The opinion of the court was delivered by
Mr. Justice Pope.
The plaintiff and defendant, on the 5th day of January, 1893, under their hands and seals, entered into an agreement whereby the plaintiff covenanted to convey by deed to the defendant in fee simple a tract of land, containing 520 acres, more or less, situate in Sumter County, in this State, at the price of $5,000, and whereby the defendant covenanted to pay the said sum of $5,000 therefor. Both covenants were to be performed simultaneously on the 10th day of January, 1893. On the last mentioned date, the plaintiff tendered to the defendant his deed of conveyance, wherein he conveyed said lands to the defendant in fee simple, but the defendant declined to accept said deed and perform his covenants, because he alleged such title was defective in this, namely, that the plaintiff obtained title from one John D. Ashmore, who in turn obtained title thereto from Martha Ashmore, his mother, by two deeds, one dated 16th June, 1844, and the other dated 5th September, 1854; that by the first deed it was provided, “for and in consideration of the natural love and affection which I (Martha Ashmore) bear unto my son, John D. Ashmore, of Sumter District, have given, granted, and conveyed, and by these presents do give, grant, and convey, unto the said John D. Ash-more for life, and after his death to the issue of his body, all that plantation,” &c. (including the land now in dispute). Aud in the second deed it was provided, “have bargained, sold, released, granted, and confirmed, and by these presents doth bargain, sell, release, grant, and confirm, unto the said John D. Ashmore and his heirs forever, all the right, title, interest, and [474] estate and reversion which I have or may have in and to the said plantation,” &c. (including the land now in dispute). And the defendant claimed that the plaiutiff deriving title through these deeds did not own a fee simple estate therein. The result of that divergence of views has led to this contention for a specific performance of such contract.
The issues were heard by Judge Hudson, and he filed his decree on the 9th day of September, 1893, wherein he held that the title tendered by the plaintiff to the defendant was a good marketable title, which the defendant was bound to accept, for by the two deeds from Martha Ashmore to her son, John D. Ashmore, the said John D. Ashmore became invested with a fee simple title to said lands. From this decree the defendant now appeals on two grounds: 1. Because it is respectfully submitted that his honor erred in adjudging that the plaintiff is the owner in fee of the tract of land in controversy. 2. Because his honor erred in not holding that John D. Ashmore could only convey a life estate to the plaintiff.
1 It would be well in the report of this case, that the opinion of Mr. J. S. G. Richardson on the title in question should appear. The deed of Martha Ashmore to John D. Ashmore, dated 16th June, 1844, when construed in the light of the decisions of the courts of last resort of this State, certainly vest only a life estate in him. Did the words, “and after his death to the issue of his body,” in case they should be decided to be operative, create in such issue any greater estate than one for life? If, therefore, this deed created only a life estate in John D. Ashmore, and after his death only a life estate “in the issue of his body,” very certainly the reversion in said lands was in Martha Ashmore, and this reversion she conveyed to John D. Ashmore in fee simple, by her deed of 5th September, 1854, while he was vested already with a life estate, which life estate was after that last deed merged into and absorbed by the greater estate. And as his deed to the plaintiff was made after the 5th day of September, 1854, and was in fee, it follows that thereby the plaintiff was thereby invested with a fee simple interest in said land. Do our authorities sustain the first proposition that, under the deed of 1844, John D. Ashmoi’e [475] held only a life estate in said lands? o 2. Was the estate for life carved out for the issue of his (John D. Ashmore’s) body void for remoteness? 3. Was there a reversionary interest or estate in such lands in Martha Ashmore in September, 1854, when she made the second deed to her son, John D. Ashmore?
The decisions of our courts certainly regard it as elementary law, that in conveyances of lands by deed there must be some words of inheritance to enable the grantee to claim a greater •estate than a life estate. Massey ads. Bratton, 15 S. C., 284; Varn v. Varn, 32 Id., 85; McLeod v. Tarrant, 39 S. C., 271. We regard it as settled that John D. Ashmore had vested in him no greater power than a life estate. Besides, the deed of 1844 itself in the premises, in the habendum and in the warranty, expressly limited his interest in the lands to a life estate. The same decisions would restrict the words, “the issue of his body,” without-words of inheritance in such deed (and there being an entire absence of other words in the deed whereby its construction could be so made as to supply the word heirs) to a life estate in such issue of the body. The only difficulty in the case is presented by this view of the rights of the parties, both grantor and the two sets of grantees — we mean John D. Ash-more, df the one part, and the issue of his body, of the other part — to wit: Martha Ashmore, having conveyed a life estate only to the said John D., and after his death a life estate only to his issue, held the legal title all the time, and, as is said in íaw, will be construed to have covenanted to stand seized to their respective uses in said lands.
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The opinion of the court was delivered by
Mr. Justice Pope.
The plaintiff and defendant, on the 5th day of January, 1893, under their hands and seals, entered into an agreement whereby the plaintiff covenanted to convey by deed to the defendant in fee simple a tract of land, containing 520 acres, more or less, situate in Sumter County, in this State, at the price of $5,000, and whereby the defendant covenanted to pay the said sum of $5,000 therefor. Both covenants were to be performed simultaneously on the 10th day of January, 1893. On the last mentioned date, the plaintiff tendered to the defendant his deed of conveyance, wherein he conveyed said lands to the defendant in fee simple, but the defendant declined to accept said deed and perform his covenants, because he alleged such title was defective in this, namely, that the plaintiff obtained title from one John D. Ashmore, who in turn obtained title thereto from Martha Ashmore, his mother, by two deeds, one dated 16th June, 1844, and the other dated 5th September, 1854; that by the first deed it was provided, “for and in consideration of the natural love and affection which I (Martha Ashmore) bear unto my son, John D. Ashmore, of Sumter District, have given, granted, and conveyed, and by these presents do give, grant, and convey, unto the said John D. Ash-more for life, and after his death to the issue of his body, all that plantation,” &c. (including the land now in dispute). Aud in the second deed it was provided, “have bargained, sold, released, granted, and confirmed, and by these presents doth bargain, sell, release, grant, and confirm, unto the said John D. Ashmore and his heirs forever, all the right, title, interest, and [474] estate and reversion which I have or may have in and to the said plantation,” &c. (including the land now in dispute). And the defendant claimed that the plaiutiff deriving title through these deeds did not own a fee simple estate therein. The result of that divergence of views has led to this contention for a specific performance of such contract.
The issues were heard by Judge Hudson, and he filed his decree on the 9th day of September, 1893, wherein he held that the title tendered by the plaintiff to the defendant was a good marketable title, which the defendant was bound to accept, for by the two deeds from Martha Ashmore to her son, John D. Ashmore, the said John D. Ashmore became invested with a fee simple title to said lands. From this decree the defendant now appeals on two grounds: 1. Because it is respectfully submitted that his honor erred in adjudging that the plaintiff is the owner in fee of the tract of land in controversy. 2. Because his honor erred in not holding that John D. Ashmore could only convey a life estate to the plaintiff.
1 It would be well in the report of this case, that the opinion of Mr. J. S. G. Richardson on the title in question should appear. The deed of Martha Ashmore to John D. Ashmore, dated 16th June, 1844, when construed in the light of the decisions of the courts of last resort of this State, certainly vest only a life estate in him. Did the words, “and after his death to the issue of his body,” in case they should be decided to be operative, create in such issue any greater estate than one for life? If, therefore, this deed created only a life estate in John D. Ashmore, and after his death only a life estate “in the issue of his body,” very certainly the reversion in said lands was in Martha Ashmore, and this reversion she conveyed to John D. Ashmore in fee simple, by her deed of 5th September, 1854, while he was vested already with a life estate, which life estate was after that last deed merged into and absorbed by the greater estate. And as his deed to the plaintiff was made after the 5th day of September, 1854, and was in fee, it follows that thereby the plaintiff was thereby invested with a fee simple interest in said land. Do our authorities sustain the first proposition that, under the deed of 1844, John D. Ashmoi’e [475] held only a life estate in said lands? o 2. Was the estate for life carved out for the issue of his (John D. Ashmore’s) body void for remoteness? 3. Was there a reversionary interest or estate in such lands in Martha Ashmore in September, 1854, when she made the second deed to her son, John D. Ashmore?
The decisions of our courts certainly regard it as elementary law, that in conveyances of lands by deed there must be some words of inheritance to enable the grantee to claim a greater •estate than a life estate. Massey ads. Bratton, 15 S. C., 284; Varn v. Varn, 32 Id., 85; McLeod v. Tarrant, 39 S. C., 271. We regard it as settled that John D. Ashmore had vested in him no greater power than a life estate. Besides, the deed of 1844 itself in the premises, in the habendum and in the warranty, expressly limited his interest in the lands to a life estate. The same decisions would restrict the words, “the issue of his body,” without-words of inheritance in such deed (and there being an entire absence of other words in the deed whereby its construction could be so made as to supply the word heirs) to a life estate in such issue of the body. The only difficulty in the case is presented by this view of the rights of the parties, both grantor and the two sets of grantees — we mean John D. Ash-more, df the one part, and the issue of his body, of the other part — to wit: Martha Ashmore, having conveyed a life estate only to the said John D., and after his death a life estate only to his issue, held the legal title all the time, and, as is said in íaw, will be construed to have covenanted to stand seized to their respective uses in said lands.
[476] 2 [475] So that, although John D. was unmarried, and had no issue of his body in 1844, when the first deed was made, yet in 1855, when Martha Ashmore made a conveyance of all her reversionary estate in said lands, unless the words, “issue of his body,” can be construed as too remote and indefinite to support a life estate in such issue of the body, the said Martha Ashmore was unable to convey her reversion in such lands by reason' of her covenant to stand seized to the use of the issue of the body of John D. after his death, and by reason of the further fact, that such issue of the body of John D. were in esse at that date, 5th September, 1854. It must be remembered that the act of the [476] General Assembly of this.State, requiring the words, “issue,” “issue of the body,” Sac., to be so construed iu deeds aud wills as to be operative at the death of the first taker, having been passed in the year 1853 after this deed was executed, plays no part here. A long line of decisions in this State hold that such words are too remote and indefinite to support an estate in lands, where such words occur in a deed executed prior to the act of 1853, before referred to. It follows, therefore, that if Mrs. Ashmore had a reversionary interest in this tract of land, her deed therefor, she not being under disabilities, would convey to the life tenant, John D., the fee simple estate; or, rather, the union of the reversion with the life estate by merger of the life estate would operate to clothe the said John D. with the fee simple. We do not see how there can be any question of her being clothed with the estate in reversion; for she, before she made the deed of 1844, owned the lands in fee simple, and when she carved out a life estate for her son, she still held such title, and the part carved out would revert to her on John D. Ashmore’s death.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.