23 S.C. 232 | S.C. | 1885
The opinion of the court was delivered by
There is but one question in this case, and that arises upon a deed of which the following' is a copy, to wit:
“State op South Carolina, Darlington County.
“Know all men by these presents that I, William King, Sr., of State and district aforesaid, for and in consideration of the. love and affection I bear my son, James King, as well as the sum of ten dollars to me paid, the receipt of which is hereby acknowledged, have granted, bargained, sold, and released, and by these presents grant, bargain, sell, and release unto the said James King that tract or parcel of land where he now resides [describing the land by metes and bounds], supposed to contain three hundred acres, more or less, together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in any wise incident or appertaining; to have and to hold, all and singular, the said premises before mentioned, unto the said James King, his heirs and assigns forever. And I do hereby bind myself, my heirs, executors, and assigns to warrant and forever defend, all and singular, the said premises unto the said James King and his heirs against myself, my heirs, and against every person lawfully claiming, or to claim, the same or any part thereof. In trust, nevertheless, for the*234 benefit of the heirs of his body, and not subject to any debts now or hereafter to be contracted by him, and at his death to be equally divided between the heirs of his body.
“Witness my hand and seal this the twenty-ninth day of January, one thousand eight hundred and sixty, and the eighty-fourth year of American independence.
“(Signed) WILLIAM M KING.
“Signed, sealed, and delivered in the presence of
“-T. C. Law and Albert J. Law.”
James King, the son, took possession under this deed; or, as it appears, he was already in possession at the execution of the deed, but how and upon what terms is not stated. He died in 1883, leaving the defendants, his heirs at law, in possession. During his life-time, a judgment was obtained against him by McCown - & Bass, under which the land was sold, after first setting off a homestead of a portion thereof to said James King, which was not included in the levy and sale. At the sale, the plaintiff became the purchaser and received titles from the sheriff in 1882 for two hundred acres, more or less, levied on and sold as the property of James King, under execution in favor of McCown & Bass.
Under these circumstances, the action below was brought by McCown for the possession of the land and for damages for unlawfully withholding the same by the defendants. The defendants, taking the ground that James King acquired no interest under the deed aforesaid from his father through whom plaintiff claimed, offered no testimony on the trial. The case was heard by his honor, Judge Witherspoon, who, holding that James King had a leviable interest in the land under the deed from his father, which had been sold and purchased by the plaintiff, adjudged possession to plaintiff with costs. His honor did not state in terms in the decree pronounced by him “the precise character of the estate which in his opinion had passed to James King under the deed in question. But he used the following language in reference thereto, to wit: “The defendants, as heirs of the body, can only claim the land by succession from their ancestor, James King, and in his right subject to his debts,” from which the ap
The appeal raises the single question of the interest of James King under this deed. It is admitted that the execution of McCown & Bass was levied on this land as the property of James King, that plaintiff was the purchaser at sheriff’s sale, and that he has the sheriff’s deed conveying the same to him. But appellants controvert the construction of the Circuit Judge of the King deed and seek to have it reversed, claiming that his honor, instead of holding that James King took a fee to himself, should have held (in the language of the fourth exception) “that James took an estate in the land conveyed by the deed from William King in trust for his children, and that he had no other interest whatever therein.”
The object of construction as to deeds — in fact, as to all papers in contest before the courts — is to reach the intention of the parties, because it is this which must control; otherwise the contract would be the contract of the court and not of the parties. The ascertainment, however, of this intention is not to be had by conjecture, or by what seems to be natural justice, or what the court would have done under the circumstances, but it must be had by the application of the rules of construction laid down in the books, and which the wisdom of the past has established as the best means of reaching the true meaning and intent of such papers. Whatever the application of these rules evolves, nothing more, nothing less, must be regarded and declared to be the intent of the matter under construction, whether it be in consonance with our notions of what it ought to be or not. Now, the application of these rules to the deed in question, we think, results in a different conclusion from that reached by the Circuit Judge.
Take the deed as a whole, and seek 'the intention of the grantor (William King) through the language employed when reading it as an entirety, and there is no beneficial interest, either equitable or legal, conveyed to James King, as far as we can see; on the contrary, he seems to be expressly excluded by the expression that in no event is the property to be made liable
When thus read, and it is legitimate to transpose these clauses in this way, there is certainly no beneficial interest expressly conferred or conveyed to James King, but the estate is in trust for the heirs of his body, he being made the trustee simply. Suppose the language had been to James King, his heirs and assigns for ever, in trust, nevertheless, for the benefit of his children, and at his death to be equally divided between his children, could it be successfully contended in such a case that he would take a fee subject to his debts? We think not. Would he be entitled to any beneficial interest under such a deed ? Could such a deed be construed in any other way than as conveying the estate (whatever it might be) directly to the children through the operation of the statute of uses (there being nothing for the trustee to do) in common until his death, then to be divided equally between them ?
Now, can the words “heirs of the body,” as used here, be properly construed to mean children, and therefore intended as words of purchase, indicating who were to take under and by virtue of the deed, or must they be understood as defining the quantity of the estate granted to James King, and, therefore, as words of limitation ? These words, when used in the latter sense, to wit, of words of limitation defining the quantity of an
Now, in the case before the court, could these words have been used to define the quantity of an estate given to James King ? Before thus concluding, we must see that a beneficial estate of some kind was intended for him in the deed. Was there any such estate intended for him ? By the terms of the deed a full iee is conveyed to James, the words heirs and assigns forever being used, but this was certainly not for his benefit, because, if so, why afterwards was the term heirs of the body used, words which, if used in connection with the estate granted to James, would cut down the fee already granted to him to a fee conditional ? There is certainly no estate expressly granted to James, the quantity of which might be ascertained under the light of these words. There is no express estate to him and the heirs of his body, nor is there an express estate to him for life, and then to the heirs of his body, either of which wmuld be a fee conditional, the first under the general law, and the other under the rule in Shelley’s (Jase. But the estate is to him in fee absolute, in trust, however, for the heirs of his body.
There, then, being no beneficial estate to James in express terms to which these words, “heirs of the body,” could be attached indicating its quantity, can an estate be raised in him by implication ? This must have been the theory of the decree. Inasmuch as the deed directed that no division of the estate between the heirs of the body should take place until the death of
But it is said in several cases, it is always open to inquiry whether the words “heirs” or “heirs of the body” are used in their proper technical sense, or in a more inaccurate sense, to denote children, issue, or next of kin. Bailey v. Patterson, 3 Rich. Eq., 158; 2 Jarm. Wills, 13. And this rule does not apply if enough can be found in the deed to show clearly that the grantor did not intend the words heirs of the body as words of limitation defining the quantity of the estate to the first taker, but that he intended them as words of purchase, indicating that the heirs of the body were to take directly under the deed, and not by succession or inheritance. Holeman v. Fort, 3 Strobh. Eq., 66; Darbison v. Beaumont, 1 P. Wms., 230; Thomas v. Bennet, 2 Id., 340; Simms v. Garrot, 1 Dev. & Batt. Eq., 393; Bailey v. Patterson, 3 Rich. Eq., 158, supra.
Now, we think that the term “heirs of the body,” as used in this deed, even though a life estate be determined to James, was not used in their technical sense as words of limitation, but was used in the sense of children, and was intended to denote a class of persons who were to take as purchasers. In the case of Bailey v. Patterson, where Ch. Dunkin, who decided the case on Circuit, and who held that the words “heirs of the body” there
It is the judgment of this court that the judgment of the Circuit Court be reversed.