Edward Mikell v. Mary Ann Green

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Edward Mikell, Individually and as Personal
Representative for the Estate of Estelle White, deceased,
Respondent,

v.

Mary Ann Green, Elnora Capers, William Mikell, Eloise
Chestnut, Ralph Brown, Roges Brown, Raymond Mack,
Henrietta J. Mack-Barnette, Jeanette Mack Green, James
Mack, Jo Nathan Mack a/k/a Nathan Mack, Ida M.
Blake, Glenn Mack, Rose Mack, Elizabeth Lee a/k/a
Dorothy Marie Mack Lee, Michael Mack, Harvey Mack,
Carolyn McClair, Magaline E. Brown, Delores G. Mack,
Charles Mack III, Alton Kirk Mack a/k/a Kirk Mack,
Kendall Gibbs, Harold Mack, Walter Brown (son of
Cumsey Brown), Albertha Cohen, Jessie M. Washington,
Manny Dunmeyer Jr., Ruthie Brown Roper, Sylvia
Dunmeyer, Francis Dunmeyer, Tammy Dunmeyer,
Brandy Dunmeyer, Timothy Brown, Barbara Ann
Gathers a/k/a Barbara Ann Geathers, Clarence Smith, Jr.,
Lillian Middleton, Pauline Walker a/k/a Pearline
Washington, Robert Smith, Arthur Smith, Margaret
Brown, Georgiana Smith, Louise Hamilton, Benjamin
Smith, John Smith, Leola Smith, Michael Smith, Janet
Heyward Nelson, Eric Heyward, Keith Heyward, Darrell
Heyward, William Heyward, Charlene Gadsden, Richard
Brown, Sr., Sharon Y. Brown, Merele J. Mack, Adrienne
F. Mack a/k/a Frankie Mack, Michael Brown, Louis
Mikell, Janie Mikell, Altamese Brown, LaTricia Brown-
Mayfield, and Edward Littleton Brown, Melissa Mikell
(daughter of Nicolas Mikell), Tamisha Mikell, Thomas
Elliott Mikell, Meliss Mikell (daughter of Thomas
Mikell), Les Brown, Patricia Campbell, Curtrina Ladson,
if they be alive, and JOHN DOE AND JANE DOE,
whose true names are unknown and fictitious names
designating the unknown heirs, devisees, distributees,
issue, executors, administrators, successors, or assigns of
the above-named Defendants and if any of them be dead
and of Estelle White, Lizzie Mikell Green, Edward
Mikell, Emily Mikell Brown, Zeebree Mikell, Marion
Green a/k/a Marian Green, Walter Brown, Florence
Gadsden, Ida Mack, Charles Mack Jr., Geneva Mack,
Franklin Mack Cumsey Brown, Nancy Brown, James
Brown, Emily Heyward, Ida Mae Smith Dunmeyer,
Pamela Dunmeyer Brown, Elizabeth Dunmeyer, Charles
Brown, Jr., Rena Smith, Johnny Brown, Adell Mikell,
Nicolas Mikell, Jesse Mikell, Thomas Mikell, and Mary
Frances Brown, all deceased; and MARY ROE AND
RICHARD ROE, whose true names are unknown and
fictitious names designating infants, persons under
disability, incompetents, imprisoned, or those person in
the military, if any; and all other persons, known or
whose true names are unknown, claiming any right, title,
interest in, or lien upon the real estate described in the
Complaint herein, Defendants,

Of whom Richard Brown, Sr. and Sharon Y. Brown are
the Appellants.

Appellate Case No. 2023-001428

Appeal From Charleston County
Mikell R. Scarborough, Master-in-Equity

Unpublished Opinion No. 2026-UP-002
Submitted September 15, 2025 – Filed January 7, 2026

AFFIRMED
Michael W. Sautter, of Query Sautter & Associates,
LLC, and Mark V. Evans, both of Charleston, both for
Appellants.

Jason Scott Luck, of Luck VI Ltd. Co. d/b/a Jason Scott
Luck, Attorney at Law, of Bennettsville, for Respondent.

PER CURIAM: Richard Brown, Sr. and Sharon Y. Brown (Appellants) appeal
the trial court's order finding that Edward Mikell's (Respondent) deed of
distribution (2015 deed) from Estelle White's (Decedent) estate had priority over
the Appellants' deed from Decedent (2007 deed). We affirm.

"An action to set aside a deed for lack of delivery is an action at law." Donnan v.
Mariner, 339 S.C. 621, 625, 529 S.E.2d 754, 756 (Ct. App. 2000). "Accordingly,
we are limited in our review to corrections of errors of law and a determination of
whether or not there is any evidence to support the trial judge's findings." Id. at
625–26, 529 S.E.2d at 756.

Appellants argue the trial court erred in signing an order in this case without
considering their proposed order. We disagree. While it is troubling Respondent
failed to comply with Rule 5(b)(3), SCRCP, which states parties must
contemporaneously serve proposed orders on opposing parties at the same time as
they are sent to the court, nothing in the rule indicates failure to serve all parties is
a jurisdictional requirement. See Farmer v. Monsanto Corp., 353 S.C. 553, 557,
579 S.E.2d 325, 327 (2003) ("Subject matter jurisdiction is the power to hear and
determine cases of the general class to which the proceedings in question
belong."). There is no evidence in the record showing the trial court received an
extension request from Appellants or granted an extension to Appellants within the
thirty-day time frame for submitting the proposed orders. Therefore, Appellants
failed to comply with the trial court's stated time frame for submitting proposed
orders, and we find the trial court did not err in issuing its order. The trial court
was free to sign whatever order it wished. See McNair v. Fairfield Cnty., 379 S.C.
462, 466, 665 S.E.2d 830, 832 (Ct. App. 2008) (finding the appellant "failed to
timely submit a [proposed] order, so even if the trial court had waited [to sign an
order], it still would not have had the benefit of a proposed order from [the
appellant]"). Further, the trial court's consideration and denial of Appellants'
motion to reconsider and adherence to its original order cured any possible
prejudice to Appellants. See id. ("[I]n the court's order denying [the appellant's]
Rule 59(e) motion, the court took the [proposed] order into consideration and
adhered to its initial order.").

There is evidence to support the trial court's finding that the 2007 deed was not
valid. As the trial court found, there is conflicting evidence about who was present
at the signing, and the handwriting expert casts serious doubt on the validity of the
signature on the 2007 deed. Also, the evidence supports the trial court's finding the
deed was not delivered.

A deed is not legally effective until it has been delivered.
While there is no prescribed method for an effective
delivery of a deed, manual transfer of the instrument into
the hand of the grantee is neither required to effectuate a
valid delivery, nor dispositive of the issue. The term
delivery in this regard refers to not so much a manual act
but the intention of the maker ... existing at the time of
the transaction ... and not subject to later change of mind.
Delivery of a deed includes, not only an act by which the
grantor evinces a purpose to part with the control of the
instrument, but a concurring intent thereby to vest the
title in the grantee. The controlling question of delivery
in all cases is one of intention.

Donnan, 339 S.C. at 627, 529 S.E.2d at 757 (internal quotation marks omitted).
The Donnan court found that because the decedent did not effectively deliver the
deed before his death, it was not valid. Id. at 628, 529 S.E.2d at 757. Here, as in
Donnan, Decedent's actions did not show an intent to vest title in Appellants. See
id. at 627, 529 S.E.2d at 757. Decedent instructed Appellants to keep quiet about
the 2007 deed because she did not want any trouble. See id. ("Although [the
decedent] sent the deed to [the appellant], he instructed her that the deed was not to
be recorded until after his death."); id. ("[The appellant] was instructed not to tell
[the respondent] or her sister about the deed."). After Decedent allegedly signed
the 2007 deed, she continued to exercise control over the property and paid taxes
on it. See id. ("Despite the alleged transfer of the property, [the decedent]
continued to exercise control over the lake property."). Appellants never
considered themselves owners. Therefore, because Decedent did not effectively
deliver the deed before her death, the deed is invalid.
Finding the 2007 deed invalid ends our inquiry. Regardless, even if the 2007 deed
was valid, the 2015 deed has priority over it. "South Carolina has a race-notice
recording statute, which prioritizes property liens based on notice and the date of
recording." ArrowPointe Fed. Credit Union v. Bailey, 438 S.C. 573, 577, 884
S.E.2d 506, 508 (2023).

All deeds of conveyance of lands . . . are valid so as to
affect the rights of subsequent creditors . . . only from the
day and hour when they are recorded in the office of the
register of deeds or clerk of court of the county in which
the real property affected is situated. . . . and the priority
is determined by the time of filing for record.

S.C. Code Ann. § 30-7-10 (2007). Here, the 2015 deed was recorded on
November 19, 2015. The 2007 deed was recorded on September 6, 2016.
Therefore, the trial court did not err in finding the 2015 deed had priority over the
2007 deed.

Accordingly, the order of the trial court is AFFIRMED.1

WILLIAMS, C.J., and THOMAS and CURTIS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.