Holley v. Still , 91 S.C. 487 ( 1912 )

June 5, 1912. The opinion of the Court was delivered by The decree of his Honor, the Circuit Judge, as reported, is affirmed for the reasons therein stated, except as to his conclusion "that inasmuch as it is admitted by all parties, that the will of John Holley, the older, gave to Eugenia Holley, afterwards Eugenia Rountree, a fee conditional at common law, in the tract of land in question, and although she had issue born of her body, yet inasmuch as she made no alienation, during the lifetime of said issue, but only after the death of said issue, executed the trust deed of 1905 in question, that she had no power to make said trust deed, so as to bar the reverter of the estate, to the heirs at law of John Holley, who are the claimants in the action."

Permission was granted upon the hearing of this appeal, to review the case of Barksdale v. Ramage. 3 Rich. Eq. 271, which shows that the ruling of his Honor, the presiding Judge, is erroneous, unless this Court overrules the said case, in which the Court uses this language: "Under the purely military system of tenures, that existed under the earlier kings of the Norman dynasty, all feuds were granted for the life of the feudatory only (2 Bl. Com. 55). In process of time, they were extended beyond his life, and at length to the heirs of his body; and in some instances, to his heirs general. The fee conditional, is a remnant of these earlier tenures. `It was called a fee conditional, by reason of the condition expressed or implied in the donation of it, that if the donee died, without such particular heirs' (of his body), `the land should revert to the donor.' But if he had such heirs, `it should remain in the donee' (2 Bl. Com. 110). `Now we must observe,' says Sir William Blackstone (2 Com. 110), `that when any condition is performed, it is thenceforth entirely gone; and the thing to which it was before annexed, becomes thenceforth absolutely and wholly unconditional. So that, as soon as the grantee had issue born, his estate was supposed to become absolute, by the performance of the condition, at least for these three purposes: 1. To enable the tenant to alien the land, and thereby to bar not only his own issue, but also the donor, of his interest in the reversion. 2. To subject him to forfeit it for treason; which he could not do, till issue born, longer than his own life. 3. To empower him to charge the land with rents, etc.' The fee conditional, it would thus appear (to the extent laid down in the passage cited), is not different from other estates on condition; in regard to which a fundamental rule is, that when the condition is once performed, it is thenceforward gone forever."

In speaking of the effect of alienation, after the birth and before the death of issue, and alienation, after the death of issue, the Court says: "The distinction is nice, and apparently arbitrary; but yet is found to be in harmony with the general rules of law, in regard to estates upon condition." The doctrine announced in Barksdale v. Ramage, has become a settled rule of property; is arbitrary in its nature, like the rule in Shelley's case; and, we see no greater reason for changing one than the other, as the change in either, would tend to unsettle property rights and lead to great confusion.

This principle is affirmed in the case of Dillard v. Yarboro,77 S.C. 227, 57 S.E. 841, wherein the Court uses the following language: "Heirs of the body are words of limitation, whereby the parties take by inheritance and not by purchase; therefore, the conveyance of the property by defendant, was as effectual to convey the fee, as if the deed had been to her and her heirs generally, whether she conveyed before or after the birth of issue. The only difference between a conveyance of land, by the tenant in fee conditional before and after the birth of issue is, that where the alienation is before the birth of issue and issue is subsequently born and dies during the life of the tenant in fee conditional, the reverter of the donor is not thereby prevented.'" Citing Barksdale v. Ramage, 3 Rich. Eq. 271.

Judgment modified.

Only MESSRS. JUSTICES WOODS and HYDRICK participatein this opinion and concur.