24 S.C. 228 | S.C. | 1886
The opinion of the court -was delivered
Tillman Watson, Sr., late of Edgefield County, died intestate February, 1874. He died childless, but he left surviving him his widow, the defendant, and several collateral kindred, among whom are the plaintiffs. The widow administered and all of the real estate admitted to belong to the deceased has been partitioned among the parties entitled. The widow, however, is in the possession of the homestead, containing some four hundred acres, which she claims under a deed
The cause was heard by consent by his honor, Judge Wither-spoon, upon testimony taken before the clerk of the court. His honor found as matter of fact that the deed in question had been executed and delivered, and as matter of law that it was a covenant to stand seized to uses. He therefore adjudged that the defendant was entitled to the land, whereupon he ordered the complaint to be dismissed with costs.
The appeal denies the execution and delivery of the deed; also, that it could be construed as a covenant to stand seized; and also, that defendant was entitled to hold the land under said deed. It also assigns error to the Circuit Judge in admitting certain testimony as to the acts, declarations, and intention of Tillman Watson concerning said deed. The following is a copy of the deed in question:
“State oe South CAROLINA — Edgefield County.
“Know all men by these presents that I, Tillman Watson, Sr., of Edgefield County, in the State aforesaid, in consideration of the affection I bear my wife, Elizabeth C. Watson, at and before the sealing of these presents, have granted, bargained, and at my death by these presents do grant, bargain, and release unto the said Elizabeth O. Watson all that tract or parcel of land known as my homestead, containing four hundred acres, more or less, situate, lying, and being in the County of Edgefield and State aforesaid, near Ridge Spring depot, on the Charlotte, Columbia and Augusta Railroad, being bounded as follows, viz. : On the north, by lands of P. J. Quattlebaum; on the east and south, by lands of Burrell Boatwright; and on the west, by the Charlotte, Columbia and Augusta Railroad and land of Mrs. T. Watson; together with all the kitchen and household furniture and effects, with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in anywise incident or appertaining. To have and to hold all and singular the premises before mentioned unto the said Elizabeth C. Watson,( her heirs and assigns, forever^; All of the before
“Witness my hand and seal this thirteenth day of July, in the year of our Lord one thousand eight hundred and seventy, and in the ninety-fifth year of American independence. This paper to be in full force until I desire to act.
“TILLMAN WATSON, SR. [l. s.]
“Signed, sealed, and delivered in the presence of
“P. J. Quattlebaum,
“R P. Jones.
“State oe South CAROLINA — Edgefield County.
“Personally appeared before me P. J. Quattlebaum, and made oath that he saw the within named Tillman Watson, Sr., sign, seal, and, as his act and deed, deliver the within deed, and that he, with R. P. Jones, witnessed the execution thereof.
“R. P. QUATTLEBAUM.
“Sworn to before me this 9th day of August, 1873.
“JACKSON Oovar, N. P.
“Recorded on the 15th day of December, 1875.
“Jesse JoNes, C. C. O. P.”
The questions involved in this appeal were very fully and elaborately discussed before us on both sides, and especially was much light thrown upon the intricate subject of conveyances, both at common law and under the statute of uses, many authorities having been cited and ably commented upon. The case, however, involves an examination of only one of the classes of conveyances discussed, to wit: covenants to stand seized, which originally only created a trust enforcible in equity, but after-wards by the statute of uses conveyed the legal title, and, therefore, since that statute recognized at law. The Circuit Judge held the deed in question here a covenant to stand seized, and whether he erred in thus holding is the main question to be considered. What is a covenant to stand seized, and what are its prominent features and characteristics?
Mr. Kent describes it as well and perhaps better than can be found elsewhere. No apology is therefore necessary for quoting
It appears from this that the principal characteristics of a covenant to stand seized are, first, the intention; secondly, it must be founded upon the consideration of blood or marriage, and it may create a freehold in futuro; and, further, though the form of the deed according to its letter may not be a covenant to stand seized, yet if such be the intention it will be so construed provided the consideration be that of blood or marriage. See also our cases of Chancellor v. Windham and Law, 1 Rich., 164, and Kinsler v. Clark, 1 Rich., 170, especially on the point of creating a freehold in futuro by covenants to stand seized. Now let the deed'in question be tested by the principles laid down in the authorities cited. The consideration is of the character required in a covenant to stand seized, and there can be no doubt that Mr. Watson intended to create an estate in fee in his wife to take effect in enjo3rment at his death, reserving a life estate to himself, thus creating a freehold as to enjoyment in futuro, one of the leading features of a covenant to stand seized.
The case of Chancellor v. Windham, supra, was very similar to the case here. In that case one John Wilson, by words in presentí, had given, granted, and released unto his son, his heirs and assigns, the land described in the deed, at his death to have and to hold, &c. It was held to be a covenant to stand seized, though creating a freehold in futuro. And so, too, in the case of Kinsler v. Clark, supra, where a mother, in consideration of natural love and affection, &c., gave and granted to her two sons after the term of her natural life a tract of land, the same holding was had. In the former ease Judge Wardlaw said the authorities cited “show that a deed, whether in form a feoffment, a bargain and sale, or a lease and release, if the consideration of blood or marriage exists, may, to effect the intention of the parties, be construed to be a covenant to stand seized; that give and grant are apt words for such covenant, and that it is the duty of courts by reasonable construction to give effect to the intention of parties not inconsistent with law. The deed in question is, therefore, a good covenant to stand seized to uses.”
The fact, though, that it appeal's in the deed as a portion of the property attempted to be conveyed, is made use of as an argument to show that the whole paper was ambulatory in its character, certainly so, as is contended, with reference to the personalty, because a future interest could not be created therein except by will, and inferentially so as to the land, because it is embraced in the same paper with the personalty. The land was far the most important and valuable portion of the conveyance. It was the homestead of these two old people, containing some 400 acres. If the small personalty found in the deed had not been embraced, we think there could be but little doubt as to the intention of the husband, and under the authorities cited above it would have been the duty of the court to declare the deed a covenant to stand seized, thereby creating a freehold in futuro in his widow. Such being the fact, is it not much more reasonable to suppose that the small personalty embraced was thrown in, either under the sup
But, it is urged that the last line of the deed supra affords evidence that'the deed was not regarded or intended by old Mr. Watson to be irrevocable. Without going into the question of powers reserved in such cases, it seems sufficient here to say that the line in question is too indefinite and vague to predicate any construction thereof. In the first place, it is not agreed as to the last word in the line, whether it is “act” or “alt.” This is the most important word in the line, and in the absence of a distinct understanding of what it is, it cannot be safely interpreted. All of the foregoing portions of the deed are reasonably clear and free from doubt, and directly opposed to the effect contended for from this line. To overthrow the clear portions of the deed by a portion which is not distinctly intelligible, seems unreasonable. Besides, the only intelligible portion of the line shows that Mr. Watson knew that he had made a deed, which was of force at the time, at least, and that it passed a right in presentí.
The exceptions involving matters of fact are overruled under the authority of many familiar cases in our own reports. The case is a case at law, and the facts belong to the jury.
Next, it is urged “that his honor erred in not excluding all testimony as to Tillman Watson’s acts, declai’ations, or intention concerning said deed, the deed itself being the highest evidence of intention.” This is a very general exception, not sufficiently specific according to strict practice and rule, and if we have overlooked any testimony objected to, it is due to this fact. The testimony in the case seems to have been taken before the clerk under the provisions of the statute. During this examination, objections were made and noted, and it is stated by the appellant that these objections were urged at the trial. It does not appear, however, that the Circuit Judge made any ruling upon the subject. Nor does it clearly appear that he considered the testimony in question.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.