38 S.E. 218 | S.C. | 1901
March 23, 1901. The opinion of the Court was delivered by This is an action for the recovery of real estate, and was tried in July, 1900. The plaintiffs are the next of kin of Andrew C. Griffin, who was shown to have been the common source of title. The defendants claim under a deed alleged to have been executed and delivered to them for value by the said Griffin. The plaintiffs claim that the said Griffin was so far non compos mentis at the time of the alleged execution of the deed as to have been unable to make a valid contract or conveyance; and further, that the deed in question is void upon its face, being so worded as to take effect in futuro, and not until the death of the grantor. Upon the trial, the plaintiffs proved the death of Andrew C. Griffin, their heirship and common source of title, and rested. The defendants proved their deed and *562 rested. In reply, the plaintiffs introduced testimony to show that at the time the deed was executed the said Griffin was of unsound mind. The jury rendered a verdict in favor of the defendants. After service of the notice of appeal, plaintiffs' attorneys gave notice that they would move this Court for leave to file an additional exception to the effect that the deed is void for the reason that it is not under seal. It appears that the word "seal" is written near the signature of the grantor, but no scroll is drawn around it, and no mark in the nature of a seal appears on the deed. His Honor construed the deed to be valid upon its face, and held that it conveyed to the defendants the fee in the land, reserving a life estate to the grantor.
We will next consider the questions presented by the exceptions as classified by appellants' attorneys, though not in the order in which they were argued by them. 1. They contend "that the alleged deed is void upon its face, being without a seal — that is to say, having nothing but the word `seal' written below the signature, with no scroll or other symbol of a seal." As it will be necessary to refer to the deed in considering other exceptions as well as in considering this question, we will set it out at length. It is as follows: "The State of South Carolina, Greenville County. Know all men by these presents, That I, Andy C. Griffin, of the State and county aforesaid, for and in consideration of one thousand dollars at and before the sealing of these presents in hand paid by Liny E. Cooper and his sister, Lula Cooper, of the State and county aforesaid, have granted bargained, sold and released and by these presents do grant bargain sell and release unto said Liney E.C. Cooper and Lula Cooper and that their mother Pamelia A. Cooper is to have support during her natural life or widowhood all of my Real Estate and Personally property (description of land). The condition of this deed is such that the said Andy C. Griffin shall have full power and control of all property mension in these presents during his natreal life but at my decease then these presents shall be in full fore and *563
effect. On the 10th day of February, 1885 I executed a deed to my wife Elizabeth F. Griffin but as she decased on the 30th day of August, 1895, that deed is null and void and that I am oner of said property and the only one that has the right to sell or convey Together with all and singler the rights, members, hereditaments and appurtinences to the said premises belonging or in any wise incident or appertaining, to have and hold all and singler the said premises under the said Liney E Coper and Lulia Coper their heirs and assigns forever and I do hereby bind myself, my heirs, executors, administrators, to warrant and for ever defend all and singular the said unto Liney E. Coper and Lulia Cooper their heirs and assigned forever against myself, my heirs and against every other person or persons, lawfullyng claiming or to claim the same or any part thereof. In witness whereof I hereunto sed my hand and seal this the 9th day of September in the year of Our Lord one thousand eight Hundred and ninety five and in the one hundred and nineteenth year of the Sovenaty of the Indipendants of the United States of America. A.C. Griffin seal Sign Sealed and Delivered in the presents of W.L. Morgan C.P. Potts." This question is conclusively settled against the appellants by the cases of Trustees v. Bryson,
There is another reason why the exceptions raising this question cannot be sustained. In 1899, an act was passed providing: "That whenever it shall appear from the attestation clause, or from the other parts of any instrument in writing, that it was the intention of the party or parties thereto that said instrument should be a sealed instrument, then said instrument shall be construed to be and shall have the effect of a sealed instrument, although no seal be actually attached thereto" — Acts of 1899, 23 Stat., p. 48. As this was intended merely as a rule of evidence, it was applicable to all cases tried after its adoption.
The appellants also contend "that his Honor, the Circuit *564
Judge, erred in ruling out the question put to the witness, W.L. Morgan, as to whether or not the purchase money had been paid." This witness was examined by the defendants to prove the execution of said deed. During his cross-examination by the plaintiffs' attorneys, he was asked whether the consideration set out in the deed was paid. Upon objection by defendants' attorneys, his Honor ruled that the question was not competent. The ruling of the Circuit Judge must be considered with reference to the issue before the Court at the time it is made and not the state of facts thereafter developed. Fraud was not made an issue by the pleadings, nor had any testimony been offered tending to show fraud at the time the presiding Judge was called upon to rule on the competency of the question. The only effect which the testimony could have had would have been to show that the deed was without consideration. This could not be shown, for the reason that a seal imports a consideration. Brown v. Brown,
The appellants further contend, "that the deed is void for the reason that Andrew C. Griffin was of unsound mind and had not mental capacity to make a deed at the time referred to." This only involves a question of fact, and cannot be considered by this Court in a law case.
The next contention of the appellants is "that the alleged deed is void upon its face, being drawn to take effectin futuro." The statute of uses made of force in this State changed the rule of the common law. Rev. Stat., sec. 2089. et seq. The following language in the case of Cribb v. Rogers,
5. Lastly, the appellants contend "that the alleged deed is void upon its face, being drawn to take effect after the death of grantor, hence in its nature testamentary, and witnessed by but two witnesses." This question is disposed of by what has already been said.
It is the judgment of this Court, that the judgment of the Circuit Court is affirmed.
