42 S.C. 58 | S.C. | 1894
The opinion of the court was delivered by
This action, commenced on the 27th day of January, 1893, came on to be heard before his honor, J. BT. Hudson, at the fall term, 1893, of the Court of Common Pleas for Edgefield County, and a decree therein was pronounced by
Preliminary to their statement, a brief recital of the facts developed during the contention should be made. In 1854, Moses Swearingen departed this life, survived by his widow and ten children, and possessed of a considerable real and personal estate. He left a will, of which he made his widow and two sons, Eldred and Arthur, the executors, and by its provisions his whole estate, real aud personal, was given to his widow for and during her natural life, but said estate to be under the control and management of the exehutors of his will during the existence of the life estate of his widow, and after her death all his property was to be sold by his executors and proceeds divided among testator’s children. The testator very wisely provided, however, “when the said heirs (his children) marry off, such portions to be given to each one out of my said estate, as my executors, together with my wife, in their judgment may think can be conveniently spared, and such property as may be thus given off be appraised at the time by three (3) disinterested citizens.” In 1883, certain landed estate was allotted to children who had married, the same being, at the date thereof, duly appraised by three disinterested citizens, as was evidenced by their return in writing, and deeds to such children or their alienees, where sold, were executed by the executors. At the same time (1883) these same three disinterested citizens appraised the three remaining tracts of the estate, one containing ninety-three acres, and one containing 140 acres, at $10 per acre, and the home place, w'here the widow, Mrs. Martha Swearingen, then resided, containing 212 acres, at $13 per acre. Mrs. Martha Swearingen departed this life on the 4th day of January, 1893. One of the sons, Arthur S. Swearingen, did not marry until the year 1884. One of the daughters, Sallie Swearingen, died, never having been married, and intestate, a few years ago. Mrs. Martha Swearingen, the widow and life tenant, until during the year 1891, and Miss Sallie Swearingen, during her life, and Arthur S. Swearingen, who
This action was brought for partition amongst the parties in interest by having the three remaining tracts of land sold, &c. When Arthur S. Swearingen answered, he denied the right of the parties to bring this action, generally, but he specially denied that the tract of 212 acres any longer was a part of the estate of Moses Swearingen, deceased, because he alleged that in the year 1876 or 1877 this tract of land was set apart to his brother, Eldred, and to his sister, Sallie, in equal portions, to wit: 106 acres thereof to each one; and that in December, 1880, the said Eldred had, by his deed therefor, conveyed the said 106 acres to himself; that his title was protected as one in fee simple; that his ownership in fee to said lands was protected by his adverse occupation thereof for more than ten years prior to suit brought; that his ownership was protected by reason of statute of limitations, in that more than ten years had intervened between the commencement of this action and any seizin of said lands by plaintiffs, their ancestors, predecessors, or devisees; and that in good faith having expended more than $3,000 in the erection of buildings upon said 106 acres of land, if his plea of title should be overruled, he was entitled to the value of such improvements and betterments.
Having thus squarely claimed title to this 106 acres of land, that question was submitted to a jury. Before going further, it should be stated that Eldred Swearingen conveyed by deed all the interest he had in the estate of his father, Moses Swearingen, to his son, Yancy Swearingen, who promptly, within the statutory period, placed his deed on record; but that Arthur S. Swearingen never having his deed on record, the said Yancy claimed to be the purchaser for valuable consideration without notice, although, in fact, holding- title under a deed junior to that of Arthur S. Swearingen. The question of notice to Yancy when he took title from Eldred was also submitted to a jury. The verdict of the jury was in this form: “We find that the one hundred and six (106) acres of laud claimed by Arthur Swearingen was never duly allotted to Eldred M. Swearingen, according to the will of Moses Swearingen, and,
6 Sixth. At the trial the appellant sought to introduce testimony to show what was the intention of the parties, grantor and grantee, in the execution of the deed we have just considered under the fifth ground of appeal. The Circuit Judge denied such right, and this exception is intended to review such conclusion. We agree with the Circuit Judge. The appellant clearly did not bring himself within any of the exceptions to the rule, that testimony outside of the deed will not be allowed to be introduced to vary or alter the language employed in the deed itself. There was no ambiguity here to be explained. There was no reference to anything outside the deed, nor indeed any circumstances that should have caused the Circuit Judge to admit this testimony. This rule was recently considered in Rapley v. Klugh, 40 S. C., 134.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
The basis for this exception is as follows, as shown by the stenographer’s notes at the trial: “By Mr. Simians: Do you know whether or not Mrs. Swearingen, who is now dead, ever sold her life estate in this tract of land to A. S. Swearingen? Mr. Sheppard objected. The Court: She is dead, you can't introduce her declaration. If he saw the transaction, and saw any money paid, it might be different. Q. Did you see any money paid? A. No.” — Reporter.