Moseley v. Smith

95 S.E. 503, 109 S.C. 170, 1918 S.C. LEXIS 208

• Court: Supreme Court of South Carolina
• Decided: June 11, 1918
• Docket: 9857
• Status: Published

Opinions

June 11, 1918. The opinion of the Court was delivered by The judgment of the Circuit Court is affirmed, for the reasons therein assigned.

MESSRS. JUSTICES HYDRICK, WATTS and GAGE concur.

MR. JUSTICE FRASER. I dissent. Mrs. Smith, the appellant, is the owner of a tract of land upon which was located a two-story building. The plaintiffs occupied the second story, as a Masonic hall, under a lease of 99 years, from a former owner of the land upon which it was built, and Mr. Smith used the first story as a warehouse. The building was out of repair, and repairs were necessary. Mrs. Smith was dissatisfied with the location, and wanted it moved farther from her dwelling house. A committee was appointed by the lodge to arrange for suitable quarters. Another lot on Mrs. Smith's land was selected, and a new two-story building erected, in part with the lumber of the old building, and in part with new lumber furnished by the lodge. The construction of the new building was paid for by the lodge. Mr. W.S. Smith, the husband of the appellant, was a member of the committee, and was also the manager of Mrs. Smith's property. After the new building was completed, the lodge occupied the second story, and Mr. Smith used the first story. There was no difference in the use of the two buildings; no new papers were drawn, and things went on for some years. Mr. Smith died, and the respondents demanded a fee simple deed from Mrs. Smith for the land upon which the building was located. Mrs. Smith declined to execute the deed, and claims that it was a mere substitution of one location for another, and denied that she had ever agreed to give title.

I do not find in the case the evidence to support a finding adverse to Mrs. Smith. It is true that one witness said that Mrs. Smith said, "If we would move the house, we could have the whole thing." But this witness afterwards said that he had never talked with Mrs. Smith, and said his recollection as to the exact facts was not clear. Mr. White, one of the plaintiffs' witnesses, stated:

"Q. You put it where she wanted it? A. I had that to do. Q. You had that to do because the property was hers, and just built it where she authorized. I am sorry Mrs. Smith is not here. She could speak for herself. Mrs. Smith said more than the ground floor would be hers? A. That is what she said. Q. When was that, before the building put up, or when? A. That was before, while Mr. Smith was stepping off the land. Q. She said that land would be hers? A. I informed her of the fact that it would not be. Q. What did she say then? A. I do not know what all she did say. Q. Did she agree? A. We agreed that it would not be hers. Q. Did not ask her consent? A. No; not about that. Q. Did not care whether the lodge had it or not? A. I was sure the lodge would have it. Q. You did not care whether the lodge had her consent or not? A. All we wanted was the title Mr. Smith had promised to give. Q. You did not care whether she agreed or not? A. No; I did not care. Q. Were you personally present when Mr. Smith talked to his wife about this title? A. No. Q. Did you know if he ever talked to her? A. I do not."

Another witness for the plaintiff testified, also, that Mrs. Smith said that day that she would not give a deed. It is manifest that the committee depended on Mr. Smith and disregarded Mrs. Smith. Does the law disregard the express notice of the owner and rely upon the promise of the agent in conflict therewith? The committee, representing the lodge, were told by Mrs. Smith, the owner, that they could not get the land. When the committee went to locate the land, Mr. Smith, who was not only his wife's general agent, but also a member of this committee, called Mrs. Smith to go along with the committee to locate the place for the new house. Plaintiffs' witness said: "She pointed out what lot, and Bill Smith had to agree, and the rest of us, too." Mrs. Smith also stated she would not give the title, and the Court would sustain her.

I do not see how there can be any question of estoppel, or contract to convey, or notice. The plaintiffs' witnesses say that on the day on which the new place was staked off, and before any work was done, Mrs. Smith notified them that she would not convey the fee, and would claim the land and the lower floor of the new building. That was followed up by actual possession of the new house in the same manner in which the old house had been used. It is manifest that the members of the lodge expected Mr. Smith to get a title for them; but it is equally manifest that he did not get it. The case shows that Mr. Smith was asked about the deed time and again, and put the matter off. One of the witnesses said: "W.S. Smith never said his wife agreed to a deed." I do not think the Court should decree a specific performance, when the owner gives notice that she will not convey, and the agent never even said she would. It is useless to give to a married woman the right to contract, and then allow her husband, over her protest, with full knowledge to the purchase, to make for her a binding contract to convey.

Besides all this, W.S. Smith, the one who was on the committee, and in the best position to know the facts, is dead. These things happened long before W.S. Smith died, and if no action was brought in his lifetime, I do not think a Court of equity should grant relief after his mouth is closed.

For these reasons I dissent.