Cayce Land Co. v. Guignard

117 S.E. 644, 124 S.C. 443, 1923 S.C. LEXIS 141

Opinion

The opinion of the Court was delivered by

Mr. Justice; Marion.

The action is for the partition of two lots or tracts of land in Lexington County. The complaint alleges that the plaintiff is the owner of a five-sixth interest in said lots and that the defendant, G. A. Guignard, ^in possession, is “supposed to be entitled to the remaining one-sixth.” The defendant denies plaintiff’s right to partition upon the general grounds which will be hereinafter adverted to From the decree of the Honorable Ernest Moore, circuit Judge, sustaining the plaintiff’s claim of title and right to partition, and adjudging that the defendant account for the rental value of the lands occupied by him for a certain period of time, the defendant appeals.

The facts deemed essential to the determination of the first question which will be considered are these: The plaintiff acquired title from the devisees under the will of T. Hugh Meighan. T. Hugh Meighan acquired title from five of six sisters, or their representatives, of John Campbell Bryce, who with his said sisters, constituted six of the seven children of Campbell R. Bryce. Campbell R. Bryce was a son of John Bryce, by the terms of whose will the land from which these lots were carved was devised as follows:

(1) “To my grandson, John Campbell Bryce, and to his heirs, etc., should he die without issue then to go to his father (Campbell R. Bryce) and to his children precisely as the rest of my estate.”

(2) “To my son, Campbell R. Bryce, * * * and to his children, the lawful heirs of his body, I give and bequeath all the rest and residue of my estate, real and personal, whatever kind I may die seized and possed of, * *' * to'him and his children forever,” etc.

John Campbell Bryce, to whom the land was devised in the language set out in the foregoing quotation, numbered 1, died without issue in 1915. His father, Campbell R. Bryce, died prior to 1875.

■ The plaintiff contends that John Campbell Bryce, under the will of John Bryce, took a fee, defeasible upon the contingency of his dying without issue, and that upon his death without issue in 1915 the fee-simple estate passed to and vested in his six sisters, the remaining children of Campbell R. Bryce, or their heirs and assigns, under the limitation that it was “then to go to his father (Campbell R. Bryce) and to his children precisely as the rest” of the John Bryce estate, which rest and residue were devised to “Campbell R. Bryce * ' * * and to his children, the lawful heirs of his body, * * * to him and his children forever.” The defendant, as we understand, concurs in the view that the estate devised to John Campbell Bryce under the codicil 1 above was a fee defeasible as to six-sevenths thereof, but contends that by force of the limitation over “to Campbell R. Bryce and to his children,” of whom John Campbell Bryce himself was one of seven, the said John Campbell Bryce took a one-seventh interest in fee simple in the land so devised. The difference in the foregoing contentions presents, as we think, the point (exceptions 11, 12, 21, and 22) upon which the appeal turns.

We are clearly of the opinion that John Campbell Bryce did not take a one-seventh interest in fee simple in the land in question. In construing the provisions of this identical will in the case of Simons v. Bryce, 10 S. C., 354, this court, speaking through Mr. Justice Mclver, said:

“The controlling rule in the construction of a will is the intention of the testator. Hence, if we can discover from the language of the testator what his intention was, we must construe the will in accordance with such intention, provided the same is not in violation of law.”

Apptying that fundamental rule to the construction of the clause of the will of John Bryce devising the rest and residue of his estate to his son, Campbell R. Bryce “and to his children, the lawful heirs of his body,” etc., the court held in that case, Simons v. Bryce, supra that—

“The intention was that the son should take a life estate, with remainder to- his children and their children.”

It would seem even more clearly apparent that the intention of the testator in selecting and naming one of the children of his son, Campbell R. Bryce, viz: John Campbell Bryce, as the special object of his bounty to whom the land here in question was to be given, was wholly comprehended within the devise to him of the fee defeasible. It- is well settled that—

“Where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged nor cut down by superadded words in the same or subsequent clauses of the will, unless they raise an irresistible inference that such was the intention of the testator.” Lawrence v. Burnett, 109 S. C., 422; 96 S. E. 144. Adams v. Verner, 102 S. C., 11; 86 S. E., 211. Burriss v. Burriss, 104 S. C., 444; 89 S. E., 405 ; 2 Alexander on Wills. § 966; 1 Schouler on Wills,- §§ 467, 490.

Having devised the land in words of clear and ascertained legal significance to John Campbell Bryce in fee defeasible, certainly the language here under consideration raises no irresistible inference that it was the intention of the testator to enlarge or add to the estate in fee defeasible by ingrafting thereon for the benefit of the taker of the defeasible fee a fee-simple absolute estate in an undivided part of the land through the devious method of a limitation over contingent on the death of the taker of the defeasible fee himself. On the contrary that such was not the testator’s intention-is the only conclusion consistent with the established principle that the two interests — a fee defeasible and an executory fee — are “successive and not concurrent.” 1 Jarman on Wills (6th Ed.) 836; and see Pearson v. Easterling, 104 S. C., 178; 88 S. E. 376. Thus, “where an executory fee descends to the person to whom a prior defeasible fee is limited, the former estate is not merged.” 21 C. J. 1030, § 221; Barnitz v. Casey, 7 Cranch, 456; 3 L. Ed. 403. Hence, a construction that would require a merger in John Campbell Bryce of an executory interest in fee simple with his defeasible fee would involve an inherent contradiction in the terms of the will itself. It follows that, upon the death of John Campbell Bryce without issue in 1915, the executory interest in fee simple, limited upon the happening of that contingency, passed to and vested in the other children of Campbell R. Bryce entitled to take under the provision of that section of the will of John Bryce by which he devised the rest and residue. of his estate to “Campbell R. Bryce and to his children.” See Simons v. Bryce, supra. It appears not to be disputed that the plaintiff is the successor in interest grantee of those thus entitled to take as executory devises to the extent of five of six undivided shares in the land. If so, the plaintiff is the legal owner of a five-sixths undivided interest or share in the premises involved, and is entitled to partition and an accounting for rental value as decreed by the circuit court, unless debarred from asserting the title thus acquired, as de fendant alleges, by reason of the facts and circumstances to which attention will now be directed.

John Campbell Bryce mortgaged the 500 acres of land devised to him in fee defeasible. The mortgage was foreclosed and land sold by the Sheriff to R. W. G. Cayce and James Cayce in 1876. In October, 1892, R. W. G. Cayce and James Cayce conveyed 107 acres of this land to Wilie Jones, who was then cashier of the Carolina National Bank. In November, 1892, Jones executed a declaration of trust to the effect that he held the said premises in trust for the purpose of applying the net income and the net proceeds of sale to the payment of certain indebtedness of John N. Long to the Carolina National Bank, any residue remaining to be held for such persons as John N. Long might appoint, etc., and in default of such appointment then in trust for John N. Long and his heirs and assigns. In February, 1893, Wilie Jones conveyed one acre of this land to W. J. Cayce, the deed being in the usual statutory form, except that the warranty clause is “from and against me and my heirs.” Defendant is the successor in interest by successive conveyances under this deed of Jones to W. J. Cayce and is now in possession, claiming in fee simple this one-acre tract. In February, 1899, Wilie Jones conveyed the eastern half of. this 107-acre tract to R. G. Ross.

In August, 1900, the Carolina National Bank brought action against Wilie Jones and others to foreclose as a mortgage the deed executed by R. W. G. and James Cayce to Wilie Jones in trust for the payment of the debts of John N. Long to the bank, alleging that Jones had sold the eastern half of the tract to R. G. Ross and had applied the proceeds on Long’s debt and praying that the remaining 53acres be sold for that purpose. Under a decree in that suit, dated September 24, 1900, the 53j4 acres were sold and conveyed by a deed of the clerk of the court of Lexington county to the Carolina National Bank. The Carolina National Bank seems to have continued to recognize the trust upon which the land had been held by its cashier, Wilie Jones, and to have agreed that any amount derived from said land after payment of the debts of John N. Long should be applied in accordance with the declaration of trust by Jones for the benefit of Long. Thereafter the Carolina National Bank sold 29% acres out of the 53% acres to the Seaboard Air Line Railway Company, conveying by a deed dated October 10, 1906. The consideration in this deed was expressed as $7,250, but for that consideration the Carolina National Bank was to procure and convey to the railway company at least five of the outstanding interests of the executory devises who would take under the will of John Bryce upon the death of John Campbell Bryce without issue. Thereafter, by a deed dated April 22, 1907, T. Hugh Meighan, for the expressed consideration of $500, conveyed to the railway company the rights acquired by him from the executory devisees under the will of John Bryce in and to the 29% acres, reciting in the deed that he had undertaken to acquire and convéy these rights to perfect the title which the Carolina National Bank had previously contracted to convey to the railway company in and to the said 29% acres. Between October 22, 1906, and April, 1907, T. Hugh Meighan had acquired five of the six outstanding executory interests in the 500 acres devised to John Campbell Bryce in fee defeasible, paying therefor about $3,500. On April 24, 1907, the Carolina National Bank, then the holder of the title, John Campbell Bryce’s defeasible fee, in the 53% acres less the 29% acres which had been sold to the railroad, conveyed to T. Hugh Meighan, holder of the title to the ex-ecutory interests, as aforesaid, '10 acres, a part of the 53%-acre tract. To this deed Meighan attached a written declaration of trust that the title was held for the benefit of John N. Long. For their interest in this 10 acres the heirs at law of John N. Long were afterward paid $1,500. Thereafter the title of the Carolina National Bank in all the remaining lands of this 53%-acre tract and also the title held by T. Hugh Meighan in and to the interests of the executory devisees in the entire 500-acre tract, of which the 53 J4 acres was a part, were conveyed to the plaintiff, Cayce Land Company, the incorporators and officers of which company were fully conversant with the foregoing facts and all of whom were interested in or parties to the sale of the 29^2 acres to the Seaboard Air Line Railway Company.

The appellant predicates his contention that the plaintiff has no title in the one-acre lot which it may lawfully assert as against the defendant, Guignard, upon three propositions thus stated by his counsel:

“First. Upon a trust which he claims resulted from the fact that the purchase money used in procuring the remainder estates from the devisees of John Bryce came from the' sale of 29j^ acres of the 107 acres which Wilie Jones acknowledged he held upon trust to sell and pay the indebtedness of John N. Long to the Carolina National Bank and to convey the balance of the said lands, after the payments of the debts of the said Long to the said bank, to whomsoever the said Long might appoint by his last will.

“Second. From an estoppel which the defendant claims arises from the fact that Wilie Jones, as trustee, made the defendant’s grantor a fee-simple deed to the one acre sought to be partitioned and that the Carolina National Bank, which succeeded to the trust acknowledged by Wilie Jones, sold a part of the trust estate, to wit, 29acres thereof, and with the proceeds thereof purchased the outstanding remainder estates, title to which was taken in the name of T. Hugh Meighan, the plaintiff’s grantor.

“Third. Thát defendant also seeks to defeat the plaintiff’s right to partition by showing that the plaintiff has no title in the lot which it seeks to have partitioned, because the money which was used in the purchase of the plaintiff’s interest in said property was furnished by the Carolina National Bank out of funds which it held in trust for the heirs-at-law of John N. Long and not with the individual funds of the plaintiff or of its grantee, T. Hugh Meighan.”

As to these contentions, the circuit judge finds and holds as follows:

“That the funds paid for the purchase of the property in question from the remaindermen under the will of John Bryce were raised by T. Hugh Meighan individually for the benefit of himself, W. A. Clark, and Wm. H. Lyles, and that the defendant, Guignard, can claim no benefit by virtue of a trust resulting to the heirs-at-law of John N. Long. The referee in my opinion was correct in his conclusion that the only trust created by the declaration of Wilie Jones was for the benefit of Long and the Carolina National Bank, and that it applied only to the estate which was conveyed by R. W. Cayce and James Cayce to Wilie Jones. The subsequent sale to the Seaboard Air Line Railway Company clearly embraced not only the fee defeasible which was conveyed to Wilie Jones but the remainders under the will of John Bryce which were to be purchased before the Seaboard would take the property, and it cannot be said that the proceeds of sale to the Seaboard were proceeds only of the sale of the fee defeasible. The estate which is now claimed by the Cayce Land Company is no part of the fee defeasible which-was conveyed by R. W. and James Cayce to Wilie Jones, but is an estate in remainder'in succession to the fee defeasible so conveyed. The plaintiff does not claim through- Wilie Jones -or any conveyance made by him. Moreover the deed from Wilie Jones to W. J. Cayce contained only a limited warranty, that is against any act of himself or his heirs. This was a proper warranty when he held only a fee defeasible;. It protected the purchaser against a judgment conveyance, or other act of Jones, impairing the fee defeasible conveyed to him, but it was not intended to, nor did it, protect the purchaser from any. right outstanding at the time of the conveyance to Wilie Jones.”

The Circuit Judge’s finding of fact that the funds paid by T. Hugh Meighan for the purchase of the interests of the executory devisees were raised by him. individually cannot be held to be contrary to the clear preponderance of the evidence. In that view, which excludes the inference that the funds were a part of the proceeds of the sale of the fee defeasible held by the Carolina National Bank in trust for John N. Long, etc., no sufficient basis of fact would remain for impressing these executory interests with either a resulting 'or constructive trust in the hands of'the plaintiff, the Cayce Land Company. But, even if the lands were impressed with a trust for the benefit of the heirs-at-law of John N. Long, the legal title is in the Cayce Land Company, the defendant, Guignard, sets up no title derived from John N. Long, and the possible existence of an outstanding equitable title in others could not avail this defendant to- defeat the plaintiff’s right to partition. Lor the reasons stated and for such others reasons as are indicated by the Circuit Judge, all exceptions embraced within the appellant’s first and third contentions, as above set out, are overruled.

The appellant’s position as to estoppel (second proposition above stated) is likewise untenable. If the Cayce Land Company, as grantee under T. Hugh Meighan, did not take the land — the interests in fee simple, derived from the executory devisees under the John Bryce will — impressed with the trust assumed, for. the benefit of John N. Long, by Wilie Jones as grantee of the defeasible fee of John Campbell Bryce in the 107 acres, there is no basis in fact for an estoppel by deed or in pais that would avail the defendant, Guignard. Since the Cayce Land Company does not claim through Jones or any conveyance made by him, obviously, unless it can be made to stand in the shoes of Jones by force of a constructive trust, it could not be estopped by any deed made by Jones to the defendant or his grantors. The finding in effect by the Circuit Judge that the plaintiff land company was not in fact the successor of Wilie Jones as trustee for Long disposes of the question of estoppel. But even in the view that the plaintiff holds subject to the trust imposed upon Jones, we are inclined to concur in the opinion' of the Circuit Judge — although we deem it unnecessary expressly so to decide — that the plain,iff would not be estopped by the Jones deed, which conveyed the fee defeasible, with a limited warranty, from asserting as against the grantee of this defeasible fee the after acquired executory fee absolute. In the case of Blackwell v. Harrelson, 99 S. C., 265; 84 S. E., 233, Ann. Cas., 1916E, 1263, relied upon by appellant to support his contention as to estoppel, no trust was involved, and the grantor “conveyed with general warranty” his right and title, not then vested, in and to the estate of his mother, precisely referred to in the deed, which was afterward acquired under her will. The case at bar is clearly distinguishable. The exceptions directed to the contention that the defendant holds title by estoppel are therefore overruled.

The decree of the Circuit Judge satisfactorily disposes of such other points raised by the exceptions as are not specifically adverted to in the foregoing discussion.

It is accordingly adjudged that the decree of the Circuit Court be affirmed.

Mr. Ci-hee Justice Gary, and Messrs. Justices Watts, Fraser and Coti-iran concur.