Major v. Major , 104 S.C. 100 ( 1916 )

March 21, 1916. The opinion of the Court was delivered by This case is not free from difficulties. There are several complications, and yet by a careful study of the case, keeping in mind the fundamental principles of law, the difficulties may be solved according to law and justice. The law is a wonderful science, and, when it fails to do justice, it is because we have overlooked some principle or some fact.

James Major made his will and died. The Circuit decree finds (from this there is no appeal) that:

"James Major devised all of his estate, real and personal, to his wife, Elizabeth Major, for life, and directed that at her death the same be sold by his executors and the proceeds equally divided among his five children, viz.: Stephen A. Major, John W. Major, J. William Major, Harriett McWhorter, and Lucy A. Smith."

Before the death of the life tenant, the parties agreed to divide the land. The life tenant and the two daughters conveyed to the three sons 248 acres, in fee simple absolute, charged with the support of the life tenant, and the life tenant and the three sons conveyed to the two daughters 200 acres of the land. This deed was to the daughters and "their bodily heirs." Mrs. McWhorter and Mrs. Smith (the daughters) divided their tract of land between them, making deeds to each other, and each of these deeds purported to convey a fee simple. Mrs. Smith never had a child. Mrs. McWhorter had several, but died leaving one child, who is a party. This suit is brought on the theory that Mrs. Smith took under the deed from her brothers and mother only a fee conditional, and, inasmuch as Mrs. Smith never had any "bodily heirs," her estate terminated with her life, and the property assigned to her reverted to the estate of James Major, her father, and is now to be distributed among those who are her father's heirs. Mrs. Smith made a will, giving her property to her brother, James W. Major; but, of course, if she had only a fee conditional, then her interest terminated with her life, and her will can carry no part of this land. The judgment appealed from found that Mrs. Smith had a fee conditional, and ordered the land sold and the proceeds divided among the heirs of James Major, the testator. From this judgment this appeal is taken.

There are numerous exceptions, but only one question, to wit: What estate did Mrs. Smith take in her portion of her father's property?

If we start back at the beginning of this record, we find that Mrs. Smith had a fee in remainder, under her father's will, in whatever she took. The full right to the fee was only postponed until the expiration of the life estate, and that expired before her death. The deed from the life tenant and the three remaindermen to Mrs. McWhorter and Mrs. Smith effected two purposes, i. e., to convey the life estate of their mother and set the bounds of possession and title of the brothers and sisters. In so far as it was a conveyance, it could limit the estate conveyed.

It is true that, if Mrs. Smith took from James Major an estate in fee conditional, then at her death (she not having had issue) the land would have reverted to James Major and would be distributable among his heirs. James Major did not devise a fee conditional. If Mrs. Smith took a fee conditional, then the fee conditional was created by Mrs. Elizabeth Major, the life tenant, and Mrs. Smith's brothers, who were her cotenants. Inasmuch as Mrs. Smith survived the life tenant, her will does not purport to dispose of any portion of her mother's life estate. The life estate being eliminated, the deeds must now be considered as a partition among cotenants.

James W. Major claims that, even if Mrs. McWhorter took a fee conditional, still Mrs. McWhorter has "bodily heirs," and she could and did convey a fee to Mrs. Smith by the second deed of partition. To this, reply is made that a deed of partition conveys the estate hold by the cotenants and can convey no other. Authorities are cited to sustain the proposition that, inasmuch as Mrs. McWhorter had a fee conditional, and the deed to Mrs. Smith was a deed in partition, Mrs. McWhorter conveyed to Mrs. Smith only a fee conditional. The proposition is that, while one who holds an undivided interest in land in fee conditional (having bodily heirs) may convey to a stranger the fee, she can convey to her cotenant only a fee conditional, because that was the nature of her own title. It makes no difference that the deed was made before the birth of issue. See Holley v.Still, 91 S.C. 495, 74 S.E. 1065.

It is not necessary to decide that question here, because the claimant has overlooked a fact, to wit, there were two sets of deeds of partition, and the grantors in the first deed had a fee simple title. If deeds of partition carry the estates of the grantors, without regard to, and in spite of, the language used, then Mrs. Smith took a fee simple under the first deed. If Mrs. McWhorter could convey to Mrs. Smith the estate she could convey to a stranger, then Mrs. Smith took a fee simple. Under either horn of the dilemma, Mrs. Smith took a fee.

It is said, however, that, when the sister took this deed from their mother and brothers, they estopped to deny its terms and must hold in accordance with it. If the contest here was over any portion of the life estate of Mrs. Elizabeth Major, the proposition would have much force. So far as the cotenants (in remainder) of the sisters are concerned, it was at most a surrender of a fee simple for a fee conditional, in favor of the bodily heirs of the sisters. These bodily heirs are not here to claim the estoppel as to their mother's share.

The deed from the brothers to the sisters has not hurt the parties now claiming the estoppel of this deed. Estoppel does not apply to this case. We have been cited to no authorities, and we know of none, that holds that, if a landowner buys a mere cloud upon his title, he is thereafter forced to rely solely upon his last deed.

The judgment of this Court is that the judgment appealed from is reversed.

MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur in the opinion of the Court.