Curtis v. DesChamps

350 S.E.2d 201, 290 S.C. 315, 1986 S.C. App. LEXIS 456
CourtCourt of Appeals of South Carolina
DecidedOctober 6, 1986
Docket0803
StatusPublished
Cited by2 cases

This text of 350 S.E.2d 201 (Curtis v. DesChamps) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curtis v. DesChamps, 350 S.E.2d 201, 290 S.C. 315, 1986 S.C. App. LEXIS 456 (S.C. Ct. App. 1986).

Opinion

Gardner, Justice:

In August 1921, the parents of the parties to this action partitioned and divided among themselves 887 acres of land. At the time of the partition the parents apparently believed they could convey one to the other fee simple title to the parcels of land respectively received by each in the partition. But, only 428 acres of the land (estate property) were owned [318]*318in fee by the partitioners; title to 459 acres1 of the land (trust property) was, perforce of a trust deed, owned by the partitioners for life, with remainder per stirpes in fee to the partitioners’ children, the parties to this action. By the partition and division two of the original partitioners received only estate land, two received part trust land and part estate land, and two received only trust land. In 1980 Sue D. McLeod, the last of the original partitioners and parents to the parties of this action, died; her children instituted this partition action against their first cousins. The appealed order held, inter alia, that, upon the death of the parents, title to the trust property vested per stirpes in the parties to this action and rejected claims of adverse possession, presumption of grant and title under the 40 year adverse possession statute. We affirm.

Unfortunately neither the facts nor the law of the case lend themselves to brevity, but when taken in sequence, the decision we reach is consonant, with the appealed order.

FACTS AND PRELIMINARY DISCUSSION

In 1899 W. W. DesChamps executed a trust deed; in pertinent part it provides:

Know All Men By These Presents, That, I, William W. DesChamps in the State aforesaid in consideration of the sum of ten dollars to me in hand paid by William B. McLeod as Trustee (the receipt whereof is hereby acknowledged), and in consideration of the desire on my part to provide for my children, and grandchildren, have granted, bargained, sold and released and by These Presents do grant, bargain, sell and release unto the said William B. McLeod, the following described lands situate in said County and State, to wit: [the land described] Together 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 said premises before mentioned unto the said William [319]*319B. McLeod as Trustee and his heirs Upon The Following Trust And Limitations, To Wit: — to permit me, the said W. W. DesChamps, to occupy and use all of said premises for and during the term of my natural life,... then to stand seized and possessed of the same to and for the use and benefit, for life, of Edgar Green DesChamps, Alice Blanche DesChamps, Lottie M. DesChamps, William G. DesChamps, Lidie Lee DesChamps, Sue Brown DesChamps, and Carroll DesChamps, my children now living, with remainder upon the death of any or either of them to the issue of his, her or their body or bodies and their heirs and assigns forever; and in the event of the death of any of my said children above named without issue alive then the share of such child or children so dying without issue to immediately vest in the survivor or survivors of my said children herein-before named.2 And Upon The Further Trust, that upon the written direction of myself, the said W. W. DesChamps, to set off to any of my children hereinbefore named or to any of their said issue such part or parts of the above described premises as I wish alloted [sic] to them under the terms of this deed; And Upon The Further Trust, to make such allotments as I may direct by my Last Will duly executed, should I fail to make such written direction during my lifetime. And Upon The Further Trust and with full power, upon my written request to be endorsed upon this deed or by a separate writing to be witnessed by two persons and recorded, to sell and convey in fee simple with covenants of warranty, the whole or any part of said premises, the proceeds of such sale to be reinvested in such property as I may designate such reinvestments to be held under the same trusts and limitations as are set forth in the foregoing deed. And Upon The Further Trust and with [320]*320full power upon my written request endorsed on this deed or made by a separate writing to be signed in the presence of two witnesses and to be duly recorded to mortgage all or any part of said premises for the purpose of paying off the present existing mortgages upon said premises and for no other purpose, but for such purpose to mortgage as often as may be necessary. And Upon The Further Trust that in the event of my death before the settlement and discharge of all existing mortgages and charges upon said premises, that the entire income rents and profits arising from said premises shall be devoted, if so much be necessary, to the settlement of such existing mortgages and charges____

W. W. DesChamps died testate on January 12, 1921; the pertinent parts of his will are:

V. All of the rest, residue and remainder of my estate, including any reversion or remainder real, personal, mixed, money and credits, I give, devise and bequeath unto my children in equal proportions, and should any of my children predecease me leaving a child or children, the share to which such child would have been entitled had he or she survived me, I give in equal proportions to the child or children of such predeceased child, and should my wife predecease me, all of my estate of every kind shall be disposed of as is directed in this paragraph.
VI. I have a valuable tract of land at Wisacky, and my children have real estate which will come into their possession after my death, and situated not very far from the land at Wisacky. It is my desire that in dividing their lands among themselves, they will have reference to this tract of land, and so allot it as to use it in connection with their other lands, and if it be more than. the share which will fall to any one of my children, in that event, it is my desire that some one or more of my children will take this land and have an accounting as between themselves for its value. I do not know how to allot it to any one or more of them, and hence it must pass as a part of my estate, but I am mindful of the fact that it lies so close to the other lands referred to, that in [321]*321making the division of all the lands as between themselves, their interests can be best subserved by taking this land into consideration.
In making this statement, I am mindful of the fact that I cannot change the status as to the lands to which they will be entitled.

The following is an exposition of the disposition to the various parties by the 1921 partition by W. W. DesChamps’ children, together with the list of their children. The grandchildren whose names are in boldface are appellants. The grandchildren whose names are underlined are respondents. Carolyn D. Blackford is not participating in this appeal; she sold her interest to Wallace P. DesChamps. Wallace P. DesChamps also purchased the interest of William G. DesChamps, Jr.; this despite the fact that he is shown as participating in this appeal.

FATHER CHILDREN GRANDCHILDREN

(Property Received in Partition)

W. W. DesChamps Edgar DesChamps (died 1921) (died 1960) 157 acres Estate Property Edgar G. DesChamps. Jr. William W. DesChamps Wallace P. DesChamps

William G.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Richburg v. Thomas
Court of Appeals of South Carolina, 2003
Bonney v. Granger
356 S.E.2d 138 (Court of Appeals of South Carolina, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
350 S.E.2d 201, 290 S.C. 315, 1986 S.C. App. LEXIS 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curtis-v-deschamps-scctapp-1986.