October 1, 1914. The opinion of the Court was delivered by Action for partition of 157 acres of land.
The common source of title was Peter Johnson.
The issues here depend upon a construction of his will and the things done thereunder by his devisees.
Peter had five children.
It is conceded all round that defendant owns the title of three of them; he claims to own the title of the others, to wit: two daughters, Mrs. Caroline Mattison and Mrs. Mary Ellison, but that is denied by the plaintiff, the only child of Caroline, she being now dead.
Neither Mary nor her five children are parties, though they were at the outstart. On the first trial upon Circuit, *Page 155 they were eliminated, and no exception was taken thereto.Mattison v. Stone, 90 S.C. 147, 72 S.E. 991. It is not manifest how they can be bound by what others may do, or by what a Court may decide about the rights of others.
Peter devised this 157 acres to his wife, Nancy, for her life; "and at her death (which has happened) * * * then the said realty * * * to be sold and equally divided among my children * * *; moreover I desire that the portion of my estate shall fall to my daughters, Caroline and Mary, to be theirs during their lifetime, and then to their children, respectively, forever."
The real estate was not sold and the proceeds so divided; but B.L. Johnson, the son and executor, took a deed of it to himself from his brother and three sisters, including Caroline and Mary.
The contention of plaintiff is, that the testator first by will turned the land into money, which act the plaintiff calls conversion; and, further, that the devisees, named to take the money, thereafter turned the money back into land, which act the plaintiff calls reconversion.
This Court held on a former appeal that reconversion had not been alleged or proven.
The plaintiff then by amendment alleged reconversion and claims to have proved it. The Circuit Court held contra; the plaintiff contends here that reconversion has been proven, and that is the issue made by him in exceptions 1, 2, 3, 4 and 5.
There is no basis in the Circuit decree for the sixth exception. The Court did not hold that the deed by Caroline, the plaintiff's mother, freed the land from the limitation of the will. The decree is very short; it only adjudged that the action was for the division of a title to land; that the plaintiff had proven no part of a title; because the money into which the testator had converted the land had not been converted back into land by all those entitled to have the money. *Page 156
The defendants, though, have suggested six additional grounds upon which to sustain the decree of the Court, if mayhap the exceptions of the plaintiff are effective.
Some things were adjudged on the former appeal. It was there held, that "Under the equitable doctrine of conversion the real estate became personal property after the death of the life tenant, and no real estate passed to N. Caroline Mattison for life with remainder to plaintiff. The gift was of personal property, money, a legacy, to Mrs. Mattison for life with remainder over to her children." The authorities thereto are abundant. Next, then, to the contention of the plaintiff, which is, that the parties entitled thereto have converted the price back into land.
It is axiomatic that one may not turn land into money unless he has absolute ownership of the land. Pom. Equity, sec. 1175.
Peter was only able to convert this parcel of land into money because it was his land.
When it was converted into money, one-fifth thereof belonged by the will to Mrs. Mattison for her life, with remainder to the plaintiff. The Court so held, plainly.
If the whole purchase price, for it may not be split up (Pom. Eq., sec. 1176), belonged in different measure to Peter's children and grandchildren, then they alone could take it, and invest it in land; for conversion or reconversion means the putting of money into land, or land into money.
It is axiomatic, too, that the same power is required to reconvert as to convert; the process and power are the same.
Had, therefore, the five children of Peter and Nancy intended to convert the money into land, they had no power to do so, because the money did not belong to them. *Page 157
The deed to which the plaintiff points to prove the intention and the execution of the intention, proves the contrary; for it shows on its face that all the owners of the money have not joined, in the deed; that is, have not agreed to reconvert.
And there is no sufficient testimony, if any, to prove that the five children of Peter knew anything about the doctrine and effect of reconversion; or that they knew the will of Peter had turned the land into money; or that the owners of the money might turn it back into land; or that they did that which amounted in law to a reconversion.
Indeed, the plaintiff relies chiefly, if not entirely, on the deed from the four Johnson children to their brother, to prove the fact of reconversion.
The fundamental fallacy of the appellant's argument is, that the sole beneficiaries under the will, all these entitled to the money converted from land, were the five parties to the deed. That is not true. Had the land been sold, and the money divided, one-fifth thereof would have belonged to Mrs. Mattison for her life only, and remainder to her child, the plaintiff. The will so declares, the provision is lawful, and must prevail. Therefore, Mrs. Mattison had no right if she intended to so do, to take money, in which she had only a life estate, and invest it in land for herself and her child, the plaintiff. The plaintiff was then an infant of tender years, and she could not do for him that which he could not have done for himself had he undertaken to have acted. Pom. Eq., sec. 1176.
Again, the appellant contends that the children of Peter, those who undertook to reconvert, may not deny the act of reconversion and yet alien the fee, as they have undertaken to do.
That is a misconception of the issues made by the pleadings. The plaintiff (now the appellant) undertook to prove a title in himself, and he must do so to get partition. *Page 158
The defendant may have no good paper title, and yet the plaintiff may not prevail. It has not yet been adjudged that the title which defendant has is a valid paper title.
It has not yet been adjudged that the plaintiff had no right to have the land sold to pay the legacy due to him under the will of Peter. That issue has never been made.
It is not necessary to consider the respondent's additional grounds suggested as sustaining the decree, for they are not now material; nor is it necessary to consider a suggestion made to respondent at the hearing, to wit: that the "desire" expressed by the testator was only precatory and that, therefore, Catherine and Mary took absolute estates.
The decree below is affirmed.