Jones v. Kelly

The plaintiff, Ella F. Jones, being the holder of the deed to a tract of land hereinafter described, brought this action against all the heirs of Charles McAllister for the re-formation of the title whereby Charles McAllister conveyed the land to E.T. Moody under whom the plaintiff claims. The complaint alleges that on or about the 5th day of October, 1868, Charles McAllister executed and delivered his certain deed to E.T. Moody, intending to convey the fee simple title to fifteen acres of land in the incorporate limits of the town of Lake City, county of Williamsburg, for the named consideration of $500.00; but by a mistake, caused by the deed having been drawn by an unskilled person, the necessary words of inheritance were omitted from the deed. The land was conveyed by E.T. Moody to M.L. Jones, January 28, 1872; by M.L. Jones to Pittman Bros.; by Pittman Bros. to B. Wallace Jones. December 17. 1885; by B. Wallace Jones to Pittman Bros., April 17, 1895; by Pittman Bros. to Ella F. Jones, the plaintiff in this action, May 1, 1900. All the deeds made to the land since the transfer from Charles McAllister to E.T. Moody have been fee simple titles. The deed which the plaintiff seeks to have re-formed is as follows:

"State of South Carolina, Williamsburg county.

"Know all men by these presents, that I, Charles McAllister, of the county and State aforesaid, for and in consideration of the sum of five hundred dollars to me paid by E.T. Moody, of Williamsburg county and State aforesaid, have granted, bargained, sold and released, unto the said E. T. Moody, one lot or tract of land, containing fifteen acres, more or less, being a part of a tract of land, containing fifteen hundred acres, surveyed for Charles McAllister and to him granted the 14th of March, 1790, situated in Williamsburg county and State aforesaid, on the southwest side of Lynches' Lake, bounded N.E. by lands of Ann Jones, on the Georgetown road, south by Charles McAllister and Mrs. Mary Murphy's land and continuing straight line to W.G. McAllister's line, west by W.G. McAllister's line, north by Aider and Charley Kelley's line to the Georgetown road, and has such shapes, forms and boundings as a plat doth represent.

"Together with all the rights, titles, members and appurtenances incident or appertaining.

"Him to have and to hold from this day forward the above named land against myself, and I, Charles McAllister, of the aforesaid county and State, do further bind myself to warrant and defend against my heirs, executors and administrators, and all other persons lawfully claiming the same or any part thereof.

"In witness whereof, I do hereunto set my hand and seal this 5th day of October, in the year of our Lord one thousand eight hundred and sixty-eight, and do sign, seal and deliver in the presence of these witnesses.

CHARLES McALLISTER (L.S.)"

S.D. McCutchen, R.D. Isgott.

The defendants in their answer, deny that the omission of the words of inheritance from the deed was due to mistake, and set up as a further defense "that a period of more than forty (40) years has elapsed since the date of the execution and delivery of the said deed from Charles McAllister to E. P. Moody and since the date of its record in the office required by law; and the defendants, therefore, submit and allege that the original grantee and all his successors in interest and privies in estate, including the plaintiff in this action, have been and are now estopped by the lapse of time and the staleness of the claim, involving the loss of evidence by the death of Charles McAllister and others, which would make it impossible to ascertain the true facts, and it would, therefore, be inequitable to grant the relief prayed for in the complaint."

The case, being at issue, was referred by consent to Charles W. Stoll, Esq., as special referee, to take and report the testimony. The report was made and the case heard before Judge George E. Prince at the November term of the Court of Common Pleas for Florence county, that portion of Williamsburg county where the land is situated being now in Florence county. Judge Prince dismissed the complaint, holding in an elaborate decree (1) that the plaintiff had failed to show that the deed was not intended to convey a life estate to Moody but a fee simple, and (2) that the plaintiff's claim was barred by her laches in presenting it to the Court.

In considering these conclusions of the Circuit Court, it is of prime importance to bear in mind that the plaintiff is not asserting a claim for re-formation of the deed againstbona fide purchasers from the grantor, Charles McAllister, but against his heirs at law, who can have no higher right than their ancestor would have if he were living. It is true, however, that even as to the parties to a deed the evidence of mistake in its terms must be clear and convincing to warrant a re-formation.

I agree that the Circuit Judge correctly held that the testimony of the grantee, Moody, to the effect that the intention was to convey a fee was incompetent because such testimony as to the transactions or communications between Moody and McAllister, his deceased grantor, would affect the interest previously owned by the witness. But leaving out of view all other testimony, it seems to me that the deed furnishes on its face evidence clear and convincing that the intention was to convey a fee simple and not a life estate. It was manifestly drawn by one not familiar with technical forms in conveyances, for only a part of the usual tenendum clause is found and the habendum and warranty are mingled in the same paragraph. The evidence leaves no doubt that the draftsman was W.D. McAllister, a son of the grantor, a plain countryman without professional training in conveyancing.

In construing deeds as in the performance of all other judicial functions, the Court must take judicial notice of the manners and customs of the people whose writings they try to understand; and clear conviction arising from taking into account such manners and customs surely, is as good as any other conviction. Having in view the manners of the plain people of the country, it is inconceivable that any man without legal training would write such a deed as is now before us when his intention was to convey a life estate. Indeed, it seems safe to say that if two deeds were presented to such a man, one to A and the other to A and his heirs, with the statement that one conveyed a life estate and the other a fee simple, he would say that the deed to A was absolute and the deed to A and his heirs conveyed for A's life only and after his death to his heirs. So universal is the custom to use the words "for life" or similar words when the intention is to convey a life estate and not a fee, that I venture to think that there will be no dissent from the statement that the attempt to limit to a life estate is never attempted without the use of such words either by lawyers or laymen, unless the purpose be to entrap or deceive. In view of these facts, can there be a doubt that courts of equity should relieve against the injustice which arises from the absurd rule of common law that the use of the word "heirs" is necessary to create a fee whenever they can possibly do so without interfering with the rights of innocent purchasers or creditors? But in this case, not only is the intention to convey absolutely and not to limit to a life estate shown by the absence of any express limitation, but the language of the deed affirmatively shows that intention. The words "together with all the rights, titles," etc., indicated, if they meant anything, to a man untutored in the law that all the grantors' rights and titles in the land were conveyed without reservation. The words "him to have and to hold from this day forward," etc., meant from this day forward indefinitely, that is without limit. They are equivalent to the words "to have forever." In Johnson v. Gilbert, 13 Rich. Eq. 42, there were no words of inheritance in the deed, yet the Court held that the clause, "I, said Jesse Gilbert, Senior, warrants and defends unto Jesse Gilbert, Junior, forever against myself, my heirs and assigns forever," etc., were in themselves "satisfactory evidence at the least of an executory contract for the sale of the land in fee," and that the heirs of the grantor had no interest in the property conveyed. Looking to the deed alone, it seems to me that this case is conclusive authority for holding that the intention in the present case was to convey a fee simple. The case of Austin v. Hunter, 85 S.C. 472, 62 S.E. 734, was decided on the same principle. In Sullivan v. Moore,92 S.C. 305, the Court said: "The deed of conveyance was written by Jared B. Sullivan, plaintiff's husband. Unless the Courts must look away from the obvious, they known that it is probable almost to the point of certainty that in writing a deed no layman would express the conveyance of a life estate by the mere omission of the word `heirs' in the premises and the habendum clause when using it in the warranty, and that no lawyer would do so except one wholly possessed with the spirit of priggishness." In Trustees v.Bryson, 34 S.C. 401, 13 S.E. 609, and Sullivan v. Latimer,38 S.C. 417, 17 S.E. 221, it was held that a paper in form a deed and purporting on its face to be under seal furnished conclusive evidence that the parties intended to seal it, and that in equity it would be regarded a good conveyance. The ruling was based on the Court's knowledge that reasonable men would not make such a paper without intending to seal. It seems to me that the Court must know with equal certainty that the people of this country do not make papers of this sort when they intend to convey a life estate, but only when they intend to convey a fee simple, and that the rule of the common law that the use of the word "heirs" is necessary to convey a fee is in modern life a fiction as absurd as would be its ancient contemporaneous fines and common recoveries.

With the intention to convey a fee made manifest beyond doubt from the terms of the deed itself, it is by no means necessary for the plaintiff to prove that she paid full value, for the evidence of value is important only as showing the improbability of the grantee paying the full value of the fee for a life estate. If that intention is evident from the deed or otherwise, the plaintiff will not be denied relief merely because the grantor chose to take a small price. When the evidence of value is considered in view of the well known depression in the price of land, and the backwardness of the country where it is situated in 1868, it seems to me, the clear preponderance favors the conclusion that $500.00 was a full price for the fee simple title. Certainly, it produces a clear conviction that $500.00 would have been a very excessive price for the life estate.

There are other circumstances showing that the parties thought that McAllister had parted with all interest in the land. The renunciation of dower was in the regular form to Moody and his heirs. Moody cut and removed timber from the land and there was no evidence of objection. He conveyed by fee simple deed to M.L. Jones, and W.G. McAllister, the son and agent of Charles McAllister, wrote the deed, thus indicating his belief that Moody had the fee simple. There is not a particle of evidence that Charles McAllister or any of his heirs in all the long period since the deed was made to Moody, and in view of all the changes in ownership ever made or referred to any claim to a reversion.

The only other obstacle to the re-formation of the deed is the alleged laches of the plaintiff. The plaintiff acquired title to the land from Pittman Bros. through successive conveyances from Moody, on 1 May, 1900. There is no claim that she had actual knowledge of the defect in the title until 1909, when it was developed in an action for specific performance of an agreement for exchange of this land for another lot brought by the plaintiff against C.M. Kelley. The plaintiff and those under whom she claims have been in possession of the land since the conveyance from Charles McAllister to E.T. Moody. Each grantee in these successive conveyances acquired the rights of his grantor, including the right to have the title re-formed. There is no evidence that any of the parties, either plaintiff or defendants, knew of the defect, or that Charles McAllister or the defendants, his heirs, ever made any claim that they had any interest in the land, until the defect was discovered and introduced in the course of the litigation with Kelley. It is true that under the recording laws of the State, the plaintiff is chargeable with constructive notice of the defendant's claim as heirs at law of Charles McAllister, but it by no means follows that she or her grantors are chargeable in a court of equity with laches in not knowing of the defect in the deed and asking for its re-formation at an earlier date. "As a definition of laches, however, it is sufficiently correct to say that it is the neglecting or omitting to do what in law should have been done, and this for an unreasonable and unexplained length of time, and in circumstances which afforded opportunity for diligence. * * * It is manifest, therefore, that the period of time which will be a bar in equity must needs vary with the varying circumstances in the different cases. Thus, to constitute laches in a case showing gross negligence, a lesser lapse of time would suffice than in a case of ordinary carelessness and inattention. So, too, would the length of time deemed sufficient be greater or less according as the evidence in the case might show whether the party to whom laches is imputed actually knew of the opportunity he neglected, or was simply presumed to have known." Babb v. Sullivan, 43 S.C. 436, 21 S.E. 277.

It would be a hard rule for courts of equity to deny to landholders relief against their grantors from technical defects in old deeds like this on which their titles depend, on the ground of laches, merely because technical defects, like this, which appear in the record have remained undiscovered for many years. In this case it seems to me peculiarly hard and inequitable. As I have endeavored to show, the defendants have nothing but a naked technical legal claim, based on a paper which shows on its face the claim to be grossly inequitable and its assertion most unjust

The plaintiff bought without knowledge of the defect, paying full value, and brought this action almost immediately after the discovery of the technical defect in the deed; and the issue is between the plaintiff and the heirs of the grantor who made the defective deed, no innocent purchasers being involved.

All the equities being, in my opinion, on the side of the plaintiff, and the defendants having nothing to support their unjust claim except a naked legal technicality, I think the judgment should be reversed and the deed re-formed according to the prayer of the complaint.