December 7, 1933.
Before TOWNSEND, J., Richland, September, 1932. Affirmed.
Action by R.E. Campbell, Jr., and others against Albert Williams and others. From a decree in favor of the plaintiffs, the defendant named appeals.
The decree of Judge Townsend, directed to be reported, follows:
This is an action by the plaintiffs against the defendant Albert Williams for the specific performance of a contract to convey, dated May 12, 1932, covering property, with the improvements thereon located on Main Street, in the City of Columbia, S.C. the total purchase price, as set forth in the contract, being $26,000.00. Under an order dated November 26, 1932, I sustained the contention of the plaintiffs and decreed a specific performance. The defendant Albert Williams appealed to the Supreme Court of South Carolina, and, under an order of the Supreme Court, the cause was remanded for the purpose of making other parties defendant. The defendants City of Columbia, County of Richland, and State of South Carolina, were made parties defendant by reason of lien they might claim for the unpaid State and county taxes on the property for the years 1929 to 1932, inclusive, and the unpaid city taxes for the years 1928 to 1932, inclusive. The other defendants were made parties defendant because of certain judgments. This matter was heard before me on an agreed statement of facts.
All parties have been duly served and are properly before the Court. The defendant the State of South Carolina demurred to the complaint on the ground that the taxes due to the State for the years 1929 to 1932, inclusive, constitute a lien on the property in question. This demurrer was overruled and the State has filed no other pleading.
The defendants City of Columbia and County of Richland filed answer, setting up the lien of the taxes on the lands in question.
The defendant Standard Building Loan Association filed an answer, setting up the lien of a judgment of Standard Building Loan Association against the plaintiff Alma Morris, which judgment is admitted by the plaintiffs to be a lien on the interest of Alma Morris in the premises in question, namely, her one-third interest.
All the other defendants, with the exception of Albert Williams, are in default.
The complaint alleges, in brief, that the three plaintiffs, R.E. Campbell, Jr., Alma C. Morris, and Lucy J. Campbell, the younger, are seized and possessed in fee of the premises in question; the execution of the contract, performance of the terms thereof by the plaintiffs; tender of deed to the defendant; admission that certain judgments set forth in Paragraph "nine" of the complaint constitute liens on the one-third interest of the plaintiff Alma C. Morris, and that said judgments would be released or satisfied upon a compliance by the defendant Albert Williams; that the taxes of County of Richland and State of South Carolina, on the property in question for the years 1929, 1930, 1931 and 1932 are marked unpaid on the records; that the City of Columbia taxes for the years 1928 to 1932, inclusive, are marked unpaid on the records; but that the taxes for these years do not constitute a lien upon the lands in question, nor the interests therein of the plaintiffs, by reason of the fact that the property during all of those years was in the possession of the life tenant, Lucinda J. Campbell, the elder; that during all of those years the property in question was assessed in the name of Lucinda J. Campbell, the elder, who died on January 27, 1932, at which time the interests of the plaintiffs, as tenants in common, in fee simple, in equal shares, as remaindermen, vested and that by reason of the statutes of this State the said taxes do not constitute a lien on the lands in question; and that certain judgments against Lucinda J. Campbell, the elder, as set forth in Paragraph "eight" of the complaint claimed by the defendants Exchange Investment Company, Ramelle H. Sims, David G. Ellison, and James Y. Perry, attorney, do not constitute a lien upon the lands in question, because of the termination of the life estate; that the pretended claims or liens of said judgments and said taxes constitute a cloud on plaintiffs' title and should be removed.
The defendant Albert Williams alleges, in justification of his failure to comply, the following:
1. That the premises in question is subject to outstanding State and county taxes for the years 1929, 1930 and 1931 in the aggregate amount of $1,081.08; city taxes for the years 1928, 1929, 1930 and 1931 in the aggregate amount of $983.76; also 1932 State, county and city taxes, aggregating approximately $531.20; that the plaintiffs have failed to pay said taxes on the ground that same do not constitute a lien upon the premises in question in that the said taxes were assessed against Lucinda J. Campbell, the elder, a life tenant of the premises in question.
2. That the plaintiffs R.E. Campbell, Jr., and Lucy J. Campbell, the younger, have no interest in the property in question, by reason of the fact that Lucinda J. Campbell, the elder, under the deed hereinafter referred to, acquired a fee-simple title and that Lucinda J. Campbell, the elder, who died January 27, 1932, by her last will and testament, devised the premises in question to the plaintiff Alma C. Morris, who, it is contended by the defendant, has a fee-simple title; that certain judgments have been taken against Lucinda J. Campbell, the elder, and that the same constitute a lien over the premises in question.
3. That if Lucinda J. Campbell, the elder, did not take a fee-simple title, under the deed in question, she acquired a fee-conditional title, and that, by virtue of said deed, the plaintiffs, as the surviving heirs of the body of Lucinda J. Campbell, the elder, have a fee-conditional estate, and, since there has been no birth of issue to the plaintiffs, or either of them, the plaintiffs have no legal capacity to convey a fee-simple title to the defendant, and that plaintiffs do not have a good and marketable title in fee simple.
4. The deed to be construed, as set forth in the agreed statement of facts, was executed and delivered by Robert Y. Jones, under the following limitation: "For and in consideration of the natural love and affection which I have and bear unto my daughter, Lucinda J. Campbell and her children, Robert Ernest Campbell, Norman W. Campbell and James Henry Campbell, and in further consideration of the sum of Three ($3.00) Dollars," etc. The granting clause is "unto the said Lucinda J. Campbell." The habendum reads as follows:
"To have and to hold all and singular the premises before mentioned unto the said Lucinda J. Campbell, her heirs and assigns forever, in trust nevertheless and to and for the uses, intents and purposes hereinafter expressed and declared of and concerning the same; that is to say: In trust and to and for the sole and separate use, benefit and behoof of her the said Lucinda J. Campbell for and during the term of her natural life and from and immediately after her death then in trust to and for the use, benefit and behoof of the issue of her body, begotten by James S. Campbell, her present husband upon her body, who shall be alive at the time of her death, as tenants in common and not as joint tenants to be equally divided among them share and share alike, per stirpes and not per capita; that is to say; the issue of any deceased child of her the said Lucinda J. Campbell to take amongst them the share to which his, her or their parent would have been entitled if alive, to him, her or their heirs and assigns forever, free and discharged of and from all trusts and limitations whatsoever."
At the time this deed was executed, Lucinda J. Campbell had three children, Robert E. Campbell, who died about two years ago, leaving his only heir at law, his son, Robert E. Campbell, Jr., one of the plaintiffs; Norman W. Campbell, who died about twenty years ago, leaving as his only heirs at law, his widow and a daughter, Lucy J. Campbell, the younger, one of the plaintiffs; James Henry Campbell, who died about thirty years ago, leaving no widow or issue. One other child was born to Lucinda J. Campbell, the elder, and James S. Campbell, namely, Alma C. Morris, one of the plaintiffs. Lucinda J. Campbell, the elder, died January 27, 1932, and under her will, which was duly admitted to probate in Richland County, S.C. January, 1932, Alma C. Morris, one of the plaintiffs; was the sole devisee. It is admitted that the property in question was returned and assessed in the name of Lucinda J. Campbell, the elder, for the years 1928, 1929, 1930, 1931 and 1932.
Did Lucinda J. Campbell, the elder, take a fee simple under this deed? The limitation in the granting clause is "to Lucinda J. Campbell" — not to Lucinda J. Campbell, her heirs and assigns. The limitation in the habendum, in substance, is to "Lucinda J. Campbell, for the term of her life and at her death for the use and benefit of the issue of her body begotten by James S. Campbell, her present husband, upon her body, who shall be alive at the time of her death," etc. The words "issue of her body" and "heirs of her body" are apt words for the creation of a fee conditional but not a fee simple. Barksdale v. Gamage, 3 Rich. Eq., 271. Under no possible theory could it be said that Lucinda J. Campbell took a fee simple.
There are only two other possible constructions of the deed: First, a fee conditional in Lucinda J. Campbell; or, second, a life estate in Lucinda J. Campbell with remainder in fee simple to the issue of her body begotten by James S. Campbell, who shall be alive at the time of her death, per stirpes and not per capita.
The solution of these two inquiries is determined by whether or not the words "issue of her body" are used in the technical sense or in the sense of a particular class who are to take at a particular time; in other words, whether the words "issue of her body" are words of limitation or words of purchase. If they are words of limitation, the rule in Shelley's case would apply and Lucinda J. Campbell, the elder, would take a fee conditional, which would pass at her death to the heirs of her body begotten by her husband, James S. Campbell, regardless of any limitation in her will. Barksdale v. Gamage, supra.
And if Lucinda J. Campbell, the elder, took a fee conditional, the property in question would be subject to the lien of the judgments against her, hereinabove referred to.
In this State it is always open to inquiry as to whether or not the grantor or testator used the words "heirs," "heirs of the body," or "issue of the body" or like terms as words of purchase or words of limitation. Duckett v. Butler, 67 S.C. 130, 45 S.E., 137; Shaw v. Robinson, 42 S.C. 342, 20 S.E., 161.
Unexplained, the word "issue" is a word of limitation. Williams v. Gause, 83 S.C. 265, 65 S.E., 241.
But in the instant case, it is clear that the grantor did not use the words "issue of her body" in the technical sense. In the very beginning of the deed is recited the love and affection which the grantor has unto his daughter and her "children." The manner in which the phrase "issue of her body" was used was fixed in the beginning of the instrument as "children." Moreover, there is an express limitation to "Lucinda J. Campbell, for her life." The remainder was given not to all of the issue of her body, but to a particular class, namely, "the issue of her body, begotten by James S. Campbell"; and the further limitation is "to the issue of her body who shall be alive at the time of her death, per stirpes and not per capita." I think the superaddition of the words "who shall be alive at the time of her death" is sufficient in itself to prevent the application of the rule in Shelley's case, under the cases of: McCorkle v. Black, 7 Rich. Eq., 407; Gadsden v. Desportes, 39 S.C. 131, 17 S.E., 706; Davenport v. Eskew, 69 S.C. 292, 48 S.E., 223, 104 Am. St. Rep., 798; Duckett v. Butler, 67 S.C. 130, 45 S.E., 137.
In Gadsden v. Desportes, there is a limitation in a will to a "daughter `for and during the term of her natural life, and at her death to the issue of her body who may then be living.'" The issue in the case was whether or not the rule in Shelley's case should apply; that is, whether the daughter took a fee conditional or a life estate with remainder to the issue of her body, as purchasers. The Court recognized the general rule that the superaddition of such phrases as "to be equally divided" do not in themselves prevent the application of the rule in Shelley's case, but that here the phrase "who may then be living" limited the meaning of "issue of her body" and that the daughter took a life estate and the issue of her body took the remainder as purchasers in a fee simple. Judge McIver, speaking for the Court, said: "It may be conceded, for the purposes of this case, that if the language of this devise had been to Regina Gadsden, and at her death to the issue of her body, with nothing more, then the rule in Shelley's case would have applied, unless there were other controlling circumstances, hereafter to be adverted to, to prevent such a result. But in this case there is something more. Here the words are, not simply to the issue of her body, but to the issue of her body `who may be then living,' which, it seems to us, negatives an intent that the issue should take in indefinite succession, and, on the contrary, indicates an intent that certain issue, not susceptible of designation by name, and therefore described as a class `who may be then living,' should take as purchasers. These words unquestionably show that it was not the intent that the issue generally should take, but, on the contrary, only such of the issue as might then be living, which would be equivalent to saying such issue as might then be surviving. If, therefore, the intention was not to give the property to the issue generally who could take through their ancestor, but to certain persons who could bring themselves within the terms of the devise descriptive of the class, they must take as purchasers, and not through their ancestor. These views are fully supported by the authorities cited in the Circuit decree, especially the case of McCorkle v. Black, 7 Rich. Eq., 407, which seems to be directly in point."
Davenport v. Eskew, 29 S.C. 292, 48 S.E., 223, 224, 104 Am. St. Rep., 798, is not opposed to this view. In that case the limitation was to the remaining heirs of the life tenant and not to "issue" or "heirs of the body"; and the Court recognized the correctness of the rule in the Desportes case, saying: "When a grant or devise is to surviving children or surviving issue, as distinguished from children or issue generally, it is manifest that the intention is to take a particular class from a general class — to include those children or issue who survive, and exclude those who do not. The word `surviving' in such case has a qualifying effect, and the rule laid down in McCorkle v. Black, 7 Rich. Eq., 407, and Gadsden v. Desportes, 39 S.C. 131, 17 S.E., 706, is applicable."
I hold that the deed in question created a life estate in Lucinda J. Campbell, the elder, with remainder to the plaintiffs, as tenants in common, in equal shares, since it appears that the plaintiffs are the surviving issue of the body of Lucinda J. Campbell, the elder, and James S. Campbell. It is clear that these remaindermen, the plaintiffs, take the fee simple, by virtue of the expressed intention in the instrument, the remainder being given "to them, their heirs and assigns forever, free and discharged of all trusts."
There is another reason that leads me to this conclusion: This deed presents all of the elements of a covenant to stand seized to uses. In Bank of Prosperity v. Dominick (1921), 116 S.C. 228, 107 S.E., 914, there was a limitation in a deed from husband to wife "unto the wife for her natural life and at her death to be equally divided between the body issue of the husband and the wife." It was argued in that case that the wife took a fee conditional, but our Court unanimously held that the wife took merely a life estate, and that the body issue took a fee simple, as purchasers. Judge Cothran, speaking for the Court, said that the phrase "body issue," was legally equivalent to the words "heir of the body," and under the rule in Shelley's case would carry a fee conditional in the first taker, in the absence of a disclosed intention that these words were not to be taken in the sense of an indefinite line of succession. In that case he found that the expressions "at her death" and "to be equally divided" prevented the application of the rule in Shelley's case, and therefore the words "body issue" were construed as meaning "children" or their representatives per stirpes. It is noticeable that in that case the Court held it was unnecessary that the word "heirs" should be annexed to the estate of the remaindermen in order to create a fee simple in a covenant to stand seized to uses. To the same effect is the case of Gaines v. Sullivan, 117 S.C. 475, 109 S.E., 276, 277.
The next question is whether or not the county, State, and City of Columbia taxes for the years 1928, 1929, 1930, 1931, and 1932, inclusive, as hereinabove referred to, constitute a lien upon the lands in question. Lucinda J. Campbell, the elder, died January 27, 1932, and at that time, under the agreed statement of facts, it appears that the property in question was returned and assessed in her name. Under the statutes of this State it is well settled that the duty is on the life tenant to pay the taxes and that the interests of remaindermen are not affected by reason of the failure of the life tenant so to do. It is also well settled that no taxes may be assessed against the interests of remaindermen during the existence of the life estate, the reason being that the Legislature supposed the value of the life estate would be sufficient to satisfy the taxes and it was the intention under our statute to protect the rights of remaindermen and not allow them to be sacrificed where no necessity therefor exists. This point was expressly declared in Taylor v. Strauss, 95 S.C. 295, 78 S.E., 883, and also in Parker v. Horton, 114 S.C. 313, 103 S.E., 546.
The statutory law relied upon by Judge Gary, in writing the opinion in Taylor v. Strauss, has been unchanged in this State and the applicable sections appear in Volume 2, Code of Laws of South Carolina 1932, §§ 2567, 2569, 2605, and 2713.
I do not think that there is any question but that under the aforesaid statutes, particularly Section 2605, the 1932 State, county, and city taxes do not constitute a lien on the property in question. The reasons given in the cases above cited are equally applicable to the lien of the taxes for the year 1932 as to the preceding years, for the reason that Section 2605 clearly contemplates that the Legislature had in mind that the life tenant should be personally liable for the payment of taxes accruing on the property in question at the beginning of each fiscal year. Furthermore, this section expressly provides that the property in possession of or owned by a life tenant should be returned by the life tenant in his name. The simple test to apply is this: If this property were sold by the sheriff of the City of Columbia and the tax officer of Richland County for unpaid 1932 city, county and State taxes, the purchaser would get only such interest as the life tenant had and such purchaser could not acquire any interest that these plaintiffs, as remaindermen, had in the property in question. In this connection see the case of Parker v. Horton, supra.
From the form of deed in question, it is apparent that no active duties were imposed upon the trustee; it is therefore quite clear that the statute of uses executed the use and that the life tenant, Lucinda J. Campbell, the elder, acquired the legal life estate and the remaindermen acquired the remainder in fee. Therefore, we are not dealing with a trust estate at all — purely legal interests. Ayer v. Ritter, 29 S.C. 135, 7 S.E., 53; Spann v. Carson, 123 S.C. 371, 116 S.E., 427; Faber v. Police, 10 S.C. 376.
After hearing argument of counsel and consideration of all the issues raised by the pleadings, it is ordered, adjudged, and decreed:
1. That the judgments set up in the complaint by various defendants herein, against the plaintiff Alma C. Morris, constitute a lien upon her one-third undivided interest in the property in question.
2. That the judgments against the life tenant, Lucinda J. Campbell, the elder, constitute no lien on the premises described in the complaint in this action.
3. That the taxes to the State of South Carolina, County of Richland and City of Columbia, for the years 1928 to 1932, inclusive, do not constitute a lien upon the lands described in the complaint in this action.
4. That the plaintiffs have a good and marketable title, in fee simple, to the property described in the complaint in this action, as tenants in common, in equal shares, and are entitled to the specific performance of the contract to convey, as set forth in the complaint, upon the payment or release of the judgments entered against the plaintiff Alma C. Morris.
The following is a description of the property in question: "All that lot of land, with the improvements thereon, designated as 1637 Main Street, in the City of Columbia, County of Richland, State of South Carolina, measuring on its northern and southern sides two hundred eight feet, eight inches (208'8"), more or less, and on its eastern and western sides twenty-six (26') feet, more or less, being bounded as follows: On the north by lot of Ehrlich; on the east by said Main Street; on the south by lot formerly of Seegers, and on the west by lot formerly of Shiver."
Messrs. Cantey Elliott, for appellant, cite: Issue is word of limitation not of purchase: 83 S.C. 265; 65 S.E., 241. As to rule in Shelley's case: 52 S.C. 554; 30 S.E., 400; 76 S.C. 39; 56 S.E., 546; 76 S.C. 488; 57 S.E., 614; 102 S.C. 7; 86 S.E., 211.
Messrs. T.C. Brown, Heyward Brockinton, Waller Bailey and Charles B. Elliott, for respondents, cite: Fee-simple conditional estate: 3 Rich. Eq., 271; 1 Brevard, 331; 5 Rich. Eq., 441; 14 S.C. 597; 16 S.C. 312. Issue defined: 83 S.C. 265; 2 Hill Law, 42; 7 Rich. Eq., 264; 10 S.C. 426; 16 S.C. 312. Where rule in Shelley's case does not apply: 1 N. McC., 69; 2 McCord, 335; Bailey's Eq., 37, 42, 292, 390, 536; 1 Rich. Eq., 79; 1 Rich., 265; 1 Strob. Eq., 193; 4 Rich. Eq., 263; 7 Rich. Eq., 407; 16 S.C. 294; 27 S.C. 480; 28 S.C. 495; 67 S.C. 130; 45 S.E., 137; 42 S.E., 342; 20 S.E., 161. Word heirs used in the sense of children it is word of purchase and not of limitation: 76 S.C. 484; 57 S.E., 614; 102 S.C. 7; 91 S.C. 300; 74 S.E., 374; 107 S.E., 914; 29 S.C. 135; 7 S.E., 53; 123 S.C. 371; 10 S.C. 376.
December 7, 1933. The opinion of the Court was delivered by
The decree of his Honor, Circuit Judge Townsend, appealed from, which will be reported, is entirely satisfactory to this Court, and it is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.