Syllabus-Opinion

10439

THE STATE v. CROMER.

(103 S. E. 544.)

[115 S. C.

1. CRIMINAL LAW-CHARGE IN PROSECUTION FOR OBSTRUCTION OF HIGHWAY ERRONEOUS, AS INVADING PROVINCE OF JURY.-In a prosecution for obstruction of highway, a charge that it was undisputed that it was a public highway was erroneous, as invading the province of the jury; defendant's contention not being that there was no highway at the point, but that the highway obstructed was improperly located on his land.

2. HIGHWAYS-A HEAVY FINE AND IMPRISONMENT FOR OBSTRUCTING A HIGHWAY HELD ERRONEOUS.-In a prosecution for obstruction of a highway, the imposition of a heavy fine as well as imprisonment held, under the circumstances, improper, though the punishment rests in the discretion of the trial Court; it appearing that defendant, a man of over 50, was merely asserting his rights as he saw them, and there being nothing to indicate he was a bad or vicious man.

Before MEMMINGER, J., Greenwood, October term, 1919. Reversed.

Indictment of T. T. Cromer for obstructing a highway. Upon conviction, defendant apppeals.

Mr. C. W. Creighton, for appellant, cites:. Question of user was for jury and Judge should have charged law applicable to the case: 109 S. C. 245. And his charge discredited defense: 73 S. C. 379; 5 S. C. 67. Side drains not part of highway: 1 Civ. Code 1912, sec. 1933; Crim. Code, sec. 628. Variance in indictment and proof fatal: 5 S. C. 65; 3 S. C. 230; 5 S. C. 378. Sentence and fine excessive and unusual: 104 S. C. 325.

Mr. H. S. Blackwell, Solicitor. Oral argument.

June 28, 1920.

The opinion of the Court was delivered by MR. JUSTICE WATTS.

The defendant was tried and convicted at the October term of Court, 1919, for Greenwood county, before Judge

Memminger and a jury, for obstructing a public highway, and sentenced to confinement at hard labor in the penitentiary, or upon the public works of Greenwood county, for a period of three months, and pay a fine of $300. After sentence appellant appeals, and by eight exceptions alleges error and seeks reversal.

Exception 2 is: "Because the presiding Judge erred in charging the jury: 'Now the first question in the case is this: Was that a public highway? And I think it is undis

puted here that it was a highway; that it was a road 1 leading from one place in the county to another pub

lic place in the county, and was used by the public generally' the error being that said charge was a charge on the facts, settled the question in issue against the defendant, and eliminated all consideration by the jury of the defense of appellant."

This exception must be sustained. It was a question for the jury to determine whether the highway, as located, was the highway. There was no dispute as to whether there was a highway, but the contention was that the highway as located now, and used, did not go over land deeded and accepted as such by proper parties as a highway, but was partly on land of appellant, and the so-called obstruction was not on the highway, but on land of appellant, and his Honor, in his charge complained of, invaded the province of the jury when he charged as he did. Appellant did not dispute that there was a highway, but he did contend that the highway, at present traveled, was not located on the land deeded by him and Seymour, but was on his land. It is not so much a question of whether there was a highway, but a question of location. It was prejudicial to the appellant, and discredited his defense. On this exception there must be a new trial.

Exception 8 complains of the severity of the sentence. This was within the power, authority, and discretion of his

Syllabus-Opinion

[115 S. C.

2,3

Honor. It is unusual; the sentence in such cases usually is a fine of from $5 to $25, and defendant required to remove the obstruction. It is rare that both fine and imprisonment is imposed. In the case at bar the defendant is required to pay a fine of $300 and be confined at hard labor for 3 months-a man over 50 years of age. This is unusual and exceedingly severe. There is nothing in the record to show that defendant is a bad and vicious man, criminally inclined, that he should be fined $300, serve 3 months in stripes, as a disgraced criminal, over 50 years old, for standing up for what he conceived to be his invaded The other rights, even though he be mistaken in his ideas.

exceptions are not considered.

Judgment reversed and new trial granted.

10487

FAIREY v. STRANGE ET UX.

(104 S. E. 325.)

1. INFANTS-CHANCERY MAY ORDER SALE OF LAND ONLY WHERE NECESSARY.-The Court of chancery has the power to order the sale of the land of minors, but a necessity therefor must be made to appear very clearly.

2. INFANTS-WHEN PROPERTY MAY BE SOLD STATED.-When infants have land that allows but little income in proportion to its value, especially when the expense of holding it is proportionately great, or have need of money for food, clothing, medical services, or education that parents cannot supply, a Court of chancery is authorized to allow a sale of land, and for the latter purpose the corpus may be invaded, as well as the income.

3. EVIDENCE-IGNORANCE OF LAW EXCUSES NO ONE.-While there is no presumption that every one knows the law, still ignorance of the law

excuses no one.

1. CONTRACTS-CONTRACT TO SELL LAND IN WHICH MINOR HAD INTEREST HELD VOID.-A contract to convey land in which minors had an interest, and requiring the seller to bring proceedings to have the interest of the infants sold, was void, where both parties to the contract knew at the time of its execution that there was no necessity for selling the property as far as the children were concerned, and seller was not liable in damages for failure to deliver a deed.

5. VENDOR AND PURCHASER-PURCHASER, REFUSING OFFER TO CONVEY, NOT ENTITLED TO DAMAGES.-Where seller under contract to convey land offered to convey whatever interest they had, but refused to bring Court proceedings that would permit conveying to the purchaser interests of minors in the property, purchaser had no cause of action for damages against the sellers, on the ground that a deed by one of the sellers to the other created in the latter a fee conditional, under which she could have conveyed a fee.

Before SEASE, J., Fairfield, September, 1919. Affirmed.

Action by Thomas A. Fairey against C. E. and Louise Strange, on contract to sell real estate. From directed verdict for defendants, the plaintiff appeals.

For former appeal in this case, see 112 S. C. 155.

Messrs. T. M. Lyles, W. C. Wolfe, J. W. Hanahan and McDonald & McDonald, for appellant, cite: Where vendor contracts to sell land in which he knows at the time that he has no title, he is bound to make good to the vendee his loss by way of damages: 40 N. Y. 59; 100 Am. Dec. 463; 66 Am. Dec. 107; 6 Wheat. 109; 19 U. S. 109; 5 L. Ed. 218; 4 Am. Rep. 490; 21 Mich. 374; 20 Am. Rep. 677; 106 Am. St. Rep. 951; 42 N. Y. 175; 69 N. Y. 204; 3 Jones & S. 41; 57 N. Y. 160; 122 Am. St. Rep. 31; 5 A. & E. Ann. Cas. 212; 77 S. C. 64; 69 S. C 373; 16 L. R. A. (N. S.) 773; 109 Ga. 714. Strange children had only contingent life estate: 51 S. C. 555; 106 S. C. 224. contract should be declared void as Storey Contracts, sec. 675; 13 Am. St. Rep. 355; 32 Cyc. * 1251.

Difficult to say when against public policy:

Mr. Wolfe cites: Word "heirs" is omitted, so that entire estate did not pass out of Strange by his deed: 102 S. C. 361. "Children" was used here in the sense of "heirs:" 93 S. C. 184; hence we have a grant to "our heirs by her begotten" which creates a fee conditional: 77 S. C. 230.

Messrs. W. D. Douglass and Glenn W. Ragsdale, for respondents. Mr. Douglass cites: Contract to sell land in

which interests of children outstanding, on promise to resort to Court to authorize sale, cannot be enforced: 73 S. E. 1004; 47 Ill. App. 660; 136 N. C. 444; 67 L. R. A. 977. Where one warrants his own authority to sell he may be liable, but not where he contracts to sell interests of others, and vendee knew facts: Reinhardt Agency, sec. 308. Interests of individuals must be subservient to the public welfare: 6 R. C. L. 707, 755, 710. Damages should be limited to amount paid and interest: 57 N. Y. 155. Children take at least a life estate: 101 S. C. 424. Damages certainly limited to actual expense and expenditures where vendor acted in good faith: 16 L. R. A. (N. S.) 771; 16 L. R. A. (O. S.) 624.

Mr. Ragsdale cites: Decisions on both sides of liability of vendor: Elliott Contracts, vol. III, sec. 2162. Rights of infants in property under the supervision and care of the Courts: 86 S. C. 410; 108 S. C. 1; 18 S. C. 123. Contract not enforcible: 73 S. E. 1004. Mrs. Strange took only life estate: 39 S. C. 131; 91 S. C. 291; 69 S. C. 292. Having tendered conveyance of their interests in land the Stranges are not liable for damages: Page Contracts, vol. III, sec. 1428; Elliott Conts., vol. III, sec. 1976. Party cannot sue for specific performance, and after adverse decision, sue for damages: Elliott v. Page, 98 S. C. 402; 107 S. C. 465; 4 Rich. Eq. 210.

July 26, 1920.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

The plaintiff and the defendants entered into a contract, whereby defendants agreed to convey to the plaintiff a certain tract of land in Fairfield county. The contract was made in July, 1917, the deed to be delivered in December of that year. The tract of land to be conveyed had formerly been two tracts, to wit, the Rabb tract and the McCants tract,