36 S.C. 295 | S.C. | 1892
The opinion of the court was delivered by
The plaintiff' and his mother-in-law, Mrs. Catherine A. McGrew, being the owners of adjacent tracts of land, separated by the waters of Dean Swamp, on the first day of October, 1869, Mrs. McGrew executed a paper under her hand and seal, in the presence of two subscribing witnesses, of which the following is a copy “Know all men by these presents, that I, Catherine A. McGrew, * * * for the love and affection I have and bear to my son-in-law, John Jordan, * * * do give and release unto him so much land at, along, belpw, and above the mill dam upon my land, known by the name of the Mill’s Old Dam, and adjoining bis, as will serve for the purpose of cutting a race and for waste way and mill, all conveniences in putting up same and lumber yards, also free ingress and egress to and from said mill or pond through my lands, and also of backing water upon my land to the height of thirteen feet live water,.
Soon after the execution of this paper, the plaintiff proceeded to erect a mill at a cost of something over two thousand dollars, Mrs. McGrew giving her note to plaintiff for the amount agreed upon as her third of the expense incurred in erecting the mill. For a while the mill was used by the parties in accordance with the terms of said paper, the plaintiff having the exclusive use for two thirds of the time and Mrs. McGrew' the exclusive use for one-th,ird. After a time, however, they leased the mill to one Tyler for the term of ten years, the plaintiff receiving two-thirds and Mrs. McGrew one-third of the rent. Before the expiration of this lease it was surrendered, and subsequently the plaintiff and Mrs. McGrew' divided the use of the mill as before, until the 9th of February, 1875, when Mrs. McGrew conveyed her interest to her daughter, Mrs. Holman, her husband, B. C. Holman, and the defendant, Idella L., who subsequently became the wife of the defendant, John A. Neece; and the use of the mill continued to be divided as before between the plaintiff and these grantees of Mrs. McGrew until the mill was destroyed by fire some time in the year 1875.
On the 8th of February, 1879, Holman and wife conveyed their interest in the mill to the defendant, Mrs. Neece, in pursuance of a previous agreement to that effect; and on the 8th of July, 1878, though prior to the last mentioned conveyance, but subsequent to the agreement that the same should be made, an arrangement was made between the plaintiff and the defendant, John A. Neece, for the rebuilding of the mill, in which said John A. Neece undertook to convey to the plaintiff, “for and in consideration of the copartnership of putting up or rebuilding a saw mill in the Mill’s Old Dam on Dean Swamp, with John Jordan, and the keeping up in a navigable condition the waste-way there
In pursuance of this arrangement, the mill was rebuilt, and continued to be used by the plaintiff and the Neeces upon the same terms as before until some time in 1887, when that mill was again burned. The plaintiff, wishing again to rebuild, after some negotiations with Mrs. Neece for that purpose, which proved to be fruitless, determined to rebuild the mill himself and so notified the defendants. After plaintiff had made his preparations to rebuild and made some progress in the work, defendants forbid his proceeding, and obstructing the-work even to the extent of cutting the dam, the plaintiff, on the 17th of September, 1888, commenced this action. In his complaint he claims that he is the owner in fee of two undivided third parts of the property described in the deed from Mrs. McGrew, and that the defendant, Mrs. Neece, is the owner of the remaining one undivided third, and he demands judgment that deféndants be enjoined from obstructing his work of rebuilding the mill or interfering therewith, or that the property be sold for partition.
The Circuit Judge held that the deeds under which plaintiff claims were not conveyances of the land, but simply ‘’covenants to stand seized of the same to the use, and for the purposes of, the copartnership so long as it should continue and no longer that from the nature of the copartnership, it was without limit as to time, and there being no provision for its dissolution by either party, it could be determined by either party at any time, and was practically dissolved when the defendants refused their consent
There is not a word in the paper, so far as we can discover, which indicates that the idea of any copartnership was in the
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for such further proceedings as may be necessary to carry out the views herein announced.