May v. Thomas

78 S.E. 85 | S.C. | 1913

Lead Opinion

March 27, 1913. The opinion of the Court was delivered by This is an appeal from decree of his Honor, Judge Gage, confirming the report of J.G. Hughes, Esq., special master, made in the case, and for a proper understanding of the case the report of the master, the decree of Judge Gage and exceptions thereto, should be set out in the report of the case. We think it unnecessary to take up the exceptions seriatim, as we think the decree in the main should be confirmed, but with this modification: That the contention of those holding under the lease made by life tenant could only be held to account for the rent provided to be paid in said lease.

Sec. 3496, Code of Laws, vol. I, 1912 (new Code), provides: "If any person shall rent or hire lands of a tenant for life, and such tenant for life dies, the person hiring such land shall not be dispossessed until the crop of that year is finished, he or she securing the payment of the rent when due."

In this case, the remaindermen were bound by the contract made by the life tenant. Where a life tenant makes a contract for the lease of his life estate, for a valuable consideration, then the remaindermen are bound by the contract made by the life tenant and can collect the rent only provided for in that contract.

This is a remainder under a will. Section 3563 of the Code of 1912 reads as follows:

"Any person having right or title to any lands, tenements, or hereditaments, whatsoever (persons of unsound mind and infants excepted), may dispose thereof by will, in writing, at his or her own free will and pleasure, except as hereinafter provided; but all wills or testaments made of any lands, tenements, or other hereditaments, by any person within the age of twenty-one years, idiot, or by any personde non sane memory, shall not be taken to be good and effectual in law."

The power to make a will is statutory. The statute provides who may make a will and who may not. It says how it shall be executed and how revoked. It provides that certain dispositions of property shall be void. It provides that a certain estate, that had theretofore been a life estate, should thereafter be a fee simple.

The right to make a will is not a natural right. The natural right to control property dies with the possessor. It is not a constitutional right. It is not mentioned there. Though of ancient origin, the right is a creature of statute and may be abridged at any time by the lawmaking power.

When this will was made; when it became of force and when these remainders arose, this statute was in force. Therefore the will and all rights under it came into existence subject to the statute. At the time the rights vested, they vested subject to the statute. Remainders could be forbidden. The same power that created a fee, in all of those lands devised, in which the estate was not inconsistent with a fee, could have provided that in every event and in defiance of the limitation the first taker should take a fee and declare all remainders void. It did not declare the remainder void, but it said to the remaindermen, you can not get possession of agricultural lands until the end of the year. If the statute had the right to prevent the disposition altogether, it certainly had the right to postpone the exercise of the right of possession. The difficulty, however, is not in the postponement of the possession without the consent of the remainderman, but that the rent should be fixed by the life tenant and not by the "consent" of the remaindermen. If the law can withhold the land it can also withhold a mere incident like rent. If the life tenant can not make a binding contract for rent, neither can he make a contract that withholds the land itself. It is said that the tenant must pay a reasonable sum for the use and occupation. Who is to say what is a reasonable sum? Manifestly the Courts must fix the amount. If the remainderman has a constitutional right upon which he is entitled to stand, then, that constitutional right is "consent." The Court can not supply the want of consent if the right of consent exists. As to public policy: on the one hand, some life tenants may let their estates at unreasonably small rents. On the other, the income to be derived from property held by life tenants would be nothing if, upon the death of the life tenant, the tenant for a year must make a new contract with an unknown and unknowable remainderman, whose demands are limited only by his conscience and that may be elastic. Thus the life tenant, the immediate object of the testator's bounty, may be deprived of the entire benefit of a valuable estate.

The remainderman takes the estate subject to the burden of a lease (that can not exceed a year) and the statute that imposes the burden is in all respects fair and entirely constitutional.

After the life tenant dies, the remaindermen can require the tenant to secure the payment of the rent when due. In this case the tenants under the life tenant are liable to pay the remaindermen two-thirds (2-3) of what they had contracted with George W. Hill, the life tenant, to pay for the year.

It is the judgment of this Court that the decree of the Circuit Judge be modified in accordance with the views indicated herein.

Judgment modified.

MESSRS. JUSTICES WOODS and WATTS concur.

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Dissenting Opinion

I cannot assent to the proposition that the remaindermen are bound by the lease made by the life tenant. If they are so bound, it is only by virtue of the statute, for it can not be on account of any privity of contract or estate. There is no doubt that the estate of a life tenant terminates with his life. Necessarily, any grant or lease made by him must also terminate upon his death. This being so, at common law, upon his death, the remainderman was entitled to immediate possession. This frequently resulted in great inconvenience and hardship where the life tenant died after his undertenant had prepared for, or, perhaps, had planted and had in course of cultivation, the crops of the year, for remedy of which, in 1789, the legislature enacted a statute with regard to slaves and lands hired or rented from life tenants which, omitting parts not pertinent to the present inquiry, reads: "If any person shall die after the 1st day of March, in any year, the slaves of which he or she was possessed, whether held for life or absolutely, and who were employed in making a crop, shall be continued on the lands, which were in the occupation of the deceased, until the crop is finished, and then be delivered to those who have the right to them. * * * And if any person shall rent or hire lands or slaves of a tenant for life, and such tenant for life dies, the person hiring such land or slaves shall not be dispossessed until the crop of that year is finished, he or she securing the rent or hire when due." 5 Stat. 111. The last sentence of this statute, with the words making it applicable to the hiring of slaves stricken out, now appears as section 3496, Civil Code, 1912, and is the statute upon which the appellants base their contention that the remaindermen are bound by the contract made by the life tenant.

The effect of such a construction of the statute is to enable the life tenant, by leasing the property, to practically continue his estate therein through the year in which he dies. Such effect can not be given to the statute, without making it unconstitutional, for, in that event, the remainderman is deprived of his property, without his consent, and without due process of law. It simply allows one man to barter away the rights of another, without his knowledge or consent. It is directly in conflict with the principle decided inCureton v. Ry., 59 S.C. 371, 37 S.E. 914, and the cases following it, which hold that a life tenant can convey no greater interest than he has in the premises; and that, to allow a deed from the life tenant to a railway corporation for a right of way through the land in which he has only a life estate to have the effect of foreclosing the rights of the remaindermen to compensation for the right of way would violate that provision of the Constitution which says, "that private property shall not be taken for private use, without the consent of the owner, nor for public use, without just compensation being first made therefor." Art. I, sec. 17.

Now, unquestionably the remainderman is the owner after the expiration of the life estate, and it is inconceivable that the legislature would attempt to make contracts made by the life tenant, without the knowledge or consent of the remainderman, and perhaps greatly against his interest, binding upon him. Such legislation would violate the fundamental principles of right, and, therefore, such a construction of the statute must be avoided; for it is well settled that, in construing a statute, that construction which will render it unconstitutional must be avoided, if possible. This may be done, in construing this statute without violating any right, or rule of construction.

Another principle of construction that may be invoked is that where a statute is in derogation of common law and of common right, it must be strictly construed. The statute in question clearly impairs the common law rights of remaindermen.Huff v. Latimer, 33 S.C. 260, 11 S.E. 758. Therefore, when the statute says that the tenant shall not be dispossessed, he securing the rent when due what rent is meant and to whom is it to be secured? That question was answered in Freeman v. Tompkins, 1 Strob. Eq. 54, 58, where the Court said: "When the act says the hirer shall secure the payment of the rent and hire, it means that he shall secure to the remainderman the proportion of it which arises after the accrual of the remainder. The proportion arising in the terms of the life tenant is already secured tohim by the contract of hiring. But how does rent accrue to the remainderman? Certainly not under the contract made by the life tenant, for to that the remainderman is neither party nor privy. It accrues by virtue of an implied promise on the part of the undertenant, who remains in possession, under the protection of the statute, and uses the remainderman's property, to pay him a reasonable rent therefor. This case falls squarely within the provisions of section 3503, Civil Code, 1912, which was enacted before the section we are considering. It provides for the recovery by the landlord of a "reasonable satisfaction" for the use and occupation of lands, etc., where the agreement is not by deed. This ground of recovery was enforced in Freeman v. Tompkins, supra. In that case, Mary Freeman, the life tenant of certain slaves, died in May, having possession of the slaves. After her death, her trustees took charge of them and retained them for several years. The question was, whether, under the statute, her estate was entitled to the use of the slaves for the portion of the year after her death, without compensation to the remaindermen. It will be observed that, under the first sentence of the act above quoted, her representatives had the right to use the slaves, until the crop was finished, and nothing is said about compensation. The Court held, however, that her estate was liable for a reasonable hire. At page 59 of the report, the Court said: "It is plain that the legislature looked to the injury which would result from interrupting the planting operations after that season when preparations for the crop are usually in progress; and intended to secure against the consequences of a sudden change of the right of property by the death of the party, in faith of whose title the crop was set. As a matter of convenience, it was provided that, in all cases where the crop was superintended by the executor of the decedent, it should constitute assets in his hands. But it by no means follows that, when it is raised by means of slaves or lands which, on the death of his testator, become the property of a remainderman, these shall be used without compensation. Certainly the act does not `continue the estate of the life tenant,' as it is expressed in Leverett v. Leverett, `to the end of the year.' There can be no doubt that, if it were necessary to vindicate the title to the property (the land, for instance), the suit must be brought in the name of the remainderman. The only object of the statute was to prevent great injury from the loss of a crop planted, and to obviate the difficulty of employing laborers after the beginning of the planting season. This is an essential benefit to the estate of the life tenant; though that estate, intowhose service the remainderman's property is pressed,should be compelled to pay an equivalent for the servicesrendered (italics added). And it is no greater hardship that the life tenant's estate should pay for these services than a person to whom he hires the property, — which is expressly provided for in the statute." By parity of reasoning, neither the estate of the life tenant nor his undertenant should be allowed to have the use of the remainderman's land without rendering a fair equivalent.

If we hold that the remainderman is bound by the contract of the life tenant, made upon valuable consideration, it will frequently result in the loss of practically a whole year's rent to the remainderman. Suppose the life tenant should lease the premises in consideration of his own maintenance and support by the lessee? Now, that is a valuable consideration. Yet, if the remainderman is bound by it, he could not dispossess the undertenant upon the death of the life tenant, nor could he collect any rent for the use of his property for the balance of the year. Considerations of blood and affection may and frequently do cause the life tenant to lease the premises at a merely nominal rent; and that is practically the case here, for, as gathered from the record, the consideration of the lease was $150 and the support of the life tenant, while the testimony shows that the rental value of the property is upwards of $4,000. Surely, the legislature did not contemplate or intend such consequences; and, when read in the light of the then existing law and the evils which it was intended to remedy, the language of the statute does not warrant an interpretation which will lead to any such result.

One who goes into possession under a life tenant is charged with notice of his landlord's title, and that it is liable to terminate at any moment. If it terminates in the midst of the year, the statute saves him from being dispossessed, and there is no hardship in holding him responsible to the remainderman for a reasonable rental, after the death of his landlord. The statute does not compel him to retain the possession. He may quit, without liability to the remainderman. And that, too, goes to show that the remainderman ought not to be bound by the contract, because the tenant is not, and mutuality is wanting. Usually, his own interest would impel the tenant to remain in possession; but if he does, it is of his own free will, and he should, therefore, be held thereby to an implied promise to pay the remainderman a reasonable rent. The foregoing views are supported by authority. Hoagland v. Crum, 113 Ill. 365, 55 Am. Rep. 424; Guthman v. Vallery, 51 Neb. 824, 66 Am. St. Rep. 475; Williams v. Caston, 1 Strob. L. 130.

MR. CHIEF JUSTICE GARY concurs.