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COX ET AL. v. TANNER

July 11, 1956

ALICE COX AND ONAH COX, RESPONDENTS,
v.
VERNON TANNER, APPELLANT.



Per curiam.

July 11, 1956.

The order of the Circuit Court meets with the approval of this Court with the exception of the paragraph commencing at folio 431, page 108, and ending at folio 434, page 109, of the printed Transcript. With this exception, it is adopted as the order of this Court with the provision that the defendant, Vernon Tanner, file with the Master of Spartanburg County within twenty-one days after the filing of this opinion, a written account of the rents and other profits received by him from the "West View Property" together with such expenses incurred in connection with said property during the period of time from the death of Dr. Tanner, February 13, 1952, to the date of filing.

Bruce Littlejohn, Acting Associate Justice, disqualified.

ORDER OF JUDGE LITTLEJOHN

This is an action instituted by the plaintiffs, Alice Cox and Onah Cox, against the defendant Vernon Tanner. In the first cause of action plaintiffs ask the Court to declare that they own a one-half undivided interest in a certain tract of land near West View and which will hereafter be referred to as the "West View Property." In the second cause of action plaintiffs ask for a partition of this property as well as of another tract of land owned by the plaintiffs and the defendant as tenants in common. In addition thereto, plaintiffs ask for an accounting of rents and profits from the "West End Property."

This case was referred to the Honorable LeRoy Moore, Master for Spartanburg County, by Order of Reference dated November 21, 1953. Pursuant to the Order of Reference the Master took testimony on several occasions and has made his report, dated May 4, 1955, in which he found that the defendant, Vernon Tanner, was the owner in fee simple of the "West View Property" and other findings as will appear more fully by reference to the original report.

The plaintiffs appealed from said report and have cited twenty-seven reasons or exceptions why this Court should reverse the Master. Without enumerating said exceptions in detail, suffice it to say that the central point of issue in the entire case is whether or not the plaintiffs, on the one hand, own a one-half interest in the "West View Property" and the defendant, on the other hand, owns the other one-half interest. Depending upon the determination of this issue, the questions with respect to an accounting for the rents follow as a matter of course.

From an examination of the entire record in this case and the report of the Master, it appears to the Court that a great many of the facts in this case are not in dispute. The chief issue seems to be the application of the law to these facts.

It appears that on April 8, 1949, Nettie Cox Tanner died testate, leaving a last will and testament by the terms of which her husband, H.V. Tanner, inherited a life interest in all of the property owned by his wife and the plaintiffs herein inherited all of the remainder of the property of Nettie C. Tanner after the death of Dr. Tanner. Harvey V. Tanner, a retired Baptist Minister, died intestate on February 13, 1952, leaving as his sole surviving heir at law the defendant herein. It appears very clearly that the rights of the plaintiffs and the rights of the defendant were the same as existed immediately prior to the death of Dr. and Mrs. Tanner.

The record further shows that on June 1, 1945, Carrie E. Jones executed a deed to H.V. Tanner for the property called the "West View Property," which was recorded on November 30, 1945, in Deed Book 12-F, page 543, R.M.C. Office for Spartanburg County. At the time of the delivery of the deed, Dr. Tanner executed a mortgage to Carrie E. Jones for a portion of the purchase price, this mortgage having been finally paid and cancelled on June 1, 1948. The record further shows that Dr. H.V. Tanner picked up this deed from the R.M.C. Office on January 4, 1947. The uncontradicted testimony of Miss Carrie E. Jones is to the effect that Dr. Tanner came to her house and asked her to go with him and have a joint deed made to him and his wife. It further appears that Dr. Tanner came by and picked her up and took her to the office of J. Wright Nash, a prominent attorney in this town, where she signed another deed to the "West View Property" on January 25, 1947. This deed was from Carrie E. Jones to H.V. Tanner and Nettie C. Tanner and recited a consideration of $5.00 and the premises. The second deed was recorded in the R.M.C. Office for Spartanburg County, on February 6, 1947, in Deed Book 13-P, page 522. This second deed bore on the back thereof the following notation:

"This is a correction Deed to take the place of a Deed filed at the Register of Mesne Conveyance Office at Spartanburg, South Carolina, for Spartanburg County on November 30, 1945, and recorded in Vol. 12-F, page 543."

The evidence and the record further shows that Dr. Tanner picked up this second deed on February 24, 1947, and that he signed for it himself. Also, in January or February of 1947, a tax return was made in the office of the County Auditor. This return was filed by H.V. Tanner and reported a sale of the property in question to H.V. Tanner and Nettie C. Tanner. At the same time the Auditor's records show that a new return was made by H.V. Tanner showing the ownership of property by H.V. Tanner and Nettie C. Tanner and consisting of a lot and four buildings, which is the property in question. The Auditor's records further show that after the death of Mrs. Tanner on April 8, 1949, Dr. Tanner again returned this property in the name of H.V. Tanner and Nettie C. Tanner.

After the death of Mrs. Tanner, on April 8, 1949, her husband, Dr. H.V. Tanner, who was the named executor therein, applied for and was appointed executor of her last will and testament. Documentary evidence was introduced into the record showing that Dr. Tanner filed a petition to prove her will in common form and at the same time gave a list of the property owned by Mrs. Tanner, and this list was sworn to by him. He listed Mrs. Tanner as owning a one-half interest in the "West View Property." The appraisal sheet from the estate of Nettie C. Tanner was introduced in the record and listed a one-half interest in this property as being owned by Nettie C. Tanner. Of course, at this time Dr. Tanner was the executor and it was his duty under the law to furnish the appraiser with a list of the property owned by his wife. There was further introduced in the record various tax ...


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