March 26, 1907. The opinion of the Court was delivered by The facts out of which this controversy arose are thus succinctly stated in the argument of the respondent's attorneys:
"Plaintiff instituted her action against the defendant, alleging that defendant was in possession of a certain lot of land in the city of Spartanburg, county and State aforesaid, in which the plaintiff, in her own right, had a life interest with remainder to Margaret Mitchell, for whom she also brought action in the capacity of guardian ad litem. Her chain of title is as follows:
"1. Deed dated 25th of March, 1843, H.J. Rowland to Hiram Mitchell, recorded Book `Y,' page 251. This deed conveyed to Hiram Mitchell, as trustee, the property in dispute in trust for Margaret Trimmier (grandmother to plaintiff) for her life, and at her death to her son, Marion Franklin Trimmier (father to this plaintiff), `to him and his heirs *Page 444 forever,' but the deed further provided that, `if the said Marion Franklin Trimmier shall decease before he arrives at the age of twenty-one years, then and in that event, the said Margaret Trimmier may, by deed or will and testament, duly executed, dispose of and convey the remainderman's estate,' etc. This clause, however, does not concern us here, since the said Marion Franklin Trimmier survived the age of twenty-one. This property was known as the old Trimmier home-place, and the testimony is undisputed to the effect that the said Margaret L. Trimmier, the said Francis Marion Trimmier and his sister, Margaret L. Trimmier, hereinafter mentioned, all resided on it as a home-place.
"2. Deed from Marion Franklin Trimmier to M.L. Trimmier (his sister) in 1871. By this deed he conveyed to the said Miss M.L. Trimmier, all his right, title and interest in the lot of land described in the complaint to the said Miss M.L. Trimmier for her life time, and at her death to Mrs. Margaret Trimmier (his mother) during her life, which deed was duly recorded in Book `O.O.O.,' page 416.
"3. Last will and testament of Marion Franklin Trimmier, who died on the 17th day of August, 1888, devising to his mother, Mrs. Margaret Trimmier, for her life, all his real property, and at her death, then to his sister, Margaret L. Trimmier, her life, and at her death, to his daughter, Minnie Trimmier (the plaintiff), and further providing that in case the said plaintiff died without children, then over to certain nephews and nieces. The testimony shows that Miss M.L. Trimmier was appointed administratrix of Francis Marion Trimmier with will annexed, and accepted the benefits under this will.
"4. Mrs. Margaret Trimmier died on the — day of November, 1889, leaving a will in which she devised all of her property, both real and personal, to her daughter, Margaret L. Trimmier and appointed the said daughter administratrix of the said will. The property in question was not specifically mentioned or referred to. *Page 445
"5. The said Margaret L. Trimmier died on the 3d day of May, 1897, intestate, and her property, including the real estate in question, was partitioned by order of the Court of Common Pleas among her heirs at law. This plaintiff was not a party to this action. At this sale, the defendant, on the 3d day of January, 1902, purchased the lot in question and went into possession thereof, and has been in possession ever since.
"This action was instituted on the 2d day of April, 1904.
"The answer of defendant was, in effect, a general denial, alleged title by adverse possession, interposed the plea of the statute of limitations, alleged that plaintiff and those through whom she claims were estopped by their conduct from asserting their rights, and that the defendant was a purchaser for value and without notice of the rights of plaintiff, since the deed of 1843 from Rowland to Mitchell, as trustee, was improperly indexed, in that the said index did not refer to the fact that Margaret Mitchell was the cestuique trustent. The case was heard by Judge Klugh and a jury, at the September term, 1905, of the Court of Common Pleas for said county and State, and the jury, under the charge of the Court, returned a verdict for the plaintiff for the land in question, and from judgment entered thereon this appeal was taken."
The appellant's exceptions will be reported and considered in their regular order.
First exception: In 7 Enc. of Law (1st ed.) 76, it is said: "All judgments whatever are conclusive proof as against all persons of the existence of that state of things, which they actually effect, when the existence of the state of things so effected is a fact in issue, or is, or is deemed to be, relevant to the issue." The Court inKoogler v. Huffman, 1 McC., 495, thus states the rule: "In the argument below, it was contended that the decree and proceedings in Court of Equity, ought not to be given in evidence, because the defendant was not a party to them; and *Page 446 the general doctrine that judgments cannot be given in evidence, except between parties and privies was relied on. As to this form of objection, the law is clear, upon any collateral matter, any judgment or decree may be introduced. All that is meant by the rule is that the rights of a party cannot be determined on conclusively, unless he be a party" — citing, Philipps, 226; Gilbert, 54; Buller, N.P., 244; 2 Espinasse, 457. The language of this case is quoted with approval in Phillips v. Yon., 61 S.C. 426, 39 S.E., 618;Martin v. Ragsdale, 71 S.C. 67, 50 S.E., 671, and Carlisle v. Farrow, 74 S.C. 527, and is conclusive of the questions presented by this exception.
Second Exception: The record shows that this question arose as follows: "R.C. Gantt, witness for defendant, being sworn, testifies as follows: Direct examination by Mr. Simpson: Q. Since this action has been begun or this claim made, have you or not searched in the clerk's office to see if there is any deed on record there any where from Land to H.J. Rowland? A. Yes, sir. Q. Have you found any such deed? A. None at all. Q. Is there such a deed on record? A. No deed from Land to Rowland or to Mitchell that I could find — none from Land to Trimmier. Q. Did you make an investigation of part of this land? A. Yes, sir. Q. Before it was paid for — part of the same tract? A. Yes, sir. Q. Did you find any deed of 1843? Mr. McCullough: We object. We do not see what difference it makes whether Mr. Gantt found it or not. If it was there on record it is constructive notice. That is a question for your Honor to determine as a question of law and not for this witness. I cannot see what possible bearing it has on this case whether he found it or not. Court: I do not think it is relevant.'
In this ruling the Court fails to discover any error.
Third Exception: In setting out the documentary evidence, the record contains the following statement: "A letter dated August 14, 1859, purporting to have been written *Page 447 by Theodore Trimmier, to his brother, Franklin Trimmier, from Tuscaloosa county, Alabama, in which, among other things, he wrote: `I am sorry to hear that the prospect is so gloomy in your section of the country. Tell mother to sell out and come to Alabama, take wagons and horses and negroes in payment. She ought to get three thousand dollars for the place, but sell anyway.' This letter was ruled out."
In the absence of testimony showing what response F.M. Trimmier made to the letter it was irrelevant.
Fourth and Fifth Exceptions: There was at least some testimony to the effect that the parties claimed title from a common source.
Sixth Exception: We are unable to discover in the deed any words sustaining the contention of the appellant, and the construction placed upon the deed by his Honor, the Circuit Judge, is satisfactory to this Court.
Seventh, Twelfth and Thirteenth Exceptions: It will thus be seen that the appellant contends, as Margaret Trimmier took a life estate in the property under the deed of 1843, and, as F.M. Trimmier, by his will, devised to her a life estate, and after her death, a life estate to his sister, Margaret L. Trimmier, with remainder to the plaintiff herein, that the effect of devising the life estate to Margaret Trimmier was to prevent the vesting of the other estates, which F.M. Trimmier attempted to create by said will. The rights of the parties under the will must be determined alone by reference to the facts appearing upon the face thereof, even though extraneous evidence shows that one of the devises is possessed of rights, paramount to those conferred by the testator. The paramount right of the devisee does not prevent the vesting of rights under the will, but only destroys them pro tanto when asserted by the owner.
No doubt it is essential to a remainder that it be supported by a preceding estate, but in this case the remainder *Page 448 to the plaintiff was preceded by two life estates. Under this construction the manifest intention of the testator is given full effect.
Eighth Exception: This exception cannot be sustained for the reason that the language of the will is directly opposed to the contention of the appellant.
Ninth Exception: The presiding Judge ruled that there was only one plaintiff before the Court, to wit: Minnie V. Mitchell — as the proper mode of making the infant a party would have been to bring the action in the name of Margaret Mitchell by Minnie V. Mitchell, her guardian ad litem. The ruling was in accord with the well settled practice in this State.
Tenth Exception: We are under the impression that this exception was withdrawn; it, however, cannot be sustained for the reason that creditors are not alleging fraud.
Eleventh Exception: Conceding that Margaret Trimmier had a beneficial interest in the land prior to the execution of the deed in 1843, it would be necessary to resort to the equitable jurisdiction of the Court for its assertion, and it could not be interposed upon a motion for nonsuit in this action, which is legal in its nature.
Fourteenth Exception: The charge states the general principle correctly, and there are no facts in this case applicable to the exception to the general rule, for which the appellant contends.
Fifteenth Exception: The ruling of the presiding Judge is sustained by the case of Sutton v. Clark, 59 S.C. 440,38 S.E., 150. Furthermore, the statute does not run against a party while he is unable to assert his rights, by reason of the fact, that there is an outstanding life estate.
Sixteenth Exception: By reference to the deed, it will be seen, that a life estate was conferred upon Margaret L. Trimmier and Margaret Trimmier, but the remainder was not disposed of. *Page 449 Seventeenth Exception: The charge stated the law correctly, and is not obnoxious to the objections set out in the exception.
Eighteenth Exception: The ruling of the presiding Judge is sustained by the cases of Armstrong v. Austin,45 S.C. 69, 22 S.E., 763, and Association v.Childs, 67 S.C. 251, 45 S.E., 167.
The appellant was granted permission to review these cases, but the Court adheres to its former ruling.
Nineteenth Exception: We fail to discover in this charge any prejudicial error, as the doctrine of estopped is inapplicable to this case.
Twentieth Exception: The ruling of the presiding Judge is sustained by the cases of Moseley v. Hankinson,25 S.C. 519; Rawls v. Johns, 54 S.C. 395,32 S.E., 451; Rice v. Bamberg, 59 S.C. 498,38 S.E., 209.
Twenty-first, Twenty-second and Twenty-third Exceptions: The reasons assigned by the presiding Judge in disposing of the questions presented by these exceptions are satisfactory to this Court.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.