint that the deed under consideration was dated December 8, 1931, and recorded December 5, 1932, at the instance of the grantor, J.R. Snoddy, and that the plaintiff's judgment against his executors was not recovered until August 6, 1938, nearly six years after the recording of the deed, and construing the complaint as a whole, we cannot find any *412 merit in the contention that the complaint states a cause of action to set aside a voluntary deed as to creditors.
The ruling of the Circuit Court is sustained and the appeal dismissed.
MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES, and CIRCUIT JUDGE G.B. GREENE, ACTING ASSOCIATE JUSTICE, concur.
