The opinion of the court was delivered by: Moss, Justice.
This action was instituted by the respondents against the appellants for the partition of a tract of land containing 228 acres located in Kershaw County, South Carolina. The respondents allege that they own a one-fifth undivided interest and the appellants own a four-fifths undivided interest in said tract of land. The prayer of the complaint is for partition in kind or, in the alternative, that the premises be sold and the proceeds divided in the aforementioned proportions.
J.W. Watkins, late of Kershaw County, died testate on July 16, 1929, leaving of force and effect his last will and testament dated February 6, 1929, which was validly executed and duly admitted to probate on October 11, 1929, in the Probate Court for Kershaw County, South Carolina. J. B. Watkins applied for and was granted Letters of Administration, Cum Testamento Annexo, for the reason that the executor named in the said will failed or refused to qualify as such.
In due time, the appellants filed an answer to the complaint denying that the respondents had any interest in the property in question, and alleging that they owned a full fee simple title to the tract of land. They also assert that the premises in question were returned, for the purposes of taxation, in the office of the Auditor of Kershaw County as the property of the "Estate of J.W. Watkins" for the years 1929 through 1936. It is then alleged that the Sheriff of Kershaw County did levy upon, advertise and sell the said premises as property of the "Estate of J.W. Watkins", a defaulting taxpayer, to one A.S. Cook, and that on December 3, 1936 the said Sheriff did execute and deliver to the said A.S. Cook a deed conveying the premises described in the complaint herein to him upon his paying the consideration of $206.28. It is then asserted that by successive deeds a fee simple title was perfected in the appellants, and that the respondents have no interest in the premises mentioned in the complaint. Attached to and forming a part of the answer was the will of J.W. Watkins.
It is undisputed that under the will of the late J.W. Watkins, the tract of land in question was devised equally to H. L. Watkins, J.B. Watkins, Mrs. L.C. Brannon, Mrs. R.W. Vaughn and Mrs. R.E. Thompson, for and during their natural life, with remainder to the heirs of their bodies. It is undisputed that under said will J.B. Watkins took a life estate in an undivided one-fifth interest in said tract of land, and that at his death his children, as heirs of his body, would have been entitled to an undivided one-fifth interest in said tract, in fee simple, except for the aforementioned tax sale. It is also admitted that J.B. Watkins, the life tenant, died March 10, 1956, leaving as the heirs of his body, the respondents herein. It is further admitted that J.B. Watkins entered upon his duties as Administrator Cum Testamento Annexo of the estate of J.W. Watkins on October 11, 1929, and continued to act in such capacity until January 2, 1937 when he asked for his discharge. Although it appears that Letters Dismissory were sought by the said J.B. Watkins, none were ever issued by the Probate Court. It was verbally stipulated that the facts of the case, of which the foregoing is a summary, were not in dispute, and the question for decision was the effect of the tax title set up in the answer.
The respondents demurred to the answer of the appellants upon the grounds that it appears upon the face of the answer (1) that at the time of the tax sale mentioned in the answer the respondents owned the premises sold as remaindermen, thus making any tax sale ineffective as to their interest during the continuance of the life estate; (2) that at the time of the tax sale the duty was on the life tenants to pay the taxes, and that as a matter of law the interests of the respondents, as remaindermen, were not affected by reason of the failure of the life tenants to pay said taxes.
The demurrer was argued before the Honorable Bruce Littlejohn, the presiding Judge, and he did by his Order dated June 26, 1958, sustain the demurrer, and held that the tax sale and the deed relied upon by the appellants was invalid insofar as the rights of the respondents herein were concerned. He held that the respondents were entitled to a partition of the premises described in the complaint. The case is before this Court upon an exception charging the lower Court with error in finding and concluding that the tax sale and deed relied upon by the appellants was invalid as to the rights of the respondents. It is asserted that he should have found that the tax sale and deed mentioned conveyed the entire fee in the premises to the appellants. Stated another way, the question for determination is whether the levy upon and sale of the premises as the "Estate of J.W. Watkins", and the deed of the Sheriff made pursuant to such levy and sale were sufficient to convey the fee simple title to said premises.
A summary of the law pertaining to tax sales is required for the proper consideration and disposition of the question here raised. The tax statutes referred to will be given as is contained in the 1952 Code of Laws since there has been no amendment thereto necessary to be considered, even though the statutes as contained in the 1932 Code were applicable at the time of the tax sale here involved.
It is provided in Section 65-1611 of the 1952 Code of Laws, as follows:
"Every person shall be liable to pay taxes and assessments on the real estate of which he may stand seized in fee or for life, in dower or as husband in right of his wife or may have the care of as guardian, executor, trustee or committee." (Emphasis added.)
It is clear from the foregoing section that the life tenants named in the Will of J.W. Watkins were legally liable for the taxes on the property in question during the continuance of their life estate. Certainly, upon the death of J.W. Watkins, the life tenants named in the Will immediately became entitled to the possession of the tract of land in question.
Section 65-1627 of the 1952 Code of Laws provides for the proper listing of real property for taxation. Since this section is strongly argued and relied upon by all parties to this action, the pertinent portions thereof are quoted verbatim:
"All persons required by law to list property for others shall list it separately from their own and in the name of the owner thereof but shall be personally responsible for the taxes thereon for the year in which they list it and may retain so much thereof, or the proceeds of the sale thereof, in their own hands as will be sufficient to pay such taxes; provided, that:
"(1) All lands shall be listed and assessed as the property of the person having the legal title to, and the right of possession of, the land at the time of listing and assessment and, in case of persons having possession of lands for life, in the name of the life tenant;
"(2) In the case of estates administered, the property shall be listed and assessed as the property of the estate of the person deceased;" (Emphasis added).
The appellants contend, under the above statute, section 2 thereof, that since the estate of J.W. Watkins, deceased, was administered upon from 1929 through 1936, the property was properly listed, assessed, levied upon, and sold under the name of "the estate of J.W. Watkins" and so doing in any other manner would not have complied with the statute. They contend that the tax deed hereinabove referred to was valid in all respects, and operated to convey not only the interest of the life tenants but also the interest of the various remaindermen under the Will of J.W. Watkins.
The appellants cite the case of Pollitzer v. Beinkempen, 76 S.C. 517, 57 S.E. 475, 476, in support of their position. This case was a suit brought for the purpose of setting aside a tax deed as a "cloud on the title of the plaintiffs." From a judgment in favor of the plaintiffs an appeal was prosecuted to this Court. In reversing the lower Court and finding for the defendant, this Court held that a suit to remove a cloud from the title was premature for the reason that the plaintiffs were not in possession of the property in question; and that the tax title there involved where the lands in question had been assessed in the name of "the estate of Chas. S. Kuh" was valid, for the reason that there was an administration of the estate in question, and the statute required the administrator to return the land for taxation in the name of the estate of the deceased person. It should be noted and emphasized that the interest of life tenants and remaindermen were in nowise involved in this case. The Court, in delivering its opinion, said:
"* * * If the law of this state contemplates that the administrator shall return the lands owned by the intestate at the time of his death, and the listing and assessment of such land as lands of the estate of such deceased person, that is an end of the matter. True, an estate or an administrator, as such, does not hold the title to the lands, but that is no reason why the General Assembly should not for convenience impose upon the administrator the duty of returning the land, and require the assessment in the name of the estate. Ownership by the estate or by the administrator is not a condition precedent to the power of the General Assembly to require property to be so returned and ...