#### Joseph Goodhue & Wife *v.*John B. Barnwell et al.

By *agreement*of the parties in interest, a *partial*partition of lands may be made ; but this is not allowed in the *compulsory*partition by writ. The plaintiff in partition, must bring his suit against all the remaining co-tenants, and every one must have a part set out in *severalty.*

Although since the statute of frauds, a *parol*partition of *lands*is invalid, a court of equity, it seems, will enforce a specific performance of such agreement, as of any other contract in relation to *lands,*where the *parol*agreement has been partly carried into execution.

Acts to be deemed a part performance, should be so clear, certain and definite, in their object and design, as to refer exclusively to an agreement completed, of which they were a part execution.

What acts and conduct of the parties interested, shall be considered as a ratification of a previous *parol*partition of lands.

It is an established principle of equity, that if one intrude upon the estate of an infant and take the profits thereof,- he will be treated as a *guardian,*and held responsible therefor to the infant, in a suit in equity.

Where the liability of a defendant in equity, arises front a *fiduciary*character, the statute of limitations does not apply.

*199Where the right to require an *account*in this court, devolves, upon the death of an infant, on his legal representative,, the statute of limitations will not begin to run until administration is granted.

The note of a *feme covert*is null and *void.*

Though a bond creditor may maintain an action in this court, for the recovery of his debt against the heir at law, yet in such a case the executor must be made a party.

The *personal*estate is the primary fund for the payment of debts; and if a creditor stands by and suffers the personal estate to be *squandered,*he will not be afterwards permitted to look to the *heir*for *payment.*

*Before DTJNKIN, Chancellor, at Beaufort, March Term,*1838.

This case came up on a motion on the part of the defendants, to reverse the decree of his honor the chancellor. Briefs of the bill and answers, and a full statement of the evidence, are given, to which a copy of the decree is annexed, as necessary to the proper understanding of the questions made in the case.

“The bill states that John B. Barnwell, Edward W. Barnwell, Cuthbert Barnwell and Jane Barnwell, were seized of a plantation on Ladies Island, containing 922 acres, the inheritance of their father, John B. Barnwell, deceased. That Jane Barnwell married Prentiss Willard, the son of the complainant Mrs. Goodhue, an officer of the army of the United Stales, who died leaving Jane surviving him, and one child named Collin Prentiss Willard; Jane, the widow, then married William Matheuman, an English midshipman of the Royal Navy; Jane soon after died, leaving William Matheuman and Colin P. Willard, surviving her: whereby C. P. Willard became, and-was, solely seized of one-fourth part of said plantation, by inheritance from his mother. No judicial partition, nor partition by deed, had ever been made between the infant’s mother and her brothers; but the separate parts of the heirs had been ascertained and designated by their consent, viz: to John B. Barnwell, the south-west part, called Orange Grove ; to Cuthbert Barnwell, the south-east part; to Edward W. Barnwell, the north-east part; and to Jane Willard, or Matheuman, the north-west part, had been assigned, in severalty.

*200That before the 18th September, 1819, Edward W. Barnwell mortgaged to Benjamin R. By the wood his separate part, under which mortgage the same has been since sold, and is now held by Mr. Yerdier. That on the 18th September, 1819, John B. Barn-well and Edward W. Barnwell, entered into an agreement with John Porteous for the. sale of the two fourth parts of the plantation, and Porteous agreed to give for each of the said parts #4000; and on that day, the said John B. Barnwell, Edward W. Barn-well, and Cuthbert Barnwell, executed a bond to Porteous, to make titles to the said two parts of the plantation; but, in fact, the part Edward W. Barnwell undertook to sell and dispose of, was not his own, but the land of Colin P. Willard, the infant.— Porteous paid John B. Barnwell the #4000, the purchase money of his part or tract, and on the 4th October, 1819, Porteous executed to Edward W. Barnwell, a bond conditioned for #4000, and to secure the said bond, mortgaged both the tracts for which he had thus contracted, and afterwards paid to Edward W. Barnwell #2439, on account of the said mortgage. On the 3d September, 1821, Porteous filed a bill against John B. Barnwell and Edward W. Barnwell for a specific performance of their contract; and pending this bill, John B. Barnwell conveyed his part, by the name of Orange Grove, to Porteous, and the bill was amended. This fact stated, a partition prayed for, and parties defendants added ; and an order *pro confesso*taken against Cuthbert Barnwell, and against Edward W. Barnwell, in his own right, and as guardian of the infant, Collin P. Willard. No answer was put in to this bill, but in May, 1824, an order for partition was made, and a writ of partition issued, and the commissioners returned that they had allotted to Porteous, the western half of the plantation; and the partition was confirmed, as appears by the records of the court. Collin P. Willard, the infant, died intestate, without issue, leaving complainant, his parental grandmother, his next of kin, solely and exclusively entitled to his whole real and personal estate. That Edward W. Barnwell, though acting as guardian of Collin P. Willard, and receiving the price of his real estate, never gave security, and is insolvent. That he transferred, without any consideration, the bond and mortgage of Porteous, to ■ John B. *201Barnwell and Cuthbert Barnwell, who lately sued Porteous in this court, obtained a decree of foreclosure of the mortgage, and sale of that portion of the land conveyed by John B. Barnwell to Porteousbut s.o much of the said land assigned to Porteous, by the writ of partition aforesaid, as was not conveyed by John B. Barnwell, is held by a purchase for valuable consideration, under a deed regularly recorded, and therefore having priority to the said mortgage, which was never recorded. Complainant, Joseph Goodhue, has administered on the estate of the infant, Collin P. Willard, in Charleston district. Complainants are willing to confirm thé purchaser’s title to the land of Collin P. Willard, the infant ; and they require of Edward W. Barnwell an account of the monies received by him from Porteous; and from John B. Barnwell and Cuthbert Barnwell, the money still due by Por-teous.

Complainants hoped the defendants would have complied with their request, but they refuse to account either for the land of the infant, or for the money which Edward W. Barnwell has received, and which the other defendants are now endeavoring to obtain from the- purchaser of the land.

Defendants pretend that the land which Porteous bought, was not the land of the infant, whereas the defendants knew that there was a partition by agreement between the parties, and each took his own share ; that John B. Barnwell sold his share to Porteous; that Edward W. Barnwell mortgaged and aliened his share to Benjamin R. Bythewood: and that Cuthbert Barnwell sold and aliened his share; and that the portion which Porteous bought from Edward W. Barnwell, and which was assigned to him along with Orange Grove, could be no other than the share of Jane, the mother of Collin P. Willard, the infant.

John B. Barnwell and Cuthbert Barnwell, pretend that the money due on Porteous’ bond and mortgage, does not belong to the estate of Collin P. Willard, the infant; whereas they know that the consideration received by Porteous for the said bond and mortgage, was the land now held by A. G. Rose, and that the same land was the property of Jane, the infant’s mother. And complainants insist that all the defendants are estopped from denying *202that the said mother of the infant was seized in severalty of the part now held under the conveyance aforesaid, by A. G. Rose, because defendants have all aliened their respective parts of the plantation, and precluded themselves by their deeds, from setting up any pretensions against the title of the infant’s mother to the land, for which the debt now due by Porteous was contracted.

The defendants pretend that John B. Barnwell and Cuthbert Barnwell, are purchasers for valuable consideration, and entitled to recover for their own use, the money due by Porteous.

Whereas complainants charge that the assignment to John and Cuthbert Barnwell was voluntary; made for the benefit of John B. Barnwell’s children, and if any consideration is alleged, complainants require proof' of it. Complainants charge that all the dealings between Porteous and the vendors of the land were equally known to each of the defendants; and that John and Cuthbert Barnwell perfectly knew the origin of the debt from, Porteous to Edward W. Barnwell, and the consideration for which, the bond and mortgage was given complainants. That Edward W. Barnwell must account as guardian of Collin P. Willard, for the money he received for his land; and that John and Cuthbert Barnwell must account for the bond and mortgage in their hands, as persons obtaining possession of a fund belonging to an infant. The prayer of the bill is this, that Edward W. Barnwell do account for the amount he received from Porteous for Collin P. Willard’s share of the land. That all the- defendants be restrained by injunction from receiving from the commissioner in equity of Beaufort District, the amount sales of that portion of the land decreed to be sold under foreclosure of mortgage against Porteous. That Porteous’ bond and mortgage be decreed to be delivered up to complainants, and the assignment thereof to John and Cuthbert Barnwell cancelled. That complainants be authorized to receive from the commissioner in equity of Beaufort district, the amount sales of the mortgaged premises, decreed as aforesaid to be sold by him, and for general relief, for subpoena and for injunction.”

*Brief of John B. Barnwells answer.*

“ The answer admits that defendant, and Cuthbert and Edward *203W. Barnwell, and their sister, Jane Barnwell, were before and at the time of the death of the said Jane, seized of an undivided tract of land on Ladies Island, containing 922 acres: and that the said Jane, sometime about the year 181-, intermarried with one Prentiss Willard; but that the said Prentiss Willard was the son of the complainant, Mindwell Goodhue, defendant neither admits nor denies. He admits that the said Prentiss Willard died on or about the day of , in the year , and left surviving him his wife and one son named Collin ; and that his widow shortly after intermarried with William Matheuman, who, for any thing this defendant knows, or hath heard to the contrary, is now alive, and ought to be a party to this suit. He also admits that the said Jane died on the 16th day of September, 1817, leaving the said William Matheuman and the said Collin P. Willard, and one child, the issue of her marriage with the said William Matheuman, surviving her; but he does not admit that by that event, or the subsequent death of the child of the said William Matheuman, the said Collin Willard became solely entitled to one-fourth part of the said tract of land in right of his mother, as this defendant knew nothing of the said William Matheuman prior to his intermarriage with defendant’s sister, and hopes that complainants may be required to prove that the said William was an alien, as they allege. The defendant admits that there was no partition of the said tract of land in t.he life time of his sister, but he positively denies the allegation, that the separate parts of the heirs had been ascertained and designated by their consent, and one part assigned to each in severalty; and he insists that if the said allegation be true, it does not establish a legal and valid partition, whether made in the life, or after the death of the said Mrs. Jane Matheu-man, as this defendant is fully prepared to show; that the said Edward W. Barnwell and Cuthbert Barnwell, and this defendant, did not only not acquiesce in the partition, as alleged, and accept their portions so designated, but that they acted directly in opposition to any presumption of an intention to abide by the supposed partition.

This defendant, for further answer saith, that in the contract of sale made between the said John Porteous and the defendant, Ed*204ward W. Barnwell, in the year 1819, the said Edward W. Barn-well undertook to sell the undivided fourth of the land to which he was entitled in his own right, and did not sell, or undertake to sell, the part to which the said Collin was entitled, as complainants charge, for as this defendant has stated, there had been no previous partition, and the said Edward W. Barnwell was not then, and has never been, as this defendant is informed and believes, the guardian of the said Collin, (except, perhaps, guardian *ad litem,*for the purposes of the partition ordered in the year , by this court,) and from the day of September, in the year 1819, up to a very recent period, the said Edward W. Barnwell and Cuth-bert Barnwell, and this defendant, always occupied and held the north-east part of the said tract, as the fourth to which the heirs of Mrs. Matheuman were of right entitled.

The defendant admits that-on the first day of July, 1823, and not in the year 1819, the said Edward W. Barnwell did execute a mortgage to one Benj. R. Bythewood, of the north-east part of the aforesaid land, but he is prepared to prove that the mortgage was intended by the said Edward W. Barnwell, and received by the said Benjamin R. Bythewood, merely as an indemnity against the liability of the said Benjamin R. Bythewood, as one of the sureties, of the said Edward W. Barnwell, upon his bond to the ordinary for the proper administration of Captain Prentiss Willard’s estate; and that the said Benj. R. Bythewood has not now, nor ever had, any claim or right to foreclose the said mortgage.— He is further prepared to prove, that at the date of the execution of the said mortgage, the said Edward W. Barnwell had been persuaded by his legal adviser, the said John Porteous, to believe that he was entitled to two-thirds of the said north-east portion,under a transfer or assignment from the said William Matheuman, who was not then generally supposed to be an alien. The defendant denies that the north-east portion of the said land has ever been sold under the mortgage to Benj. R. Bythewood, or that it has ever been sold by the consent of the said Edward W. Barn-well as his property. Some time in the year 1825, when all the facts and circumstances connected with the sale of the southwest half of the land, to the said John Porteous, were well known *205and remembered, one John M. Verdier, caused the said northeast part of the land to be levied upon and sold as the property of the said Edward W. Barnwell, and became himself the purchaser at #15 per acre; but finding that the said land belonged to the heirs of Mrs. Matheuman, he refused to comply with the terms of sale and abandoned it. In the year 1834, the said John M. Verdier caused the said tract to be again levied on and sold as the property of the said Edward W. Barnwell, and became again the purchaser, at #500 for the entire tract; and under that sale, the said John M. Verdier claims now to be entitled to the said north-east part. But this defendant denies that the said John M. Verdier has ever been allowed to take possession of the said tract, as the property of the said Edward W. Barnwell; and this defendant believes that the said John M. Verdier is not now in actual possession, and that Cuthbert Barnwell will not permit him to take the possession thereof; the said land being still regarded as the property of the said Mrs. Jane Matbeuman’s heirs. The de•fendant admits the application of the said John Porteous to this honorable court, for a writ of partition; and that the commissioner’s did allot to the said John Porteous the south west half of the tract, as being the two-fourths to which the said Edward W. Barnwell and this defendant, were of right entitled ; and this defendant hopes to be able to show by the records and papers in the said proceedings, that the said partition was regular and valid, and binding upon the complainants: the more especially, as the undivided half of the said tract was then, and is now, by competent judges, estimated as more valuable than the south-west half, sold to the said John Porteous. This defendant further answering, says, that the right of the complainants, if any they have, accrued on the 4th day of January, in the year 1824, at which time the said Collin P. Willard departed this life; that the complainants knew of this event, as this defendant is perfectly prepared to prove, at least as early as the year 1825; and if they have lost their right to the portion of land designed for the heirs of Mrs. Matheu-man, (which however this defendant denies,) it has not been because the said Edward W. Barnwell sold the said portion to John Porteous, but because they have neglected earlier to urge their *206claim to the said portion. That even supposing there was any thing irregular, or improper, in the partition of the said land made by this court in the year 1822, the defendant submits that the complainants have acquiesced therein for at least ten years, and ought not'now to be allowed to unravel the proceedings: the more especially, as the said Collin P. Willard would now be bound thereby, if alive; and the said Edward W. Barnwell, (if the portion of land sold to John Porteous can be considered the portion of Mrs. Matheuman,) has sustained great loss and injury by the laches of the complainants. This defendant also humbly insists, that if the complainants were ever entitled to the'land sold to the said John Porteous, or to the mortgage given for the purchase money thereof, (which however this defendant in no sort admits, but positively denies,) they are barred by length of time — the benefit whereof this defendant craves may be allowed him as fully, as if more formally pleaded.

The defendant, for further answer, says that on or about the day of , in the year , the said Mrs. Jane, being then a widow, did make and execute her certain bond, under her hand and seal, whereby she bound herself to pay to this defendant the sum of $283 33, with lawful interest; and shortly after added to the said bond the sum of $122 87, making together the sum of $406, besides interest; which amounts, (the said Mrs. Jane Ma-theuman having died before they became payable, and no one ever having administered upon her estate,) are now due and owing to this defendant; and if thfe said mortgage can by any possibility be regarded as for the purchase money of the said Mrs. Jane Matheuman’s portion of the land, this defendant submits that he at least ought to be allowed to retain therefrom the amount of the principal and interest upon the aforesaid bond. And this defendant denies all combination, &c.”

*Brief of Answer of Edward W. Barnwell.*

“ The defendant admits himself to have been seized as tenant in common with his brothers, J. B. Barnwell and Cuthbert Barn-well, and his sister, Jane Barnwell, of a tract of land on Ladies Island, containing 922 acres, inherited from their deceased father, *207John Berners Barnwell. Jane Barnwell, in 1812, married Pren-tiss Willard, who died the same year, leaving her, and a son named Collin Prentiss Willard, surviving him.

Jane afterwards married William Matheuman, whom the defendant neither admits, nor denies to have been an alien, as alleged by the complainants, and requires proof of the fact. Mrs. Jane Matheuman died in 1817, leaving surviving her the said William Matheuman, Collin Prentiss Willard, and also an infant child, who died shortly after. In 1819, and not before, a survey of the land was made, and a division of it into four parts, which by mutual consent were assigned as follows among the heirs, viz: of the two parts lying on the river, one called Orange Grove to John B. Barnwell, the other to this defendant, Edward W. Barnwell; of the two not lying on the river, one called the north-east part, to Collin Prentiss Willard, (or the heirs of Jane Matheuman, whoever they were,) and the remaining to Cuthbert Barnwell.

In 1819, John Berners Barnwell and this defendant made a contract of sale to John Porteous of their two parts, constituting the south-east half of the tract, lying on the river, comprising no portion of the land of Collin Prentiss Willard, whose share, if any, was the north-east part. On this contract, Cuthbert Barnwell was their surety to John Porteous, who, to secure the purchase money, gave this defendant his bond for $4,000, and a mortgage of the said half lying on the river. On this contract of sale, John Por-teous; in 1821, filed a bill for specific performance, which resulted in John B. Barnwell and this defendant’s being decreed to execute titles: and the bill was amended and writ of partition issued, and John Porteous was put in possession of the aforesaid half upon the river, as the proper portions of John B, Barnwell and of this defendant, and of no other, with all which John Porteous is well acquainted. That on the contract of sale to Porteous, he, defendant, took possession of the north-east part, and in 1823 mortgaged it to B. R. Bythewood, for the following reasons, and under the following circumstances, widely variant from those stated in the complainant’s bill. On the death of Mrs. Jane Matheuman, and of the child of the second marriage shortly after, William Matheuman, the husband, acting on the legal advice of John Por-*208teous, (who persuaded him that he was entitled as heir, doubly to his deceased wife and deceased child, to two-thirds of the aforesaid north-east part,) assigned the same to Porteous for valuable consideration, as Porteous says, who then prevailed on this defendant to accept the said assignment by Matheuman, in part payment of his, the said Porteous’ bond for the land, and to give a receipt upon it for $2,356, though the assignment eventually realized only about $994. Under this assignment, this defendant took possession of the north-east part, holding it as his own however, to the extent only of his supposed interest, and never denying or questioning the right of Collin Prentiss Willard to one-eighth of it. In 1823, this defendant executed a mortgage of his interest in the said north-east tract then acquired, to B. R. Bythewood, which, though drawn with the usual condition, was meant only to indemnify Bythewood from any loss, by becoming surety to this defendant, in his administration of Prentiss Willard’s estate, then deceased ; nor has the condition been ever broken or forfeited. In all these .proceedings, this defendant was governed by the advice of Porteous, then a practising lawyer. In 1824, Collin Prentiss Willard died unmarried and intestate, leaving this defendant possessed in the manner just stated, of the north-east part; but this defendant denies having ever become his guardian, as charged in the complainant’s bill. In 1825, the said north-east part was levied •on as the property of this defendant, at the suit of some of the defendant’s creditors, and John M. Verdier bought it at $15 per acre; but on being assured by Porteous, that the land of right belonged to the representatives of Mrs. Matheuman, and not to this defendant, Verdier refused compliance with the terms of sale. In 1834, the land was again sold at the suit of some of the said judgment creditors, and the said Verdier bought it in for only $500, or a little more than $2 per acre ; no one wishing to purchase a title rendered doubtful partly by the fraudulent representations of Por-teous, and partly by the inexcusable laches of complainants, who defendant charges, knew of the death of Collin Prentiss Willard, as early as 1824; and knew that this defendant was in possession of the portion in which the said Collin Prentiss Willard was interested, as early as 1825. And defendant for plea to complainants’ *209bill saith, that if the complainants ever had any cause of suit against defendant for the matters charged in the bill, the same did accrue above ten years before the filing of the bill, and serving process on defendant. And for further plea saith, that he did not, at any time within ten years before filing complainants’ bill, or service of process to answer, on him, ever promise to account or satisfy complainants for the matter stated in the bill; and therefore he pleads the statute of limitations, and prays to be hence dismissed with costs.”

*Brief of Answer and Disclaimer of Guthbert Barnwell.*

*“*The answer admits that this defendant, John B. Barnwell and Edward W. Barnwell, and their sister, Jane Barnwell, were seized before, and at the death, of the undivided tract of 922 acres on Ladies Island; that Jane married Prentiss Willard, who died, leaving his widow, and a son named Collin; that the widow njar-ried William Matheuman, and died on the 16th January, 1817, leaving Matheuman and a child, and also Collin Prentiss, surviving her. There was no partition of the tract in Jane’s life ; that he denies the allegation, that the separate parts of the heirs had been designated by their consent, and one part assigned to each in sev-eralty. On the contrary, defendant never acquiesed in any other partition, than the one made by the court in 182-.

Defendant admits the application of John Porteous to this court in 1822, for a writ of partition to divide the land so as to put him in possession of two-fourth parts thereof; and that the commissioners, in executing the writ, did allot to Porteous the south-west half of the whole tract; defendant is not aware of any inequality in the partition, and has felt bound thereby.

That Edward W. Barnwell, in making the contract of sale to Porteous set forth in the bill, was influenced by the advice of Por-teous ; but defendant does not believe, (and did not so consider at the time,) that Edward contracted to sell one-fourth of the land, as guardian of Collin Willard. That such was Edward W. Barn-well’s design, has always been denied by Porteous himself, until lately. That from the time of the contract of sale, and division of the land into two equal parts by the commissioners, under the writ *210of partition, this defendant, and John and Edward W. Barnwell, have always held the north-east fourth part of the tract, as the portion to which the representatives of their sister Matheuman was entitled; and believe that Edward W. Barnwell, who resided on it occasionally with this defendant, never meant to hold it adversely further than his claim to one-half, under an assignment from Mrs. Matheuman, which he believed to be good, would warrant.

Defendant has heard that Edward W. Barnwell assigned the bond and *mortgage given*by Porteous for the purchase money of one-fourth the tract, to this defendant and John B. Barnwell, in trust for the infant childen of John B. Barnwell; that this defendant never accepted the trust, or inferred, or consented, that his name should be used as such trustee ; and disclaims all right, title, and interest, to the said bond and mortgage, and the money due thereon. Denies combination, &c.”

*jEvidence taken in writing, and by consent.*

John Porteous examined for complainants.

Witness knew Matheuman, he married Mrs. Willard in 1817; he was a midshipman, or some other under officer, in the British navy. Does not recollect whether he wore the British dress or undress uniform, pie left Beaufort about six or eight months after his wife’s death; never claimed to be a naturalized citizen of the United States. He resided in Beaufort about one year and a half; has never heard of Matheuman since, never heard that he was dead; knows nothing else relative to the birth, occupation, &c. of the said William Matheuman.

Cross-examined. — Does not recollect when Collin Willard died; He died in Beaufort. The deed of assignment, or paper marked (A,) was designed to convey to witness all of Matheuman’s interest in right of his wife, in the real and personal estate of her father and mother. Witness was under the impression that Matheuman was entitled to, and could hold one-third part of the real estate of his wife. When witness assigned the deed of assignment marked (A) to Edward W. Barnwell, he was of that opinion, and did tell Edward W. Barnwell that such was his opinion. Matheuman *211owed witness at that time $2,439 36. Witness did not make any estimate of Matheuman’s property, but considered it ample security for the payment of that sum.

5th question. — Do you recollect in May, 1825, that the northeast fourth of the tract of land on Ladies Island, (originally the property of John B. Barnwell, Sen.) was sold by sheriff Cheney as Edward W. Barnwell’s land, and purchased by John M. Ver-dier at $15 per acre ; if you do, say, did you not inform Edward W. Barnwell by letter, in the June after, that Mr. Yerdier could not hold it; if yea, why were you of that opinion. Answer.— Witness recollects it was so. It is probable he did write the letter to Edward W. Barnwell; his reason, if he did, was because he, (witness) had bought E. W. Barnwell’s part, (the north-east part) himself, and of course could not be sold to John M. Verdier.— Witness cannot now give a reason why, if Matheuman was an alien, he drew in 1827 the return for Edward W. Barnwell marked (B,) he has forgot. Witness was Edward W. Barnwell’s legal adviser at that time. To 7th question, if you knew Matheuman in 1826 to be an alien incapable of taking lands by descent, why did you prepare paper (C.) Witness answered, can’t now tell; memory is not good at present. In September, 1819, John B. Barnwell, Edward W. Barnwell, and Cuthbert Barnwell, did bind themselves by bond, to make witness good titles to the south-west half of the tract of land on Ladies Island. Matheuman was not consulted, because he had no interest in it, having already assigned all of his interest. To 9th question, did you not, in 1821, file a bill against the said John and Edward, to compel them to perform their contract specifically; did you not afterwards amend your bill, and pray for a writ of partition ; if yea, why did you state in the amendment, that Edward W. Barnwell and Collin Willard were interested in the half of the land, not contracted to be sold to you; how were they interested, explain. The witness answered, does not recollect; thinks he did. Did pray for a writ of partition; can’t recollect his reasons for stating in amendment, &c.; does not know how they were interested. To 10th question. In 1827, as garnishee in the attachment cause between John B. Barnwell and William Matheman, you returned that you had *212purchased a tract of land of Edward W. Barnwell, did you mean the north-west fourth of the Ladies Island land. Witness answered, he meant the north-west part.

To witness’ knowledge, complainants were first informed of Collin Willard’s death after -the proceedings in partition. To 12th question, did not Edward W. Barnwell assign your bond and mortgage to him, to his brother, in trust for his wife and children, by your advice ; did you not recommend it, and promise, if it were done, to confess a judgment on the bond ; and did you not after-wards confess a judgment, as you had promised ? Witness answered, he did assign, &c.; he did confess judgment. Witness and John B. Barnwell are on good terms. Witness gave Good-hue information of his claim, and how the property was situated, &c.

J ohn M. Baker, examined for defendants.

John Cheney was sheriff of Beaufort district in the years 1825 and ’26; witness was his deputy in those years. He knows of a levy and sale, by the sheriff, of a tract of land on Ladies Island, as the property of Edward W. Barnwell; the land was sold to John M. Verdier. It was sold either in 1825 or 1826. It was sold by the acre, at f 15 per acre. It was good land, situated on the road, (public,) and is the north-west corner of lands formerly belonging to John B. Barn-well, the father of the present John B. Barnwell. The number of acres sold was two hundred and odd. The purchaser did not comply with the terms of sale; witness does not know why he did not.

Cross-examined. — Witness knows the tract of land ; the northwest corner of the tract of land formerly the estate of John B. Barnwell, situated on Ladies Island public road; whole of the tract was sold. He, Edward W. Barnwell, claimed it as his own property. Does not recollect of his saying the land was the property of the heirs of William Matheuman; he was in possession, and living on the tract. Always understood, and heard Matheu-man say he was a British officer. Merely heard it reported that he was dead, and afterwards heard it contradicted.

Benjamin R. Bythewood’s testimony. — The mortgage given by Edward W. Barnwell to witness, was given to indemnify witness *213as security. The condition, as understood, has not, to witness’ knowledge, been broken or forfeited. Has never been required to pay any sum, or sums of money, as the surety of Edward W. Barnwell on his administration bond. Has never foreclosed the mortgage; the land described in it has never been sold to satisfy the mortgage.

Cross-examined. — Edward W. Barnwell mortgaged the land to witness as his individual property; ’twas his own property: the part of course which he mortgaged. Does not know what part he considered as the property of the heirs of Matheuman; does not know that he was ever in possession of that part of the tract claimed by the heirs of Matheuman.

The testimony of Paul H. Barns. — Witness knows the tract of land on Ladies Island, which originally belonged to John B. Barn-well, the father of the defendants. Witness thinks those parts of said tract of land which belong to Edward W. Barnwell and Cuth-bert Barnwell, are most valuable. He thinks part on the river most valuable. He thinks parts on the river have always been most valuable. * ^

Cross-examined. — The tract of land on Ladies Island was originally divided into four parts ; one to Jane Barnwell, now owned by Hasell; another to John B. Barnwell, now owned by Captain Reed; another to Edward W. Barnwell, now owned by John M. Verdier; the remaining part to Cuthbert Barnwell, still in his possession. The part allotted Mrs. Matheuman, is now owned by Wm. Hasell; the land joins Charles Givens, near the Ladies Isl- and public road; east meets Edward W. Barnwell, now John M. Verdier’s part; south joins Capt Reed; and west is bounded by the river. If there is any disproportion in the present value of the four parts, what has created the inequality, witness can’t say; should suppose the value was equal at its partition. If, however, there was any inequality, it was to the advantage of John B. Barn-well, who had buildings, &c. and a landing place.

The testimony of Cuthbert Barnwell. — There was no division of the land prior to the death of Mrs. Matheuman. There was a partition by parol, in January, 1819, between the three, in which the north-west fourth was set aside for the heir at law of Mrs. *214Matheuman; that in September, 1819, a different arrangement was made, by which the north-east fourth was set aside for Collin Willard. That the north-east fourth is more valuable than either of the other fourths. That Edward W. Barnwell, and his brothers, resided on that fourth, but never held it adversely.

*The following are the Deeds and Papers referred to in the Testimony of John Porteous.*

(A.)

*The State of South-Carolina:*

To all to whom these presents shall come, William Matheuman, of Beaufort, sendeth greeting. Whereas the said William Ma-theuman, by his bond or obligation under his hand and seal, bearing even date with these presents, became bound to John Porteous in the penal sum of four thousand five hundred and thirty dollars, with the condition thereto annexed for the payment of the sum of two thousand two hundred and sixty-five dollars, with interest from the 13th of January, 1818 ; and whereas, there is now justly due and owing from the said William Matheuman, to the said John Porteous, the above mentioned sum of two thousand two hundred and sixty-five dollars, with interest as aforesaid ; and whereas the said William Matheuman, by virtue of his intermarriage with Mrs. Jane H. Willard, daughter of John Berners Barn-well, Esq. and Mrs. Jane H. Barnwell, both of whom are deceased, and widow of the late Captain Prentiss- Willard, is entitled to certain parts or portions of the estates of the said John B. Barn-well, Jane H. Barnwell, and Prentiss Willard, which right and interest the said William Matheuman hath agreed to assign unto the said John Porteous, for the better securing the payment of the said sum of two thousand two hundred and sixty-five dollars, with interest as aforesaid, now know ye that the said Wm. Matheuman, for the end and purpose aforesaid, and in pursuance and performance of the said agreement, and for and in consideration of the sum of one dollar to him in hand paid at or before the sealing and delivering these presents, by the said John Porteous well and truly paid, *215the receipt whereof he the said Wm. Matheuman, doth hereby acknowledge, hath assigned, transferred, and set over, and by these presents doth assign, transfer, and set over, unto the said John Por-teous, his executors, administrators, or assigns, the said right and interest which he, the said William Matheuman, has in the different estates of John B. Barnwell, Jane H. Barnwell, and Prentiss Willard, and all benefit and advantage whatsoever to be had, gotten, or obtained thereby, or by the means or in respect thereof. — . To have, hold, receive, take, and enjoy, the said right and interest in the said estates of John B. Barnwell, Jane H. Barnwell, and Prentiss Willard, hereby assigned, or intended to be assigned, unto the said John Porteous, his executors, administrators, or assigns, for and during so long time, and until the said sum of two thousand two hundred and sixty-five-dollars, with interest as aforesaid, so due and owing from the said William Matheuman, to the said Porteous, shall be fully satisfied and paid ; and the better to enable the said John Porteous, his executors, administrators or assigns, to receive the benefit of the right and interest which the said William Matheuman has in the estates of the said John B. Barnwell, Jane H. Barnwell, and Prentiss Willard, hereby assigned, he, the said William Matheuman, hath ordained, constituted, and appointed, and by these presents doth make, ordain, constitute, and appoint, the said John Porteous, his executors, administrators, or assigns, his true and lawful attorney, or attorneys, irrevocable, in his name and stead, or in their, or either of their own name, or names, but to and for the purposes aforesaid, for and during so long time, and until the said sum of two thousand two hundred and sixty-five dollars, with interest as aforesaid, so due and owing from the said William Matheuman, to the said John Porteous, shall be fully paid and satisfied; and upon receipt thereof, or any part thereof, to make and execute any lawful release or discharge for the same; and further to do all and every other act and acts,, thing and things, whatsoever, which shall be needful or necessary to be done in or about the premises, for receiving thereof in as full, large, ample, and beneficial a. manner, to all intents and purposes, as he, the said William Matheuman, might, or could do, in his proper person, if these presents had not been made ; he, the said *216William Matheuman, hereby ratifying and. confirming all and whatsoever the said John Porteous, his executors, administrators, or assigns, shall lawfully do, or cause to be done, in or about the premises, by virtue of these presents; and further, that the said William Matheuman shall, and will, from time to time, at his own proper costs and charges, make, do, and execute, such further and other lawful and reasonable act and acts, thing or things, assignments and assurances, whatsoever, for the better and more effectual assigning and receiving the right and interest, which the said William Matheuman has in the estates of the said John B. Barn-well, Jane H. Barnwell, and Prentiss Willard, hereby assigned, or intended to be assigned, unto the said John Porteous, for the purposes aforesaid, as by the said John Porteous, *his*executors, administrators, or assigns, shall be reasonabty devised, advised or required.

In witness whereof, the said William Matheuman has affixed his hand and seal, this 25th April, 1818.

William Matheuman, [l. s.]

Signed, sealed, and delivered in the presence of

James Stuart, and

Peter Alrich.

This is to. certify that I have assigned over to my brother John B. Barnwell, all my right, title, and claim, to the within bond, for value received, this 10th July, 1826.

Ebward W. Barnwell.

Witness, Elisha Codding.

I do hereby assign all my right, interest, and estate, in the within mentioned premises, to Edward W. Barnwell, Esq. for value received, this 21st September, 1819. John Porteous.

(B.) •

John B. Barnwell, Assignee *v.*William Matheuman.

Edward W. Barnwell'having been served with a copy writ of attachment in this case, on oath declares the following facts :— *217Some time in the latter part of the year 1818, he sold to John Porteous a tract of land on Ladies Island, and received from him, in part payment of the same, a bond and mortgage to upwards the amount of $2,000, from William Matheuman to the said John Porteous, purporting to be of all his right, interest, and title, which he had derived from the estates of John B. Barnwell, Esq. and Mrs. Jane H. Barnwell, by virtue of his intermarriage with Mrs. Jane H. Willard, their daughter. That the property to which the said William Matheuman was entitled, in the estate of Mrs. Jane H. Barnwell, was sixteen negroes, some of which, viz.: Rose, Nancy, Cuffee, Rose, Sue, August, and John, are now in his possession, in consequence of the above mentioned transfer from John Porteous to himself; and that the property to which the said William Matheuman was entitled in the estate of J ohn B. Barn-well, deceased, was a third of a tract of land to which Mrs. Jane H. Willard was entitled, and negroes, some of which, viz,: , with the land, are now in the possession of himself and brothers. Edward W. Barnwell.

Sworn before me, this 25th October, 1827. )

Witness, G. W. Mokkall. )

(C.)

In consideration that J ohn Porteous, attorney at law, establishes my claim to all of the property to which Wm. Matheuman was entitled by his marriage with my sister, Mrs. Jane H. Willard, to wit: seventy-seven acres of land, and the negroes mentioned in a written opinion of his, as belonging to the said Wm. Matheuman; and in consideration that he will procure an order for the sale of my late nephew, Collin P. Willard’s land, or devise some plan for the sale of it, to satisfy the debts which I have incurred on his account; and that he will advise me in the settlement of that estate, I do hereby promise to assign to him, for the benefit of his children, the sum of dollars, to be paid out of the mortgage which I have of the Orange Grove tract of land.

Signed, sealed, and delivered, in the presence ) of us, this March, 1826 )

*218*The following are the records, and other written evidence, referred to by the Chancellor in his decree.*

John Poeteous *v.*J ohn B. Barnwell, and Ed. W. Barnwell.

*Brief of Bill filed 3d September,*1821, *with amendment*— ■Amended *April,*1822.

The bill states that some time about the 13th day of September, in the year 1819, JohnB. Barnwell, of said district, being seized in fee, or pretending to be so seized, of one-fourth part of a tract of land on Ladies Island, in said district, called Orange Grove — and Edward W. Barnwell being seized, or pretending to be so seized, of another fourth part thereof, (which said tract of land contains in the whole nine hundred and twenty-two acres,) the said John B. Barn-well and Edward W. Barnwell entered into a contract with complainant, for the sale thereof, to said complainant; and in consideration of said bargain and sale, complainant agreed to sell and convey to said JohnB. Barnwell, Edward W. Barnwell, and Cuth-bert Barnwell, to certain uses and upon certain trusts, his two lots in the town of Beaufort, numbered in the plan of said town 355 and 359, and valued at #4,000; which was received by said John B. Barnwell as his full proportion of said purchase money; and the said Edward W. Barnwell, according to the terms of said agreement, was to receive the bond of complainant for #4,000, with interest from the first day of January, in the year 1819: that according to the terms aforesaid, complainant did execute his bond, and the same was received by Edward W. Barnwell, all of which will more fully and at large 'appear, by a copy of said agreement, under the hands and seals of J ohn B. Barnwell and Edward W. Barnwell, a copy whereof is herewith filed and marked A, to which complainant refers, as a part of this bill.

The bill further states, that a partition of said land had been previously made and a resurvey thereof, whereby the said J. B. Barn-well and Ed. W. Barnwell were to have and receive their proportion of said land on the south-west end of said tract of 921 acres, according to a line run by John Norton, Esq.; and that the said south-west end or half, was the land or part contracted for by com*219plainant, which is also fully explained and set forth in said agreement, a copy of which is referred to as exhibit (A.)

The bill further states, that complainant’s conveyance of the two lots above mentioned, was received at the time referred to by the said John B. Barnwell, in full payment of the consideration or purchase money of his proportion of said land ; and complainant has often proposed to the said Edward W. Barnwell, to receive the money due him on complainant’s bond for his-proportion, and complainant is now ready and desirous of completing the aforesaid contract, according to its terms; and to this end he has made repeated applications to the said John B. and Edward W. Barn-well, and requested them to execute titles to complainant for said land, and that the said Edward W. Barnwell should receive the money due him, which complainant was, and always has been, willing to pay. And in this request, complainant had well hoped that the said John B. and Edward W. Barnwell would have complied, as upon every principle of equity and justice they ought to have done. But now so it is, may it please your honors, the said John B. and Edward W. Barnwell, combining and confederating with one another, and with divers other persons, how to defeat complainant in his just right to said land, have altogether refused to comply with the reasonable request of complainant in the premises, for which complainant avers they can have no reasonable excuse. In tender consideration whereof, and for as much as complainant is remediless in the premises by the strict rule of common law, and relievable only in this honorable court, where matters of this kind are peculiarly cognizable : to the end, therefore, that the said John B. Barnwell and Edward W. Barnwell may true and perfect answer make to all and singular the matters and things aforesaid, and particularly whether they did not execute the writing, a copy of which is herewith filed, and whether complainant hath not often applied to them, and informed them of his readiness to complete said agreement, and requested performance on their part: and that said John and Edward may be compelled by a decree to execute said contract specifically, by making a good and indefeasible title to the said land ; bill prays for subpoena and general relief. W. D. Maktin, Complainant’s Solicitor.

*220Complainant, by way of amendment to his original bill, by leave had and obtained, further shows that the said John B. Barnwell and Edward W. Barnwell, since filing said, original bill, have executed titles to complainant agreeably to the terms of said agreement, whereby that part of said tract of land called Orange Grove, is now vested in complainant; and the other part in Edward W. Barnwell in his own right, in the said Edward W., as guardian of Collin P. Willard, a grandchild of John B. Barnwell, deceased, by Jane, his daughter; and the other fourth in Cuthbert Barnwell.— Wherefore complainant prays that partition may be made of said land, so as to allot to complainant his proportion, according to the terms of said agreement, and his n'ght in the premises.

[exhibit a.]

*The State of South-Carolina.*

Know all men by these presents, that we, John Berners Barn-well, Edward Wigg Barnwell and Cuthbert Barnwell, are held and firmly bound unto John Porteous in the full and just sum of $ 16,000, to be paid to the said John Porteous, his certain attorney, executors and administrators, or assigns; to which payment well and truly to be made and done, we bind ourselves, and each and every of our heirs, executors and administrators, jointly and severally firmly by these presents: Sealed with our seals, and dated the thirteenth day of September, in the year of our Lord 1819, and in the 44th year of the sovereignty and independence of the United States of America.

The condition of the above obligation is such, that whereas the said John Berners Barnwell hath agreed to sell and convey to the said John Porteous, one-fourth part of a certain tract of land, situate, lying and being on Ladies Island, in the parish of St. Helena, which by a late resurvey made by John Norton, Esq., contains 922 acres; and the said John Porteous, in consideration thereof, hath agreed to sell and convey, and hath sold and conveyed, to John Berners Barnwell, Edward Wigg Barnwell and Cuthbert Barnwell, two lots of land in the town of Beaufort, estimated at #4000, for which sum the consideration in the deed of conveyance is expressed, and which are designated in the plan of the said town *221by the numbers 355 and 359, with the messuage or dwelling house and outbuildings thereon, to them, their heirs and assigns, to and for the several uses and intents as are declared in the said deed of conveyance. And whereas'the said Edward Wigg. Barnwell hath agreed to sell and convey to the said John Porteous, another one-fourth part of the said tract of land; and the said John Por-teous, in consideration thereof, hath given to the said Edward W. Barnwell his bond, conditioned for the payment of $4000, with interest from the 1st of January, 1819, payable annually; and the principal, or any part thereof, to be paid at any time before the 1st of January, 182-, Now, therefore, if the said John B. Barn-well and Edward W. Barnwell, being thereunto requested by the said John Porteous, shall and execute to the said John Porteous, his heirs and assigns, and deliver to the said John Porteous, a good and sufficient deed of conveyance of the south west half of the said tract of land, known by a line drawn by the said John Norton in his survey, which divides the said tract of land into two equal parts, each containing 461 acres, and therein warrant and assure to him and them, the same free from all encumbrances, and shall also permit and suffer the' said JohnPorteous, his heirs and assigns, peaceably and quietly to hold possession, to receive and take to his and their own use, the rents and profits and premises, and of every part thereof, from the 1st of January, 1819, until such conveyance and assurance shall be made as aforesaid, without any suit, disturbance, or denial of them, the said John B. Barnwell, Edward W. Barnwell, or Guthbert Barnwell, their heirs, executors, administrators, or any of them, or any other person or persons, by his or their, or any of their means, right, title, or procurement; then the obligation to be void and of none effect, or else to remain in full force and virtue.

JOHN B. BARNWELL,

Edward W. Barnwell,

Cüthbert Barnwell.

Sealed and delivered in the presence of—

*James*Graham, and

*William Joyner, N. P.*

*222*State of South- Carolina:*

By William Joyner, Notary Public, duly commissioned and sworn — I do hereby certify, that I did see the within named John B. Barnwell, Edward W. Barnwell and Cuthbert Barnwell, sign, seal and deliver the above, as their act and deed; and that I did, together with James Graham, witness the execution thereof.

Given under my hand this 6th October, 1819.

William Joyner, N. P.

*State of South-Carolina, Beaufort District:*

To Edward W. Barnwell, ¡in his own right and as guardian of Collin P. Willard, and to Cuthbert Barnwell. — You are hereby strictly commanded and firmly enjoined, that all manner of excuses- being laid aside, you personally be and appear before the judges of the court of equity, for the district of Beaufort, at Coo-sawhatchie, on the 25th day of April next, then and there true and perfect answer to make, upon your corporal oath, on the Holy Evangelists, to all such matters as shall be objected against you, in the bill of complaint of John Porteous ; and also that you do, within thirty days, immediately after the day above appointed and expressed, file, or cause to be filed, in the registry of said court, your plea, answer or demurrer, to' the said bill of complaint.— Hereof fail not, under the pain of one hundred pounds. Given under the seal of the said *court.*

Witness, B. H. Buckner, Esq., register of the court of equity in the said State, for the said district, at Coosawhatchie, the 12th day of April, in the year of our Lord 1822, and in the 46th year of the sovereignty and independence of the United States of America. Wm. D. Martin, *Complainants Solicitor.*

A true copy : *R. J. Davant, Corrísr.*

I do hereby certify that I have, by my special deputy, Henry Zealy, served a copy of the within writ of subpoena in equity, personally on Edward W. Barnwell and on Cuihbert Barnwell, the parties declared in the said subpoena, on the 24th of April.

Robert G. Norton, S. B. D.

■Service proved before me,

this 25th April, 1822 : *David Turner, Q. U.*

*223John Porteous *v.*Edward W. Barnwell et al.

*January Term,.1824.*— Bill *for Partition.*

Ordered, on motion of W. D. Martin, that a writ of partition do issue in this case, directed to James Stoney, George M. Stoney, Joseph Porter and Dr. Thomas Fuller, or any three of them, to admeasure and allot to each his proportion of the lands in the bill mentioned.

*State of South-Carolina, Beaufort District.*— In *Equity.*

To James Stoney, George M. Stoney, Joseph Porter, Stobo R. Perry, and Drs. Thomas Fuller and James Stuart': Whereas, John Porteous lately filed his bill in the court of equity of the said district, alleging among other things, that he was seized in fee and entitled of, in and to one-half part of a certain tract of land on Ladies Island, containing 922 acres, and adjoining .lands of Dr. James Stuart and Charles Givens. And that Edward W. Barn-well, Cuthbert Barnwell and Collin Willard, were entitled to the remaining part of the said land ; and the said parties who were seized in fee with the said John Porteous, of the said land, were required to show cause, if any they could, why the said John Por-teous should not have partition of the said land, so as to be put in possession of his proportion thereof. And afterwards it was ordered by the said court of equity, that a writ of partition should issue, directed to you, for the purpose of making division of the same.

Now, therefore, you the said James Stoney, George M. Stoney, Joseph Porter, and Drs. Thomas Fuller and James Stuart, are hereby authorized, that after being sworn to do impartial justice, to go to and upon the premises as above described, and so to divide the same, as to place the said John Porteous in the possession and enjoyment of his said one part thereof. But if you shall be of opinion that the same cannot be divided, without doing injustice to some one or more of the persons interested therein, then you will so certify to the said court of equity, together with your opinion as to the valuation of the said land. .

And you are requested to return this writ, with an account of your proceedings thereon, to the judges of the court of equity in *224Coosawhatchie, on the 4th Monday in January next, under your hands and seals.

Witness, Benj. H. Buckner, Esq., commissioner of said court, at Coosawhatchie, on the 4th Monday in May, in the year of our Lord 1824, and in the 48th year of American independence.

W. D. Martin, *Complainant's Solicitor.*

In pursuance of the annexed writ of partition, we did repair to the said tract of land on Ladies Island, and do hereby allot to the said John Porteous 461 acres, being one-half of the said tract of land lying and being to the south, on lands belonging to Dr. James Stuart; to the west on Port Royal river, otherwise called Beaufort river; to the north on lands of Charles Givens, called *White*Hall; and to the east on the other half of the said tract, commonly called the Back Tract.

John A. Stuart.

J. H. Guekard.

J. PoRTER.

James Stuart.

Sworn to before me, *J. Porter, J. P.,*Beaufort; S. C.

Sworn to before me, *John A. Stuart, J. P.,*Beaufort, S. C.

John Porteous *v.*Edward W. Barnwell.

*25th. January, 1826.*— Proceedings *in Partition.*

On hearing the return of the commissioners to this'writ of partition', it is ordered, that the same be confirmed, and made final and conclusive between the parties. And it is further ordered, that the costs of this suit be paid by the complainant and defendants in equal proportion.

January 25th, 1820. True copies from minute book B., f. f. 73, 98. R. J. Davant, *Register.*

*The State of South-Carolina:*

Know all men by these presents, that we, John B. Barnwell, Edward W. Barnwell and Cuthbert Barnwell, sons of John B. Barnwell, deceased; in the State aforesaid, planters, in consideration of the sum of $8000, to us paid by John Porteous, in the State aforesaid, planter, have granted, bargained, sold and released, and *225by these presents do grant, bargain, sell and release, unto the said John Porteous, all that tract of land on Ladies Island, called “Orange Grove,” containing 461 acres, being one-half of the tract of land lately belonging to the said John B-. Barnwell, deceased; which on resurvey.by John Norton, Esq., was found to contain 920 acres, situate, lying and being to the south, on lands belonging to Dr. James Stuart, to the west on Port Royal river, otherwise called Beaufort river, to the north on lands of Charles Givens, called “ White Hall,” and to the east on the other half of the said tract, commonly called the “ Back Tractwhich said tract of land, “Orange Grove,” was, at our special instance and request, allotted and assigned by the said John Norton, in the said resurvey, to the said John Porteous, as is designated and expressed in the plat, we having agreed with the said John Porteous, on to sell him the same in fee simple: together with all and singular the rights, members, hereditaments and appurtenances, to the said premises belonging, or in any wise incident or appertaining : to have and to hold, all and singular the premises before mentioned, unto the said John Porteous, his heirs and assigns, forever. And we do hereby bind ourselves, and our heirs, executors and administrators, to warrant and forever defend, all and singular the said premises, unto the said John Porteous, his heirs and assigns, against us and our heirs, and all other persons whomsoever, lawfully claiming, or to claim the same, or any part thereof. And we, the said J ohn B. Barnwell, Edward W. Barnwell and Cuth-bert Barnwell, for ourselves and our heirs, executors and administrators, do covenant, promise, grant and agree, to and with the said John Porteous, his heirs and assigns, by these presents, in manner and form following: that is to say, that we, the said John B. Barnwell, Edward W. Barnwell and Cuthbert Barnwell, now at the time of the sealing and delivery of these presents, are lawfully and absolutely seized, of and in the said tract of land, except as by our obligation to make titles; and all and singular other the premises herein before mentioned and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, of a good, sure, perfect, and absolute estate of inheritance, in fee simple, without any manner of eondi*226tion, trust, proviso, power of revocation or limitation, of any use or uses, or other restraint, matter or thing whatsoever, to alter, change, charge, defeat, or evict the same. And also that we, the said John B. Barnwell, Edward *W.*Barnwell and Cuthbert Barn-well, now have in ourselves good right, full power, and lawful and absolute authority to grant, release and confirm the said tract of land, as by our obligation, and all and singular other the premises herein before mentioned and intended, to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, unto the said John Porteous, his heirs and assigns, forevei’, as aforesaid. And also that *it*shall, and may be lawful, to and for the said John Porteous, his heirs and assigns, from time to time, and at all times forever hereafter, peaceably and quietly to enter into, have, hold, occupy, possess and enjoy, the said tract of land, and all and singular other the premises herein before mentioned and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, without any the lawful let, suit, trouble, molestation, eviction, or interruption of us, the said J ohn B. Barnwell, Edward W. Barnwell and Cuthbert Barnwell, or either of us, or our executors, or administrators, or any other person or persons whatsoever, claiming, or to claim by, from or under us. And that free and clear, and freely, and clearly, and absolutely acquitted, exon- • erated and discharged of and from all, and all manner of former and other gifts, grants, bargains, sales, uses, wills, entails, jointures, dowers, judgments, executions, charges and encumbrances whatsoever, had, made, done, committed, or suffered by us, the said John B. Barnwell, Edward W. Barnwell. and Cuthbert Barnwell, or any other person or persons whatsoever, lawfully claiming, or to claim by, from, or under us. And lastly, that we, the said John B. Barnwell, Edward W. Barnwell and Cuthbert Barnwell, and our heirs, and all and every other person and persons, lawfully claiming, or to claim, any estate, right, title, trust, or interest, of, in or to the said tract of land, and all and singular other the premises herein before mentioned, and intended to be thereby granted and released, or any part or parcel thereof, shall and will, from and at all times hereafter, at the reasonable request, and proper costs and *227charges in the law, of the said J ohn Porteous, his heirs and assigns, make, do, acknowledge and execute, or cause and procure to be made, done, acknowledged and executed, all and every such further and other lawful and reasonable act and acts, thing and things, conveyances and assurances in the law, whatsoever, for the further, better, and more and absolute granting, conveying and assuring, the said tract of land, and all and singular other the premises herein before mentioned, and intended to be hereby granted and released, and every part and parcel thereof, with their and every of their appurtenances, to and for the use and behoof of the said John Porteous, his heirs and assigns, forever, as by him or them, or by his or their counsel, learned in the law, shall be reasonably devised, or advised and required.

Witness our hands and seals, this 5th day of April, in the year of our Lord 1822, and in the 46th year of the independence of the United States of America.

John B. BaRnwell, [l. s.]

Edward W.. Barnwell, [l. s.]

[l. s.]

Signed, sealed, and delivered, in the presence of Edward J. Grayson and John M. Zealy, witnesses to the signatures of J. B. Barnwell and Edward W. Barnwell.

*Mr. Porteous, Dear Sir :*

I wrote you a note last Saturday, but I find you did not receive it. I went on that day as far as Mr. Barnwell’s; they told me that I could not get through that way; I had, of course, to return without seeing you. They told me that good titles could not be given for the 200 acres of the estate of Willard; that the land is worn out, and #30 per acre is asked for it. These ideas caused me to think less of a purchase. Since my return home, however, I have understood that the Messrs. BarnwelJs do not wish the land to be sold yet. This might have influenced them a little in their advice to me on the subject. I regret that I did not see you on that day. I will be in Beaufort in a few days and will call to see you on the subject. I should have been over this week, but Mrs. Wallace has not been well. I am truly yours, &c.

July 24th, 1824. Joseph Wallace.

*228The complainants gave in evidence a letter without date, from John B. Barnwell to John Porteous. So much of it as relates to the matter in dispute, is in the following words:

“ With regard to the adjoining tract you bought of Edward, you know very well that Edward sold you that part, and gave up the part that was run out for him in lieu of it! You mentioned in one of your letters that you wished that part, so as to make the tract more complete. You prove it by saying, when Yerdier had the land sold, supposing it to be Edward’s, you wrote to Edward, saying, that you knew that it could not be sold. You impressed Yer- ■ dier with the same idea; consequently Yerdier quit, and I took possession as the supposed property of my nephew’s, until the business could be settled. You never said any'thing to Yerdier, until you were called upon to settle the balance due by you to Edward, for the part he sold you.”

Charles Givens was also examined for the complainants. The substance of his evidence is given in the chancellor’s decree.

The decree of Chancellor Harper, made on circuit, in the case 1 of John B. Barnwell, assignee, v. John Porteous and others, to foreclose the mortgage referred to in the bill, was read by complainants in evidence.

Complainants offered a plat of the land described in the pleadings, made by John Norton, on the 5th July, 1819; to the admission of which, as a correct delineation of the land, the defendants consented.

It was admitted that Matheuman was an alien, and that the complainant, Joseph Goodhue, took out letters of administration on Collin Willard’s estate, on the 28th day of July, A. D. 1835.

*Chancellor’s Decree.*

“ A plantation on Ladies Island, in Beaufort District, originally belonged to John Berners Barnwell, the eldest, and on his death descended to his four children, to wit, the defendants and their sister Jane, who first married Prentiss Willard, and after his death married William Matheuman; Mrs. Matheuman died on the 16th September, 1817. After the death of Mrs. Matheuman, two-fourths of the plantation were sold to John Porteous by John B. *229Barnwell and Edward W. Barnwell, two of the defendants; Porteous settled with John B. Barnwell for the fourth which was claimed by him and sold as his; and he mortgaged to Edward W. Barnwell the entire moiety, to secure the payment for the fourth sold by him, Edward W. Barnwell. This mortgage was foreclosed, and the funds arising from the sale is now in the hands of the commissioner.

This bill is filed by the complainants, who are citizens of Vermont or Massachusetts, claiming the purchase' money of the fourth part sold by Edward W. Barnwell, on the ground that it was the estate of Collin Prentiss Willard, a minor, of whom the complainant, Mindwell Goodhue, was alleged to be the paternal grandmother and heir at law ; and on whose estate the complainant, Joseph Goodhue, has taken out letters of administration.

The testimony, I think, satisfactorily establishes that Matheu-man was an alien ; that Collin Prentiss .Willard, the son of Mrs. Matheuman by her former marriage, was her only child and heir at law; and that the complainant, Mrs. Goodhue, is the next of kin of Collin Prentiss Willard.

The important question in the case was, whether the northwest portion of the plantation on Ladies Island, marked^B.) in the plat exhibited at the trial, and which was sold by Edward W. Barnwell to Porteous, had been assigned to Collin Prentiss Willard.

The complainants introduced in evidence a plat of the plantation on Ladies Island, made by John Norton, 5th July, 1819; a bond to make titles, from John B. Barnwell and Edward W. Barnwell, to John Porteous, .dated 13th September, 1819; proceedings in chancery concerning the lands, between John Porteous and others, instituted in September, 1821; a decree of foreclosure in a suit between John B. Barnwell, trustee, and others, and John Porteous, February, 1833, and the decree of the court of appeals, July, 1835; a mortgage from Edward W. Barnwell to B. R. Bythewood, dated 1st July, 1833 ; a letter from Wallace to John Porteous, dated 24th July, 1824; and a letter from John B. Barnwell to the same, without date.

Several witnesses were examined by consent, and their testi*230mony is in writing. The only oral evidence taken on the trial, was that of Charles Givens. He stated that he had known the whole plantation some thirty years; he understood from Edward W. Barnwell, that the tract described as No. 3, on Norton’s plat, belonged to him, and he (witness) rented No. 4, from Cuthbert Barnwell, in 1825, for two or three years; he rented No. 3, from J. M. Yerdier, in 1836 ; planted tract B. in 1833, as Rose’s, some in 1835: witness has owned the adjoining plantation since 1808; Edward W. -Barnwell was in possession of No. 3, from the division in *1819,*until it was first sold *to*Yerdier; Cuthbert lived on his own share; Bythewood forbid the sale, (as witness thinks,) saying he had a mortgage: no person gave notice that it was not Edward’s; Porteous bid against Yerdier ; bid off by Yerdier at $ 15 per acre; witness cannot say exactly when the division took place — a long time ago; Yerdier bought in 1825; Edward moved off in 1825, after this sale, to a place his brother gave him; Yerdier held it two or three months, abandoned it — then J. B. Barnwell took possession; John B. Barnwell was then planting B., which he rented from Porteous; John B. Barnwell, told witness the tract B. was Willard’s land; told him so in 1835; witness was cutting some trees on the land ; John B. Barnwell stated to him, that the piece he was then standing on, he formerly owned; Orange Grove, that being the oldest, this had been given to him when they first divided; and that the piece he (witness) was then cutting trees on, belonged to his sister Jane. No. 3, Edward took, being next oldest; and No. 4, Cuthbert took. Witness had this land, (tract B.) levied on prior to 1826, under an execution against Porteous. Porteous had, by letter, offered it to witness for sale ; witness kept the letter and levied on the land; it was sold, and Lubbock appeared and bought it under an execution for Rose.— Afterwards Edward W. Barnwell told witness, if he would take the land, he would transfer to him Porteous’ bond to pay for it, and take witness’ instead of Porteous’. tie said he had sold it to Porteous ; he told him he had sold it as Willard’s property; he was the administrator, and sold it as such. Witness never knew tract B., as any body’s but Mrs. Willard’s; always went under the name of Willard’s; line between tract B. and No. 3, is marked; *231B. is now in possession of Hasell; never heard Edward W. Barn-well’s title to No. 3, questioned. On his cross examination, he said Yerdier told him he had seen Porteous and Barnwell, and he heard from Stuart that Yerdier had been informed the title was bad, and he gave it up; this was in 1825. Thinks the conversation with John B. Barnwell was in 1835; it may have been in 1833. Ever since the sale to Porteous, the tract B. has always been in possession of him, or those claiming under him at the time of the sale in 1825. Porteous and Yerdier were at enmity. $15 per acre was a fair price ; it sold for $500 in 1834, because Yer-dier had abandoned, and the title was doubted. John B. Barn-well kept possession of No. 3, from 1825 until the decree in 1834. Witness understood, in conversation with John B. Barnwell, that the division was probably after his sister’s death: may have been the year of her death. Rose purchased long before 1825; may be 1822. Witness is sure that Edward W. Barnwell told him he had sold the land as Willard’s to Porteous; that the bond was in his possession as administrator of Willard. In reply, this witness stated that the public road divides his (witness’) land from No. 3 ; it was known as Edwards’, as much as any other proprietor’s is known as his. A piece of No. 3, crosses the road and adjoins witness’ tract; witness wished to purchase it, and he did not, because Edward asked $50 per acre for it. Edward Barnwell was present when Yerdier first bought No. 3; he said nothing; did not say it was not his; does not know that Edward Barnwell now owns any property. It was some years previous to the first sale in 1825, that he wanted to buy the little piece. Both John and Edward Barnwell, told him that tract B. was Willard’s land.

The defendants gave in evidence an assignment by William Matheuman to John Porteous, dated 25th April, 1818, transferring all his right and interest in the estate of John B. Barnwell, Jane H. Barnwell, and Prentiss Willard deceased, to secure the payment of his bond to Porteous for $2,265. An assignment of the same by John Porteous to Edward W. Barnwell, 30th September, 1819; and by the latter to his brother, John B. Barnwell, on 10th July, 1826. The bond of John Porteous to Edward W. Barn-well, dated 4th October, 1819, for $4,000, with interest from 1st *232January, 1819 ; on which is endorsed a receipt of Edward W. Barnwell’s, dated 30th September, 1819, for $2,439 36. An assignment of the balance due on this bond fixed at $2,638 25, by Edward W. Barnwell to J ohn B. Barnwell, in trust for his children, dated 1st October, 1826. The testimony of B. R. Bythe-wood, John M. Baker, Paul H. Barns, and Cuthbert Barnwell, is in writing. It was admitted.that John B, Barnwell was the administrator of his father ;• and- that Edward W. Barnwell was the administrator of Prentiss Willard, the former husband of Mrs. Matheuman. A return in attachment by Edward W. Barnwell, 25th October, 1827, in the case of John B. Barnwell, assignee v. William Matheuman, and the return of John Porteous in the same suit. Mr. De Treville stated that a portion of the property included in the returns, had been taken under an elder lien, so that under the assignment of Matheuman, only $900 had been realized. The defendants gave in evidence a bond of Jane H. Willard to John B. Barnwell, dated 13th February, 1816, conditioned to pay $283 33, on 1st January, 1819. An appraisement and division of the personal estate of Mrs. Jane H. Barnwell, (the mother of Mrs Willard, and of the defendants,) between the defendants and William Matheuman, made 16th August, 1817. A statement was received from the commissioner, of the funds in his hands arising from the sales under foreclosure of the mortgage from John Por-teous to Edward W. Barnwell, which were injoined by an interlocutory order here before made. It was admitted that Collin Pren-tiss Willard died on the 4th January, 1824; letters of administration on the estate of Collin P. Willard, were granted to Joseph Goodhue, on 28th July, 1835.

Nearly all the testimony is in writing, and will accompany the decree. It has not been deemed necessary to do more than to notice its adduction; especially as those portions which appear most important, will be fully considered in subsequent observations.

It was said by the chancellor, who tried another branch of this controversy, that on an imperfect developement of the case, “ the parties themselves seemed to him to have had very confused notions of their own transactions.” It is much to be regretted, that *233the very full and scrutinizing examination to which those transactions have since been subjected, has not left a more satisfactory impression.

It is admitted that no partition of the plantation on Ladies Isl- and had heen made, prior to the death of Mrs. Matheuman. The history of the subsequent events seems to be this: In the latter part of 1818, John B. Barnwell and Edward W. Barnwell contracted to sell to John Porteous, two-fourth parts of the plantation constituting the south-west moiety of the said tract, and including the portion (B) now alleged to have belonged to Collin P. Willard. That on the 5th day of July, 1819, at the request of the defendants, a resurvey and division of the tract was made by John Norton, a deputy surveyor, and-was found to contain in the whole nine hundred and twenty-two acres. No. 1 (including the south-' west moiety of four hundred and sixty-one acres,) was laid off for John Porteous ; and No. 2 to be equally divided between Messrs. Edward and Cuthbert Barnwell. No. 2 was again subdivided : figure 3 (being the north-east portion,) was drawn by Edward W. Barnwell; and figure 4 (being the south-east part,) was drawn by Cuthbert Barnwell.

On 13th September, 1819, John B. Barnwell and Edward W. Barnwell executed a bond to John Porteous, the condition of which was, that they would make him titles to the south-west half of the Orange Grove tract, as surveyed by John Norton ; John Por-teous agreed to pay for each fourth part four thousand dollars.— He settled with John B. Barnwell for his fourth of. the land ; and on 30th September, 1819, he executed to Edward W. Barnwell a bond, conditioned to pay him four thousand dollars, with interest from 1st January, 1819; and on the same day he conveyed to him, by way of mortgage to secure the bond, the entire moiety which he had purchased from both. On 3d September, 1821, Porteous filed a bill against John B. Barnwell and Edward W. Barnwell, for a specific performance of their contract to make titles.

On 5th of April, 1822, John B. Barnwell and Edward W. Barnwell executed a conveyance in fee simple to John Porteous, of “ all that tract of land on Ladies Island, called Orange Grove, containing four hundred and sixty-one acres ; being one-half of *234the tract of land lately belonging to' John B. Barnwell, deceased, which bn resurvey by John Norton, Esq., was found1 to contain nine hundred and twenty-two acres; which said tract of land (Orange' Grove,) was, at our especial instance and request, allotted and assigned, by the said John Norton, in the said resurvey, to the said John Porteous, as is designated and expressed in the plat, we having agreed with the said John Porteous to sell him the same in fee simple.”

On 11th April,'1822, the bill of Porteous was amended, and partition prayed ; subpoena was served on Edward W. Barnwell, “ in hisr own right, and as guardian of C. P. Willard,” and on Cuth-bert Barnwell.

No answer seems to have been filed, nor was any further order taken until January term, 1824, when a writ of partition was ordered, directing the commissioners “ to admeasure and allot to the complainant, his proportion of the lands in the bill mentioned/’— On the 4th Monday of May, 1824, a writ was issued. The commissioners made a return, that, in pursuance of the writ, they had allotted to John Porteous four hundred and sixty-one acres, being one-half of the said tract of land. On the 25th January, 1826, an order was entered “ that the return be confirmed, and be made final and conclusive1 between the parties ; and that the costs of the suit be paid by the complainant and defendants, in equal proportion.” ' •_

It has already been decided, in a decree which -was brought to the notice of the court on the trial, that it was not competent for Porteous, or either of the present defendants, to dispute the regularity of these proceedings, or the validity of this partition. I am not disposed, if I had the authority, to question the propriety of this determination. Certainly Mr. Porteous would scarcly be permitted to impugn proceedings in which he was not only a principal participator, but apparently the only moving party. -

But, so far as the rights of Collin P. Willard, or of those claiming under him, are to be affected, I am compelled to regard those proceedings as a mere nullity.

On inspection of the record, *it is*perceived that no part of the land is set off to. Willard: a moiety is assigned to Porteous, but *235the remainder of the premises is left undivided. By agreement of the parties, a partial partition may be made ; but this is not allowed in the compulsory partition by writ. The defendant must bring it against all the remaining co-tenants, and every one must have a part set out in severalty. Co. Litt. 186, a. I do not think that Collin P. Willard was ever made a party in court, in these proceedings. It is certain that he was dead before the order for partition, four months before the writ was issued, and two years before the return of the commissioners was confirmed.

But the subsequent transactions and conduct of the defendants, rather lead to the conclusion, that if they were, in fact, privy to those proceedings, they were regardless of them; and relied on the survey of Norton, made in July, 1819, as having fixed and defined their several rights. Cuthbert Barnwell has no other title or authority for holding the south-east portion of the tract, designated on Norton’s plat as “ figure 4,” of which he has had the exclusive possession for nearly twenty years, and which he rented, during a part of the time, to Charles Givens.. Edward W. Barnwell took possession of the north-east portion, being the part drawn by him, and designated in Norton’s plat as “ figure 3.” ' On 1st July, 1823, he executed a conveyance of this tract, by way of mortgage, to B. R. Bythewood, to indemnify him as surety to an administration bond. In 1825 it was levied on as his property, and sold by the sheriff of Beaufort district. According to the testimony of Givens, Edward W. Barnwell was present at the sale, but said nothing. He thinks Bythewood forbid the sale, saying he had a mortgage. It was purchased by John M. Verdier, for $15 per acre. Edward W. Barnwell then moved off, and Verdier took possession, and held it for two or three months. He then abandoned it, and refused to comply with the terms of sale, as he was not satisfied with the title. John B. Barnwell then took possession, and held it ’till 1834; when it was again levied on by the sheriff of Beaufort district, and sold as the property of Edward W. Barnwell. It was again purchased by J. M. Verdier, for $500, and has since been held by him.

All the testimony strengthens the conviction, that a parol agreement had been made for a partition of this plantation, under which *236the south-west portion was allotted to John B. Barnwell; the north-west portion to Willard; the north-east to Edward W. Barnwell; and the south-east to Cuthbert Barnwell. That Por-teous agreed to purchase the portions which had been allotted to John B. Barnwell and Willard; and in pursuance of the arrangement for division, and preparatory to making titles to Porteous, the survey was made by John Norton, on 5th July, 1819. It will be remembered, that as early as the latter part of 1818, John B. and Edward W. Barnwell had agreed to sell to Porteous. It is said by Cuthbert Barnwell, that the parol partition by which the north-west portion was allotted to Willard, took place in January, 1819; when Edward W. Barnwell undertook to have the survey made, on 5th July, 1819, by which the north-east tract was set off to himself, and the north-west and south-west tracts to Por-teous, how can he allege that there was, at that time, any other division *1*or that he did not sell to Porteous the portion which had been allotted to Willard ? If the parol partition had been prior to the arrangement with Porteous,. and any change had been made in consequence of that arrangement, why was not the survey and plat of Norton made in conformity with the new arrangement ? I am driven to the inference, that Edward W. Barnwell sold the north-west portion to Porteous 'as the property of Willard, intending, as he afterwards told Givens, to hold the proceeds for the éstate of Willard; and that he retained for himself, according to the prior partition, the north-east portion, which was intrinsically more valuable, and had the advantage of a residence, which he always continued to occupy. It is true, that since the statute of frauds, a parol partition of lands is invalid; but I suppose that a court of equity would enforce a specific performance of such agreement, as of any other contract in relation to lands, where the parol agreement has been partly carried into execution. 1 Fonbl. Eq. B. 1, ch. 3, 18. “ Acts to be deemed a part performance should be so clear, certain, and definite in their object and design, as to refer exclusively to an agreement completed, of which they were a part execution.” Hawkins v. Holmes, 1 P. W. 770. This seems to be the condition on which this court proceeds. Now the uniform conduct and repeated declarations of the several parties, *237for nearly twenty years, are not only in confirmation of the parol partition, but are inexplicable, except in reference to that arrangement. It is said that Edward W. Barnwell supposed himself entitled to a part of the north-east tract in right of Matheuman, but he mortgaged the whole in 1823, toBythewood, who declared that he represented it to be his own property, and did not suggest that he claimed under Matheuman. This testimony is not to'alter or add to the deed, but is consistent with it, and to repel any different suggestion. In Massey v. M’llwain, and others, 2 Hill’s Ch. R. 421, King and the plaintiff contracted to purchase a tract of land, but the title was made to King, who gave his note for the purchase money, and it was agreed that the plaintiff should have one-half of the land, on paying his portion of the price; but this agreement was merely verbal, and was never reduced to writing. Immediately after the purchase both entered on the land, and began to improve , and build on it; and not long after, procured a surveyor to run a dividing line between them. From that time both lived on it for about four years, when the entire tract was sold under execution against King. On application of the plaintiff for a specific performance, the court says, “ the proof here is perhaps as perfect as could be expected to be derived from matters depending on memory, not only of the terms of the .agreement between King and the plaintiff, but of the partial execution of it by King in delivering the possession of the land, and running out and marking a dividing line between them, and of the entire performance of the plaintiff of his part of the agreement, by paying the price stipulated ; and it will suffice to remark of these circumstances, that they constitute the proof required by the most rigid rule. 1 Mad. Ch. 380. The plaintiff is therefore entitled to a specific performance.” Many of these remarks are not inapplicable to this case; and would, I think, warrant the court in considering, for the purposes of this decree, that mutual conveyances had been executed in conformity with the parol agreement, It is not perceived that the defendant, Edward W. Barnwell’s case, can be regarded in a more favorable light, than if being in possession of the north-east tract, (which has been sold to pay his debts,) he had filed a bill for partition of the entire premises. In Whaley v. Dawson, *2382 Sch. & Lef. 367, a bill was filed charging that no partition had ever been made, and praying a partition. The answer alleged, that some years previously, a treaty for partition had been set on foot between the defendant’s lessor and the guardian of the plaintiff, who was then an infant, and that a fair partition had been made by parol, by proper and skilful persons apointed on each side ; that the plaintiff fully acquiesced in the partition, and ratified and confirmed the same, as an evidence whereof it is stated, that after the plaintiff came of age, he granted a lease of part of his moiety to Michael Fanaher. Lord Chancellor Manners refused to decree a partition, on the ground that the plaintiff had, by his own act, ratified the partition ; that his acquiescence for so *long*a time, during which improvements had been made, raised an equity which would stop this court from interposing to disturb what had been done ; and that the plaintiff had therefore no right to more than a conveyance, in pursuance of the partition already made. Mutual conveyances were decreed, and the plaintiff’s bill ordered to stand dismissed without costs. After John B. Barnwell, Edward W. Barnwell, and Cuthbert Barnwell have, for so many years, held and occupied their several fourth parts of the plantation under the parol partition, it seems to me inequitable that either of the parties should, at this day, be permitted to call in question the title of Collin P. Willard to the remaining fourth part. The court must presume, in accordance with the repeated declarations of Edward W. Barnwell, that this was Willard’s land, and that he sold it as such to John Porteous. It would seem to follow, that the complainants are entitled to the proceeds of sale.

But the defendants rely on the statute of limitations, in bar of the complainant’s claim. The land was sold to Porteous in 1819. Collin P. Willard was then a minor. It has been assumed, that the portion which Edward W. Barnwéll undertook to sell, was Willard’s land. According to an established principle of this court, “ if a man intrudes upon the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible therefor to the infant in a suit in equity.” 2 Fonbl. Eq. B. 2. Pt. 2, ch. 2, s. 1, and note (F.) Apart then from the declarations of Edward- W. Barnwell, and his acquiescence when he was *239served with process as the guardian of Collin R Willard, I think on principle his acts have fixed his fiduciary character ; that consequently the statute of limitations is inapplicable, and the lapse of time is not sufficient to bar the complainant’s right to an account. But Willárd died a minor in January, 1824, some years after the sale of the land. If the right to require an account of the purchase money was in his legal representative, which is perhaps the true view, (Bradford v. Felder, 2 M’C .Ch. R. 169,) and which the defendants would not, probably, be permitted to deny, the statute of limitations could not begin to run until administration granted in July, 1835. Other views might be presented, not less satisfactory, in order to show that the complainants should not be precluded in consequence of the delay to prosecute their rights, but they are necessarily suggested in the examination of the testimony.

At the close of the trial, the defendant, John B. Barnwell, proved a bond of Jane H. Willard, dated 13th February, 1816, conditioned to pay him #283 33, with interest,'on 1st January, 1817; also, a note of Jane Matheuman endorsed on the bond, dated 25th March, 1817, promising to pay to John B. Barnwell #122 87J, on 1st January, 1818. The defendant claimed the right to retain, or deduct, the amount due on these obligations, if the court should decree that the purchase money of the land belonged to the complainants.

I have some doubt, whether, in any event, John B. Barnwell, who is called on in a fiduciary capacity, would be permitted to avail himself, by way of equitable discount, of a legal demand due to him individually. I am satisfied, however, that in the present state of the proceedings, the claims are inadmissible ; of the note, it may be sufficient to say, that it is null and void, being the act of a *feme covert*In Vernon v. Valk and wife, 2 Hill’s Ch. R. 257, it was determined, that a bond creditor might maintain his action in this court, against the heir at law. But the principle was distinctly recognized, that when the creditor comes into equity, it was requisite that the executor should be made a party. It does not appear, that the legal representative of Mrs. Matheuman is a party to these proceedings.

*240But, if the proper parties were before the- court, it would be difficult to sustain this demand. More than twenty years have elapsed since the date of the bond, and about nineteen -years since the condition was broken. Certainly the personal estate is the primary fund for the payment of debts; and if a creditor stands by, and suffers the personal estate to be squandered, he will not be afterwards permitted to look to the heir; for payment of his demands.

On the 16th August, 1817, (after the bond became payable, and in the life time of Mrs. Matheuman,) a partition was made of the personal estate of Mrs. Barnwell, between the defendants and William Matheuman, in right of his wife. To Matheuman were allotted fifteen slaves, valued at $4,750. It is difficult to believe that John B. Barnwell would have suffered Matheuman to receive, and dispose of this property, without securing the debt due by his wife; but if he did, I think he cannot, at this day, be permitted to resort to the heir at law of the debtor.

It is ordered and decreed, that the defendant, Edward W. Barn-well, account to the complainants for the proportion of the purchase money received by him, on the sale to John Porteous, with interest thereon ; that the defendant, John B. Barnwell, deliver up to the complainant the bond and mortgage of John Porteous to Edward W. Barnwell, and that the assignment be cancelled. It is further ordered, that the commissioner pay over the funds in his hands, and transfer the specialties arising from the sale made in November, 1835, to the complainants, or their solicitors, and that each party pay his own costs.”

The defendants appealed from his honor, the chancellor’s decree, upon the following grounds:

1. Because the north-west fourth of the land was never assigned to Willard by any valid partition, to which he was a party. — - The *parol*partition in January, 1819, was a mere understanding between John B. Barnwell, C. Barnwell, and Ed. W. Barnwell, which was entirely annulled, and destroyed by the contract of sale to John Porteous, in September, 1819, and the subsequent proceedings in equity.

*2.*Because a parol agreement to divide lands is void by the *241statute of frauds, unless followed up by an actual partition, and long and continued acquiescence. But the conduct of the defendants shows, in this case, any thing except an acquiescence in the parol partition; and their possession may be referred as well to the written, or judicial partition, as to the parol.

3. Because the loose declarations of Edward W. Barnwell and John B. Barnwell, testified to by an ignorant and illiterate witness, several years after they are said to have been uttered, ought not to outweigh the answers of the defendants on oath :■ — -the return of Edward W. Barnwell, in 1827, on oath; and the testimony of John Porteous and Cuthbert Barnwell; and the records of the court of equity.

4. Because the execution of the mortgage by Edward W. Barnwell to Bythewood, of the north-east fourth part, in the year 1823, is *fully*explained in his answer, and corroborated by the testimony of Bythewood and Porteous.

5. Because Yerdier’s abandonment of the land in the year 1825, shows that Edward W. Barnwell did interfere by himself, or his counsel.

6. Because, if the decree is sustained, the defendant, Edward W. Barnwell, will, by the laches of the complainants, without any fault on his part, have sustained a clear loss of more than #2,000.

7. Because the proceedings in equity effected a .partition after the accrual of the complainants’ right, and they -suffered a period of nearly twelve years to elapse, without taking any steps, or making any the slightest objections to the proceedings. Those proceedings effected a partition of the land into two equal parts, and ought to be so far binding on the complainants, as to compel them to take half of the north-east or back tract.

8. Because it is clearly proved, that the north-east fourth is of more value than the north-west; and Willard himself, if alive, would now be bound by the partition in equity; much more ought the complainants to be bound.

9. Because the complainants may now, by a writ of partition, obtain the possession of the north-east fourth, which the said Edward W. Barnwell never held adversely; and the purchaser in *242possession bought on speculation, and with a knowledge of the complainant’s claim.

Note. — It will be perceived that in the above case, among the other documents exhibited on the trial, and at the argument of the cause in the court of appeals, there was a *plat,*which is also referred to in the testimony, and in the circuit decree. The Reporter has not thought it essential to the understanding of the- principles decided by the court in this case, that a delineation of the *plat*spoken of, should form a part of, or accompany the report of the case. He is gratified that it is so, for if it were otherwise, the short time allowed *by law*for the publication of the reports, (equity as well as law,) would put it out of his power, to procure an engraving of the plat in sufficient time to accompany his reports. The reader is aware that the decisions of. the courts of appeals, both of law and equity, are required to be published by the reporter within *twelve months*from the time they are delivered. The decisions of the law court of appeals, with all the industry that could be brought to boar on the subject, could not be published earlier than the 1st of October, which leaves but *two months*to get out the equity volume ; a time scarcely adequate to the purpose, and admitting of no delay in the progress of the work. Some further remarks on this subject, may be found in the advertisement to this volume, to which the reader is referred, as also to the advertisement of the reporter to the volume of law reports. R.

10. Because in any view of the case, the defendant, John B. Barnwell, ought to be refunded the expenses of foreclosing the mortgage from PorteOus to Edward W. Barnwell, out of the proceeds of sale in the commissioner’s hands ; and the bill ought to be dismissed with costs, as to Cuthbert Barnwell, who disclaims.

*De Treville,*for the motion.

*Petigru*& *Desaussure,*contra.

Curia, per Johnson, Chancellor.

The court concur in the decree of the circuit court.

It is therefore affirmed and the appeal dismissed.

Harper, J. Johnston and Dunkin, Chancellors, concurred.