Myrick v. Lewis

May 23, 1927. The opinion of the Court was delivered by This is an action by the plaintiffs, as heirs at law of William B. Williams, against the defendants, who are also heirs at law of the same person and also of J. Robert Williams, a son of William B. Williams, for the partition among all parties, as tenants in common, of a tract of land containing 50 acres; failing in this, that the 50 acres in the possession of the defendants, as heirs at law of J. Robert Williams, be impressed with a trust or charge of $300, the consideration of the deed from William B. Williams to J. Robert Williams, as will be fully explained.

On November 3, 1883, William B. Williams executed and delivered to his son, J. Robert Williams, a deed in fee simple to the 50-acre tract in question, reserving a life estate to himself and his wife. The premises of the deed contain this statement:

"For and in consideration of the sum of $300.00 to be paid to my heirs, executors, or administrators after my death and after the death of my wife, the obligations for the payment of said sum being received before the sealing and delivery of these presents, have granted," etc.

William B. Williams died "about 30 years ago" (about 1896), having been with his wife in possession of the tract of land since the date of the deed. She continued in possession after the death of William B. Williams until her death in July, 1925. William B. Williams was survived by his wife and four children, Perry, J. Robert, Jane Myrick, and Ann Myrick. The plaintiffs are the heirs at law of these children, with the exception of J. Robert Williams.

J. Robert Williams, the grantee in the deed referred to above, died in January, 1916, prior to the death of the surviving life tenant, his mother, the widow of William B. Williams, in 1925. He, it appears, was survived by a daughter, the defendant Janie C. Lewis, and a granddaughter, Rowley Williams, his only heirs at law, who went into possession of the tract of land upon the death of their grandmother, widow of William B. Williams, in 1925. It is conceded that the $300.00 consideration named in the deed has not been paid by either the personal representative of J. Robert Williams or by his heirs at law. It does not appear that the obligations for the $300, referred to in the deed as having been delivered to William B. Williams, have been discovered or accounted for.

On December 4, 1925, the present action was instituted by the plaintiffs, as heirs at law of William B. Williams (other than the defendants), against the defendants, who, as stated, are heirs at law of both William B. Williams and J. Robert Williams. The plaintiffs claim that the deed from William B. Williams to J. Robert Williams never operated as either a deed or a will (though they give no definite reason why it did not operate as a deed), and that consequently the plaintiffs and the defendants are tenants in common in the 50-acre tract, and that partition should be made. (This phase of the case appears to have been disregarded in the prosecution of the litigation.) The plaintiffs further claim, in the event that the deed should be held valid, that, the $300.00 consideration named in the deed not having been paid, the defendants are due the plaintiffs that amount, with interest from the death of the widow, Mary A. Williams, and that to secure the payment thereof the plaintiffs have a lien upon the premises.

The defendants answered, admitting certain formal allegations of the complaint, but denying that the plaintiffs are entitled either to partition or to lien upon the premises for the $300.00.

The case was heard by his Honor, Judge Mann, upon an agreed statement setting out the facts substantially as above detailed. On April 29, 1926, he filed a decree, sustaining the claim of the plaintiffs to a lien upon the land for the $300.00, and directing that the defendants pay the same, with interest from July 31, 1925, the date of the death of the widow, Mary A. Williams, within 30 days from the notice of the decree, or that the plaintiffs have leave to apply to the Court "for an order of sale of the land for said purposes." From this order the defendants have appealed.

We see absolutely nothing in the deed which expresses or implies, as a condition to the vesting of the title in J. Robert Williams, the payment of the $300.00 named as the consideration of the deed. In fact, the deed shows upon its face that William B. Williams had accepted from J. Robert Williams, "the obligations for the payment of said sum" before the execution and delivery of the deed, and then, upon the faith of these obligations, conveyed the title.

In Lavender v. Daniel, 58 S.C. 125; 36 S.E., 546, the Court said:

"If a person buys land on a credit, and enters into an agreement, whether by note, bond, or otherwise, to pay a stipulated sum as the purchase money thereof at a specified time, and fails to perform such an agreement, it never was supposed that he thereby forfeited his title to the land,or even that the land, in the absence of any mortgage, becameimpressed with any lien, for it is settled by at least three cases in this State that the doctrine of the vendor's lien for the purchase money, which prevails in England, never was recognized in this State."

In Tedder v. Tedder, 108 S.C. 271; 94 S.E., 19; 2 A.L.R., 438, the Court said:

"But if A. should convey to B. a parcel of land, upon consideration of B.'s promise to lift a mortgage debt which A. had aforetime put on it, then B.'s failure to pay would be no ground for A. or his assigns to have the deed canceled."

See, also, 18 C.J., 168.

If, then, the payment of the consideration cannot be considered a condition precedent to the vesting of the title, it follows that all that William B. Williams retained, outside, of course, of the life estates, was a claim against J. Robert Williams for the $300.00, with interest from the death of Mary A. Williams, a cause of action which survived in favor of his personal representative, and not his heirs at law. There is nothing in the case which suggests the existence of a lien upon the land to enforce this obligation. The procedure necessary to enforce this obligation has not been considered; it is sufficient for this appeal to declare that the payment of the consideration was not a condition to the vesting of the fee-simple title in J. Robert Williams, and that there exists no lien upon the land by which the payment of the $300.00 can be enforced.

The judgment of this Court is that the judgment of the Circuit Court be reversed and that the complaint be dismissed.

MESSRS. JUSTICES BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.