Opinion
14270
April 6, 1936.
Before GREENE, J., Sumter, January, 1936. Affirmed.
Suit by D.W. Keels against J.Y. Crosswell. Decree for plaintiff and defendant appeals.
The decree of Judge Greene, requested to be reported, follows:
This matter comes before me on demurrer of the plaintiff to the answer of the defendant:
The complaint herein alleges that the plaintiff and the defendant entered into a contract of purchase and sale whereby the plaintiff agreed to sell and convey unto the defendant the tract of land described in the complaint, said tract consisting of 180 acres situate in Sumter County, which said tract of land had been conveyed by R.F. Keels, Sr., to the plaintiff by deed recorded in Book W-4, page 536, office of the Clerk of Court for Sumter County. The complaint further alleges that tender has been made of the deed from the plaintiff to the defendant, but that the defendant had refused to comply with the contract on his part, contending that the plaintiff was not the owner of the fee-simple title to the property in question; having only a life estate therein.
The answer of the defendant admits the execution of the contract of purchase and sale referred to in the complaint, and further sets up that the defendant refused to comply with said contract of purchase and sale because the plaintiff is unable to convey a fee-simple title to the property in question, having only a life estate in the property under the deed from R.F. Keels, Sr., to the plaintiff, recorded in the book aforesaid. The answer further sets forth a copy of the deed which was made by reference a part of the answer of the defendant. The defendant further sets forth that he is ready to comply with the contract of purchase and sale upon the execution to the defendant of a fee-simple deed to the premises in question.
The plaintiff demurred to the answer of the defendant upon the ground that the answer did not set forth facts sufficient to constitute a defense, in that the deed upon which the defendant relies as conveying only a life interest in the plaintiff to the property in question, in fact conveyed a fee-simple title to the plaintiff.
The demurrer necessitates the construction by the Court of the deed, copy of which is attached to the answer, for if the deed of R.F. Keels, Sr., to the plaintiff, D.W. Keels, did convey a fee-simple title to the premises in question to the plaintiff, then the answer of the defendant sets up no defense.
The deed of R.F. Keels, Sr., to the said D.W. Keels is regular in all respects, with the exception of the habendum clause, which is as follows: "To have and to hold all and singular the premises before mentioned unto the said David Keels and his Heirs and Assigns forever. But it is the true purpose and intent of this deed or conveyance that if the within named David Keels should die without leaving any lawful heirs of his own body, that this herein conveyed tract of land shall then revert to the living or then living heirs of my estate, as it is my purpose and intent that the said David Keels shall have only a life time interest in and to the within conveyed tract of land, and at his death said land to go to his lawful * * * of his own body, if any should then be surviving, and if no lawful heirs of his own body, then within written and described tract of land shall revert to the living heirs of my estate."
It will be seen from a casual reading of the quoted part of said deed that the grantor, R.F. Keels, Sr., conveyed a fee-simple estate to D.W. Keels, and by subsequent provision seeks to limit the estate theretofore conveyed. It is perfectly apparent that it was the intention of the grantor, R.F. Keels, Sr., to convey to D.W. Keels an estate in fee simple in said premises, and this intention is expressed in direct and absolute terms. The grantor thereafterwards made an effort to set a limitation upon such fee-simple estate so granted, to cut down such fee-simple estate in the grantee, D.W. Keels, to a life estate with remainder to the children of the said D.W. Keels, if he had any such children surviving him at the time of his death, if not, then the remainder over.
The rule has been laid down in the earliest decided cases of this state and followed to this date, as follows: "An estate in fee simple is the entire and absolute property of the subject, and therefore, when one grants such an estate, he can make no further disposition of the property for he has already granted the whole and entire interest that it is possible for him to have."
Our Courts have from time to time construed deeds where the fee-simple estate was conveyed to the grantee and an effort made to cut down such fee-simple estate to a lesser estate, as was attempted to be done in the deed under consideration.
Some of the cases which are directly in point and in which the Courts have construed deeds such as the one in this case, 6 Rich., 54; Adams v. Chaplin, 1 Hill, Eq., 2 Strob. Eq., 101; Allen v. Fogler, 6 Rich., 54; Adams v. Chaplin, Hill, Eq., 265; Ex parte Yown, 17 S.C. 532, 536; Chavis v. Chavis, 57 S.C. 173, 35 S.E., 507; Clinkscales v. Clinkscales, 91 S.C. 59, 74 S.E., 121; Egan v. Touchberry, 93 S.C. 569, 77 S.E., 706; Sandford v. Sandford, 106 S.C. 304, 91 S.C. 294; Zobel v. Little, 120 S.C. 212, 113 S.E., 68; Shealy v. Shealy, 120 S.C. 276, 113 S.E., 131.
Counsel for the defendant has presented a very strong argument in behalf of his position that it was the intention of the grantor under the deed referred to, to limit the estate conveyed to, at best, merely a life estate in the plaintiff in the instant case. However, under the authorities above cited, I cannot agree with the position of counsel for the defendant.
It is, therefore, on motion of Shepard K. Nash, attorney for the plaintiff, ordered that the demurrer be, and the same hereby is, sustained and the answer of the defendant dismissed. Counsel for the defendant having stated that the defendant has no further defenses which might or could be interposed by an amended answer, it is useless for the Court to give the defendant permission to amend his answer.
Mr. Frank K. Clarke, for appellant.
Mr. Shepard K. Nash, for respondent, cites: Construction of deed: 57 S.C. 173; 93 S.C. 659; 48 S.C. 320; 26 S.E., 677; 2 Strob. Eq., 101; 6 Rich., 54; 17 S.C. 536; 91 S.C. 59; 57 S.C. 173; 35 S.E., 507.
April 6, 1936. The opinion of the Court was delivered by
This action involves the construction of a deed. Under the authorities cited by him, especially Clinkscales v. Clinkscales, 91 S.C. 59, 74 S.E., 121, Egan v. Touchberry, 93 S.C. 569, 77 S.E., 706, and Sandford v. Sandford, 106 S.C. 304, 91 S.E., 294, where the deeds construed were very similar to the one before us, Judge Greene was unquestionably correct in holding that a fee-simple estate was conveyed to D.W. Keels, which the grantor could not thereafter limit or cut down. The demurrer to defendant's answer, therefore, was properly sustained. Let the decree be reported.
The judgment of the Circuit Court is affirmed.
MESSRS JUSTICES CARTER, BONHAM, BAKER and FISHBURNE concur.