Brock v. O'Dell

Citations

• 44 S.C. 22
• 21 S.E. 976
• 1895 S.C. LEXIS 71

Syllabus

<p>1. Witness — Party Deceased. — Under the issue whether the word “heirs” had been mistakenly omitted from a deed of conveyance, an heir of the grantor, now deceased, may testify in behalf of the grantee as to a conversation between the grantor and the draughtsman of the deed, which led up to its execution.</p> <p>2. Deed — Mistake—Evidence.-—Where mistake is alleged in a deed, it may be proved by parol, and by other than the subscribing witnesses, they being dead.</p> <p>3. Witness — Party Deceased — Evidence.—The fact that the witness who related the conversation between the deceased grantor and the draughtsman, took a like deed at the same time, may affect his credibility, but not his competency.</p> <p>4. Charging Juries — Pacts.—-The trial judge properly refused to charge that, assuming the testimony to be true, the omission of the word “heirs” from the deed was done in ignorance of the law, and not from a mistake of law, as the request called for an expression of opinion as to the sufficiency of the testimony.</p> <p>5. Ibid. — Request to Charge. — Error will not be imputed to the trial judge, in refusing to charge a sound principle of law, when combined with metaphysical distinctions between ignorance and mistake of law, the real distinction being aptly explained by simple illustrations.</p> <p>6. Mistake and Ignorance of Law. — Where a deed is executed by father to son, and it is clearly shown by testimony, parol or otherwise, that the word “heirs” was omitted through the mistake of the draughtsman, the agreement and intention being to convey a fee, and not because of ignorance of the law that such word is necessary to convey an estate of inheritance, the mistake may be corrected and a fee declared, in action by the heirs of grantor to recover from the heir of the grantee. Cases reviewed.</p> <p>7. Appeal — New Question.- — The point here raised, that no relief can be granted, because the deed was voluntary, not considered, no such point having been raised