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among volunteers.

3. That Mrs. Thompson is, at all events, entitled to dower of the pre-
mises in dispute, she being in her minority when she renounced it.

4. That the decree is in other respects contrary to the laws of the
land, and unsupported by the weight of testimony in the cause.

Bailey, for the appellants. On the first ground, cited Co. Lit. 12, a
Harg. n. 6 ; Co. Lit. 3, a. ; 2 Roper, H. & W. 108 ; 2 Rep. 51. As to
the plea of a purchase for valuable consideration without notice, the in-
strument under which defendants' claim gave notice, 2 Fowb. 151-66, § 3 ;
Grimke v. Grimke, 1 Eq. Rep. 366 ; Stat. Eq. Rep. 292 ; 2 Bail. 332.

Dunkin, contra. As to the power of a feme covert to dispose of pro-
perty by way of appointment, cited 4 Kent's Com. 319 ; 3 John Ch.
549, Bradish v. Gibbes ; Hearle v. Greenbank, 3 Atk. 696 ; Sugden,



*212] CHARLESTON, MARCU, 1835. 1G7

330 ; 2 Yes. 191. Connoly may be estopped by being a party to the
marriage settlement ; if not, a trust results to him.

Lance, in reply, cited 1 Cruise, 483 ; 2 Vern. 6t ; 1 Black 447; 4
Com. Dig. Estates by Grant, 8 ; 7 Bacon Ab. 300, Tit. will ; 2 Roper,
90, 100. As to contribution, 1 Mad. 233.

*0'iSrEALL, J. Upon the plaintiffs' thirdground of appeal, it is only r^^oio
necessary to remark, that the Chancellor says that there was no proof ^ ~
of the infancy of the plaintiff, Mrs. Thompson, then Mrs. Murray, at the
time she renounced her dower. This is a very sufficient answer to the
ground. But without saying that even infancy would avoid her renunci-
ation of dower, there is another view which would prevent her from being
endowed of the premises. According to the proof, her husband (Mur-
ray) purchased the premises as a trustee for Mrs. Connolly, and paid for
them with money furnished by her. His seizen was therefore entirely in
trust, and of such an estate, it was held in the case of Plant v. Payne, 2
Bail. Rep. 319, the wife could not be endowed.

As to the plaintiffs' second ground, there can be as little difficulty ;
for let it be conceded that generally, as among volunteers, there ought to
be contributions to remove a general lien attached upon the whole prop-
erty conveyed ; yet this case cannot have the benefit of such a rule. For
a contribution can never be asked for on account of the removal of a
common burden on property conveyed, unless there was an inevitable
necessity that a part of the property conveyed should pay it. Screven
V. Joyuer, executor, and others, 1 Hill's Ch. Rep. 261. This inevit-
able necessity or compulsion to pay might exist among volunteers,
where the donor had given to them his whole estate, and was thereby
rendered insolvent, or had given to them a part of his estate, and had
subsequently become insolvent. But such necessity or compulsion cannot
exist when the donor is still solvent, and a creditor seizes and sells the
property given, or the donee pays the donor's debts. For in such a case
the creditor either has no right to sell the property at law, or in all events
in equity, and would be forced, on a proper application to exhaust the
donor's estate before he would be allowed to go against property which
his debtor had given away. In this case it is not pretended that the
donor is insolvent ; and it hence follows that there cannot have been that
inevitable necessity or compulsion to pay out of the property conveyed
to the plaintiff, Mrs. Thompson, which is necessary to entitle her to contri-
bution from the other donee. This view of the case is upon the supposition
that the plaintiff, Mrs. Thompson, and her sister, Mrs. Murray, the de-
fendant, had been shown to be donees in possession at the time the sheriff
sold the slave conveyed to Mrs. Thompson, and decides the case upon
the most favorable footing on which the plaintiffs could put it.

*The first ground of appeal makes the question, whether the r*2i4
deed from John M. Murray to Stevens Perry, the trustee, could L
empower Mrs Connelly (a feme covert) to make a will ? I am satisfied,
both that the power could be conferred on a married woman, and also
that it was well executed by her will, and that the express consent of the
husband is wholly immaterial to the validity of cither. For notwith-
standing in general legal contemplation, the existence of the wife is
merged in that of the husband during coverture, yet this rule is not of such



168 SOUTH CAROLINA EQUITY REPORTS. [*214

universal application as to render every act of the wife void. It seems
she may even pui'chase and hold real estate without the express consent
of her husband— that her acquisition cannot be defeated by any one but
him, so long as he may live. For in Coke, upon Littleton 3, a. 122-3,
it is said, " a/eme covert cannot take any thing of the gift of her husband,
but is of capacity to purchase of others without the consent of her husband,
and of this opinion was Littleton in our books and in this book, section
677 ; but her husband may disagree thereto and divest the whole estate ;
but, if he neither agree nor disagree, the purchase is good ; but after his
death, albeit her husband agreed thereto, yet she may, without cause to be
alleged, waive the same, and so may her heirs also, if after the decease of
her husband she herself agreed not thereunto." In this case neither the
husband nor the heirs of the wife ask to set aside the conveyance to the
wife : the plaintiffs regard the conveyance as good, but the power to ap-
point as void. But, if the wife could purchase, she might on any condi-
tions, and under any limitations, and it is the privilege of the husband
during coverture, of herself or her heirs after his death, to affirm or dis-
affirm the whole contract ; a part cannot be taken and a part rejected —
all or none must stand.

If, however, the wife was incompetent to execute the power conferred
on her by the deed, then her will would be void, and the land must either
revert to the grantor, Murray, or be distributed as her estate. It seems
to be well settled, "that every person capable of disposing of an estate
actually vested in himself, may exercise a power or direct a conveyance of
the land. The rule goes further, and even allows an infant to execute
a power simply collateral and that only ; and a feme covert may execute
any kind of power, whether simply collateral, appendant or in gross, and
it is immaterial whether it was given to her while sole or married.
The conciirreyice of the husband is in no case necessary." (4 Kent
Cora. 318, 319.) This is the language of one of the greatest chancery
^^, .-] lawyers of the present *day, Chancellor Kent; aud it cannot be
-' necessary to do more than refer to his clear statement of princi-
ples, by which this part of this case must be put at rest. It may be well
however to look to the manner in which an appointment operates, to show
that no objection can in fact exist to an execution of it by a, feme covert.
The appointee is merely designated by the person making the appointment ;
his estates and rights are derived from the deed creating the power. As
is said in Bradish v. Gibbs, 3 J. C. R. 550, the principle is well esta-
blished that when a person takes by execution of a power, he takes under
the authority of that power. The meaning is, as Lord Hardwicke ex-
presses it, that the person takes in the same manner as if the power and
instrument executing the power had been incorporated in one instrument,
and as if all that was in the instrument executing had been expressed in
that giving the power. This being the case, and the appointee taking
nothing from the wife, but all from the person creating the power, there
can be no reason to avoid her act on account of coverture, the disability
of which is intended both for the protection of the husband and also for
herself.

It is ordered and decreed that Chancellor Johnston's decree be
affirmed.

Johnson, J., and Harper, J., concurred.



1



*215] CHARLESTON, MARCH, 1835. 169

Ex parte Job Palmer, Surviving Executor of Samuel Miller,

deceased.

Tenant for life mfiy be paid for improvements when he finishes buildings left
unfinished. [*217]

An executor will be allowed comp^sation for improvements made by him on real
estate, when they are such as the Court would have authorized; and whether they
ate such depends on the fact whether they are beneficial to all concerned. [*217]

O'Neall, J. In the case of Samuel W. Miller, legatee of S. Miller
V. The Executor and Executrix of Samuel Miller and others, the decretal
order was made out of which this application arises. In that case it was
adjudged in the constructiou of the will of the petitioner's testator, that
the estate for life by it devised to the widow, then the wife of the petitioner,
did not commence until Job P. Miller, a son of the testator, attained to
the age of twenty-one years. Before that event, in 1799, as appears by
the same decree, the petitioner built the house ou the unimproved lot
devised* to the widow of the testator for her life. The petitioner r^,^^(>
was the executor of the testator's will, and at the time he erected '-
the house, was the husband of the widow, und therefore tenant per auter
vie in expectancy. There seems to be no doubt that he acted with an
intention to benefit tlie estate ; and at the same time not to prejudice
himself by building without a chance of reimbursement. He was advised
by the Ordinary of Charleston District in 1198, to erect the building,
"as it will greatly conduce to the benefit of the estate," and if, upon the
death of the tenant for life, "the executor should not be fully reimbursed
for the expenses of the said building, the Court of Equity will compel the
children to bear their proportion of the buildings so descending." I have
thus stated such additional facts as did not appear in the decree upon the
petition, and which may be material. It seems to me that there is no
well founded objection to the proceeding by petition. The point now
made was reserved in the former decree, and leave given to the petitioner
to make application as he has done. The proceedings which may be had
on the petition will be in the case of Miller v. The Executor of Miller,
deceased. That some of the party to that suit is dead, is no objection,
if their representatives be made parties to this petition, as appears to
be done.

After divesting the case of these preliminary objections, it will be
necessary to examine the right of the petitioner to be reimbursed for the
house and other buuildings erected by him on the vacant lot, which, by
his testator's will, after Job P. Miller became fully of age, was devised to
the testator's widow, late the wife of the petitioner.

I agree with the Chancellor, that the former decree does not conclude
the respondents from objecting to any allowance being made to the
petitioner on that account : it is true that it would seem that the Chan-
cellor thought, when he drew the former decretal order, that the peti-
tioner was entitled to compensation ; but still there was no adjudication
that he was so entitled. It was a mere reservation of the question until
the life estate fell in, " and then all parties (says the decree) are to be at
liberty to apply by petition to this Court to adjust the mode of settlement
or compensation between Mr. Palmer, as owner of the house, and the
owners of the lot." There is nothing in this direction which can operate



170 SOUTH CAROLINA EQUITY REPORTS. [*216

to estop the parties from now making the question, whether the petitioner
is entitled to be paid for his improvements ? For, at the most, it cannot
have any effect beyond a mere interlocutory order; it does *not
"" -' end the controversy between the parties, and hence is not a final
decree, which conld alone estop the parties from the cpiestion. It seems
however to me that the opinion of the Chancellor, which he seems to
have entertained in his former decree, was right, and that his present
conclusion has resulted from not having the facts of the case so fully
before him as they were when he pronounced his original decree. I
agree that generally a tenant for life is not to be paid for improvements ;
but to that rule there may be exceptions, as is manifestly the case where
a tenant for life goes on and finishes buildings left by the testator in an
unfinished state. Hibbert v. Cook, 1 Sim. & St. 552. The reasons of
that exception may be useful to us here. They certainly are two-fold,
first, that it is beneficial to the remainder ; and second, the implied inten-
tion of the testator from the state of the property, its unfinished con-
dition, that it should be finished out of his estate in order to render it
useful to both the tenant for life and the remainder-men. In the case
before us both of these reasons apply directly : it is alleged that the im-
provement was a beneficial one to all concerned ; and it is manifest that
the lot was most probably useless to the tenant for life unless it was im-
proved. We should, therefore, perhaps, (were it necessary to do so,)
be authorized to presume that the testator's intention was that the lot
should be improved, as well for the use of the tenant for life as of the
remainder-men.

But it is not necessary to resort to the doctrine between tenants for
life and in remainder, in order to decide the question. For the house and
other improvements were made in 1199, six years before the petitioner's
wife's life estate commenced ; he built as executor and under the advice
of the ordinary. In Inwood v. Twyne, 2 Ed. 152, Lord Chancellor
Northington stated the rule which always governs this Court in passing
upon the acts of trustees. He said, "I can conceive many cases where a
conversion of such estate (personal into real) might be made by truste'es
or guardians, and that this Court would support and approve their con-
duct ; and it would be strange to say that trustees would be censured in
this Court for doing what the Court would have ordered to have been
done."

Under this rule the question is, were the improvements such as the
Court would have authorized the executor to make ? This would have
^g,Q-^ depended upon the fact whether it would have been *beneficial to
" -' all concerned as devisees. On looking back to Mr. Miller's will,
I perceive that he has directed all his estate, real and personal, (after
payment of his debts,) to be kept together for the joint use and mainte-
nance of his wife and children until liis son. Job, arrived at the age of
twenty-one years. This, I think, constituted a strong reason for the im-
provement of the lot : while vacant it would be unproductive capital ;
when improved its rents or use might contribute to the purposes of the
trust, for the widow and children. But the fact that it might have been
such an improvement as the Court would have ordered, is a ground to
retain the petition, and to submit the question to the examination of the
Commissioner. In Myers v. Myers, 2 M'C. C. R. 265, the defendant, an



*218] CHARLESTOX, MARCH, 1835. 171

executor, was allowed for improvements on the trust estate, on the ground
that it was for the benefit of the cedui que trusts. The petitioner it
seems to me is entitled to the benefit of the same rule. He made the
improvements as executor, and if they were such as were beneficial to the
estate, and such as a prudent man, the owner of such an estate as Mr.
Miller's, would be willing to. make, then the petitioner is entitled to
compensation.

But he is not entitled to more than the present value of the improve-
ments, to be ascertained by the enhanced value which the said improve-
ments have given to the lot. If the income from the house and lot from
its erection (as the former decree allowed Mr. Palmer to retain the whole
without an account,) should on the reference appear to have been more
than the interest on the sum of money expended by Mr. Palmer, in
making improvements and the costs of necessary repairs, then such excess
will be deducted from the present value of the improvements.

It is ordered and decreed that Chancellor De Saussure's decree, sus-
taining the demurrer to this petition, be reversed, and that it be referred
to the Commissioner to ascertain and report whether the said improve-
ments were beneficial to and proper for the estate ; and if so, then the
amount to which the petitioner is entitled on account of the said improve-
ments, on the principles and according to the directions contained in this
opinion.

Johnson, J., and Harper, J., concurred.



J. B. Barnwell, and others, v. John Porteus, and others. [*219

Under the Act of 1693, (P. L. 3 ) a deed recorded, although not within six months,
(as required by the Act of 1785,) acquires preference over a prior unrecorded
mortgage. [*220]

A junior judgment creditor is not, under the Act of 1785, entitled to preference
over an unrecorded mortgage. [*221]

[The Reporter not having been furnished with any other papers in this
case, can present no other report than that contained in the following
opinion of the Appeal Court.]

Evans, J. (sitting for Harper, J.) This case was decided by Harper,
J., sitting for Chanceller De Sau.ssure, at Coosawhatchie, in January,
1833. On examining the decree, there is no ground for questioning its
correctness, as to the defendants, John Porteus and Dr. Fuller; but so
much of the decree as relates to the rights of the defendant, Arthur G.
Rose, it is thought, is erroneous, and it is ray duty to assign the reasons
for that opinion. It is very clear, as the presiding Judge says in his de-
cree, that the "case was very imj^erfectly presented on the Circuit;" an
important feature in the case, and that which probably led to the error in
the decree, was not brought to the view of the Judge, viz: that tlie deed
from the sheriff to Rose, was recorded in the Register's Office of Beau-
fort district. The bill was filed to foreclose a mortgage from John
Porteus to E. W. Barnwell. The mortgage was never recorded. Sub-



172 SOUTH CAROLINA EQUITY REPORTS. [*219

scquently to the date of the mortgage, the sheriff levied on a part of the
mortgaged premises, and sold the same under a fieri facias to the de-
fendant, A. G. Rose, who being the oldest judgment creditor, did not
pay the money, but entered on his execution a credit for the amount of
his bid. The deed from the sheriff to Rose was recorded in the Clerk's
office of Beaufort district, but not until the expiration of six months. On
tliis statement of facts two questions present themselves. 1st. Does the
deed of the sheriff to Rose, being recorded, take precedence of the plain-
tiff's unrecorded mortgage. 2d. Has Rose's judgment against Porteus
a preference to tlie plaintiff's mortgage, under the 45th section of the
Act of 1785.

Rose's deed not having been recorded within six months, can acquire
no preference under the Act of 1785, commonly called the County Court
Act. But by the Act of 1698, P. L. page 3, "that sale, conveyance or
mortgage of lands or tenements which shall be first recorded in the Regis-
ter's office in Charleston, shall be taken, deemed, adjudged, allowed of,
and held to be the first sale, conveyance or mortgage, and be good, firm,
and substantial in all Courts of judicature within South Carolina." At
*99ni ^^'® ^^^'^ ^^ ^'^'''^ -^^^' *CIharleston was the principal settlement in
-' the State. It was the seat of government, and the only place of
judicature. This act speaks only of deeds recorded in Charleston, yet I
apprehend when other offices for registering of deeds were established, the
provisions of the Act, apply to deeds recorded in such offices, as well as
to those recorded in Charleston. By the 45th section of the County Court
Act, it is declared that " no conveyance of lands, tenements, or heredita-
ments shall pass, alter or change from one person to another, any estate
of inheritance in fee simple, or any estate for life, or lives, nor shall any
greater or higher estate be made, or take effect, in any person or persons,
or any use thereof, by bargain, sale, lease, and release, or other instrument,
unless the same shall be made in writing, signed, sealed and recorded in
the Clerk's office of the county where the land mentioned to be passed and
granted shall be, in manner following, viz. : If the persons who shall make
and seal such instrnment in writing, shall be resident within the State ;
then the same sliall be recorded withing six months from the signing,
sealing and delivery." And if any deed shall not be recorded within the
time mentioned in the Act, " such deed or other conveyance shall be legal
and valid not only as to the parties themselves and their heirs, but shall be
void and incapable of barring the rights of such persons, claiming as
creditors, or under subsequent purchases, recorded in the manner pre-
scribed by the Act." Now, although by the Acts of the 12th and 17th
of March, 1785, the whole State is laid off into counties, yet practically,
those acts never went into operation in the districts of Georgetown,
Charleston and Beaufort. But by the Act of 1789, P. L. 485, it was de-
clared sufficient to record deeds in the Register's office where the land
lay, and where the County Courts were not established. It is manifest
that neither the plaintiff nor Rose has complied with this Act, and but
for the Act of 1698, P. L., p. 3, the unrecorded mortgage would take
precedence of Rose's deed ; but as Rose has recorded his deed, he has
acquired a preference in pursuance of the Act of 1698.

On the 2d ground, it is contended that Rose, being a judgment
creditor, is entitled to preference over the plaintiff's mortgage, under the



*220] CHARLESTON, MARCH, 1835. 173

clause of the Act of 1785, above recited. It is exceedinp;ly diflioult to
say what creditors are meant by the act, whether all who come under
that description, or only such as claim under some instrument of writing,
which may be recorded. If this were *now a new question, I r^.^^,
should have great difficulty in making up an opinion, but I am L
relieved by former adjudications from any difficulty on this point, so far
as it relates to this case. In the case of Ash r. Ash, 1 Bay, 305, Chief
Justice Rutledge, says, " a mortgage is not void by not being on record.
The only risk the mortgagee ran, was the chance of another deed from
the seller (Berwick) for the same land, being put on record first :" and
accordingly in the case of Ash v. Livingston, 2 Bay, 80, the money
arising from the sale, was recovered from the judgment creditor to
whom it had been paid, in a suit brought by the executor of the mort-
gagee. It is true that the mortgage in this case was anterior to the Act
of 1785, and it may be, was not within its provisions ; yet the Court lay
no stress on this circumstance, and the principle is laid down broadly,
that as to a judgment creditor junior to the mortgage, the latter is good
without recording. In the case of Penman v. Hart, 2 Bay, 25, the
Court appear to have decided on the grounds that the provisions of the
County Court Act did not extend to cases arising in those parts of the
State where the County Court system had never gone into practical
operation ; yet the case of Ashe v. Ashe is referred to, and its authority
not questioned. So far as I have been able to ascertain, the principle of
that case has been regarded as the settled law of the land for many
years. — I speak from my own experience when I say twenty years at least.
Deeds in fee simple rest on the same footing as mortgages in this par-
ticular, and if the latter are to be postponed in favor of creditors, so also
must the former. If this doctrine were now reversed, there is no conjec-
turing the consequences in unsettling the titles of the people of this State
to their lands. In Ravenal & Smith v. Smith, 1 M'C. Ch. Rep. 148,
Judge Nott, speaking of the case of Ashe v. Ashe, says, "I must confess
I never have been perfectly satisfied with that decision, but it has been
received and acted on as the law for upwards of thirty years, and ought
not to be questioned." Indeed, so well did I suppose the question to be
settled, that an unrecorded mortgage or deed, if free from all taint of
fraud, was good against one claiming as a creditor merely without prior
lien, that I was somewhat startled when I heard the question gravely
made and argued. If the principle be wrong, let it be altered for the
future by the legislature ; but it is at all times unsafe for a Court^ to
reverse a decision, although it may have been wrongly decided origi-
nally, which has been acted on so long as to become a rule of property.

*It is therefore Ordered and decreed, that unless the said John r*222



Online LibraryW. R. (William Randolph) HillReports of cases in chancery argued and determined in the Court of Appeals of South Carolina → online text (page 73 of 124)