Hunt v. Nolen, 46 S.C. 356

Hunt v. Nolen

46 S.C. 356 | S.C. | 1896

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Gary.

This action was commenced by the plaintiff against the defendant, Nolen, to foreclose a mortgage given for part of the purchase money of the land described in the complaint. J. F. Cleveland was afterwards made a party defendant, as will hereafter appear. On the 15th day of July, 1889, the plaintiffs executed and delivered to the defendant, Nolen, a deed of conveyance of 200 acres of land on Fair Forest Creek, in the county and State aforesaid, with the usual covenants of warranty. The purchase money of the said tract of land was $4,500, of which sum $2,500 was paid in cash, and the credit portion, $2,000, was secured by the bond of Nolen, and a mortgage of the premises sold to him. The bond is dated the 15th of July, 1889, and is conditioned for the payment of the said sum, $2,000, on or by 1st of January, 1890, with interest from its date at the rate of ten per cent, per annum. On the 13th of January, 1890, Nolen paid $1,400, and has since refused to make any further payment, on the ground that there is a defect in the title to the extent of 30J acres, of which he has never had possession, but that the possession is in a third party, holding by a valid subsisting title in fee. The defendant, Nolen, contends that the loss of this portion of the land not only satisfies the balance due upon the bond and mortgage, but has also damaged him in the sum of $1,000.

*366The issues were referred to the master, who reported upon the same. The case was heard upon exceptions to this report by his honor, Judge Fraser, who, after deciding certain issues, recommitted the case to the master to take further testimony. A motion was made before his honor, Judge Wallace, to amend the'complaint by making Dr. J. F. Cleveland a party defendant to the action, which motion was refused. His honor, Judge Izlar, after recommitting the case to the master for the third time, rendered a decree in the case. Both parties appealed from the aforesaid order and decree. On the 27th of December, the Supreme Court filed its opinion, wherein it was directed that Dr. J. F. Cleveland be made a party defendant, and that the case be remanded to the Circuit Court for a reconsideration of the questions involved. See Hunt v. Nolen, 40 S. C., 284.

The original complaint was amended, and J. F. Cleveland made a party defendant. Dr. Cleveland’s answer alleges that he is in possession of a part of the land covered by the deed of the plaintiffs to the defendant, Nolen, and that he is the owner in fee thereof; also, that he has title by adverse possession; states the sources of his title, and insists that the plaintiffs, and those through whom they claim, are estopped by laches from claiming the land. Plaintiffs interpose an oral demurrer to the answer of the defendant, Nolen, and the demurrer was applicable to the answer of the defendant, Cleveland. The demurrer was overruled, for the reasons stated in the decree of the Circuit Judge.

It appears that H. H. Thomson, the father of W. W. Thomson, through whom the plaintiffs claim, at one time owned 386 acres of land on Fair Forest Creek, the larger portion of which was on the west side of the road. In 1852, H. H. Thomson conveyed to one J. W. Wilson in fee simple about fiftyacres of said land. This parcel has come on down, by regular chain of title, to M. L. Trimmier, who now owns it. In February, 1853, H. H. Thomson, in consideration *367of $500, conveyed to “Dr. Wm. C. Bennett, as trustee of Mrs. Cynthia Dupreest, a certain tract of land * * * on the waters of Fair Forest Creek, * * * bounded as follows (then follows a description of the lines and abutments): containing fifty acres, more or less, * * * to have and to hold, all and singular the said tract of land to the said Dr. Wm. C. Bennett, as trustee, in trust always, and for the uses and purposes hereinafter expressed and declared. That is to say, in trust for the use, behoof, and benefit of the Mrs. Cynthia Dupreest, for and during the term of her natural life; to permit her, the said Mrs. Cynthia Dupreest, at her good will and pleasure, the same receiving and enjoying all and singular the rents, profits and increase, interest and interests thereof, during the term of her natural life, and at her death to be held in trust for the benefit of her husband, James Dupreest, during his natural life, should he survive the said wife, Cynthia Dupreest, free from all his debts or liabilities of all kinds whatsoever, and at his death to be equally divided amongst all the children of the said Cynthia Dupreest. And it is hereby understood, that the said Cynthia Dupreest to have full control of the said land, rents, profits and emoluments; to use and dispose of the said rents, emoluments and profits as she may deem best for her sole benefit, free from all control whatsoever.

The said Dr. W7m. C. Bennett, as trustee, to have and to hold the said premises in trust during the term of the joint lives of the said Cynthia Dupreest and James Dupreest, during their natural lives, then to go absolutely to the children of the said Cynthia Dupreest, absolutely share and share alike. And I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said trustee as aforesaid, for the uses and purposes aforesaid, free from the trust claims of all persons, lawfully claiming or to claim the same or any part thereof.”

The land described in this deed was partitioned by the Court of Common Pleas for said county in 1882. The *368action for partition was brought by J. S. R. Thomson, Esq., as attorney for the plaintiff in that action. The complaint alleged that the children were tenants in common, and seized in fee. All the children of Cynthia Dupreest who were then living, and their assignees, were properly made parties to said proceeding. A writ in partition was issued. The commissioner appraised the land at $750, but reported that it could not be partitioned in kind among the parties in interest without injury. The land was then sold by order of court, for partition, in July, 1882, at which sale Dr. J. E. Cleveland and J. S. R. Thomson were the purchasers.

Mr. Thomson assigned his bid to Dr. Cleveland, to whom the sheriff duly executed and delivered a deed, and the title to the land was thereafter duly confirmed by the court. This deed to Dr. Cleveland was duly recorded in the clerk’s office.

The 386 acres of land hereinbefore mentioned were allotted and assigned to W. W. Thomson in the partition of the real estate of H. H. Thomson, the date of which was not given, but his honor says it might have been between the years 1853 and 1875. Appellants’ attorneys, in their arguments, state that it was in 1868. We desire to call special attention to the fact that 386 acres, which includes the land in dispute, were assigned to W. W. Thomson. The description of the land conveyed by W. W. Thomson to J. H. Hunt on the 28th of December, 1875, is as follows: A certain tract of land, lying on the waters of Fair Forest Creek, and containing 200 acres. Said parcel or tract of land hereby sold, is to be taken out of a tract of land on Fair Forest Creek which I own, and is to be set off by metes and bounds according to the metes or bounds of the the original tract I own, except that said 200 acres is to be next to, but entirely on, the west side of the main public road. The following are the courses and boundaries of the land I own, on the west side of the said road. (They are then set forth). The description of the land conveyed by J. H. Hunt to these plaintiffs is the same as that just *369mentioned, except the statement: Said tract or parcel of land being the same which was conveyed to me by W. Waddy Thomson, on the 28th December, 1875. The description of the land conveyed by the plaintiffs to Nolen is similar, except the statement: Being the same land conveyed to J. H. Hunt by W. Waddy Thomson, 28th December, 1875, and to Amanda C. Hunt and Marie Blunt by J. H. Hunt, 20th January, 1877.

His Honor, Judge Aldrich, in his decree, says: “I conclude and so hold, that Cleveland’s title is outstanding, and paramount to that of defendant, Nolen, for the five undivided eighths in said thirty and a quarter acres, and that said title, and his possession thereunder, is limited to the lives of the surviving children of Cynthia Dupreest; that his right to each child’s share terminates upon the death of said child, and the right of Nolen to each child’s share matures, becomes complete, upon the death of each child. Having held that Cleveland’s title to an undivided portion of said land is restricted to a life estate or estates, I hold that the title of Cleveland constitutes a breach of warranty and covenant of title, &c., contained in the deed of plaintiffs to Nolen, and that the damage must be measured by the value of the life estates.” His Honor then proceeds to lay down the principles for determining such vahiations, after which he decrees foreclosure of the mortgage for $657.53, in favor of the plaintiff against the defendant, Nolen. Numerous exceptions were filed to said decree, but the view which the court takes of the case renders it unnecessary to consider them seriatim. Furthermore, none of the exceptions, except those to the decree of his Honor, Judge Aldrich, are properly before the court for consideration, as the case was remanded for the purpose of having a reconsideration of the questions involved.

*3701 *369The first question for our consideration is, what interest did Dr. Cleveland acquire by the sheriff’s deed of conveyance of the land which had been conveyed by H. H. Thomson to Dr. Wm. C. Bennett, trustee? The answer to this question *370depends upon a construction of the deed to Dr. Bennett. The construction of a deed necessarily depends very much upon the exact words of the particular deed. It is elementary law that the court should endeavor to ascertain the intention of the grantor and carry it into effect, except in so far as it may contravene some rule of law. What, then, was the intention of H. H. Thomson? There can be no question that the grantor intended Mrs. Cynthia Dupreest should enjoy the estate during her lifetime. There is as little doubt that he also intended her husband, if he survived her, should likewise enjoy the estate during his lifetime. The grantor then says, “and at his death to be equally divided amongst all the children of the said Cynthia Dupreest.” Again, in speaking of what should be done after the termination of the life estates, he says: “Then to go absolutely to the children of the said Cynthia Dupreest, absolutely, share and share alike.” That the word “absolutely” is sufficient to carry the fee in a case like this, is conclusively shown by the case of Fuller v. Missroon, 35 S. C., 314, in which Mr. Justice Pope ably reviews the authorities sustaining this rule of construction, and renders it unnecessary for this court to do more than refer to that case for its conclusion. It is, however, contended by the Circuit Judge that the word “absolutely” in this case means “freed and discharged of the trust,” and has no reference to the “estate” which the grantor intended should be conveyed to the children. It is a rule of construction that, if possible, effect should be given to every word in an instrument of writing rather than to render any of them meaningless. If the Circuit Judge was right in his construction, then there was no necessity for the word “absolutely;” as the deed showed that the trustee was only to hold during the lifetime of Mrs. Cynthia Dupreest and her husband, and there was nothing for him to do after that •time. Another strong circumstance is, that when the grantor referred to a “life estate,” his words were plain and unequivocal, leaving no room for doubt. We are, there*371fore, satisfied that the children took a fee under the deed, and that Dr. Cleveland now owns said land in fee simple.

2 We will next consider whether there was a defect in the title to Nolen by the plaintiffs, constituting a breach of the warranty. The 386 acres of land, which, it seems, lies on both sides of the public road, was assigned to W. W. Thomson in the partition of the real estate of H. H. Thomson, but, after the fifty acres sold to J. W. Wilson, now owned by M. L. Trimmier, and the fifty acres sold to Dr. Bennett, trustee, had been conveyed by H. H. Thomson. Both of these tracts lie on the west side of the road. The deed from W. W. Thomson to J. H. Hunt call for 200 acres on the west side of the road, not 200 acres, more or less. W. W. Thomson did not sell all the land on the west side of the road, but described how the 200 acres were to be carved out of the tract on that side of the road. Not only did W. W. Thomson sell just 200 acres, but the deed stipulated that it was to be carved out next to the road. Dr. Cleveland’s land is not next to the road. It does not appear that W. W. Thomson has ever made any claim either to the tract sold to Wilson or Dr. Bennett. It does not appear that the exact number of acres on the west side of the road was known when W. W. Thomson conveyed to Hunt. We do not think W. W. Thomson intended to convey any part of the land which had been conveyed to Bennett, trustee. On the contrary, that the land, being 200 acres, and not “more or less,” and the stipulation that the 200 should be carved out next to the road, show he intended to exclude the, Bennett tract from the conveyance. That his reason for so doing was, that the land on the west side of the road was about 200 acres, exclusive of the other two tracts, and, if so, then that he would own the Bennett tract, provided the children only had life estates. It, however, is shown by actual survey, that the land conveyed to J. H. Hunt only contains a fraction over 169 acres. We, therefore, hold that there *372was a defect in the title to Nolen, constituting a breach of the warranty.

3 Having found that there was a breach of the warranty, the next question is, as to the amount of damages sustained. The measure of damages will be found by calculating the value of 30 J acres, with interest thereon from the delivery of the deed. Aiken v. McDonald, 43 S. C., 29, and authorities therein cited. The calculation shows that there is nothing due on the mortgage. The decision of these questions renders it unnecessary to consider any other question in the case.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.

Dissenting Opinion

Mr. Chief Justice McIver,

dissenting. I dissent, and think that the circuit decree of his Honor, Judge Aldrich, should be affirmed for the reasons which he has set forth, to which I do not deem it necessary to add anything.

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