#### John Johnson and Wife and Wm. K. Johnson *vs.*Wm. Hays Gilbert and others.

*Partition*— Eyuitalle *estate in fee*— Construction *of deed.*

Intestate, in his lifetime, conveyed by deed to one of his sons, for valuable consideration, a tract of land. The fee simple was intended to be conveyed, bnt the effect of the deed was to pass only a *life-estate:*— Held, that the son, who was in possession, had, in equity, an absolute estate; and on bill for partition of the intestate’s estate, partition of this tract of land between the son and the other heirs was refused.,

BEFORE DUNKIN, OH., AT DARLINGTON, FEBRUARY, 1860.

The parties are the heirs at law of Jesse Gilbert, Sr., late of Darlington District, who died intestate; and the chief purpose of the proceeding is to have partition of his estate.

The bill states that a tract of land, on which the intestate was residing at his death, is part of his estate, and, as such, liable to partition. Jesse Gilbert, Jr., one of the sons of the intestate, sets up, in his answer, a several title in himself to this tract of land, under a conveyance by deed from his father, bearing date on the 18th day of January, 1838. The father died about the 20th of July, 1852, and the deed was recorded on the 10th of September afterwards. The consideration expressed in the deed is $350 in money, but defendant says that it was, in fact, paid by personal services rendered subsequently to the date of the deed and after he had attained his majority. The issue of title thus 'made was, by an order of this Court, directed to be tried in the Common Pleas. On the trial several objections were raised to this deed on the part of the heirs at large.

1. That it had never been completely executed for want of *delivery.*

*432. That, if delivered, it was inoperative and void, because,

1. It was an attempt to create a freehold to begin *in futuro.*

2. It was, in its own terms, revocable.

The questions of fact only were submitted to the jury, the legal points, as to the validity of the deed, being expressly reserved. The verdict, finally, upon a second trial, returned into this Court, was that the deed had been duly delivered and made upon a valuable consideration. The Judge presiding at law, and certifying this verdict, left the legal questions which had been made to be decided by the Chancellor. Upon the circuit trial of the cause, the questions as to the complete execution and validity of the deed were renewed at the bar for the judgment of his Honor. And it was there further objected that, even if good and effectual, the deed could only create an estate in Jesse Gilbert, Jr., for the term of his own life, inasmuch as there were no words of inheritance in the description of the estate, and the reversion in fee was in the intestate, and was distributable under the statute.

The bill further states that the several distributees, but particularly the sons, had been advanced by the intestate in his lifetime; that to each of the sons, as he grew to manhood and married, the intestate had given a valuable tract of land, putting him in possession, and permitting him to retain such possession and to exercise exclusive dominion over it as his own; that one of the sons, Uriah, had bargained and sold the tract of which he had been put in possession, and received the purchase-money, his father making the title, and then had been, by the intestate, settled upon another tract of land; that after the sons had severally been for many years thus in possession, the intestate, in consequence of their thriftless habits, had, in order to secure the lands and the use of them to them and their families, made the titles to their respective children, and that he had made other advancements to them, and *prays*that the distributees *44severally may discover and account for their respective advancements. The answers of the sons admit tbeir receipt of the lands, but deny their liability to account for them as advancements. Much testimony was taken as to the fact and value of these advancements, including the several tracts of land of which the sons had respectively been put in possession by the intestate, and also as to the intestate’s intention that they should be accounted for as advancements. It was further claimed that if these lands were not to be accounted for as advancements, inasmuch as the several deeds to the respective families of grandchildren, for want of words of inheritance, created only estates for life, the reversions are liable to partition as the estate of Jesse' Gilbert, Sr., the intestate.

DEED OE JESSE GILBERT, SR., TO JESSE GILBERT, JR.

State oe South Carolina, Darlington District :

Know all men by these presents, that I, Jesse Gilbert, Senior, bargains, sells, and delivers unto Jesse Gilbert, Junior, a certain tract of land or plantation, containing three hundred and fifty acres, more or less, for the sum of three hundred and fifty dollars, and bounded as follows: beginning on a pine corner at the lower corner of my cotton field, then by a straight line into the graveyard old field to a lightwood stake corner, thence up through the field close to the graves, and on close to the Isaiah Skinner well, leaving the well on Uriah’s ten acres, ten or fifteen yards on up to the Freeman line to a lightwood stake corner; that is, the line between my son Abram, and my son Uriah, and my son Jesse. All the land that I now hold on the east side of the above-named line, I, said Jesse Gilbert, Senior, warrants and defends unto Jesse Gilbert, Junior, forever, against myself, my heirs and assigns forever, or any other person claiming or to claim any part thereof. But I, *45the said. Jesse Gilbert, Senior, excepts all the above-named land my lifetime, and to act and do with it as I see proper; also my wife to have it during her lifetime or her widowhood. And if I, the said Jesse Gilbert, Sr., never alters the above deed, after my death then to remain in full force and virtue in law.

Given under my hand and seal, this 18th January, 1838.

JESSE GILBEET. [l. s.]

William A. Clibern,

Thomas Hooten.

The decree of his Honor, the Circuit Chancellor, is as follows:

Ddnkin, Ch. The plaintiffs, John Johnson and William K. Johnson, are administrators of Jesse Gilbert, Sr., deceased, and their respective wives are daughters of the said intestate. The bill is filed against the other heirs at law and distributees, and prays, among other things, a partition of the real estate of the intestate. •

On the part of the sons of the intestate, it is denied by their answers that he died seized of any lands subject to partition. None of the answers appear to be controverted in this respect, except the answer of Jesse Gilbert, Jr. Upon the adverse title, set up by this defendant, an issue at law was directed, which was ultimately tried before Mr. Justice Withers, at Pall Term, 1858, of the Court of Common Pleas for Darlington District; from whose certificate it appears that a verdict was rendered for the defendant, Jesse Gilbert, Jr.; nor has any motion been submitted, on -the part of the plaintiffs, for a new trial. Under any view that can be taken, the Court is unable to perceive that the plaintiffs entitle themselves to an order for a writ of partition.

Thomas B. Haynsworth,Esq., having heen a party in the' cause before he became a Commissioner of this Court, the *46matters of account were referred by a special order to E. A. Law, Esq. To bis report, which was presented at the hearing, no exceptions were taken by either party in the cause. It is therefore ordered and decreed that the same be confirmed.

In reference to the costs of the issue at law between the plaintiffs and the defendant, Jesse Gilbert, Jr., the Court is of opinion that each of the parties to the issue should pay their own costs, and it is so decreed. The residue of the costs in the cause to be paid by the plaintiffs out of the assets of the estate prior to a final distribution of the same.

The plaintiffs appealed, and now moved this Court' to reverse the decree of his Honor, the Circuit Chancellor, on the grounds:

1. That the deed, under which Jesse Gilbert, Jr., claims the tract of land on which the intestate resided, was never, in fact, completely executed.

2. That, if executed, the said deed was void and inoperative, because it was an attempt to create a freehold to commence *in futuro;*and because it is, in its terms, revocable.

3. That, if valid, the said deed, for want of words of inheritance, created only an estate for life in Jesse Gilbert, Jr., leaving the reversion in the intestate.

4. That the sons of the intestate ought to account for the several tracts of land of which they had respectively received the possession from the intestate, including those for which titles had been made to their children, or at least for such quantity of estate therein as the deeds respectively created.

*475. That the reversions in the said several tracts of land wherein the deeds made by the intestate were effectual to pass life-estates only are liable to partition, as the estate of the intestate.

6. That his Honor ought to have ordered a writ of partition to distribute among the heirs at law of the intestate the tract of land claimed by Jesse Gilbert, Jr., or, at least, the reversion thereof, and also the reversions of the other tracts of land given to the sons or their families.

7. That his Honor ought to have ordered the sons of the intestate, severally, to account for the tracts of land so received by them, respectively, or for such estates as they or their children took therein, as advancements.

8. That his Honor ought to have ordered that, in ascertaining the shares of the several distributees in the estate of the intestate, each should be charged with the value of the advancements received, as admitted in the answers or proved by the evidence, his decree ascertaining therefrom what were properly chargeable as advancements.

*Prince,*for appellants.

*J. S.*(?. *Richardson,*contra.

The opinion of the Court was delivered by

Carroll, Ch.

*(a)***In the issue at law as to the land claimed by Jesse Gilbert, Jr., the verdict rendered was *“*that the deed had been duly, delivered and made, • upon a valuable consideration.” No motion was submitted on 'the part of the plaintiffs for a new trial. Nor does the Chancellor ap*48pear to be dissatisfied with, tbe verdict. Tbe deed to Jesse Gilbert, Jr., furnishes satisfactory evidence, at tbe least, of an executory contract for tbe sale of tbe land in fee. "With a contract thus manifested, and with actual possession by tbe vendee under it, bis claim to a specific execution of tbe agreement could not be resisted. In tbis jurisdiction tbe vendee, under sucb circumstances, is treated as tbe equitable owner. He may transfer bis interest in tbe land, may devise it as land, and as land it passes by descent to bis beir. Story, Eq., § 783, 790. It is not deemed necessary to say more as,to sucb of tbe grounds of appeal as assert tbe claim of tbe plaintiffs to a partition of tbe land referred to.

Whether tbe conveyances of lands alleged to have been made by tbe intestate, Jesse Gilbert, Sr., to bis other sons or their children passed absolute or life-estates only, tbe Court has not been provided with tbe means of determining. No copy of those instruments, -or other competent evidence of their contents, appears in tbe brief of tbe appellants. It is to be inferred, however, that as to those deeds, or tbe lands conveyed by them, no serious controversy arose at tbe bearing. Tbe sons of tbe intestate, in their answers, denied that be died seized of any lands subject to partition; and it is stated in tbe circuit decree that “ none of tbe answers appear to be controverted in tbis respect, except tbe answer of Jesse Gilbert, Jr.”

All tbe questions as to -advancements, suggested by tbe appellants, seem to be concluded by previous proceedings in tbe cause. Tbe matters of account were directed to be audited by a special referee. His report was presented at tbe bearing. No exceptions to it were taken by any of tbe parties, and tbe report was confirmed. Tbe objections to tbe decree, in respect of tbe alleged advancements, should have been presented as exceptions to tbe report. It has not been shown or suggested that tbe plaintiffs were prevented from taking sucb exceptions by accident, mistake, or sur*49prise, and they cannot now be considered or entertained. It is ordered that the Circuit decree be affirmed, and the motion dismissed.

Dunkin, C. J., and 'Wardlaw, A. J., concurred.

*Decree affirmed.*

(a)

 Sitting for Inglis, A. J., who had been of counsel in the ease.