Final order of special referee


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NameFinal order of special referee
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STATE OF SOUTH CAROLINA

IN THE COURT OF COMMON PLEAS

COUNTY OF CHARLESTON

NINTH JUDICIAL CIRCUIT


CLAUDE BACKMAN

Plaintiffs,

CASE NO: 2016-CP-10-______

vs.





ESTATE OF MARIA GRANT, EVELINA GRANT, (deceased), VIOLA GRANT, (deceased), FRANCES GRANT, ALONZO GRANT, a/k/a, ALONZA GRANT, JOHN WALLACE, a/k/a, JOHN GRANT and JOHN DOE AND MARY ROE, FICTITIOUS NAMES USED TO DESIGNATE PERSONS IN THE MILITARY SERVICE WITHIN THE MEANING OF TITLE 50 US CODE COMMONLY REFERRED TO AS THE SERVICE MEMBERS CIVIL RELIEF ACT OF 2003, AS AMENDED, IF ANY, AND THE UNKNOWNS HEIRS AT LAW, DEVISEES, WIDOWS, WIDOWERS, EXECUTORS, ADMINISTRATORS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FIRMS OR CORPORATIONS OF THE ESTATE(S) OF MARIA GRANT, EVELINA GRANT and VIOLA GRANT AND ALL OTHER PERSONS CLAIMING ANY RIGHT, TITLE, ESTATE, INTEREST IN OR LIEN UPON THE REAL ESTATE DESCRIBED IN THE COMPLAINT OR ANY PART THEREOF.

Defendants


FINAL ORDER OF SPECIAL REFEREE

(QUIET TITLE AND PARTITION)







Presiding Special Referee: John J. Pinckney, Esq.

Hearing Date: August 16, 2016

Counsel for Plaintiff: Willie B. Heyward, Esq.

Guardian Ad Litem: Kelvin Huger, Esq.

Court Reporter: Janie Sheppard

INTRODUCTION

1. This quiet title and partition matter came before me, John J. Pinckney as Special Referee for Charleston County, for a final hearing on August 16, 2016, pursuant to Sections 15-13-10, et seq., of the South Carolina Code of laws, 1976, as amended, (known as the Uniform Declaratory Judgment Act), for the purpose of quieting title to and partitioning a parcel of land located in Charleston County, and also pursuant to an order of default and reference filed on July 21, 2016. I reviewed various items exhibits which were presented by counsel for the Plaintiff, and all items of evidence submitted to me at the hearing were admitted into evidence without objection.

JURISDICTION & VENUE

2. This action involves a dispute over title to real property located in Charleston County, South Carolina. As such, this Court recognizes that it has subject matter and in rem jurisdiction over the said real property and over all interests of the parties therein. Pursuant to Rule 53 of the South Carolina Rules of Civil Procedure, I hereby make the following findings of fact and conclusions of law, and I issue this final order quieting title to the subject property.
SUBJECT REAL PROPERTY

3. The subject real property in this lawsuit is described in the Plaintiffs’ Complaint filed of record on April 25, 2016, (the “Subject Property”), and it craves reference to a deed into Maria Grant from Mingo Barnes, dated June 20, 1944, and recorded in the Charleston County RMC Office on June 26, 1944, in Book Z-44 at Page 485 – the property description in that deed being appears with contradictions as follows:

All that lot, piece or parcel of land situate, lying and being in the St. Andrews Parish, Charleston County, South Carolina, known as lots twenty-eight (28) and twenty-nine (29), containing approximately 0.11 acres, more or less, as depicted on the Plat of Kerryville, also being referenced as a portion of lot number twenty-one on a plat of Hillsborough made by W.H. Guerard C.E. November 1885.

Measuring on Front Line one Hundred feet on Back Line one hundred feet and in depth one hundred feet butting and bounding as follows: North by lot Thirty, East by lot twenty seven South by first avenue and West by River Road.

TMS No: 418-09-00-131

4. Other property records maintained by Charleston County and presented to this court by counsel for the Plaintiff have somewhat differing descriptions, evidently due to the passage of time combined with the manner in which real property records are maintained at the county level. For instance, the Charleston County Property Card places the subject property in the “MARYVILLE” subdivision and describes it as having dimensions of “100 x 50 x 100 x 50 + / -“ and other Charleston County records, maps and property data show the subject property at the corner of Magnolia Road and Armstrong Avenue.

5. The most recent plat recorded in Charleston County for this property is found at Plat Book “F” at Page 188, dated July, 1944, and recorded on August 31, 1944, and reference to the Charleston County Property Card and other records point unequivocally to that certain Lot Numbered 28 on this Plat F-188.

APPEARANCES

6. Plaintiff Claude Backman, together with his counsel, Willie B. Heyward, Jr., Esq. appeared before me at the final hearing on August 16, 2016, which took place at the Heirs Property Law Firm, LLC, located at Gamecock Avenue, Suite 200, Charleston, South Carolina. Also appearing at this hearing was Kelvin Huger, Esq., court-appointed guardian ad litem on behalf of the unknown parties-defendant, who submitted an answer to this court on behalf of these unknown parties and stated that no one has contacted him regarding this matter.

FINDINGS OF FACT

7. Based upon clear and convincing evidence before me, which included the in-person testimony of Plaintiff Claude Backman as to the subject property, the value thereof, the family tree and the chain of title to the subject property, and after my review of all of the pleadings and documents of record in this case, I hereby find the following as the facts of this case:

8. Maria Grant acquired title to the subject property by deed of Mingo Barnes dated June 20, 1944, and recorded June 26, 1944, in Book Z-044, at Page 485, in the Charleston County RMC Office (Plaintiff’s Exhibit #6).

9. Maria Grant thereafter died intestate in Charleston County on a date unknown to the Plaintiff, but still vested with an undivided interest in the subject property and leaving as her sole heirs at law her two (2) daughters, Evelina Grant and Viola Grant, each having a 50% interest in the subject property.

10. Evelina Grant died intestate on August 11, 2015, in Richland County, South Carolina, vested with an undivided interest in the subject property, and leaving as her sole heir at law her daughter, Frances Grant, who obtained a 50% interest in the subject property.

11. Frances Grant conveyed her 50% interest in the subject property to Plaintiff Claude Backman via a quitclaim deed dated November 13, 2015, and recorded February 3, 2016, in Deed Book 532, at Page 779, in the Charleston County RMC Office (Plaintiff’s Exhibit #9).

12. Viola Grant died intestate, vested with an undivided 50% interest in the subject property, and she was survived by her two (2) children:

a) Alonzo Magwood (a/k/a and hereinafter referred to as “Alonza Magwood”);

and,

b) John Wallace (a/k/a and hereinafter referred to as “John Grant”).

13. Alonzo Grant died intestate in Charleston County on a date unknown to the Plaintiff, vested with an undivided 25% interest in the subject property, without having any children or a surviving spouse, and his interest in the subject property passed to his sibling, John Wallace.

14. The published obituary of John Wallace, who died in Charleston County in December of 2008, with a 50% undivided interest in the subject property, indicates that he had a number of surviving children, one of whom was named “Stephanie” but who, at the time of the filing of the pleadings in this matter, was unknown to the Plaintiff.

15. All evidence before me supports a finding of fact, and I do find as a fact, that this Stephanie (the above-referenced child of John Wallace) died intestate and without having any children or surviving spouse.

16. Without more evidence regarding their heirs of John Wallace and his family tree, I find that the 50% undivided interest of John Wallace in the subject property is held by the “Estate of John Wallace” – of which Stephanie was a member.

17. I find that certain notices published in this matter were deficient and require amended publications pursuant to this order as a curative measure:

a. the property described in the filed lis pendens does not agree with the noticed and published lis pendens; and,

b. the case number assigned by the Clerk of Court does not agree with the noticed and published case number.

CONCLUSIONS OF LAW

18. Title to the subject property is now vested as follows:

a. Plaintiff Claude Backman – 50% undivided interest

b. Defendant “Estate of John Wallace” – 50% undivided interest

19. There was no probate administration conducted for any of the Defendants who died intestate and all of such interests are vested in the “Estate of John Wallace,” whose members, if any, have not appeared as Defendants before this court.

20. I find that the size of the subject property (being zoned residential and comprised of only 0.11 acres) is not capable of being partitioned in kind without harm to any of the other co-tenant parties, and I further find that the property described in the Plaintiff’s Complaint is over-inclusive and that, for purposes of quieting title and issuing master’s deeds, if any, the subject property is adequately described to the exclusion of all other property for purposes of this order as follows:

REVISED LEGAL DESCRIPTION

All that lot, piece or parcel of land situate, lying and being in the St. Andrews Parish, Charleston County, South Carolina, containing approximately 0.11 Acres, more or less, and depicted as Lot 28 on a Plat entitled “Map showing part of ‘Hillsboro Called Maryville,’ Situate: St. Andrews Parish, Chas., Co., South Carolina” and drawn July 1, 1944, and recorded on August 31, 1944, in Plat Book “F” at Page 188 in the RMC Office for Charleston County, South Carolina.

Said property being located at the corner of Armstrong Avenue and Magnolia Road, with approximate dimensions of 100’ x 50’ x 100’ x 50’ and approximate road frontages of 50’ on Magnolia Road to the West and of 100’ on Armstrong Avenue to the South.

TMS No: 418-09-00-131

21. Plaintiff Claude Backman has requested that the legal costs and fees, including court costs and attorney’s fees, be apportioned among the co-tenants according to their percentages, and I find the same to be reasonable and find that these costs and the plaintiff’s efforts to quiet title and partition the subject property this matter have benefited all owners of the subject property.

22. The appearance, participation, and representation by Guardian ad Litem Kelvin Huger, Esq., fairly and equitable protects the rights of any unknown Defendants fictitiously named in the pleadings in this matter.

23. Plaintiff’s complaint (in paragraphs 14 thru 17) seeks an order from this court allowing the Plaintiff to receive his 50% by allotment (a “partial partition in-kind”) and also allowing the Plaintiff to purchase the other undivided 50% interest (a “partial partition by private sale”). This court cannot grant all of this relief initially requested because the property is simply too small (measuring approximately 0.11 acres) for any 50% in-kind allotment.

24. Also, because no Defendants who own any part of the other 50% undivided interest (as members of the “Estate of John Wallace”) have appeared in this case, and because the Plaintiff’s counsel has informed the court that the Plaintiff now desires to seek an out-of-court purchase from those members if he can locate them, this court’s jurisdiction and this order is limited to quieting title to the property (50% to the Plaintiff and 50% to the “Estate of John Wallace”) without any partition, in kind or otherwise.

25. Accordingly, the Plaintiff’s cause of action for a partition of the subject property should dismissed without prejudice until additional and meritorious pleadings are filed requesting the same.

ORDER

NOW THEREFORE, IT IS HEREBY ORDERED:

A. Counsel for Plaintiff shall publish all of the notices attached as Exhibit A to this order in the Post and Courier - once a week for three consecutive weeks – to give all parties named herein due notice regarding this order, notice of certain amended pleadings, notice of rights of first refusal to purchase interests in the subject property; and, I hereby declare that these notices provide a fair and equitable manner in which any named Defendant may move or appear before this court to set aside this or any order previously entered in this matter. Counsel for Plaintiff shall also prepare, sign and file pleadings with the court reflecting content that is substantially the same that of these notices.

B. After the above-described publication, counsel for Plaintiff shall file an affidavit with this court confirming that the said notice was duly published, and, unless an objection or other document is filed with the Clerk of Court for Charleston County by any party within 30 days after the last publication of Exhibit A as ordered above, this order becomes final and is effective in all respects.

QUIET TITLE

C. Subject to the above requirement for publication and notice, on the effective date of this order, fee simple absolute title to the subject property as it is described in paragraph #20 above under the words “REVISED LEGAL DESCRIPTION,” shall be vested in the heirs of Maria Grant, as follows:

(1) Plaintiff Claude Backman – an undivided 50% interest

(2) Defendant “Estate of John Wallace” – an undivided 50% interest

All other parties-defendant are in default and are hereby forever divested of any and all right, title, interest, estate, claim or lien of any kind whatever, existing now or formerly, in and to that portion of the subject property as quieted and partitioned above.

PARTITION

D. The Plaintiff’s cause of action for a partition of the subject property is hereby dismissed without prejudice, and, having dismissed the partition cause of action, the complaint in this matter no longer constitutes a “petition” under Section 15-61-25 of the South Carolina Code of Laws (a/k/a the “Heirs’ Property” statute or “Right of First Refusal” statute) and, accordingly, court need not provided for any further notice to non-petitioning cotenants under Section 15-61-25 and other the law applicable in this case.
E. Upon appropriate application by counsel and payment of any required fees and costs, deeds from this court conveying the above subject property in accord with this order may be obtained.

F. As of the effective date of this order, which is 30 days after counsel for Plaintiff has published the attached notice as ordered herein, this matter is concluded with finality and is appealable only to the Supreme Court of South Carolina.

AND IT IS SO ORDERED!



John J. Pinckney,

Special Referee for Charleston County
Dated: October 13, 2016
Bluffton, South Carolina
EXHIBIT A

CASE NO: 2016-CP-10-2159

NOTICES REQUIRED BY COURT ORDER

STATE OF SOUTH CAROLINA, COUNTY OF CHARLESTON, IN THE COURT OF COMMON PLEAS, NINTH JUDICIAL CIRCUIT, CASE NO: 2016-CP-10-2159,

CLAUDE BACKMAN, Plaintiff, vs.

ESTATE OF MARIA GRANT, EVELINA GRANT, (deceased), VIOLA GRANT, (deceased), FRANCES GRANT, ALONZO GRANT, a/k/a, ALONZA GRANT, JOHN WALLACE, a/k/a, JOHN GRANT and JOHN DOE AND MARY ROE, FICTITIOUS NAMES USED TO DESIGNATE PERSONS IN THE MILITARY SERVICE WITHIN THE MEANING OF TITLE 50 US CODE COMMONLY REFERRED TO AS THE SERVICE MEMBERS CIVIL RELIEF ACT OF 2003, AS AMENDED, IF ANY, AND THE UNKNOWNS HEIRS AT LAW, DEVISEES, WIDOWS, WIDOWERS, EXECUTORS, ADMINISTRATORS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS, FIRMS OR CORPORATIONS OF THE ESTATE(S) OF MARIA GRANT, EVELINA GRANT and VIOLA GRANT AND ALL OTHER PERSONS CLAIMING ANY RIGHT, TITLE, ESTATE, INTEREST IN OR LIEN UPON THE REAL ESTATE DESCRIBED IN THE COMPLAINT OR ANY PART THEREOF, Defendants.

AMENDED LIS PENDENS

(Quiet Title and Partition)

NOTICE IS HEREBY given that an action has been commenced and is now pending in the Court of Common Pleas for Charleston County, pursuant to the provisions Sections 15-13-10, et seq., of the South Carolina Code of laws, 1976, as amended, (known as the Uniform Declaratory Judgment Act), for the purpose of quieting title to a parcel of land located in Charleston County and partitioning the same by allotment and sale pursuant to Rule 71 of the South Carolina Rules of Civil Procedure.

THE BELOW DESCRIBED parcel of real estate was at the time of the filing of this Amended Lis Pendens, and at the time the commencement of the action, situated lying and being in the County of Charleston, State of South Carolina, and, in the chain of title for this property, it is more particularly described as follows:

All that lot, piece or parcel of land situate, lying and being in the St. Andrews Parish, Charleston County, South Carolina, known as lots twenty-eight (28) and twenty-nine (29), containing approximately 0.11 acres, more or less, as depicted on the Plat of Kerryville, also being referenced as a portion of lot number twenty-one on a plat of Hillsborough made by W.H. Guerard C.E. November 1885.

Measuring on Front Line one Hundred feet on Back Line one hundred feet and in depth one hundred feet butting and bounding as follows: North by lot Thirty, East by lot twenty seven South by first avenue and West by River Road.

Other property records maintained by Charleston County materially differ from the above legal description. For example, the Charleston County Property Card places the subject property in the “MARYVILLE” subdivision and describes it as having dimensions of “100 x 50 x 100 x 50 + / -“ and other Charleston County records, maps and property data show the subject property at the corner of Magnolia Road and Armstrong Avenue. The most recent plat recorded in Charleston County for this property is found at Plat Book “F” at Page 188, dated July, 1944, and recorded on August 31, 1944.

TMS No: 418-09-00-131

WILLIE B. HEYWARD

27 Gamecock Ave

Suite 200

Charleston, SC 29407

843-225-8754

ATTORNEY FOR PLAINTIFF

Dated: October ____, 2016

Charleston, SC

AMENDED NOTICE NISI

(Quiet Title and Partition)

TO: Such of the Defendants in the above action who may be infants, insane persons and incompetents: PELASE TAKE NOTICE that there has been filed in the Office of the Clerk of Court for Charleston County, South Carolina, an Order appointing the following Guardian ad Litem Nisi for you: Kelvin Huger, whose office is at 27 Gamecock Ave, Suite 200, Charleston, SC 29407. This appointment shall become absolute upon the expiration of thirty (30) days following the last publication of the Summons herein, unless you or someone on your behalf, on or before the last mentioned date, shall procure someone to be appointed as Guardian ad Litem to represent you in the above action.

WILLIE B. HEYWARD

27 Gamecock Ave

Suite 200

Charleston, SC 29407

843-225-8754

ATTORNEY FOR PLAINTIFF

Dated: October ____, 2016

Charleston, SC
AMENDED NOTICE OF RIGHT OF FIRST REFUSAL

(Quiet Title and Partition)

TO: Defendants above-named, both known and unknown:

PELASE TAKE NOTICE OF YOUR STATUTORY RIGHT OF RIRST REFUSAL

The Court shall provide for the non-petitioning joint tenants or tenants in common who are interested in purchasing the property to notify the Court of that interest no later than ten (10) days prior to the date set for the trial of the case. The non-petitioning joint tenants or tenants in common shall be allowed to purchase the interests in the property as provided in this section whether default has been entered against them or not. SC Code of Laws Section 15-61-25(A).

WILLIE B. HEYWARD

27 Gamecock Ave

Suite 200

Charleston, SC 29407

843-225-8754

ATTORNEY FOR PLAINTIFF

Dated: October ____, 2016

Charleston, SC

AMENDED SUMMONS

(Quiet Title and Partition)

TO: Defendants above-named:

YOU ARE HEREBY SUMMONED and required to answer the Complaint in this action, a copy of which is herewith served upon you, and to serve a copy of your Answer upon the subscriber at his office situated at 27 Gamecock Avenue, Suite 200, Charleston, South Carolina, within thirty (30) days after service thereof, exclusive of the day of such service; and if you fail to answer the complaint within the time aforesaid, judgment by default will be rendered against you for the relief demanded in the Complaint.

WILLIE B. HEYWARD

27 Gamecock Ave

Suite 200

Charleston, SC 29407

843-225-8754

ATTORNEY FOR PLAINTIFF

Dated: October ____, 2016

Charleston, SC

NOTICE OF COURT ORDER

(Quiet Title and Partition)
TO: Defendants above-named:

YOU WILL PLEASE TAKE NOTICE THAT on October 13, 2016, an order in the above case was issued by the presiding Special Referee: John J. Pinckney, Esq., pursuant to a hearing held before him in Charleston County on August 16, 2016, and, YOU WILL FURTHER TAKE NOTICE THAT such order becomes effective as a final order thirty (30) days after the last publication of this notice as required under such order.
WILLIE B. HEYWARD

27 Gamecock Ave

Suite 200

Charleston, SC 29407

843-225-8754

ATTORNEY FOR PLAINTIFF

Dated: October ____, 2016

Charleston, SC


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