Watkins v. Justice , 112 S.C. 329 ( 1919 )

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action for partition of two tracts of land, one containing 135 acres, known as the Thomas Watkins home place, and the other containing 5 acres, known as the Eliza Watkins place. The plaintiffs allege that they, with the defendants, except W. M. Justice, are tenants in common in these lands, and ask for partition, and demand accounting from Sarah Watkins, defendant, in possession, for rents and profits. J. M. Watkins claims also to own in his own right the share of Nisea Watkins. Defendants deny that plaintiff’s have any right on the 135-acre tract, and allege that Sarah Watkins is the sole owner, of the same. After issue joined the cause was referred to the master to hear and determine all issues of law and fact, and report the same. The master made his report, wherein he found that W. M. Justice owned in fee the 135-acre tract, by virtue of a deed of conveyance executed and delivered to him. Since the commencement of this action, by Sarah Watkins, and that the 5-acre tract was subject to partition amongst the heirs at law of Eliza Watkins, deceased, and recommended a sale thereof for partition. He further found that J. M. Watkins was not an innocent purchaser for value without notice of the share of Nisea Watkins, but found that she had conveyed her interest prior to Sarah Watkins.

After the master had filed his report exceptions were duly filed and the cause was heard by his Honor, Judge Peurifoy, who, by his decree filed April 26, 1918, overruled all exceptions, and approved and confirmed said report of said master. After entry of judgment, appellants appeal, and by four exceptions impute error.

1 All of the exceptions are overruled except exception 4, for the reason that the pleadings raised a legal issue, and made it an action for the recovery of real estate, and the finding of the Circuit Judge is conclusive, if there is any evidence to sustain his finding, and there is. In addition to this we have the concurring finding of the master and Circuit Judge, and the appellants fail to satisfy this Court that the finding is against the preponderance of the evidence.

2 So much of exception 4 as raises the point that Celia Watkins, the widow of John Watkins, is barred of dower, according to the finding of the Circuit Court, must be reversed. The record shows that the legal title to land conveyed was at one time in John Watkins during coverture with Celia, and the dower right of Celia attached therein, and the record fails to disclose any fact on her part that would defeat her claim thereto.

3 All of the parties being before' the Court, her dower can be admeasured in this proceeding. With this modification as to dower, the judgment of Circuit Court is affirmed.

Modified.