The opinion of the Court was delivered by
Mr. Justice Watts.
H. D. Still, Sr., died April 19, 1913, intestate, leaving his widow, Mrs. Marian M. Still, and three sons, his heirs and
distributees. H. D. Still, Jr., one of his sons, administered on his estate in Barnwell county. Mr. H. D. Still, Sr., at the time of his death was indebted to various parties. He ■had made a deed to his wife, Mrs. Marian Still, of his lands. This deed was made September 12, 1911, but was not recorded until June 17, 1912.
The present action was instituted by Barrett & Company, on behalf of itself and other creditors, against Mrs. Marian M. Still and the other heirs and the administrator of the intestate, and against the F. S. Royster Guano Company, Southern States Phosphate and Fertilizer Company, and Pope & Fleming, as defendants. C. F. Rizer claiming to hold a mortgage of the lands in question made by Mrs. Marian M. Still, was made a party defendant. He answered. The object of the action was to set aside the above mentioned deed as fraudulent against the creditors of H. D. Still, Sr.
The defendants, Southern Phosphate and Fertilizer Company, and Popé & Fleming, answered, taking the same position as to this deed. Neither the plaintiff nor the above named defendants contended that the deed was void as to their respective claims by reason of' the failure to record within the required time.
The F. S. Royster Guano Company answered. This creditor sets up the failure to record the said deed in time and that it had no notice of it. Answers were filed by the heirs and administrators of PI. D. Still, Sr., Mrs. Marian M. Still answering separately.
An order was made enjoining the creditors of IT. D. Still, Sr., deceased, from otherwise proceeding on their claims, and requiring them to be proved in this action. An order was subsequently made requiring J. Kmile Harley, Jr., Esq., as special referee, to call in creditors to prove their demands by a certain day and referring it to him to take testimony.
Under this order claims were filed by creditors, including Read Phosphate Company and F. W. Wagener & Company.
These two creditors set up that the debts to them respectively owing by the intestate, IT. D. Still, Sr., were contracted after the making of the deed of H. D. Still, Sr., to his wife and before its record, and that they had no notice thereof, and that with respect to their respective claims they are protected against this deed by the recording law. A claim was presented by Leesville Cotton Oil and Fertilizer Company.
The case was heard by his Honor, Judge Sease, who made his decree. An appeal was taken and exceptions, twenty-four in number, filed by Mrs. Marian M. Still.
One joint exception was filed by the F. S. Raster Guano Company, the Read Phosphate Company, and F. W. Wagener & Company. Exceptions were filed by Leesville Cotton Seed Oil Mill Co.; exceptions were filed by C. F. Rizer.
The result of these various exceptions is to raise the following questions:
1. Did the Circuit Judge err in decreeing the deed of H. D. Still, Sr., to Mrs. Marian M. Still void against the claims of F. S. Royster Guano Company, Read Phosphate Company and F. W. Wagener & Company, as decreed?
2. Did the Circuit Judge err in holding that said deed was void as to the claims of Barrett & Doughty, Pope & Fleming and Southern States Phosphate and Fertilizer Company?
3. Did the Circuit Judge err in holding that when PI. D. Still, Sr., made the deed in question to his wife, he had a fee simple title, which by this deed he conveyed to her?
4. Did the Circuit Judge err in not ordering the homestead in the lands in question set-off to the value of $1,000?
5. Did the Circuit Judge err in not ordering that the dower for Mrs. Marian M. Still be admeasured to her one-third of each tract for life, or one-sixth in fee as she may •elect ?
. 6. Did the Circuit Judge err in not allowing Mrs. Marian M. Still to participate in the proceeds of sale of the land
conveyed to her by the deed of H. D. Still, Sr., to the extent of $17,000, after setting off homestead and dower?
7. Is the Leesville Cotton Seed Oil Mill entitled now to change the proof of its claim and take the position claimed in its exceptions ?
The most important and far-reaching exception as far as the practical results of this case is concerned is: “Did the Circuit Judge err in holding that when II. D. Still, Sr., made the deed in question to his wife he had a fee simple title, which, by this deed, he conveyed to her?” The bulk of the assets will come from this land if it is held chat the Circuit Judge was correct in his finding.
1
H. D. Still owned in fee the other tracts, and as to the Aldrich tract the question is: Did he own it in fee or did he only have a life estate in it? The deed to the Aldrich tract was from Mrs. H. A. Patterson and Mrs. I. A. Holman, of date June 22, 1897, containing seventeen hundred and thirty acres, more or less, and duly recorded in proper office on July 5, 1897. This deed in the premises conveyed the life estate to H. D. Still, and the remainder to his wife, Marian M. Still. The language in. the premises being as follows : “Together with all and singular, the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident or appertaining, to H. D. Still, for life, then to Marian M. Still, her heirs, and assigns forever.” There is no ambiguity in the wording of the deed and the intent of the grantors is plain that they intended to convey a life estate to PI. D. Still, remainder in fee to his wife, Marian M. Still.
Both of the husbands of the grantors, Mrs. Patterson and Mrs. Holman, were most capable and learned lawyers, and the only inference can be drawn is that they knew what their wives were conveying and the character of the estate conveyed. There is nothing anywhere in the deed that can control and alter the deed to give it any other construction than that II. D. Still onty had a life estate in the land con
veyed and at his death his wife, Marian M. Still, took it in fee simple. H. D. Still was an estate for life and a vested remainder- in his wife.
None of the cases relied on to sustain the construction of the Circuit Judge or authorities cited by him are sufficient to control the Court in sustaining his decree, and this éxception is sustained.
As to the exceptions of the different parties which raise the points that the Judge was in error in decreeing the deed of H. D. Still, Sr., to Marian M. Still, void as against the claims of F. S. Royster Guano Company, Read Phosphate Company, F. W. Wagener Company, Barrett & Doughty, Pope & Fleming, and the Southern States Phosphate Company. These exceptions will be considered together.
We think these exceptions should be overruled, for the reasons assigned by the Circuit Judge, and for the additional reason that as far as PI. D. Still, Sr., was concerned, he created a "new debt when he assumed and guaranteed or endorsed the existing debts of his sons.
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The opinion of the Court was delivered by
Mr. Justice Watts.
H. D. Still, Sr., died April 19, 1913, intestate, leaving his widow, Mrs. Marian M. Still, and three sons, his heirs and
distributees. H. D. Still, Jr., one of his sons, administered on his estate in Barnwell county. Mr. H. D. Still, Sr., at the time of his death was indebted to various parties. He ■had made a deed to his wife, Mrs. Marian Still, of his lands. This deed was made September 12, 1911, but was not recorded until June 17, 1912.
The present action was instituted by Barrett & Company, on behalf of itself and other creditors, against Mrs. Marian M. Still and the other heirs and the administrator of the intestate, and against the F. S. Royster Guano Company, Southern States Phosphate and Fertilizer Company, and Pope & Fleming, as defendants. C. F. Rizer claiming to hold a mortgage of the lands in question made by Mrs. Marian M. Still, was made a party defendant. He answered. The object of the action was to set aside the above mentioned deed as fraudulent against the creditors of H. D. Still, Sr.
The defendants, Southern Phosphate and Fertilizer Company, and Popé & Fleming, answered, taking the same position as to this deed. Neither the plaintiff nor the above named defendants contended that the deed was void as to their respective claims by reason of' the failure to record within the required time.
The F. S. Royster Guano Company answered. This creditor sets up the failure to record the said deed in time and that it had no notice of it. Answers were filed by the heirs and administrators of PI. D. Still, Sr., Mrs. Marian M. Still answering separately.
An order was made enjoining the creditors of IT. D. Still, Sr., deceased, from otherwise proceeding on their claims, and requiring them to be proved in this action. An order was subsequently made requiring J. Kmile Harley, Jr., Esq., as special referee, to call in creditors to prove their demands by a certain day and referring it to him to take testimony.
Under this order claims were filed by creditors, including Read Phosphate Company and F. W. Wagener & Company.
These two creditors set up that the debts to them respectively owing by the intestate, IT. D. Still, Sr., were contracted after the making of the deed of H. D. Still, Sr., to his wife and before its record, and that they had no notice thereof, and that with respect to their respective claims they are protected against this deed by the recording law. A claim was presented by Leesville Cotton Oil and Fertilizer Company.
The case was heard by his Honor, Judge Sease, who made his decree. An appeal was taken and exceptions, twenty-four in number, filed by Mrs. Marian M. Still.
One joint exception was filed by the F. S. Raster Guano Company, the Read Phosphate Company, and F. W. Wagener & Company. Exceptions were filed by Leesville Cotton Seed Oil Mill Co.; exceptions were filed by C. F. Rizer.
The result of these various exceptions is to raise the following questions:
1. Did the Circuit Judge err in decreeing the deed of H. D. Still, Sr., to Mrs. Marian M. Still void against the claims of F. S. Royster Guano Company, Read Phosphate Company and F. W. Wagener & Company, as decreed?
2. Did the Circuit Judge err in holding that said deed was void as to the claims of Barrett & Doughty, Pope & Fleming and Southern States Phosphate and Fertilizer Company?
3. Did the Circuit Judge err in holding that when PI. D. Still, Sr., made the deed in question to his wife, he had a fee simple title, which by this deed he conveyed to her?
4. Did the Circuit Judge err in not ordering the homestead in the lands in question set-off to the value of $1,000?
5. Did the Circuit Judge err in not ordering that the dower for Mrs. Marian M. Still be admeasured to her one-third of each tract for life, or one-sixth in fee as she may •elect ?
. 6. Did the Circuit Judge err in not allowing Mrs. Marian M. Still to participate in the proceeds of sale of the land
conveyed to her by the deed of H. D. Still, Sr., to the extent of $17,000, after setting off homestead and dower?
7. Is the Leesville Cotton Seed Oil Mill entitled now to change the proof of its claim and take the position claimed in its exceptions ?
The most important and far-reaching exception as far as the practical results of this case is concerned is: “Did the Circuit Judge err in holding that when II. D. Still, Sr., made the deed in question to his wife he had a fee simple title, which, by this deed, he conveyed to her?” The bulk of the assets will come from this land if it is held chat the Circuit Judge was correct in his finding.
1
H. D. Still owned in fee the other tracts, and as to the Aldrich tract the question is: Did he own it in fee or did he only have a life estate in it? The deed to the Aldrich tract was from Mrs. H. A. Patterson and Mrs. I. A. Holman, of date June 22, 1897, containing seventeen hundred and thirty acres, more or less, and duly recorded in proper office on July 5, 1897. This deed in the premises conveyed the life estate to H. D. Still, and the remainder to his wife, Marian M. Still. The language in. the premises being as follows : “Together with all and singular, the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident or appertaining, to H. D. Still, for life, then to Marian M. Still, her heirs, and assigns forever.” There is no ambiguity in the wording of the deed and the intent of the grantors is plain that they intended to convey a life estate to PI. D. Still, remainder in fee to his wife, Marian M. Still.
Both of the husbands of the grantors, Mrs. Patterson and Mrs. Holman, were most capable and learned lawyers, and the only inference can be drawn is that they knew what their wives were conveying and the character of the estate conveyed. There is nothing anywhere in the deed that can control and alter the deed to give it any other construction than that II. D. Still onty had a life estate in the land con
veyed and at his death his wife, Marian M. Still, took it in fee simple. H. D. Still was an estate for life and a vested remainder- in his wife.
None of the cases relied on to sustain the construction of the Circuit Judge or authorities cited by him are sufficient to control the Court in sustaining his decree, and this éxception is sustained.
As to the exceptions of the different parties which raise the points that the Judge was in error in decreeing the deed of H. D. Still, Sr., to Marian M. Still, void as against the claims of F. S. Royster Guano Company, Read Phosphate Company, F. W. Wagener Company, Barrett & Doughty, Pope & Fleming, and the Southern States Phosphate Company. These exceptions will be considered together.
We think these exceptions should be overruled, for the reasons assigned by the Circuit Judge, and for the additional reason that as far as PI. D. Still, Sr., was concerned, he created a "new debt when he assumed and guaranteed or endorsed the existing debts of his sons. He knew of the existence of a secret unrecorded deed the creditors did not. He induced the creditors to postpone the collection of debts due them by making himself liable, and by so doing created a new debt as far as he was concerned by his acts became a subsequent debtor.
3
As to the exceptions in reference to the Southern Phosphate Company and Fertilizer Company, his Honor was correct in decreeing as he did. They were in possession of notes apparently unpaid. Where a person is in possession of a note it is
prima facie
evidence of ownership, and the burden is on the maker to show to the contrary, or that it has been paid.
Coleman
v.
Dunlap,
18 S. C. 594;
Stoddard
v.
Hill,
38 S. C. 385, 17 S. E. 138;
Talbert
v.
Talbert, 97
S. C. 148, 81 S. E. 644. These exceptions are overruled.
4
As to the exceptions to Circuit decree, as to dower and homestead: The deed being declared void as to creditors, it follows that the widow, Marian M. Still, is entitled to both homestead and dower, and is entitled to have it set-off in kind, if practicable, and if it can be done without manifest injury to the rights of others, and if it cannot be done then she is entitled to the homestead in money and a money sum assessed in lieu of dower.
As to the claim of the Leesville Cotton Seed Oil Company, we think the exception should be sustained. Still, Sr., gave the note and contracted the debt on February 19, 1911, and conveyed to his wife for love and affection in September, 1911, and such conveyance under such circumstances was null and void, as far as this creditor is concerned.
6
As far as the appeal of C. F. Rizer is concerned the Court having held that Mrs. Still has a fee simple title as far as the Aldrich tract is concerned, it is unnecessary to consider them, as his counsel stated that if this was done, Rizer and Mrs. Still could adjust matters between them, but in any event as far as other lands than Aldrich tract, the other creditors mentioned herein would have a preference in payment over Rizer or Mrs. Still, and we see no error in the ruling of his Honor in holding that Mrs. Still could not participate in the proceeds of the sale of land conveyed her by deed of H. D. Still, Sr., other than the Aldrich tract, which is adjudged hers, to the extent of $17,000 after setting off homestead and dower.
It is the judgment of this Court that the judgment of fhe Circuit Court be modified in accordance with the views herein indicated.
Judgment modified.