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April 26, 1956


The opinion of the court was delivered by: Legge, Justice.

   April 26, 1956.
The children of Samuel P. Crotwell brought this action to recover from William B. Whitney and Julius Titus a tract of land in Newberry County comprising about three hundred twenty acres. Joined as defendants were Willie D. Summer, a predecessor in title to Whitney, and Arthur State Bank, Whitney's mortgagee. Plaintiffs founded their claim of title upon a deed executed by their father; defendants pleaded a tax deed, adverse possession, presumption of a grant, and laches. From a judgment in favor of the plaintiffs, only Whitney and the bank have appealed.

James A. Crotwell, grandfather of the plaintiffs, died a resident of Newberry County on April 4, 1893. In paragraph 2 of his will he provided that when his son, Samuel P. Crotwell, should arrive at the age of twenty-one years, all of his real estate in Newberry County should be divided equally between his said son and his daughter, Clara B. Matthews, and that "the share of my said real estate in Newberry County hereby devised to each of my said children shall vest to him or her for his or her life, and after the death of either child shall go, in fee simple absolute, to the issue of such child, per stripes"; and provision followed for remainders over in the event that either or both of the testator's said children should die leaving no issue surviving.

In 1896, Samuel P. Crotwell having come of age, a division of his father's lands was made between him and Clara B. Matthews. Among the lands allotted to Samuel P. Crotwell in this division was the Crotwell Hotel property in the town of Newberry.

In 1915, Samuel P. Crotwell brought an action in the court of common pleas for Newberry County for the purpose of selling the Crotwell Hotel property and investing the proceeds of the sale in a mortgage on the hotel property and certain lands in the State of Georgia. All of the children of Samuel P. Crotwell, and all other persons who might have an interest under paragraph 2 of the will of James A. Crotwell, were made parties to this action. On November 14, 1916, in the same action, Samuel P. Crotwell filed his petition asking that the court authorize and direct the Master for Newberry County to transfer to the said Samuel P. Crotwell the note and mortgage covering the hotel property, freed and discharged of all the terms and limitations of the will of James A. Crotwell, when the said Samuel P. Crotwell should convey certain lands owned by him in Newberry County to himself for life with remainder to his children, subject to all the terms and limitations that had been placed upon the said hotel property by the will of James A. Crotwell. On December 8, 1916, pursuant to an order of the court granting the petition before mentioned, Samuel P. Crotwell conveyed three tracts of land in Newberry County, among them the tract that is the subject of the present action, "unto Samuel P. Crotwell for and during his natural life, and after his death to his children on the same terms, conditions and limitations as set out in paragraph 2 of the Last Will and Testament of James A. Crotwell deceased".

Thereafter, Samuel P. Crotwell moved to the State of Georgia, where he died on February 18, 1936, leaving surviving him as his children and only issue the seven plaintiffs in the present action, all then over the age of twenty-one years.

Samuel P. Crotwell failed to pay the 1926 and 1927 state and county taxes on the tract of three hundred twenty acres with which we are here concerned, and on sales day in March, 1928, after proper levy and due advertisement, the sheriff of Newberry County sold it for unpaid taxes. The defendant Willie D. Summer was the highest bidder at the sale, and on March 15, 1929, the sheriff executed and delivered to him his deed of conveyance, the consideration recited being $138.27.

By deed dated January 5, 1932, Willie D. Summer conveyed the tract to Julius Titus for a recited consideration of $600.00, the warranty in the deed being against the grantor "and no other persons".

It appears from the Statement in the transcript of record that Titus had been reared by his uncle, Robert Whitney, the father of the defendant William B. Whitney; that Robert Whitney and one J.J. Welch were in the lumber and timber business together; that the purchase price for the property in question was paid by Robert Whitney and Welch, to whom Titus had advanced $200.00 as a down payment, which Robert Whitney and Welch later repaid to him; and that Titus never considered himself to be the owner of the property, but understood that he was holding title for Whitney and Welch. The purpose of this arrangement was, according to the testimony of William B. Whitney, to enable deeds and mortgages affecting the property to be executed without renunciations of dower, Titus being unmarried; and for his part in the transaction Titus was to receive a tract of five acres which was to be carved out of the tract in question.

Robert Whitney died intestate in March, 1936, leaving as his heirs his widow, Susie E. Whitney, and four children, Albert, Robert L., William B., and Tinsley Whitney. Albert died about the year 1941, intestate, childless and unmarried, leaving as his heirs his mother, Susie E. Whitney, and his three brothers before mentioned. At the time of his death Albert Whitney and J.J. Welch owned as tenants in common a tract of 370 acres in Union County. By deed dated September 19, 1942, Robert L. Whitney, William B. Whitney and Tinsley Whitney conveyed to their mother, Susie E. Whitney, all of their interest in this tract. It appears also that the three Whitney boys discussed the matter of conveying to their mother their interest in the Crotwell tract, but there is no deed of record indicating that such conveyance was ever made. However, when Susie E. Whitney died, in October, 1942, she left a will purporting to devise an undivided one-half interest in the 320 acres of land in Newberry County known as the "Crotwell Place" to her son William B. Whitney.

By deed dated January 28, 1943, Robert L. Whitney, William B. Whitney and Tinsley Whitney conveyed their interest in the 370-acre tract in Union County to J.J. Welch, the consideration recited in the deed being "exchange of real estate by title".

By deed dated January 29, 1943, Julius Titus, at the direction of J.J. Welch, conveyed the Crotwell tract of 320 acres in Newberry County to William B. Whitney.

By deed dated December 31, 1946, William B. Whitney conveyed to Julius Titus five acres of land carved from the Crotwell tract, and there Titus now lives.

On February 18, 1950, William B. Whitney executed and delivered to Arthur State Bank, as security for his note in the amount of $2,000.00, a mortgage of the Crotwell tract less the five acres conveyed to Titus.

The present action was commenced on April 6, 1951. It was referred by consent to the Honorable C.E. Saint-Amand as Special Referee, who in due course filed his report in which he recommended that the plaintiffs be adjudged the legal owners of the tract and that they be placed in possession. He also found that the defendant William B. Whitney was not entitled to redress against either Julius Titus or Willie D. Summer for any expenditures made by Whitney in connection with the purchase and subsequent improvement of the property, the payment of taxes thereon, and the expenses of the present action. And he further recommended that the defendants in possession be required to account to the plaintiffs for their use of the premises. Exceptions to the referee's report were filed by the defendants William B. Whitney and Arthur State Bank only. The matter then came on to be heard before the Honorable Steve C. Griffith, Judge of the Eighth Circuit, who by his decree of January 26, 1955, from which this appeal is taken, adjudged the plaintiffs to be ...

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