Milton v. Pace

The opinion of the Court was delivered by Mr. Ci-iiEE Justice Jones. This action for the recovery of a tract of land in Greenwood .County was by consent withdrawn from the jury and submitted to the presiding Judg'e, Hon George W. Gage, for decision, both sides having moved for the direction of a verdict, conceding that the issue was one of law only upon the undisputed facts. Judge Gage gave judgment for the defendant on the legal issues. Both parties claim under William J. Lomax, as the common source of title. The plaintiff claims under a deed by William J. Lomax to. Warren G. Lomax, as trustee, dated December 3, 1864, and the defendant claims under deeds by William J. Lomax to Thomas J. Ellis, dated October 4, 1866, and November 16, 1866, and adverse possession from 1866 to the present time. Admission is made upon the record “that defendant and those under whom she claims have been in open, notorious and peaceable possession of the lands sued for, claiming to hold the same as the owner thereof adversely to the whole world since the year 1866.” The case turns upon the construction of the trust deed under which plaintiff claims, the operation of the statute of *375 uses thereon, and whether defendant’s possession could be adverse to plaintiff’s rights thereunder. The trust deed, in consideration of love and affection and one dollar, conveyed to Warren G. Lomax certain slaves and land covering the tract in question, “in trust nevertheless for the sole and separate use of his (grantor’s) said beloved wife, Elizabeth S. Lomax, during her life, and at her death to vest in his children by the said Elizabeth S. Lomax, who may survive her — if but one child, to that one solely; if more than one, to be divided equally among them, discharged of all trust.” The life tenant, Elizabeth S. Lomax, died in January, 1906, leaving two children, the plaintiff and John R. Lomax, who died intestate a few months after the death of his mother, leaving the plaintiff as his only heir at law and distributee. Plaintiff contends that the trust was executed in the life tenant, that the trustee had no trust with respect to the contingent remaindermen, and that, therefore, the statute of limitations and adverse possession could not run against plaintiff, who was not in a position to maintain an action until the death of the life tenant. The defendant contends that the trusts, being for the sole and separate use of a married woman, and to preserve contingent remainders, were executory, and that the statute of limitations and adverse possession ran against the trustee holding the legal title, and the cestui que trust. The Circuit Court sustained the defendant’s contention. While not agreeing fully with all the reasoning of the Circuit Court, we are satisfied his conclusion was correct. There is no doubt that previous to the Constitution of 1868, a trust for the sole and separate use of a married woman would not be executed by the statute. But since the Constitution of 1868, it is no longer necessary to have a trustee to protect the separate estate of a married woman. Therefore, under the well settled rule that the trustee shall have no greater estate than is commensurate with the trust, *376 the effect of the-Constitution of 1868 was to let in the operation of the statute of uses and execute the use in the married woman. Davis v. Townsend, 32 S. C., 115, 10 S. E., 837; Shaw v. Robinson, 42 S. C., 347, 20 S. E., 161; Kennedy v. Colclough, 67 S. C., 121, 45 S. E., 211. Under this view we think the use was executed in the life tenant, Elizabeth, not in 1864, when the deed was executed, but in 1868, when the Constitution was adopted. But the life tenant would not be clothed with the legal title to a larger estate than the equitable estate created -by the deed, and the trustee would still retain the legal estate in remainder for the preservation of the rights of the- contingent remainder. Young v. McNeill, 78 S. C., 148, 59 S. E., 986. The statute may execute the use in one and not in another, when the parties hold different interests. Howard v. Henderson, 18 S. C., 184. In such a case, when the legal title is executed in the life tenant, and the legal title to the remainder is still in the trustee, the statute of limitations and adverse possession may run against the life tenant with respect to the life estate and against the trustee as to- the estate in remainder, provided a right of action had accrued in favor of the parties respectively against the party in possession. In Breeden v. Moore, 82 S. C., 534, a case in which the use was executed in the life tenant, but was executory with respect to contingent remaindermen, the Court held that a grantee entering under the life tenant could not assert adverse possession against the trustee and remaindérmen, as the trustee had no right of action against the party in possession during the period of adverse holding. When, however, the trustee may assert his right to- possession against the adverse claimant the trustee, and through him the remaindermen, may -be defeated by adverse possession under the statute. Benbow v. Levi, 50 S. C., 120, 27 S. E., 655. Now the undisputed fact is that Ellis, the predecessor of defendant, went into- adverse possession in 18-66, at a time *377 when the whole legal estate was in the trustee, and the trustee had a right of action against the party in adverse possession. It appears that the trustee remained in the county until 1867, when he moved west. The statute of limitations commenced to run when the right of action accrued to the trustee in 1866, and the authorities show that no intervening disability, unless provided by statute, can arrest the statute. Dillord v. Philson, 5 Strob., 213; Shubrick v. Adams, 20 S. C., 52; Duren v. Kee, 26 S. C., 219; Boyd v. Munro, 32 S. C., 249, 10 S. E., 963; Satcher v. Grice, 53 S. C., 126, 31 S. E., 3. The absence of the trustee from the State, after.1867, was not a statutory disability, nor do we discover anything in the statutes which would authorize the Court to say that the execution of the trust in the life tenant, in 1868, would suspend the operation of the statute of limitations. Under this view the conclusion of the Court was correct. The judgment of the Circuit Court is affirmed.