Walker v. Desportes

75 S.E. 960 | S.C. | 1912

October 2, 1912. The opinion of the Court was delivered by The facts are clearly stated in the Circuit decree and will not be stated in detail here.

When Jemima Harrison, one of the children of Osmond Woodward, died without issue living, the land which had been assigned to her by the executors of the will of Osmond Woodward under authority of the will, vested in her sisters, with contingent remainders to their issue. The sisters, by an action for partition in the Court of Common Pleas, procured a sale of the Harrison land without making the children, the contingent remaindermen in esse parties. When Regina Gadsden, Sarah Cook, Rebecca Buchanan and Lucy A. Keller, the sisters of Jemima Harrison, died, the interests of certain of the contingent remaindermen in the lands originally assigned to her became vested, and this action was brought to recover their interests in the lands as if no sale had been made. The defendant, Sara W. DesPortes, is in possession, claiming through the purchase at the partition sale. She is also the owner by purchase of the one-fourth interest in remainder of the children of Regina Gadsden. It is admitted that the issue of Lucy A. Keller are entitled to recover one-fourth interest in the land.

The defense to the claim of the issue of Mrs. Sarah S. Cook and Mrs. Rebecca Buchanan are: (1) That they intervened in the partition suit, and that by the intervention they became parties and are bound by the sale made in that suit; (2) That the sale was made for full value, and that the shares in the proceeds of the sale of the contingent remaindermen mentioned were invested for their benefit and that they still retain the property in which the funds were invested.

The record does not show that the issue of Mrs. Cook and Mrs. Buchanan were made parties to the partition suit by intervention or otherwise. But Thomas W. Woodward was appointed trustee for the share of Mrs. Cook, and as such received $2,250 from the proceeds of the sale.

In another proceeding instituted by Mrs. Cook and her husband, to which her only child was made a party, the Court ordered the lands assigned to Mrs. Cook in the original division made by the executors to be sold. The proceeds of this sale and also the share of Mrs. Cook and her child in the proceeds of the sale of the lands originally assigned to her sister, Jemima Harrison, were paid to the trustee, and by him invested in lands in Georgia. The issue of Mrs. Cook, who are now claiming one-fourth of the lands originally assigned to Jemima Harrison, are still in the possession and enjoyment of the Georgia lands. It does not appear that the payment to the trustee of the share of the proceeds of the sale of the Jemima Harrison lands, the lands now in controversy, was ever authorized by an order of the Court in any proceedings to which the contingent remaindermen were parties.

The contingent remaindermen not being parties to the proceedings under which the Jemima Harrison tract of land was sold, the Circuit Court correctly held that they were not bound by the order of sale made therein. Moseley v. Hankinson, 22 S.C. 323. But it was supposed at the time of the sale that the purchaser would get a good title, and that the interests of the contingent remaindermen would attach to the purchase money. It was under this mistake that the purchaser paid a full price, that $2,250, the one-fourth share of the proceeds which it was supposed would go to Mrs. Cook with a contingent remainder over at her death, was paid to Thomas W. Woodward as trustee, and that the trustee invested the $2,250 in the Georgia lands now representing that fund and in the possession of Mrs. Cook's issue. The Georgia lands have increased greatly in value. The Circuit Judge, we think, was in error in holding that the issue of Mrs. Cook, while holding the Georgia lands, could treat as a nullity the sale of the Harrison lands, and recover their one-fourth interest therein by paying back only the sum received by the trustee and invested in the Georgia land, with interest from the death of Mrs. Cook. Equity requires that when they repudiate the sale of the Harrison land they must surrender or account for every benefit they hold thereunder. Bailey v. Boyce, 4 Strob. Eq. 84.

Inasmuch as other trust funds were also invested in the Georgia lands it was not practicable for the issue of Mrs. Cook to separate the property representing the $2,250 received from the sale of the Harrison lands, and on the death of Mrs. Cook repudiate ownership of it. For that reason the general rule that the retention of the purchase money operates as an affirmance of the sale does not apply. For the same reason it is not practicable for the Court to require that the land representing the $2,250 trust fund be surrendered as a condition of the recovery of the interest in the Harrison land; but the issue of Mrs. Cook should pay or account to Mrs. DesPortes for the present value of the investment made by the trustee of Mrs. Cook's share of the proceeds of the sale of the Harrison lands, as a condition of their recovery of their one-fourth interest in those lands. The value of that interest is the proportion of the present value of the Georgia land which $2,250 bears to the entire investment made by the trustee.

The investment of the share of Mrs. Buchanan stands on a different footing. The Court ordered one thousand dollars of Mrs. Buchanan's share of the proceeds of the sale of the Harrison land to be used in the improvement of the family dwelling situated on the lands assigned to her in the original division made by the executors and held by her under the limitation of the will of Osmond Woodward. The issue of Mrs. Buchanan are now in possession of this property, but they were not bound by the order for the investment. It is manifestly impossible now to ascertain to what extent the land was increased in value by the improvement. The only available measure of benefit is the amount of money expended under the order of the Court and the utmost that a court of equity can do is to require that the issue of Mrs. Buchanan pay back that sum with interest as a condition of their recovery of their one-fourth interest in the land, as decreed by the Circuit Judge.

Careful examination of the evidence confirms the conclusion of the Circuit Court that the value of the land was not improved by cutting the timber and thus bringing more of it under cultivation. As nothing was added to the value of the land, no allowance can be made to Mrs. DesPortes for the alleged improvements. Civil Code, sec. 3202.

The objection that there was nothing before the Court tending to show that partition in kind was not practicable is not well founded. The entire record shows the advisability of a sale. The share of many of the parties is very small, and it seems impossible to adjust the equities of the parties without a sale of the land.

The judgment of this Court is that the judgment of the Circuit Court be modified, and that the cause be remanded for such proceedings as may be necessary to carry out the conclusion herein expressed.

MR. JUSTICE WATTS disqualified.