Moore v. Perry

42 S.C. 369 | S.C. | 1894

The opinion of the court was delivered by

Mr. Chief Justice MoIver.

1 The plaintiff brings this action for the purpose of obtaining partition of a certain lot of land in the city of Charleston amongst himself and the defendants, and also for an account by the defendant, Henry S. Perry, of the rents and profits of said lot. The “Case,” as prepared for argument here, contains nothing but copies of the pleadings, the master’s report, the decree of the Circuit Judge, and the exceptions thereto, without any evidence, or even any general statement thereof, although some of the questions made by the appeal turn entirely upon the evidence. It is true, that it is stated that a copy of the testimony and the master’s report is filed with the clerk of the Supreme Court “for reference by either party.” This mode of preparing a case for argument in this court has been condemned by this court in a recent decision in the case of In re Estate of Perry, Ex parte Aramintha Perry and others, ante, 183, and parties must take the risk of such incomplete preparation. It is true, that this is an “Agreed Case,” and under the provisions of subdivision 5 of section 345, this court would not be at liberty to dismiss the appeal, or to decline to hear the case, or to require anything else incorporated in the “Case,” but is bound to hear the case upon what appears in the “Agreed Case,” but it is not bound to search elsewhere for materials upon which to base its decision. If the court should be required to' explore the vast mass of records in the clerk’s office to obtain the facts upon which to base its decision,, and which should appear in the “Case,” it is very manifest, under the pressure of business on this court, it would work great delay and injustice to other suitors. We adhere, therefore, to what has been well said in the case above cited. We must, therefore, in considering this appeal, confine ourselves to what appears in the “Case” as prepared for argument here, just as we do in all other appeals.

We must assume that the facts of the case are fully and fairly stated in the master’s report, which is incorporated in the “Case,” and which should be incorporated in the report of the ease. From this we learn that the main question in the case turns upon the proper construction of the will of Oliver Perry, sr., under which all parties claim. As we understand it, the master held that Oliver Perry, jr., and Hannah D. Perry, under whom the plaintiff and the defendants, other than Henry S. Perry, claim, never had any estate in the premises sought to be partitioned, and could not have until they had paid certain amounts due to Henry S. Perry, which he found, as matter of fact, they had never done. We infer that he also found that the plaintiff and the said Oli ver Perry, jr., had released by deed to the said Henry S. Perry whatever interest they might have had in said premises. It seems, also, that the defendant, Aramintha Perry, who is the widow of Oliver Perry, jr., at some stage of the case, set up a claim of dower in the interest of her deceased husband in the premises, though no such claim is set up in her answer, and, on the contrary, she there claims her interest as heir at law of her husband, which is inconsistent with the claim of dower. Upon this report and the exceptions thereto, the case came before his honor, Judge Aldrich, who rendered a decree overruling all the exceptions and confirming the report of the master, and rendered judgment in favor of the defendant, Henry S. Perry. From this judgment the plaintiff, together with the defendants, Amariutha Perry and her children, appeal upon the several grounds set out in the record, which, together with the decree of the Circuit Judge, should be incorporated in the report of this case.

2 The first ground of appeal preseuts a pure question of fact, and under the well settled rule, the finding of the master, concurred in by the Circuit Judge, will not be disturbed by this court, unless it is without any testimony to sustain it, or is against the manifest weight of the evidence, which we certainly cannot say is the case here, as there is no testimony set out in the “Case,” and nothing, therefore, to warrant such a conclusion.

3 The second ground of appeal imputes error to the Circuit Judge in holding that Oliver Perry, jr., never had such a legal estate in the lot in question as would subject the same to his widow’s right of dower. To determine the question raised by this ground of appeal, it will be necessary to consider the terms of the will of Oliver Perry, sr., disposing of the lot here in question. Those terms are thus stated in the master’s report, which affords the only information which we properly have upon the subject: “By this will testator devises to his three children, Oliver Perry, jr., Henry Stover Perry, and Hannah D. Perry, ‘to be owned by them, share and share alike, all my real property, consisting of the following: House and lot No. 29 Cooper street, which shall vest immediately after my death, and the house and lot No. 31 Cooper street [the latter lot being the one in contention here], next to the above named property, the latter being mortgaged to the loan and trust company. As soon as the mortgage on the above property is satisfied, I direct that it shall be owned by my three children above named, share and share alike; provided the said Oliver Perry, jr., and the said Hannah D. Perry shall pay, or cause to be paid, to the said Henry Stover Perry whatever amounts the said Henry Stover Perry has paid out, on his own personal account, or may hereafter payout on his own personal account, in satisfying the mortgage on the property. Henry Stover Perry must produce receipts, or other proper proof, of whatever money he claims to expend, and Oliver Perry, jr., and Hannah D. Perry must each pay one-half of whatever amounts paid out by Henry Stover Perry in clearing the property of the mortgage; if the said Oliver Perry and the said Hannah D. Perry shall fail to pay any and every just debt due the said Henry S. Perry as above, then the property shall belong to the said Henry Stover Perry, free from every claim and encumbrance.’ ”

We do not think there can be a doubt that the intention of the testator, which must govern, was that while the title to lot 29 should vest in the three children immediately upon the death of the testator, no interest or estate in lot No. 31 should vest in either Oliver Perry, jr., or Hannah D. Perry, until they had refunded to Henry S. Perry the amounts which he had already paid, as well as what he might thereafter pay, towards relieving the last mentioned lot from the lien of the mortgage referred to. Now as the master has found as a matter of fact, which finding we must, under the rule, accept, that these amounts never were refunded to Henry S. Perry either by Oliver or Hannah, it would seem to be clear that no estate in said lot ever vested in either of them, but the entire estate remained in Henry S. Perry. We agree with the master and the Circuit Judge in rejecting the claim of dower.

2 As to the third, fourth, fifth, and sixth grounds of appeal, they all (except the third, which raises an abstract question of law, which, so far as appears, was not pertinent to any point decided in the case), turn upon questions of fact, which the “Case” affords us no means of investigating, and need not, therefore, be considered.

3 The seventh ground imputes error to the Circuit Judge in failing to require an accounting from Henry S. Perry for the rents and profits of the lot, and also a vouching of the amounts claimed to have been paid by him towards the satisfaction of the mortgage. It appears from the master’s report that Henry S. Perry did show to the satisfaction of the master that he had made payments on the mortgage debt, which had never been refunded to him by either Oliver or Hannah D. Perry, and, therefore, as we have seen, Henry S. Perry could not be called to account for the rents and profits of the lot.

4 What we have already said is sufficient to dispose of the eighth ground, for certainly, as the Circuit Judge held, the appellants could not, in any view of the case, be allowed anything more than a reasonable time to refund the amounts advanced by Henry S. Perry towards the satisfaction of the mortgage debt; and clearly a period of nearly four years was amply sufficient. The ninth ground is also disposed of by what has been said. If no title to the lot vested in Oliver and Hannah D. Perry until Henry S. Perry was reimbursed, surely neither they nor their heirs at law could have any claim to have the lot sold, especially after whatever interests they may have had in the lot had been released to Henry S. Perry.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.