47 S.C. 288 | S.C. | 1896
The opinion of the Court was delivered by
This action was commenced in September, 1895, in the Court of Common Pleas for Barnwell County, in this State, for partition of a tract of land among the plaintiffs and defendant as tenants in common therein. The defendant, in his answer, denied such tenancy in common, and alleged that he was in sole and exclusive possession of said tract of land, as the sole owner in fee simple thereof. It seems that Bryant Weathersbee made a deed to said tract of land on the 25th day of March, 1882, to his daughter, Mrs. India J. Miller, who is the mother of the plaintiffs. Mrs. India J. Miller made a deed by way of mortgage, wherein she undertook to convey the entire tract of land as her own to the American Freehold Rand Mortgage Company, of Rondon, Rimited, and having made default in the payment of the debt'secured by such mortgage, it was foreclosed, and at the sale was purchased by the defendant, Benjamin Graham, who paid the purchase money bid at the sale, received a deed therefor, and entered upon the possession thereof. This being a legal issue — we mean the question of title — it was properly triable before a jury,
Now, let us look at the question here raised that we are to decide. Defendant contends that the grant in the aforementioned deed to “India J. Miller and the heirs of her body,” creates a fee conditional estate in said lands unto the said India J. Miller, and, upon the happening of birth of issue, such estate became alienable by the ancestor, the said India J. Miller; and that she having aliened the same in her lifetime, the purchaser now holds the same in fee simple. The plaintiffs admit that the foregoing is the law of this State, but they contend that, under a proper con
There can be no doubt, under the repeated adjudications of our courts, that the words in the granting clause of this deed, “to India J. Miller and the heirs of her body,” create an estate in fee conditional. The words used are technical words in the law. And we observe that the grantor uses these technical words both in the habendum and warranty clauses of this deed. Under our laws, where the grantor or devisor uses technical words, the conclusion is irresistible that he meant them to be so operative, unless a clear intention appears to the contrary. Can the words used in the habendum and warranty clauses, “unto the said India J. Miller and heirs of her body, to her and their heirs and assign forever,” and “unto the said India J. Miller and heirs of her body, their heirs and assigns,” be legally construed to mean children, so that the grant of the land shall be made to operate as creating a fee simple in the said India J. Miller and her four children, share and share alike? We do not think so. To do this would require that we should destroy the power of reversion to grantor in the lands in case India J. Miller died “without heirs of her body” living, provided she had issue of her body born to her; and, secoudty, provided she did not alienate the lands after birth of issue. By the words used by him, he must be understood to have so intended to create a fee conditional. Besides all
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.