For the reasons assigned by his Honor, Judge Mann,1 I think that the judgment of the Circuit Court should be affirmed.
1 This is an action brought by the plaintiffs under a deed executed by W.B. Williams to J. Robert Williams, dated November 3, 1883; the deed being fully set forth in the complaint. The plaintiffs seek to have the premises described in the complaint partitioned, and ask for equitable relief as follows: That the title to the premises be declared subject to the payment of three hundred dollars ($300.00), with interest from the death of the grantor's wife, Mrs. Mary A. Williams, who died in July, 1925. The deed contains a provision that the grantor and his wife should hold, use and enjoy the premises during their natural lives and during the natural life of the survivor of them, and upon the death of the survivor, then to the said J. Robert Williams, as aforesaid, forever.
The consideration named in the deed is set forth in the following language: "In consideration of the sum of three hundred dollars ($300.00), to be paid to my heirs, executors or administrators after my death, and after the death of my wife, the obligation for the payment of said sum being received before the sale and delivery of these presents." The grantor predeceased his wife.
The case was heard before me upon an agreed statement of facts; it being agreed that the parties to the action are the only heirs at law of William B. Williams deceased. It is clear to my mind that it was the intention of the grantor, acquiesced in by the grantee, J. Robert Williams, that the consideration named in the deed should constitute a specific charge upon the title to the land and a necessary condition to be performed before the title could be perfected by being freed from this condition. In good conscience and equity, I think no other conclusion could be reached. I, therefore, hold that such is the case.
It is, therefore, ordered that the defendants, Mrs. Janie C. Lewis and little Miss Rowley Williams, who are the only heirs of J. Robert Williams, do pay to the plaintiffs the sum of three hundred dollars ($300.00) with interest at the rate of 7 per cent. from July 31, 1925, to the date of payment, this payment to be made within 30 days from the date of notice of this order; that upon the failure on the part of the defendants to comply with this order, on or before the date above specified, then the plaintiffs shall have, and they are hereby, granted leave to apply to this Court for an order of sale of the said lands for said purposes.
Let the costs of this action be paid by the defendants. *Page 480
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