Wilson v. Cooper

226 S.C. 538 (1955) 86 S.E.2d 59

JOHNNIE WILSON ET AL., Appellants,
v.
SAM COOPER ET AL., Respondents.

16971

Supreme Court of South Carolina.

February 24, 1955.

Messrs. Connor & Connor, of Kingstree, for Appellants.

M.L. Meadors, Esq., of Florence, for Respondents.

The following is the opinion of Judge Brailsford in the court below:

I have for consideration exceptions to the report of Honorable F.R. Hemingway, as Special Referee, which recommends that a tract of about one hundred and ninety-six acres of land in Williamsburg County be sold for division among the descendants of one Moses and Clarinda Davis and their heirs and grantees.

The right to partition is contested by the numerous defendants upon the ground that the land was divided among those entitled thereto in 1913, by means of an oral partition and, consequently, the parties to the action are not tenants in common as to the entire tract.

Some time prior to 1913, title to the property became vested in the following children of Moses and Clarinda Davis by descent from them: Sarah Davis James, Martha Davis Wilson, Hager Davis James, Mary Davis Cooper, Della Davis and Amelia Davis Smith.

In April of 1913, after the death of Sarah, Hager and Della, the interested parties undertook to partition the land among themselves. A Surveyor was employed, division lines were run and a map was prepared. This is dated April 14-15, 1913, is designated as "Map Showing Partition of Lands of Moses Davis" and is signed by Lawrence H.M. McCullough, C.E. and Surveyor. It indicates the allotment of Tract No. I to Estate Sarah James, No. II to Martha Wilson, No. III to Estate Hager James, No. IV to Mary Cooper, No. V to Estate Della Davis and No. VIII to Amelia Smith. These tracts vary in size from 26 to 34 acres. In addition an unallotted tract of 4.6 acres, No. VII, is shown and tract No. VI, containing 2 acres, is for some unexplained reason designated as the property of A.B. Wilson, husband of Martha. All of the testimony on the point is that tract No. VII was allotted to the heirs of Hager James in addition to tract No. III.

Cyrus Brown and Henry Wilson are the only surviving witnesses who were present when the survey was made. Cyrus was the husband of one of the daughters of Hager James. His wife is now dead but he resides on and farms a portion of the land. Henry has no interest in the land. He is about sixty-four years old and is a lifelong resident of the neighborhood.

Both of these witnesses testified categorically that shortly after the survey was made the three surviving daughters of Moses and Clarinda and the children of the three deceased daughters took possession of the respective tracts as allotted on the plat and occupied and farmed them as separate tracts.

The plaintiffs are three of the surviving children of Martha Wilson and three of her grandchildren by a daughter who died prior to the commencement of the action. The other three of Martha's surviving children and about fifteen other persons who claim mediately or immediately through her are among the numerous defendants who oppose the right of sale for partition.

Johnny Wilson and Neiman Wilson were the only two plaintiffs who took the stand. Neiman's testimony did not touch the merits.

Johnny Wilson was a most remarkable witness. He is a son of Abner and Martha Wilson. The house occupied by his parents was on Abner's tract of land, adjoining the tract allotted to Martha. Johnny apparently lived as a member of his parent's family until about sixteen years prior to the reference, when he moved away. That was the year of his mother's death. Johnny is now about forty-two years of age.

Prior to the commencement of this action he became dissatisfied with the fact that his oldest brother, the defendant, Davis Wilson, had exclusive possession of the tract alloted to Martha and claimed it as his own. He started an investigation which resulted in this lawsuit. None of the plaintiffs had ever previously asserted any claim to the land.

All of the testimony is to the effect that Martha took and held possession of the tract alloted to her in the partition. Johnny unhesitatingly and fully confirms this. To quote from his testimony:

"Q. And that's your mother's tract? A. Yes, sir.

"Q. Is that what you say? A. Yes, sir. That's what I say.

"Q. That's your mother's tract and that's the one you say your brother's got the whole charge of? A. Yes, sir.

"Q. Your mother had that tract long before she died, didn't she? A. Yes, sir. As far as I know. Where they call her tract — whether it was divided up, I don't know.

"Q. But that's what you've always called it? A. Yes, sir.

"Q. She called it that, didn't she? A. Yes, sir.

"Q. She regarded it as hers, didn't she? A. Yes, sir.

"Q. Did she farm up until the time she died? A. Well, no, sir, she didn't do much farming. My brother was farming it.

"Q. Your brother was farming it? A. Yes, sir.

"Q. Well, he was farming for her? A. Until he leave off and went off from home.

"Q. Well, who farmed it then? A. And then after he went off from home, I was big enough to remember, my mother, she took the children, until my older brother come back home, to help out with the farm."

And this witness, although unable to read the names on the plat, was able to describe accurately the location of the various tracts with respect to each other. After doing so on cross examination, he was asked:

"Q. All right, thank you. It has been that way about as long as you can remember? A. That's it — where they all builded and stuff like that when I knowed it."

The familiarity of this illiterate witness with the location and identity of the separate tracts is persuasive that the division was recognized by the various parties who occupied the land during his boyhood and youth. It is inconsistent with plaintiffs' contention that the effort to affect a partition, which took place in witness's infancy, was abortive because of a disagreement among the parties.

The scant support in the testimony of the occurrence of such a disagreement comes from plaintiff's witness, Mr. P. A. Thompson, who owns adjoining land. He testified that he had rented some of the land from Mary (Martha?) Wilson about 1924. He knew that the survey was made "but there was some dissatisfaction * * * and it was never finished up." The dissatisfaction was on the part of "some of the ones on the South side of the place." When asked to identify them he said, "Mary (Martha?) was on that side and didn't sign the deeds and partitions. I don't know the details."

The Southeastern tract was allotted to Martha Wilson, under whom Plaintiffs claim. No one was able to identify the children of Sarah, to whom the Southwestern tract was alloted. It must have been Martha Wilson to whom the witness referred as Mary Wilson, yet, Plaintiff's own testimony fully establishes that Martha took possession of her tract pursuant to the division, occupied it and regarded it as her own.

The witness's statement that "it was never finished up" plainly appears to be a conclusion on his part. The decided preponderance of the testimony is that there was no such disagreement.

The land is presently being occupied and farmed by six persons and their families: (1) Davis Wilson, eldest son of Martha Wilson; (2) Cyrus Brown, son-in-law of Hager James; (3) Ned Brown, son-in-law of Della Davis; (4) Mose Wilson, son-in-law of Mary Cooper; (5) Kelly Thomas, foster son of Amelia Smith; and (6) Thelma Wilson, grantee of the interests of two of the heirs of Hager James.

The real burden of Plaintiff's effort to discredit the 1913 partition is by showing that the present occupancy of these parties does not conform to the lines of the tracts allotted, respectively, to those under whom they claim. Most of the voluminous and confusing testimony is devoted to this point. Unquestionably, a number of discrepancies between the present occupancy of the premises and the allotment of the separate tracts are disclosed. Some of these are fully explained in the testimony. Some are not. Admittedly, however, Martha's tract is and has been in the exclusive possession of her eldest son, the defendant, Davis Wilson. As already pointed out, this litigation resulted from plaintiff's dissatisfaction with Davis' possession and claim of ownership of this tract. As heirs of Martha, they are not adversely affected by such confusion as exists with respect to the occupancy of the other tracts.

In Bolt v. Sullivan, 173 S.C. 24, 174 S.E. 491, 493, a tract of land was divided among four life tenants under circumstances which life tenants died in possession and their respective children recognized the division and took possession of what had been allotted to their parents. The fourth life tenant was ousted from his tract by some legal process. Upon his death his children brought suit to recover it from third parties in possession.

"The special referee held that, if the devisees took a life estate, they could by the partition made dispose only of their life interest and could not by their action dispose of the rights of the remaindermen in the entire tract of 440 acres. The circuit judge concurred. This ruling loses sight of the fact made plain by the evidence, that the children of Larissy, Andrew, and Hiram acquiesced in and ratified that partition by going into possession and ownership of the lands allotted their respective parents and are now estopped to deny the legality of such partition.

"* * * * * * * * * *

"It is clear that it was error to hold that the division of land made by the commissioners, accepted by the life tenants, acquiesced in by the remaindermen, was not binding on the remaindermen, and their successors."

In this case the children of Dorroh Bolt, the dispossessed life tenant, were not bound by the division of the estates in remainder, at least not until they elected to bring suit in their own right against those in possession of the tract formerly allotted to their father. Nevertheless, the other children, who did take possession in accordance with the division, were bound by it.

I think that the case cited in authority for the proposition that those who accept and act upon a division of property may be bound by it, even though there are others who are not bound.

Pursuant to the partition, Martha disavowed the relationship of tenant in common and claimed ownership of her separate tract nearly forty years before the commencement of this action. Surely it is now too late for those claiming under her to question it, even though it be assumed that strict proof of the agreement and its execution by all of the other parties is lacking. The defendants acknowledge and rely upon the oral partition. The proof is clear that plaintiffs are bound by it. It follows that the partition and division of the land of Moses and Clarinda Davis, as shown on the partition plat, should be ratified and confirmed, with the further provision, in accordance with the testimony herein, that tract No. VII be adjudged to have been allotted to the heirs of Hager James.

Of course this conclusion is without prejudice to any rights which any of the parties may have acquired in any of the tracts since the oral partition, by inheritance, conveyance or otherwise. It appears that plaintiffs, or some of them, may now be tenants in common, with some of the other parties of this action, as to tract No. I, allotted to Estate Sarah James and as to tract No. VIII, allotted to Amelia Smith. This action should be held open so that they may apply for such relief, if any, as they may be entitled to with respect to these tracts.

These conclusions result in the reversal of the report without the necessity of considering the other affirmative defenses set up in the Answer of the defendants. These include the claim of the Defendant, Davis Wilson to sole ownership of tract No. II as purchaser from his mother. In sustaining plaintiffs' right to partition, the Special Referee found against this claim. The plea is purely defensive and seeks no affirmative relief in behalf of the Defendant Davis. It must be assumed that this was intentionally omitted because his claim is inconsistent with the interests of numerous other refendants, some of whom are minors and all of whom are represented by the same attorney. It would, therefore, be inappropriate to unnecessarily pass on the exceptions which challenge these findings. Dismissal of the action will be without prejudice to the rights of those parties claiming under Martha Wilson as between themselves.

Lamentably, the conclusion reached, if it stands as final judgment in the cause, will set at naught much of the arduous labor of Counsel and of the able Special Referee. Lamentably also, the passage of time will inevitably further complicate the title to the various tracts involved. But the Court has no right to put this land on the block in order to clear the title or to prevent future complications. Apparently five families make their homes and livelihood on tracts other than the one allotted to Martha. Some have done so for more than thirty years. Some who share largely in the use of the land would share little in the distribution of the proceeds. The consequences to them of a sale of the land as a whole cannot be measured on this record. True most of them are in possession by sufferance of co-tenants whose right to a sale of the respective tracts would unhesitatingly be enforced by the Court. But these co-tenants also have the right to forbear. So long as they elect to do so, the Court is not concerned with the title of those in possession.

It Is, Therefore, Ordered, Adjudged and Decreed:

I. That the report of the Special Referee be reversed.

II. That the partition and division of the real estate described in the complaint, as reflected by map dated April 14-15, 1913 prepared by Lawrence H. McCullough, Civil Engineer and Surveyor, be ratified and confirmed to like effect as though partition deeds had been executed and delivered among the parties entitled thereto as of that date.

III. That as to the heirs of Hager James, the provision of the preceding paragraph shall apply to tract No. VII, as delineated on said plat, with like effect as to tract No. III.

IV. That the action be held open so that plaintiffs may move for leave to file a supplemental or amended complaint herein, if they be so advised within twenty days of the filing of this order, claiming such relief, if any, as they may be entitled to with respect to tract No. I or tract No. VII as shown on said plat.

February 24, 1955.

LEGGE, Justice.

Appellants brought this action for partition, by sale and division of the proceeds, of approximately one hundred ninety-two acres of land in Williamsburg County that had been owned by one Moses Davis at the time of his death "many years ago." From the stipulation of counsel before the Master, it appears that Moses Davis died intestate, leaving as his heirs his widow, Clarendon, or, Clander, or Clarinda, and their six daughters, namely: Sarah Davis, Hager Davis James, Martha Davis Wilson, Mary Davis Cooper, Amelia Davis Smith, and Della Davis, all of whom died intestate long before the commencement of the present action. The complaint alleges that the plaintiffs and the defendants, other than James Wilson, Thelma Wilson and Mose Wilson, are tenants in common by virtue of descent from Moses Davis; that James Wilson claims an interest in the property but in fact has none; that Thelma Wilson in 1945 purchased the interest of one of the grandchildren of Hager Davis James; and that Mose Wilson in 1943 purchased the interests of two of the six children of Della Davis.

As defense to the action the defendants pleaded an oral partition in 1913 among those in whom the title was then vested; and the validity or invalidity of the oral partition is the only issue involved in this appeal. The Special Referee found and held that it had never been consummated; and on appeal to the circuit court his report was reversed by decree of the Honorable J.M. Brailsford, Jr., Presiding Judge, dated May 2, 1953.

It is well settled in this state that valid partition of lands may be made by parol, where there is sufficient part performance to take the transaction out of the statute of frauds. And actual possession is deemed the most satisfactory evidence of part performance. Kennemore v. Kennemore, 26 S.C. 251, 1 S.E. 881; Rountree v. Lane, 32 S.C. 160, 10 S.E. 941; Mims v. Hair, 80 S.C. 460, 61 S.E. 968; Dantzler v. Riley, 109 S.C. 44, 95 S.E. 132; Bolt v. Sullivan, 173 S.C. 24, 174 S.E. 491.

It appears from the evidence that prior to 1913 Moses Davis' widow, Clarendon (or Clander or Clarinda) and three of their children, namely, Sarah Davis, Hager Davis, James and Della Davis, had died intestate, and that in April, 1913, the three surviving children, Martha Davis Wilson, Mary Davis Cooper and Amelia Davis Smith, together with those in whom the interests of the deceased cotenants had vested, orally agreed to partition the land among themselves. They employed a surveyor, Lawrence H.M. McCullough, who ran the division lines and prepared and signed under date April 14-15, 1913, a "Map Showing Partition of Lands of Moses Davis." This map shows the division of the land into eight tracts, and their allotment as follows:

Lot No. I    34.1 acres   To Estate Sarah James
Lot No. II   33.8 acres   To Martha Wilson
Lot No. III  30.9 acres   To Estate Hager James
Lot No. IV   30.6 acres   To Mary Cooper
Lot No. V    26.2 acres   To Estate Della Davis
Lot No. VI    2   acres   To A.B. Wilson
Lot No. VII   4.6 acres   To Not indicated
Lot No. VIII 30.6 acres   To Amelia Smith

It appears from the evidence that A.B. Wilson, to whom was allotted Lot No. VI, was Abner Wilson, husband of Martha Davis Wilson; and that Lot No. VII, the allotment of which was not shown on the map, was in fact allotted, along with Lot No. III, to Hager Davis James.

The six plaintiffs and sixteen of the thirty-seven named defendants are descendants of Martha Davis Wilson; five of the defendants are descendants of Hager Davis James. four of Martha Davis Cooper, and nine of Della Davis. The remaining three defendants are Mose Wilson, Thelma Wilson and James Wilson, to whom we have already referred.

Of the parties to the action, the plaintiffs Johnnie Wilson and Nieman Wilson and the defendants Mose Wilson, Davis Wilson, Kelley Thomas and Joseph James testified. As pointed out in Judge Brailsford's decree, the testimony of Johnnie Wilson tended to confirm rather than refute the contention of the defendants that the oral partition, had been agreed upon and that the parties in interest had gone into possession in severalty of the parcels allotted to them respectively. The testimony of Nieman Wilson, a grandson of Martha Davis Wilson, had no direct bearing on the issue of whether or not the oral partition had been consummated; but this witness, who gave his age as thirty-five or thirty-six, admitted that he had never asserted any claim to any part of the land until the present action.

Mose Wilson testified that he was not related by blood to any of the parties to the oral partition, but had married Sallie Cooper, one of the daughters of Mary Davis Cooper. He testified that he had been farming on the Mary Cooper tract (Lot No. IV) fourteen years along with one of the "other" heirs of Mary Cooper; that no one at present lives on Lot No. I, but that Thelma Wilson, who had purchased the interest of Clara James, one of the descendants of Hager James, is farming that tract; that Davis Wilson, the son of Martha Davis Wilson, lives and farms on Lot No. II; that Cyrus Brown, the husband of Annie, a daughter of Hager James, lives on Lot No. III and farms on Lot No. VII; that Ned Brown, who had married Clara (also known as Sissy) Davis, a daughter of Della Davis, lives with his wife on Lot No. V, and that they had been living and farming there as far back as he can remember; that Kelley Thomas, whose father had married Sarah Cooper, a daughter of Mary Davis Cooper, lives on the little tract of 4.6 acres designated as Lot No. VII and also farms Lot No. VIII.

Davis Wilson, the eldest son of Martha Wilson, who gave his age as about fifty-five (55), but who was quite indefinite as to dates, testified that he and his mother and her husband, Abner Wilson, had lived on the Abner Wilson tract (Lot No. VI); that while they were all living there together he had bought the tract from a Mr. Cooper, who "had gotten hold of it"; that about April 1, 1922, he had paid off the mortgage held by S. Poston & Company, that had been given by his mother, Martha Wilson, in 1910, covering her then undivided interest in the whole tract, and that in consideration of this payment by him, which amounted to something over Seven Hundred ($700.00) Dollars, and of a subsequent payment, she had signed in 1933 a deed conveying Lot No. II to him, but the deed had never been completed. He testified also that he had put a two-room house on Lot No. II, and that thereafter the house in which his mother and her husband were living on the Abner Wilson tract (Lot No. VI) had burned, and he had permitted his mother and Abner Wilson to move his house over to that tract; that this had occurred before he went away "up north"; that he returned some twenty (20) years prior to the commencement of the present action and has been in exclusive possession of Lots II and VI ever since. He did not know anything about the agreement for partition in 1913, but he remembers the plat that was made in 1913, and that it had been in the possession of Kelley Thomas.

Cyrus Brown, who had married Annie, the daughter of Hager James, and who gave his age as sixty-four (64) or sixty-five (65), testified that he remembered distinctly the survey that was made in 1913, and that he had "helped tote the chain" in connection with it, along with Jake Johnson and Abner Wilson (both of whom are now dead) and Henry Wilson, to whose testimony we shall later refer. Cyrus testified positively that immediately or shortly after the survey had been made, the three living children of Moses and Clander Davis, and the heirs of the three children who had theretofore died, went into possession in severalty of their respective portions of the land, according to the survey; that Martha Davis Wilson went into possession of her part and continued in possession of it until she turned it over to her son, Davis Wilson; that the heirs of Sarah James went into possession of their part; that the witness and his wife, Annie, and the other heirs of Hager James took over the part allotted to the Estate of Hager James and have continued to farm it since; that Della Davis' heirs took possession of the part allotted to them: and likewise as to Mary Cooper and Amelia Smith. He testified that during all the time he had been on the property he had never heard of any disagreement among the heirs as to the location and separate ownership of the several lots.

Henry Wilson, who was not a party, and who claims no ownership of any of the land, but who was about sixty-four (64) years of age and had been raised on the adjoining property and had lived in the neighborhood all of his life, testified that he had also taken part in the survey in 1913, and helped carry the chain, and that after the survey had been made the surviving children of Moses and Clander Davis and the children of those who had died, had gone into possession of their separate tracts as set off to them in the survey; that there had been no disagreement among them; and that the separate ownership and use has continued from that time.

Kelley Thomas, one of the defendants, who is a child of Sarah C. Thomas, a daughter of Mary Davis Cooper, testified that when he was about eight (8) years old his mother had given him to Amelia Smith, who was her childless and widowed aunt; that Amelia Smith farmed her part, Lot No. VIII, until her death, and that he, Kelley Thomas, has been farming it ever since, along with Ned Brown, who farms about an acre of it in return for allowing Kelley Thomas to farm part of his land.

Joseph James, a son of Hager James, explained that in the partition in 1913 the 4.6 acre tract shown on the map as Lot No. VII was, in addition to Lot No. III, allotted to Hager James, and that it was agreeable to him and the other heirs of Hager James that Cyrus Brown and his wife, Annie, who was Hager James' daughter occupy that lot.

It is to be noted that the only witness who testified to the effect that the oral partition had not been agreed upon was not a party in interest, either plaintiff or defendant, but a Mr. P.A. Thompson, the owner of some adjoining property. His testimony, which is discussed in Judge Brailsford's decree, is vague and unconvincing in view of the positive testimony of the interested parties to which we have referred.

Appellants argue that the following facts disclosed by the record are sufficient to overthrow the otherwise convincing testimony of the parties that the oral partition in 1913 was in fact consummated:

1. That the property as a whole has been carried on the tax books of Williamsburg County in the name of Estate of Clarinda Davis;

2. That in 1943, when James Davis and Fulton Davis, two of the numerous heirs of Della Davis, conveyed their interests to Mose Wilson, the property conveyed was described as the undivided right, title and interest of the grantors in "192 acres, more or less, said tract being estate lands of Clander Davis"; and

3. That in 1943, the deed from Clara E. James, one of the grandchildren of Hager James, to Thelma Wilson described the property conveyed as the undivided right, title and interest of the grantor in "221 acres, more or less, said tract of land being estate lands of Clarendon Davis or Clander Davis, formerly of lands of Estate of Moses Davis."

The fact that the tax records were not changed to show ownership of the allotted parcels in severalty becomes relatively unimportant when it is remembered the parties concerned in the 1913 partition and thereafter were obviously not versed in such matters, and were content, if indeed they thought about the matter at all, to leave the tax records alone. Nor does the description in the two deeds referred to impel the conclusion that the oral partition had never been consummated. There is no evidence indicating that the parties to these deeds had ever seen the partition plat, which was in the possession of Kelley Thomas; and these grantors may not have even known of the partition, though the testimony shows that since the division of the property in 1913, they, like the other descendants of Moses and Hager, had never questioned the separate ownership of the several lots. The validity of the oral partition is to be determined by the actions of the parties to it.

We are convinced, after careful study of all the evidence, that the oral partition was in fact consummated, and is binding upon those now claiming under the parties among whom it was made.

Judge Brailsford's decree goes no farther than to confirm the oral partition, recognizing that the allotment to the heirs of Hager James included both Lot No. III and Lot No. VII. It is expressly without prejudice to any rights that any of the parties may have acquired in any of the tracts since the oral partition, by inheritance, conveyance or otherwise. His decree, is affirmed, and the cause is remanded to the Court of Common Pleas for Williamsburg County, there to remain open for the purpose of enabling any of the parties, as tenant or tenants in common of any of the several parcels shown thereon, to apply for such relief as he or she or they may be advised.

Affirmed and remanded.

STUKES, TAYLOR and OXNER, JJ., and E.H. HENDERSON, Acting Associate Justice, concur.