[3, 4] This court holds that the appellant has failed to prove the contract set up in the complaint. The testimony, though formally ruled out by Judge Prince, has been considered by this court as it is all in the record. It would not have affected the result, and the error, if any, is immaterial. It was not error. The statute of this state excludes the testimony where it "can in any manner affect the interest of such witness or the interest previously owned or represented by him." What a travesty it would be to put a witness on the stand and allow him to state what will relieve him from liability, then release him from liability, and put him back on the stand, and ask him if the things to which he has just sworn are true or false. Our statute prevents just that thing. There was no error in ruling out the testimony of E. T. Moody. and try to get the deed for him (Moody). tion is to reform the deed. The plaintif That six months afterwards he was given proved that there was no contract except the deed by W. G. McAllister, and executed the deed, and thereby failed utterly to prove the notes for the purchase money. W. G. the essential fact necessary to reform the McAllister is also dead. All that is known deed. of Charles McAllister afterwards is that he collected some of the notes, and lived in that community until 1876. There is no word of direct evidence to show what Charles McAllister intended by the conveyance. It is said, however, that Charles McAllister lived close by, and could have seen Moody cut down the timber, and there is no evidence of his objection. That is true, but Moody testified that the timber was "very poor. It had been culled over, and it had pretty well all been burnt over." It is said that the deed was drawn by W. G. McAllister, and he was not skilled in such matters. That is true, but in 1872 Moody sold the land to M. L. Jones. This deed is also said to have been written by W. G. McAllister, and conveys a fee and a warranty that is significant. Judge Prince thinks that that warranty indicates a doubt as to the sufficiency of the title. In this we cannot say he was in error. W. G. McAllister used the word "heirs" in 1872, and used it in an inartificial conveyance. Charles McAllister was then alive and in that community. If the deed did not convey what he intended to convey and what Moody intended to purchase, that was the time to correct the mistake. [2] But it is said Moody paid full price for a fee, and that entitles him to a conveyance in fee. Full price standing alone has never been held to be conclusive that it was the intention to convey a fee. If a full price is sufficient of itself to carry a fee after the death of the grantor, then a small price after the death of the grantee ought to cut down a fee to a life estate or a term of years. That would be a very dangerous doctrine in this state, where land values are rapidly increasing. That is not the law, and we have not been referred to any case that so holds. The witnesses are not agreed as to whether it was full price or no. Moody paid $500 for land with a dwelling house on it which rented for more than 7 per cent. on $1,000. It is said Charles McAllister did not make any objection to the sale to M. L. Jones. There is no evidence of any objection, but he had no right to object as long as Moody lived. Moody lived until this case was nearly ready for a hearing before Judge Prince and testified in the case. This court cannot find any evidence to contradict the plain import of the deed. There is no evidence that Charles McAllister contracted to convey a fee, and none that even Mr. Moody stipulated for a fee. There was conflicting evidence as to what Mr. Moody thought he was getting. It will be observed that the plaintiff claims that the deed does not convey a fee simple but a life estate, and in the failure to convey a fee it failed to express As this court has held that the appellant has failed to establish the contract, the other questions do not arise. The judgment of this court is that the judgment of the circuit court be affirmed. GARY, C. J., and HYDRICK and WATTS, JJ., concur. WOODS, J. (dissenting). The plaintiff, Ella F. Jones, being the holder of the deed to a tract of land hereinafter described, brought this action against all the heirs of Charles McAllister for the reformation of the title whereby Charles McAllister conveyed the land to E. T. Moody, under whom the plaintiff claims. The complaint alleges that on or about the 5th day of October, 1868, Charles McAllister executed and delivered his certain deed to E. T. Moody, intending to convey the fee-simple title to 15 acres of land in the incorporate limits of the town of Lake City, county of Williamsburg, for the named consideration of $500; but by a mistake, caused by the deed having been drawn by an unskilled person, the necessary words of inheritance were omitted from the deed. The land was conveyed by E. T. Moody to M. L. Jones January 28, 1872; by M. L. Jones to Pittman Bros.; by Pittman Bros. to B. Wallace Jones, December 17, 1885; by B. Wallace Jones to Pittman Bros. April 17, 1895; by Pittman Bros. to Ella F. Jones, the plaintiff in this action, May 1, 1900. All the deeds made to the land since the transfer from Charles McAllister to E. T. Moody have been fee-simple titles. The deed which the plaintiff seeks to have reformed is as follows: "State of South Carolina, Williamsburg County. Know all men by these presents, that I, Charles McAllister, of the county and state aforesaid, for dred dollars to me paid by E. T. Moody, of | but a fee simple; and (2) that the plaintiff's Williamsburg county and state aforesaid, claim was barred by her laches in presenting have granted, bargained, sold and released, it to the court. unto the said E. T. Moody, one lot or tract In considering these conclusions of the of land, containing fifteen acres, more or circuit court, it is of prime importance to less, being a part of a tract of land, con- bear in mind that the plaintiff is not asserttaining fifteen hundred acres, surveyed for ing a claim for reformation of the deed Charles McAllister and to him granted the against bona fide purchasers from the gran14th of March, 1790, situated in Williams- tor, Charles McAllister, but against his heirs burg county and state aforesaid on the south- at law, who can have no higher right than west side of Lynches' Lake, bounded N. E. their ancestor would have if he were living. by lands of Ann Jones, on the Georgetown It is true, however, that even as to the parroad, south by Charles McAllister and Mrs. ties to a deed the evidence of mistake in its Mary Murphy's land and continuing straight terms must be clear and convincing to warline to W. G. McAllister's line, west by W. rant a reformation. I agree that the circuit G. McAllister's line, north by Aider and judge correctly held that the testimony of Charles Kelley's line to the Georgetown road, the grantee, Moody, to the effect that the inand has such shapes, forms and boundings tention was to convey a fee, was incompeas a plat doth represent. Together with all tent because such testimony as to the transthe rights, titles, members and appurtenanc-actions or communications between Moody es incident or appertaining. Him to have and McAllister, his deceased grantor, would and to hold from this day forward the above named land against myself, and I, Charles McAllister, of the aforesaid county and state, ❘ do further bind myself to warrant and defend against my heirs, executors and administrators, and all other persons lawfully claiming the same or any part thereof. In witness whereof, I do hereunto set my hand and seal this 5th day of October, in the year of our Lord one thousand eight hundred and sixty-eight, and do sign, seal and deliver in the presence of these witnesses. Charles McAllister. [L. S.] S. D. McCutchen. R. D. Isgott." The defendants in their answer deny that the omission of the words of inheritance from the deed was due to mistake, and set up as a further defense "that a period of more time than forty (40) years has elapsed since the date of the execution of the said deed from Charles McAllister to E. T. Moody and since the date of its record in the office required by law; and the defendants therefore submit and allege that the original grantee and all his successors in interest and privies in estate, including the plaintiff in this action, have been and are now estopped by the lapse of time and the staleness of the claim, involving the loss of evidence by the death of Charles McAllister and others, which would make it impossible to ascertain the true facts, and it would therefore be inequitable to grant the relief prayed for in the complaint." The case, being at issue, was referred by consent to Charles W. Stoll, Esq., as special referee to take and report the testimony. The report was made and the case heard before Judge George E. Prince at the November term of the court of common pleas for Florence county, that portion of Williamsburg county where the land is situated being now in Florence county. Judge Prince dismissed the complaint, holding in an elaborate decree (1) that the plaintiff had failed to show that the deed was affect the interest previously owned by the witness. But, leaving out of view all other testimony, it seems to me that the deed furnishes on its face evidence clear and convincing that the intention was to convey a fee simple, and not a life estate. It was manifestly drawn by one not familiar with technical forms in conveyances, for only a part of the usual tenendum clause is found, and the habendum and warranty are mingled in the same paragraph. The evidence leaves no doubt that the draftsman was W. D. McAllister, a son of the grantor, a plain countryman without professional training in conveyancing. In construing deeds as in the performance of all other judicial functions, the court must take judicial notice of the manners and customs of the people whose writings they try to understand; and clear conviction arising from taking into account such manners and customs surely is as good as any other conviction. Having in view the manners of the plain people of the country, it is inconceivable that any man without legal training would write such a deed as is now before us when his intention was to convey a life estate. Indeed, it seems safe to say that if two deeds were presented to such a man, one to A., and the other to A. and his heirs, with the statement that one conveyed a life estate and the other a fee simple, he would say that the deed to A. was absolute and the deed to A. and his heirs conveyed for A.'s life only and after his death to his heirs. So universal is the custom to use the words "for life" or similar words when the intention is to convey a life estate, and not a fee, that I venture to think that there will be no dissent from the statement that the attempt to limit to a life estate is never attempted without the use of such words either by lawyers or laymen, unless the purpose be to entrap or deceive. In view of these facts, can there be a doubt that courts $500 was a full price for the fee-simple title. Certainly, it produces a clear conviction that $500 would have been a very excessive price for the life estate. which arises from the absurd rule of com- | temporaries, fines and common recoveries. mon law that the use of the word "heirs" is With the intention to convey a fee made necessary to create a fee whenever they can manifest beyond doubt from the terms of the possibly do so without interfering with the deed itself, it is by no means necessary for rights of innocent purchasers or creditors? the plaintiff to prove that she paid full But in this case, not only is the intention to value, for the evidence of value is important convey absolutely and not to limit to a life only as showing the improbability of the estate shown by the absence of any express grantee paying the full value of the fee for a limitation, but the language of the deed af- life estate. If that intention is evident from firmatively shows that intention. The words the deed or otherwise, the plaintiff will not "together with all the rights, titles," etc., be denied relief merely because the grantor indicated, if they meant anything, to a man chose to take a small price. When the eviuntutored in the law that all the grantor's dence of value is considered in view of the rights and titles in the land were conveyed well-known depression in the price of land, without reservation. The words "him to and the backwardness of the country where have and to hold from this day forward," | it is situated in 1868, it seems to me the clear etc., meant from this day forward indefinite- preponderance favors the conclusion that ly; that is, without limit. They are equivalent to the words "to have forever." In Johnson v. Gilbert, 13 Rich. Eq. 42, there were no words of inheritance in the deed, yet the court held that the clause, "I, said There are other circumstances showing Jesse Gilbert, Senior, warrants and defends that the parties thought that McAllister had unto Jesse Gilbert, Junior, forever, against parted with all interest in the land. The remyself, my heirs and assigns forever," etc., nunciation of dower was in the regular form were in themselves "satisfactory evidence at to Moody and his heirs. Moody cut and rethe least of an executory contract for the moved timber from the land, and there was sale of the land in fee," and that the heirs no evidence of objection. He conveyed by of the grantor had no interest in the prop- fee simple to M. L. Jones and W. G. McAlliserty conveyed. Looking to the deed alone, ter, the son and agent of Charles McAllister, it seems to me that this case is conclusive wrote the deed, thus indicating his belief authority for holding that the intention in that Moody had the fee simple. There is the present case was to convey a fee simple. not a particle of evidence that Charles McThe case of Austin v. Hunter, 85 S. C. 472, Allister or any of his heirs in all the long 67 S. E. 734, was decided on the same prin- period since the deed was made to Moody, ciple. In Sullivan v. Moore, 92 S. C. 305, 75 and in view of all the changes in ownership S. E. 497, the court said: "The deed of con- ever made or referred to any claim to a reveyance was written by Jared D. version. The only other obstacle to the refSullivan, plaintiff's husband. Unless the ormation of the deed is the alleged laches courts must look away from the obvious, they of the plaintiff. The plaintiff acquired title know that it is probable almost to the point to the land from Pittman Bros., through of certainty that in writing a deed no lay- successive conveyances from Moody, on May man would express the conveyance of a life 1, 1900. There is no claim that she had estate by the mere omission of the word actual knowledge of the defect in the title 'heirs' in the premises and the habendum until 1909, when it was developed in an acwhen using it in the warranty, and that no tion for specific performance of an agreement lawyer would do so, except one wholly pos- for exchange of this land for another lot sessed with the spirit of priggishness." In brought by the plaintiff against C. M. Kelly. Trustees v. Bryson, 34 S. C. 401, 13 S. E. The plaintiff and those under whom she 619, and Sullivan v. Latimer, 38 S. C. 417, claims have been in possession of the land 17 S. E. 221, it was held that a paper in since the conveyance from Charles McAllisform a deed and purporting on its face to ter to E. T. Moody. Each grantee in these be under seal furnished conclusive evidence successive conveyances acquired the rights of that the parties intended to seal it, and that his grantor, including the right to have the in equity it would be regarded a good con- title reformed. There is no evidence that any veyance. The ruling was based on the court's of the parties, either plaintiff or defendants, knowledge that reasonable men would not knew of the defect, or that Charles McAllismake such a paper without intending to seal. ter or the defendants, his heirs, ever made It seems to me that the court must know any claim that they had any interest in the with equal certainty that the people of this land until the defect was discovered and incountry do not make papers of this sort troduced in the course of the litigation with when they intend to convey a life estate but Kelly. It is true that under the recording only when they intend to convey a fee sim- laws of the state the plaintiff is chargeable ple, and that the rule of the common law with constructive notice of the defendant's that the use of the word "heirs" is nec- claim as heirs at law of Charles McAllister, essary to convey a fee is in modern life a but it by no means follows that she or her * with laches in not knowing of the defect in It would be a hard rule for courts of equity to deny to landholders relief against their grantors from technical defects in old deeds like this, on which their titles depend, on the ground of laches, merely because such defects which appear in the record have remained undiscovered for many years. In this case it seems to me peculiarly hard and inequitable. As I have endeavored to show, the defendants have nothing but a naked technical legal claim, based on a paper which shows on its face the claim to be grossly inequitable, and its assertion most unjust; the plaintiff bought without knowledge of the defect, paying full value, and brought this action almost immediately after the discovery of the technical defect in the deed; and the issue is between the plaintiff and the heirs of the grantor who made the defective deed, no innocent purchasers being involved. chinery and payment of the costs." Plaintiff then sold the machinery on foreclosure, receivrecover the balance. Held, that the finding of ing but a part of the debt, and then sued to the amount of the debt and damages in replevin was only to enable defendant to free the property if he desired to pay the debt, and that the satisfaction of that judgment was no bar to an action for the balance of the debt. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1126-1129; Dec. Dig. § 614.*] Watts, J., dissenting. Appeal from Common Pleas Circuit Court of Hampton County; John S. Wilson, Judge. "To be officially reported." Action by A. M. Gibbes, trading as Gibbes Machinery Company, against J. T. Rivers. From a judgment for defendant, plaintiff appeals. Reversed. J. W. Vincent, of Hampton, for appellant. W. D. Connor and J. P. Youmans, both of Brunson, for respondent. HYDRICK, J. To clearly understand the issue involved, a brief statement is necessary. On March 20, 1911, defendant gave plaintiff two notes for $72.02 and $73.45, respectively, and secured them by mortgage of a planing machine, for the purchase price of which they were given in part payment. The notes were not paid at maturity, and, plaintiff's demand for possession of the planer, in order that he might sell it under the mortgage, having been refused, he brought an action of claim and delivery against defendant and J. C. Dowling (who seems to have had actual possession) to recover the possession, or the value thereof, in case delivery could not be had, and damages for the detention thereof. The defendants did not answer, but appeared and consented that the whole case be referred. The referee took the testimony and reported that the value of the property sued for was $200, that there was due on defendant's notes to plaintiff $150, and that plaintiff had been damaged $50 by the detention of the property. His report concluded as follows: "I find as a matter of law that the plaintiff is entitled to the possession of the machinery in question, for the purposes contemplated by his mortgage over the same; and, in case the said property cannot be delivered to plaintiff, plaintiff is entitled to judgment against the defendants, jointly and severally, in the sum of $150, and in the sum of $50, actual damages, together with the costs of this action." There were no exceptions to the report. On hearing the report, the Code Civ. Proc. § 321, provides that in court passed the following order for judgevery action to recover personal property ment: "It is ordered that the said report pledged for debt the jury may find the amount be and the same is hereby confirmed and due plaintiff, and defendant shall be entitled to It is furpay such amount and costs, and free the prop- made the judgment of this court. erty from incumbrance. Plaintiff sued in re- ther ordered that the plaintiff herein, A. M. plevin to recover certain machinery under a Gibbes, have leave to enter up judgment mortgage and recovered judgment for the sur- against the defendants J. T. Rivers and J. render thereof, which judgment also fixed the amount of the debt, damages for detention, etc., C. Dowling for the possession of the propand was satisfied "by the delivery of the ma-erty mentioned and described in the affidavit All the equities being, in my opinion, on the side of the plaintiff, and the defendants having nothing to support their unjust claim except a naked legal technicality, I think the judgment should be reversed, and the deed reformed according to the prayer of the complaint. (94 S. C. 342) GIBBES v. RIVERS. (Supreme Court of South Carolina. April 21, 1913.) JUDGMENT (8 614*)-ISSUES-RES JUDICATA. and complaint in this action, and in case a delivery thereof cannot be had, then for the sum of $200, the value thereof, and for the sum of $50 damages as found by the referee, and for his costs and disbursements in this action." Judgment was entered accordingly, and execution was issued thereon. That judgment was satisfied by payment of the costs and damages and delivery of the property to the plaintiff, who sold it under the mortgage, and credited the net proceeds of the sale on the notes. Plaintiff then brought this action to recover judgment for the balance due on the notes. Defendant pleaded, besides several other defenses, that the matter was res judicata, because the referee had found and reported the amount due on the notes in the action of claim and delivery, and his report had been confirmed by the court. All the defenses were overruled, except the plea of res judicata, which was sustained. due thereon, the act above quoted was pass- GARY, C. J., and WOODS and FRASER, JJ., concur. WATTS, J. (dissenting). The record in the case shows that the respondent, on March 20, 1911, bought of the appellant and gave for the same part cash and balance in notes and at the same time executed and delivered to the appellant a chattel mortgage covering the machinery so sold to the respondent to secure the payment of the notes. The notes were not paid at maturity, and demand was made upon respondent for possession of the As to the satisfaction of the judgment, the record is somewhat confusing. While the "case" states that the judgment entered on the referee's report has been fully satisfied, it will be seen, upon examination of defendant's answer and the testimony, that defendant only claimed that the judgment was satisfied "by the delivery of the machine and payment of the costs." He did not contend that it was satisfied by payment of the amount found due to the plaintiff on the notes. On the contrary, he alleges in his answer that the machine was advertised and sold by the plaintiff, under the mort-machinery under chattel mortgage. Possesgage, and brought $40, which was credited on the notes. The answer practically admits, and the evidence shows, that the debt was not paid. The court erred in sustaining the plea of res judicata. The finding in the claim and delivery action of the amount due on the notes was not intended to and did not authorize the entry of judgment for that amount, and no judgment therefor was entered. The finding was made under the authority of section 321 of the Code of Procedure, which provides that, "in every action for the recovery of personal property which has been pledged in any way to secure credit or debt, the defendant may plead his counterclaim arising out of the same transaction, and the jury in such case may find, in addition to the verdicts now provided by law, the amount due to the plaintiff, if any; and in such case the defendant shall have the right to pay said amount, and costs, and the property shall thereafter be free from the incumbrance." As it frequently happens that the only contention between the mortgagor and mortgagee of personal property is as to the amount due on the mortgage, and as the mortgagee has the right to the possession of the property after condition broken, for the purpose of selling it and applying the pro sion of the same was refused to the appellant, and appellant thereupon brought an action in claim and delivery for the possession of the machinery, or, in case a delivery thereof could not be had, then for $200, the value thereof and damages and costs. respondent did not answer the complaint in this action of claim and delivery, but appear The A ed and consented to an order of reference, referring the whole matter to a referee. reference was held, testimony taken, and report filed. No exceptions were filed to the report of the referee, and it was confirmed and made the judgment of the court. The referee found: That the actual value of the property sued for was $200, and that the amount due on the two notes, attached to his report, was $150, principal and interest, exclusive of costs and expenses of collection. That the notes were secured by a mortgage over the machinery in question, and that the mortgage was past due and condition broken. That appellant had suffered actual damages in the sum of $50 by reason of breach of contract and detention of property, and that appellant is entitled to possession of the property and recommends judgment for possession of the same, and, in the event it cannot be delivered, a judgment for the value thereof, $1.50, and $50 actual damages. This re |