Keowee courier. [volume] (Pickens Court House, S.C.) 1849-current, 1915-09-15
oCONEE IN THE SUPREME COURT
Two Cases Decided by Highest State
Tribunal-The Results.

each conveying interest to a marked
degree in Oconee:
Supreme Court Decisions.
Anna Caterne Adams ct al. re-
spondents, vs.. John D. Werner, ap-
pellant. Reversed Opinion by d. e.
Hydrick, A. j.
-. r. McMahan, respondent, VS..
Walhalla Light and Power Company
appellant. Affirmad. Opinion by Z.
b. Fraser A. j."
The Decision
! in the case Of Adams ct al. VS.. John
ID. Werner reTorses the judgment of
the Circuit Court and thereby affirms
the title of Mr. Verner to all the
| lands involved.
This was an action for partition,
which was commenced on the 18th
day of January, 1914. The COM
plant alleged that the plaintiffs were
owners Of siX-sevenths and the de-
| fendant one-seventh of the lands de-
scribed in the complaint, of which
DIETRICH Biemann, grandfather Of
| plaintiffs, died seized and possessed,
on the 7th day Of March, 1891 The
answer Of defendant alleged that his
| title was exclusive; that he pur-
chased the lands on the 7th day of
May, 1894, at sale by the Master un-
der decree of foreclosure in the case
OF John ID. Werner VS.. Henry D. A.
Biemann, as executor Of the last will
and testament of DIETRICH Biemann
| and Catherine Fl. Biemann.
The case was tried before Judge
John S. Wilson at the March (1914
| term Of Circuit Court for Oconee, and
resulted in decree, signed by the
Presiding Judge on April 13, 1914,
wherein it was adjudge6 that plain
tiffs and defendant, were tenants in
common Of the lands described in the
complaint, the plaintiffs owning six
seVenths and the defendant one-sev-
that the lands be sold by the Master
for the purpose Of partition, and that
it be referred to the Master to take
testimony as to rents, profits and bet
tcrments on the lands since the pur-
chase thereof by Mr.. Werner.
The case was carried to the Su-
preme Court on appeal and argued
last January. The opinion was writ
ten by Associate Justice d. E. Hy-
drick and concurred in by Chief JUS
tice Gary and Associate Justices
Gage, Watts and Fraser.
The main question in the case was
as to the estate which Catherine II.
Biemarn, mother Of the plaintiffs,
took under the will Of Catherine Bic
mann, widow Of DIETRICH Biemann,
the plaintiffs contending that they
took as tenants in common with their
mother, and the defendant contend
ing that an estate in fee conditional
was created in Catherine II. Biemann,
and that upon her mortgage Of the
lands and the foreclosure of the
mortgage by decree of Court, a good
title was vested in the purchaser at
the foreclosure sale.
The clause in question read as fol-
lows: Item II: All the rest Of my
estate, after payment Of debts, etc,
provided in the preceding clause
hereof, Of every kind and nature
whatever, real, personal and mixed, ]
will, devise and bequeath to my be-
loved daughter-in-law Catherine II.
Biemann, wife Of II. ID. A. Biemann.
to her and the heirs Of her body by
the said II. d. A. Biemann absolutely
in fee simple forever"
In constituting this devise, Judge
llydrick reviews the authorities at
length and concludes by holding that
the estate created in Catherine II.
Biemann was a special fee condition
al, and that after the birth Of issue,
she was clothed with the power Of al
ienatiOn, and this power having been
exercised by the execution Of the
mortgages which were forcclosed, the
title OF a purchaser at the sale was
valid.
thus, 1t necessarily follows that
the Judgment of the Circuit Court
was reversed and the title of Mr.. Ver-
ner and other purchasers at the fore
closure sale was good in fee simple.
The plaintiffs we're represented by
Messrs. Carey, Shelor G Hughs, and
a Fn IL inc q, h.