46 S.C. 522 | S.C. | 1896
The opinion of the Court was delivered by
The plaintiff seeks partition of a tract of land lying in Beech Island, Aiken County, basing his right therefor on a deed of trust, executed March 28th, 1871, whereby the grantor, William Foster, conveyed with general covenants of warranty this tract to the plaintiff, William H. Foster, his heirs and assigns forever, in trust for the sole and separate irse of Mrs. Sarah A. Foster and her children. The deed contains also this provision or language, “and my son, George W. Foster, is requested and desired to reside on the said premises during his life, or as long as it may suit his pleasure or convenience.” George
The defendants, M. M. Glover, George W. Foster, sr., Mary E. Foster, and George W. Foster, sr., answered jointly, and after a general denial, set up the plea that the land could not be partitioned, for the reason that George W. Foster, sr., has the right of possession of said property during his lifetime, or at his will and pleasure, and that he is still living, and objects to partition, and that the other defendants join him in said objection. The defendant, George K. Chafee, as receiver, intervened and answered, setting up a mortgage for $58 and interest, and ten per cent, additional for attorney’s fee, executed by the plaintiff to the County Loan and Savings Bank, covering his interest in said lands, and joined in the prayer for partition, and asked for the foreclosure of the mortgage. The defendant, B. F. Turner, intervened and answered, setting up bond and mortgage, executed 30th July, 1894, payable 30th July, 1895, by the defendants, George W. Foster, jr., and George W. Foster, sr., for $700, with interest from date at eight per cent., covering the interest of said George W. Foster, jr., and George W. Foster, sr., in said premises, described in the mortgage to be “to the extent of one-fourth interest.”
The defendant, George W. Foster, sr., with whom the 'defendants, M. M. Glover, M. E. Foster, and George W. Foster, jr., join, appeals from this decree on five exceptions set out in the case, which make substantially these questions: (1) Whether George W. Foster, sr., is entitled, under the trust deed, to the possession of the said premises during his life? (2) Whether the plaintiff, and those in like interest with him,, have an absolute estate in fee in said land, or merely a life estate, and whether, after their death, the fee reverted to the heirs of the grantor? (3) Whether the interest of George W. Foster is not 1-15 interest in said premises, instead of 1-25, and that of the plaintiff and the
The decree of the Circuit Court, the trust deed, and the exceptions of the appellants will be set out in the report of the case.
In the case at bar, the fee was given to the trustee, and if the estate was immediately executed in the cestziis que trustent, being a passive trust, fhen under this authority, if it be law, the fee is in the cestui qzie trust. It may be said here, in passing, that while it is true that Sarah A. Foster was a married woman at the execution of this deed in 1871, and up to the time of her death, in 1890, still, this fact, since the Constitution of 1868, will not prevent the operation of the statute of uses. Georgia C. & N. Ry. Co. v. Scott, 38 S. C., 34.
From what has been said, we must overrule the first, second, and third exceptions of appellants.
It is the judgment of this Court, that the judgment of the Circuit Court be modified in accordance with the principles herein announced, and it is remitted to the Circuit Court for such purpose, and for such further proceedings as may be necessary.