#### Daniel *W.*Schmidt *vs.*John W. Schmidt, et al.

J. S., who had had possession of his children’s property, in 1826 made a deed by which he conveyed to trustees, in fee, certain real estate, for the use of himself for life, and after his death for his children, with a proviso, that the share of any child who should call him to account for the property of theirs which he had in possession, should be forfeited, and revert to him. In 1846, J. S. republished his will. In 1848, on bill filed by J. S. against his children, it was adjudged that the deed of 1826, was intended merely as a security, that J. S. had accounted with his children, that the trusts were satisfied, and J. S. reinstated in his original *estate:*— Held, that J. S. had such an equitable interest in 1848, when his will was republished, in the real estate embraced in the deed of 1826, that it passed under the will.

*Held,*further, that a distributee of J. S., a child by a second marriage, was, as his privy, estopped by the decree of 1848, from showing that the deed of 1826 was not intended as a mere security.

A testator’s equitable estate will pass by his will, whether he afterwards acquires the legal title or not.

BEEOBE DABG-AN, CH., AT OHABLESTON, JUNE, 1854.

Guillaume Dumont, by bis will dated 2d December, 1805, devised bis real estate, subject to an annuity to his wife, to bis two children, Ursule Dumont and Blaise Dumont, and to the survivor, if either should die under age and unmarried, and devised to his wife and children his personal property; and ordered- that his widow and his friend Peter Laurans, whom he appointed executors, should not be liable to be called to aceo'unt by his children for the application of the income, which, during their infancy, was to be applied for their benefit, according to the discretion of the executors.

Blaise Dumont died under age and unmarried. Ursule Du-mont married Dr. John W. Schmidt; and by a marriage settlement dated 12th January, 1810, all the estate of Ursule Dumont, including her reversionary interest in the devise to her brother, derived from her father, and all her interest in *202the estate of her grand-mother, Ann Rossignol, and three negroes belonging to Dr. Schmidt, were settled to her sole and separate use during her life, and after her death to her children.

Ursule Schmidt died in her husband’s lifetime, leaving three children: John William Schmidt, Jun., Mary Elizabeth Ursule Schmidt, and Mary Selena Schmidt, infants.

By deed dated 10th July, 1826, reciting the marriage, and that Mrs. Schmidt died intestate, leaving the said children minors, being in her lifetime, and at the time of her death, entitled to considerable real and personal estate, derived from her father and others, which became vested at her death in her children, and was in his possession, — and that in consideration of love and effection for his said children, and also *in satisfaction of any and every claim and demand whatsoever which they, his children, may have against him on account of their mother’s estate,*he was desirous of making a liberal and adequate settlement upon them, Dr. Schmidt conveyed to his mother-in-law, Marie Adelaide Rossignol Dumont, his plantation in St. Bartholomew’s Parish, his house in Church street continued, his house in Meeting street, and seventy-one ne-groes ; the trusts declared are in effect for himself for life, and after his decease for the above children, and the survivors and survivor of them, in case any of them should die under twenty-one years without issue; with powers of sale and exchange, and of appointing new trustees, and with this proviso: “ That if any one of the said children should at any time hereafter call the said J. W. Schmidt, his heirs, executors, administrators, and assigns, to an acbount for the whole or any part of the property, real or personal, received as aforesaid from the said Ursule Schmidt, then the share of such child in the property granted and released shall be forfeited, and the same shall revert to the said J. W. Schmidt, and become absolutely a part of his estate, free from the trusts, conditions, and limitations of this deed.”

*203On the 23d day of January, 1827, Dr. Schmidt purchased another lot of land in King street, at the sale of the Commissioner in equity, who, by his directions, conveyed the same to the same trustee, on the same trusts declared in the deed of 1826.

Marie Adelaide Rossignol Dumont, the trustee, died in the year 1838, having by her last will devised all her estate, in general terms, to her three grand-children above named, and appointed Dr. Schmidt and his son her executors.

Mary Selena Schmidt, the youngest daughter, married C. M. Arnold; and by a marriage settlement dated 2d July, 1845, between C. M. Arnold of the first part, Mary Selena Schmidt of the second part, and John W. Schmidt, her father, of the third part, she conveyed to her father, as trustee, all her estate, enumerating not only'the property of her mother, but also the plantation on Ashepoo, the house in Church street continued, the lot in Meeting street, and the Ashepoo negroes, being the property mentioned in the deed of 1826. To this deed Dr. Schmidt is an executing party.

On the 1st day of March, 1845, Dr. Schmidt executed his last will and testament, whereby he gave to the complainant, his son by his second marriage, a legacy of five thousand dollars, under some restrictions, and all the rest of his estate to his other children.

By deed bearing date 5th May, 1846, John W. Schmidt, Jun., in considération of nine thousand one hundred and fifty dollars, conveyed to his father all his interest in the following property, viz.: a lot and two houses west side of King street, Nos. 355 and 357, fifty feet front and two hundred and twenty feet deep; a lot on the west side of King street, No. 167, thirty-three feet and upwards front, and one hundred and sixty-one feet deep; a lot adjoining the above, sixteen feet on King street, and one hundred and sixty-two feet deep; a lot in Society Street; two tenements on Crafts’ wharf; two lots in Wall street; and a lot in Ann street, in Wraggsborough, *204Eastern part of No. 5; and thirty-eight negroes; and any other property to which he might be entitled under Ann Rossignol, William Dumont, Marie Adelaide Rossignol Dumont, Blaise Dumont, or Ursule Schmidt, or under his mother’s marriage settlement. This is the same property described in the settlement of Mary Selena, as derived from her grand-mother, Marie Adelaide Dumont, and her grand-father, William Du-mont.

On the 15th of May, 1846, Dr. Schmidt republished his will by a codicil then executed, by which he disposed of the interest purchased from his son.

On the 16th November, 1846, by a deed of partition made between Dr. Schmidt, as the assignee of his son, and his daughters, Mary Selena Arnold a.nd Mary Elizabeth Ursule Schmidt, the property of their mother, being the same described in the conveyance from J. W. Schmidt, Jun., to his father, was divided, and a third part assigned to each.

On the 1st of December, 1847, a bill was filed by Dr. Schmidt against O. M. Arnold and wife, Mary Elizabeth Ursule Schmidt, and J. W. Schmidt, Jun., which set forth the deeds of 1826 and 1827 — the death of Mrs. Dumont — the purchase of his son’s interest in her estate — and the partition, and alleging that the deed of 1826 was intended to secure to his children the delivery of their mother’s estate: that he is disposed to consider the want of an express provision for that occurrence an oversight in the draught of the deed; but is advised that the consequence of the omission is, that there is a resulting trust to himself, the donor, and that he does not insist on the mistake. That Mrs. Dumont died leaving him executor, and that he had proved her will — sets forth the marriage of his daughter, Mary Selena, and her marriage settlement — also his purchase from his son, and the partition since made between him and his daughters. That as the deeds of 1826 and 1827 were intended as trusts to secure to his children the faithful payment and delivery of their mother’s estate, and *205as those trusts have been performed, he is entitled to a recon-veyance ; but that there can be no reconveyance, because he is executor of Mrs. Dumont, and trustee of Mrs. Arnold, and prays that it be declared that-the trusts in said deeds are discharged, and the whole interest vested in him. The answers, filed by the same solicitors, on the 13th of the same month, admit everything in the bill.

On the 7th of February, 1848, a decree was entered in the same cause, founded on the admissions in the answers, declaring that the trusts of the deeds of 1826 and 1827 were satisfied; that Dr. Schmidt could not reconvey to himself, and that he is possessed in his own right in fee simple absolute of the premises, freed and discharged from all trusts.

On the 18th day of June, 1853, Dr. Schmidt died, leaving a lagre estate, and leaving his will and codicil in full force.

The bill was filed on the 1st of March, 1854, claiming the legacy of five thousand dollars, and a distributive share of the real estate purchased since the execution of the codicil, including the real estate contained in the deeds of 1826 and 1827, relying on the decree of 1848, as equivalent to a reconveyance.

The defendants admitted the complainant’s right to a distributive share of two tenements purchased after the codicil, and denied his right to the legacy, and to anything further.

The cause was heard on the 6th and 7th of June, 1854, at Charleston, before his Honor Ch. Dargan, who delivered the following decree:

Dargaíf, Ch. John W. Schmidt, the elder, departed this life A. D., 1853. His will bears date the 1st March, A. D., 1845. By his will, he disposed of his whole estate to his son John W. Schmidt, and to his two daughters, Mary Elizabeth Ursule Schmidt, and Mary Selena Arnold, wife of C. M. Arnold, (who are the defendants,) subject only to a legacy of *206five thousand dollars to the plaintiff, who is his youngest son, and born of his last marriage.

The plaintiff has filed this bill, among other matters, for this legacy. The payment of the legacy is resisted on account of the supposed conditions, and restrictions, with which the gift is made. The plaintiff was an infant at the date of the execution of the will. The language of the will, in respect to this legacy, is as follows: “I appoint as guardian, my daughter Mary Elizabeth Ursule Schmidt, to my son Daniel Webster Schmidt. I give to my daughter Mary Elizabeth Ursule Schmidt, in trust for my son Daniel Webster Schmidt, five thousand dollars, in trust for the clothing and education of my son Daniel Webster Schmidt; the said five thousand dollars to be expended in any way that my daughter Mary Elizabeth Ursule Schmidt may think proper; and that my son Daniel Webster Schmidt, nor any other person, shall call my daughter Mary Elizabeth Ursule Schmidt to an account for the said five thousand dollars in this State, nor any other State, in Law or in Equity. I leave my son Daniel Webster under the sole care of my daughter Mary Elizabeth Ursule Schmidt, being fully satisfied that my daughter Mary Elizabeth Ursule Schmidt will do all that can be done for the welfare and interest of my son Daniel Webster Schmidt.” The testator then gave the residue of his estate, real and personal, to his three other children.

The defendant Mary Elizabeth Ursule Schmidt contends, that the terms of the bequest of five thousand dollars to the plaintiff are such, that he, though now of age, has no right to demand, and receive the same from her, without her assent. I incline to think, that the proper construction of this clause is, that the absolute control which she was to have over the fund, and her exemption from liability on account of it, were to endure during the infancy of the legatee, and no longer. It could scarcely have been the intention of the testator, that the plaintiff should never have his comparatively small legacy at all, if his sister, constituted his guardian by the will, should, in the *207exercise of a capricious and absolute discretion, choose to deprive him of it. A parent may appoint a testamentary guardian, and clothe him with all the authority of a parent, but his own control exists only during the nonage of the child. A testator may give an estate, and limit it over on the most trivial event, but he cannot give property in fee, and limit, or restrict the proprietary rights. The beneficiary of a trust estate, if not under disability, has as absolute a power and control over his interest in such estate, whatever that interest may be, as he would, if invested with the legal estate. It is true, that his interest may be so restricted, that an attempt at alienation may be the ground, or condition of his estate passing away from him to another. But nothing of this kind has been done :• and if it had been, still he would be entitled to the possession until the condition happened. So, that if the testator meant, what it is contended he meant, still the plaintiff is entitled to receive his legacy. Such intention would be a vain attempt to restrict the rights of property in a way which the law does not permit. The testator died intestate as to none of the property which he owned at the date of his will. He gave this five thousand dollars to the plaintiff without remainder or limitation ; and no one but he, (now that he is of age,) has a right to its possession or use. If it was certain that he would dissipate it on the very day he received it, the case would be the same. The rights of property must attach to it.

The defendant, Elizabeth Ursule Schmidt, must account to the plaintiff for the legacy of five thousand dollars given to him by his father’s will, with interest from one year after the testator’s death. It is So ordered and decreed. In such accounting, the said Mary Elizabeth Schmidt must have credit for all sums of money which she has disbursed for, or on account of the plaintiff, without enquiry as to the propriety of such disbursements. The will clothes her with an absolute discretion in this respect during the plaintiff’s infancy. It is so ordered and decreed.

*208It is alleged in the bill, and admitted in the answer, that the testator died intestate, as to some real estate, which he acquired after the execution of the will: which, of course, could not pass under the residuary clause in favor of the defendants. There was a house and lot on East Bay, also a house and lot on Market-street, which were thus acquired after the execution of the will, and codicil, and without any subsequent re-publication of the same. These lots are distributable among the plaintiff and the defendants, the plaintiff being entitled to the one-fourth part thereof; and it is so ordered and decreed. And it is further ordered and decreed, that the plaintiff or either of the defendants, have leave to move for an order at the foot of this decree for a writ of partition, to effect the division of the said two lots on East Bay, and Market-street.

I now come to the consideration of the gravest, and most controverted issue of this case. The plaintiff contends, that the testator died intestate as to other estate, namely, a plantation on Deer Creek, near Ashepoo, in Saint Bartholomews’s parish, and two lots in the city of Charleston, which he owned prior to the 10th of July, Anno Domini, 1826; and which, by a deed bearing that date, he conveyed to Marie Adelaide Bossig-nol Dumont, in trust, for certain uses and purposes declared therein.

It is admitted on all sides, that the testator became re-invested with the absolute estate in this property prior to his death. But it is alleged on the part of the plaintiff, that he did not become so re-invested until after the execution of his will, and that therefore the real estate conveyed by said deed of 10th July, 1826, did not pass under the will: and that consequently it also is intestate estate, and subject to distribution. On the part of the defendants, it is said, that this deed was but a mortgage or security for certain pre-existing liabilities of the testator to the defendants, his children by his first marriage, for funds of theirs, which they had inherited from deceased relatives, and which had come into the testator’s possession.

*209And again, the defendants say, if this be not the true com? struction of the deed of 10th July, 1826, the testator, prior to the execution of his will, became re-invested with the absolute estate in said property, by virtue of the conditions in his favor contained ih the deed itself.

This question is involved in a complicated state of facts. The evidence is contained entirely in the deed itself, and certain other deeds and matters *in pais,*executed afterwards, and in connection with it; and in the statement of the parties in the pleadings. If I were to attempt a synopsis, I could not, without the most elaborate care, improve upon the statements made in the bill and answer. This deed of the 10th July, 1826, purports to be in consideration of various sums of money and portions of property, the estate of the testator’s deceased wife, Mary Ursule Schmidt, the mother of the defendants, to which the defendants were entitled by virtue of the marriage settlement of their mother, or as her distributees; also of certain property to which these defendants were entitled, from the estate of their grandfather, Guillaume Dumont; also in consideration of love and affection ; and with the view of making a settlement and provision for his children, (these defendants.) It is to be remarked that, from what seemed to be conceded on the trial, there was some mistake in the recital of the consideration in the deed. It does not appear that Mrs. Schmidt, (testator’s wife,) ever had any estate of her own. The error, however, if there was an error, is unimportant, as the defendants were confessedly entitled to a considerable property, derived to them from deceased relatives, which the testator in this deed acknowledges to have come into his possession, and to have been appropriated to his own use. The main object of the deed of July, 1826, was to make provision for the satisfaction of this claim. That was the moving consideration. The consideration, besides love and affection, and a nominal sum, was the satisfaction of this claim, and any other claim which these defendants might have against the settlor. *210The property conveyed to tbe trustee, (Marie Adelaide Ros-signol Dumont,) was tbe plantation in St. Bartholomew’s Parish, Colleton, containing one thousand one hundred and seventy-five acres, and all the stock thereon, sixty-two negroes, and two houses and lots in the city of Charleston, specifically described in the deed: the said property all belonging to the testator at the date of said deed. There was a life estate in the use of the property reserved to the testator : and after his death, it was to go to his three children, the issue of his first marriage, who are these defendants, with a limitation over to the survivors, or survivor, if one or two of them should die under twenty-one years without issue; and if all of them should die under twenty-one years without issue, the property was to revert unconditionally to the grantor, (defendants’ testator.) To these limitations is to be superadded, (probably,) an implied limitation to the three children, in the event that they should all attain the age of twenty-one years, which in fact they have.

It is not irrelevant to remark, that the grantor’s children being then infants, could not accept the provisions of said settlement, which were to he in satisfaction, and bar of their claims, before they attained their majority. They had the option, on attaining their majority, respectively, to accept, or to repudiate, and fall back on their rights. They, each one of them, at different times, repudiated the provisions of this settlement, and claimed an account of their own estate in their father’s hands.

The will, as I have shown, is dated the 1st day of March, 1845. It was re-published by the due execution of a codicil dated the 15th May, 1846.

It is an undeniabls proposition, that if a grant is made, and the grantee repudiates, or refuses to accept the estate conveyed, the grantor is re-invested with his former estate. And during the period of suspense, while the grantee’s right of election by reason of non-age, or other disability, cannot be *211exercised, in whom must the rights of property inhere ? Can the grantor be divested, until the grantee is invested ? While the option of the grantee continues, must not the grantor be considered as the owner of the property for every purpose, save that it is subject to the election of the grantee ? It seems to me, that under these circumstances, the deed must be considered as an escrow, until the grantee has accepted : it is only from that time, the grantor can be considered divested of his estate.

Be these general views correct, or otherwise, the facts are these. Before the execution of the will, namely, on the 5th May, 1846, J. W. Schmidt, Jun., repudiated the provisions of the deed of 1826. By his deed, dated 5th May, 1846, he sold his share of the estates, *constituting the consideration of the deed of*1826, *to Ms father for nine thousand dollars.*One of the testator’s daughters, Mary Selena, intermarried with Cicero M. Arnold. There was a marriage contract, and by the deed of marriage settlement, she conveyed her estate, which she had derived from her mother, grandfather, &e., to the trustee for the uses of the marriage settlement. As *to these*two, *there was a clear repudiation of the provisions of the deed of*1826, before the date of the re-publication of the testator’s will by codicil, on the 15th of May, 1846.

There is no evidence of a refusal on the part of Mary Elizabeth Ursule, to accept the deed of 1826, in satisfaction of her claims, before the 16th November, 1846, at which time there was a formal settlement between her, the trustee of the settlement of Mr. and Mrs. Arnold, and her father as the assignee of his son, John W. Schmidt, Jun., in which there was a mutual and formal acknowledgment of satisfaction. I am of the opinion, however, that the testator was never divested of his estate conveyed by the deed of 1826, so far as to prevent it from passing under the devises of his will, subject to the conditions of the deed. I think, that where one possessing an estate, grants it away for some contingent purpose, the estate *212remains in him for every other purpose, save that for which it is granted.

But the strongest ground upon which this part of the defence may be rested, is that which assumes, that the deed of 10th July, 1826, is a mortgage or security. On this assumption, the estate was never out of the testator, but only subject to an incumbrance. Equitable estates in lands owned by a testator at the execution of the will, pass under its devises, though the testator afterwards acquire the legal title. If the testator, before the execution of the will, have a contract for the purchase of real estate, which is capable of being enforced by a decree for a specific performance, such equitable estate will pass under the devises of the will, though the testator only afterwards, or never afterwards in his life, acquires the legal title. It is clear beyond dispute, that mortgaged lands will pass by a devise, whether the mortgage be, or be not satisfied in the testator’s life. If it be not satisfied, the lands will pass to the devisee, subject to the incumbrance.

Such being the law, let us see what are the facts of this case. And first, as to the form of the deed of 1826. It is not in the usual form of a mortgage, but it is- not on its face an absolute deed. It purports to be a deed with a defeasance, though the defeasance is implied. The grantees were not to have the property conveyed in the deed, and *their own claims*also, to satisfy which, was the express purport of the deed. If they refuse to accept it in satisfaction, it must necessarily revert to the grantor, or be considered as never having been out of him. Such is the face of the deed. And I would not consider it any strained construction which would regard such a deed as a security.

But the deed itself has been decided by this Court to be a security or mortgage, in a case where all the parties in interest were before the Court. ,

After the partition and release of the 16th November, 1846, namely, in December, 1847, the testator filed a bill against *213these defendants, who were properly made parties before the Court; in which he recites the consideration, and the provisions of the deed of 10th July, 1826, and in which, he charges that deed to have been a security merely. He states the settlement, partition, and release of the 16th Nov., 1846, and his desire to have satisfaction entered on said deed, or a reconveyance. He states, that subsequently to the date of the deed, he had become the trustee of the marriage settlement of Arnold and wife, — and to enhance the difficulty, he had become the executor of Marie Adelaide Rossignol Dumont, who was the trustee of the deed of 1826: under this combination of characters, charging that the deed of 1826 was a mortgage or security, he set forth the difficulty of having satisfaction entered upon said deed in. a satisfactory and conclusive way, — he prayed that the Court would grant him relief by adjudging the deed to be a security, and that it was satisfied.

■ These proceedings were followed by a formal decree of the Court, in which it was adjudged that the deed of the 10th July, 1826, was a mortgage or security, and that it was satisfied.

It is vain to say, after this, *that the deed of 10th July,*1826, *was not a security merely*— it was so adjudged to be, between all the parties in interest. The fact that the plaintiff was not a party, cannot alter the case. He could not have been a party in the proceedings, under which this deed was decreed to be a security. He had no interest in its provisions.. He cannot, in this collateral way, draw into question the character of the deed. He cannot deny, what the parties admitted, *and what the Oourt adjudged it to he:*that is, a security merely. This was long before the plaintiff had any interest to stamp it with another character, and before the parties to that deed, who were before the Court, could have had any design to defeat him of any rights. This plaintiff claims under, and is' privy to one, (namely, his father, J. W. Schmidt,) who alleged it to be a security, and obtained a decree of the Court *to that*
      *214
      *effect.*It seems to me useless to extend my observations upon this topic.

It is ordered and decreed, that so much of the bill as claims that the property conveyed in the deed of 10th July, 1826, was intestate property, and prays a partition thereof, be dismissed. It is further ordered and decreed, that each party pay his or her own costs. '

The complainant appealed on the grounds:

1. That by the settlement of 1826, Dr. Schmidt parted with the whole fee, which was vested in Marie Adelaide Rossignol Dumont; and the uses exhausted the whole estate; and that the declaration that he was entitled to a resulting use, or seized of the estate subject to a charge, is inconsistent with the text of the instrument.

2. That by the arrangements made with his children after 1845, John W. Schmidt became possessed of an equitable estate in fee simple in the premises, and died intestate as to such estate.

8. That the complainant was entitled to a partition of said estate, as in case of intestacy.

*Petigru,*for appellant.

*Memminger,*contra.

The opinion of the Court was delivered by

Wabjdlaw, Ch.

A trust deed of July 10,1826, from Dr. John W. Schmidt to M. A. R. Dumont, is obscure and inartificial in its frame, and the interpretation of some of its provisions would be difficult, if we were unaided by the acts of the parties and of the Court, in execution of the instrument. If the construction of this deed were to be originally settled by us upon its own terms, we should hold that the grantor thereby parted conditionally or alternatively with his whole estate in the subjects of conveyance, and that no trust resulted to him in the *215event which has happened, of all the three children of his former marriage, the objects of the conveyance, having attained the age of twenty-one years. The express gift to the trustee of the whole legal estate, and the reservation to the grantor of the *use*to himself for life only, and of reverter to him of the legal estate only in case 'all of the children died under the age of twenty-one years without issue — attended by provisions for a division of the estate among survivors or survivor of these children, issue of any of them representing a deceased parent, in case one or two of them died infants; and for like division among the persons who should be entitled to the respective shares of the estate, when the youngest child should attain twenty-one years — these circumstances raise by necessary implication a limitation to the three children in case all of them should attain full age.

The grantor, by this deed, conveys his own estate in trust for his three children, in full satisfaction of all claims or demands on their part against him on account of their mother’s estate, with a proviso, that if any of them should call him or his representatives to account for the property received by him from the -mother, the share of such child should be forfeited and revert to him. It is plain that this deed proposes an alternative to the beneficial donees who were incapable at the time by infancy from exerting their option. The plaintiff insists that the deed was defeasible only as to the shares of such of the children as should call the grantor to account for the rents and profits of their estate. It is more probable, however, that the grantor, in addition to this, intended to provide for his exemption from account for such portions of the estate of the children as he may have wasted or converted. He seeks to protect himself from “ an account for the property,” and not merely of the rents and profits. Granting the plaintiff’s interpretaion, the deed might be denominated not improperly a security, for it pledges certain estate of the grantor, in compensation of the claims of the children, on the contingency that *216an accounting be waived. It is in effect a conditional conveyance in fee, in trust for tbe'payment of certain debts. If this view be taken, a reconveyance to the testator after the republication of his will, would not be the new acquisition of an estate, so as to be incapable of passing by adequate words in his previous will. After a conveyance for a mere particular purpose, as for the payment of debts, or the creation of a charge, the grantor, in contemplation of equity, remains seized of his original estate, and his equitable interest will pass by his will. If such conveyance be made by a testator before the execution of his will, and the charge be removed by a recon-veyance after his will, the whole estate will pass by general terms of devise, although it may be sometimes necessary to consider the heir of testator trustee of the devisee; but this cannot be often necessary with us, as our Act makes the mortgagor owner of the legal estate. If such conveyance be made by a testator after his will, it is no revocation in equity; and even in England, where the mortgagee is legal owner, if a testator, after his will, makes a mortgage, and subsequently obtains reconveyance, his devise will operate on his equitable interest,.and the reconveyance will be treated *as no*essential modification of his original seisin in equity, and the heir will be converted into a trustee for the devisee. *Livingston*vs. Livingston, 3 Johns. Ch. 155; *Harwood*vs. Oglander, 6 Ves. 219. Sir William Grant, M. R., says in *Rose*vs. *Cunningham,*11 Ves. 454, *“*it has been long decided *(Doe*vs. *Pott,*Doug. 684; *Watts*vs. *Fullarton,*Doug. 691,) that where a written agreement for the purchase of an estate has been executed, the purchaser has the estate in equity; and as he has it in equity, it will pass by his will; which will not be revoked by the subsequent conveyance of the legal estate.” An equitable interest, while the legal estate is inchoate, is not different in principle from an equitable interest subsisting after a conveyance for a particular charge.

Suppose, however, we concede to the fullest extent the plain*217tiff’s views of the construction of the deed of 1826, as an original subject of adjudication, that by the deed Dr. Schmidt parted with the whole fee, and exhausted the uses, and that there is no evidence of repudiation, by the donees beneficially entitled, of the condition of the deed — (and, for myself, I am not satisfied that the beneficial donees did repudiate, the conditions of gift before the republication of the will;) — the plaintiff still encounters the insuperable obstacle of *res judicata.*The decree of February 7, 1848, in a cause instituted by the father of plaintiff, under whom he claims, against the children of the father by the former marriage, explicitly adjudges as properly interpreted by the pleadings, that the deed of 1826 was intended as a security to protect the interests of these children in the estate derived from their mother and other maternal relatives; that the children had called for and received from their father a satisfactory account and payment of their claims in right of the mother and maternal relatives; that the trusts of the deed in favor of the children had been discharged and satisfied; and that the father was reinstated in his original estate in the subjects of conveyance. This decree was in strict pursuance of the allegations by the bill, and the admissions of the answers. The direct issue in the cause was whether tlfe deed was a security — a particular charge upon the legal estate, which had been satisfied; and the decree, in strict conformity to the pleadings and' evidence, sustained the affirmative of the question. It would be a torture of the decree, to'allow the plaintiff’s view, that it was a mere arrangement by consent, that the legal estate, previously parted with, should be reinvested in the grantor of the deed. The pleadings and evidence on which the decree was based, presented the single issue, whether the original owner by his deed had ousted himself of his original estate in fee, by the particular charge upon it; and it was adjudged that he had not so ousted himself.

The judgment of a Court of competent jurisdiction directly upon an issue, is conclusive as to the parties and privies in the *218same Court, and in all Courts of concurrent jurisdiction. It is not necessary to the conclusiveness of such judgment, that it should be on the only point in the cause, although it must comprehend some material and traversable allegation directly and not collaterally in issue, and essential to the decision. Here the decision was on the single issue made by the pleadings and proofs. *Managault*vs. *Deis,*Bail. Eq. 293; 2 Smith L. C. 442.

That the present plaintiff, claiming through his father, is bound by an estoppel on his ancestor, is, too plain for illustration. Judgment for or against an ancestor binds his heirs. *Locke*vs. Norbourne, 3 Mad. *141; Outram*vs. Morewood, 3 East, 353.

It is ordered and decreed that the decree be affirmed, and the appeal dismissed.

Johnston, I)unkin, and Dargan, CO., concurred.

*Decree affirmed.*