74 S.E. 374 | S.C. | 1912
April 18, 1912. The opinion of the Court was delivered by This case was heard in the Circuit Court on an agreed statement of facts. It appears that on the 14th day of December, 1875, Charles Smith, for a valuable consideration, conveyed a certain tract of land to his wife, Priscilla Smith, "and the issue of her body by me. Charles Smith, begotten, * * * To have and to hold all and singular the premises before mentioned unto the said Priscilla Smith and the issue of her body, as aforesaid, their heirs and assigns forever." At that time there were three of such issue alive — Sarah Porter, W.H. Smith and J.W. *302 Smith; afterwards there were three more — C.M. Smith, Ogretto Mock and J.L. Smith.
Mrs. Priscilla Smith mortgaged the land. The mortgage was foreclosed and the land sold to Mrs. Wilson, the mother of the respondent. Mrs. Wilson has since died and Mrs. Lancaster, the respondent, takes as one of her heirs. Mrs. Priscilla Smith and Mr. Charles Smith are also dead.
It is admitted that Mrs. Wilson and the respondent have been "in open, notorious and exclusive possession" of said land, "claiming as owner adversely to the world" since May 4, 1885.
The appellants claim that two of the issue of Charles and Priscilla Smith are not barred by the statute, hence the statute is kept open as to all.
His Honor says: "The plaintiffs contend that under the above mentioned deed Mrs. Priscilla Smith took either (1) a life estate with remainder to her children as purchasers, or (2) as a tenant in common with her children as purchasers of the land in question." To which must be added that the word `issue' opened to admit after-born issue.
"The defendant contends that Mrs. Priscilla Smith took under said deed a fee conditional special, and having alienated the land by way of mortgage and the subsequent sale under proceedings in foreclosure, after the birth of such special issue, the purchaser at the foreclosure sale and the defendant, her heir, have good title in fee to the land in question."
His Honor decrees: "Under no view of the case are the plaintiffs entitled to recover possession of the land in dispute," and dismisses the complaint.
There are seven exceptions, but the appellant consolidates as follows: "The only question involved in this case is whether Priscilla Smith took a fee conditional under the deed of Charles Smith to Priscilla Smith and the issue of her body by me, the said Charles Smith, begotten, or did Priscilla take with the issue of her *303 body by Charles Smith begotten as tenants in common?" Appellant later explains that issue means issue alive at the death of Priscilla.
Much is said about "condition special" and "the rule in Shelley's case."
This is not a will that speaks after the execution and at the time of the death. This is a deed and speaks on the 14th day of December, 1875. It will be observed that there is no life estate and no remainder. The rule in Shelley's case has no application. The word "issue" does not occur in the habendum alone. Substitute for the words "Priscilla Smith and the issue of her body by me, the said Charles Smith, begotten" the letter A and you have a conveyance to A. and an habendum to A. and his (their) heirs and assigns forever.
It is just an ordinary, plain deed in fee to A. On that day there was no doubt as to who were included in the term "issue" and it was as if he had named them, Sarah Porter, W.H. Smith and J.W. Smith. Mrs. Smith and her three children took as tenants in common. The land having been held openly, notoriously and adversely against them for more than twenty years they cannot recover. The admission of an adverse holding carries with it an ouster.
Mendenhall v. Mower,
(1) "It may describe a class of persons who are to take as joint tenants with the parties named.
(2) "It may be descriptive of a class who are to take at a definite and fixed time as purchasers.
(3) "It may denote an indefinite succession of lineal descendants who are to take by inheritance, whenever this word is used, either in a deed or will, it must be used in one of these senses."
This case falls within class No. 1. In the case of Robinson
v. Harris,
In Johnson v. Johnson, McM. Eq. 347: "As is said in Wild's case, 6 Co. 16, which has been followed as familiar law ever since, that if lands are devised to A. and his children, who have children living at the time, they take as joint tenants or tenants in common."
In Wallace v. Craig,
This case is followed in Foster v. Glover,
The judgment of this Court is that the judgment of the Circuit Court is affirmed.
Petition for rehearing refused by formal order filed March 18, 1912. *305