#### *Edwards et al.*v. *Edwards et al.*

Charleston,

April, 1848.

The grant in the deed rvas to A, “ his heirs and assigns forever,” but should die “ without leaving issue of his body,” then over, &c. — 7ieW that A took a fee simple, and not a fee conditional, at common law.

i Hill’s Ch. R. 265.

*Before*Dunkin, Ch. *at Charleston, July Sittings,*1847.

The bill was filed by some of the residuary devisees and heirs at law of Daniel Cannon, for partition of the southern moiety, or equal half part of a lot of land in Cannonsbo-rough, and their title to it sufficiently appears by the Decree, copied below.

The executor and devisees of Wm. Doughty are parties defendants. The heirs of the remaindermen are also parties defendants. And the other residuary devisees and heirs at law of Daniel Cannon are defendants.

On the 14th January, 1848, his Honor filed the following decree, which sets, forth such other matters as are necessary to be stated.

Dunkin, Ch. On the 3d of November, 1784, Daniel Cannon executed a deed, by which he conveyed to Wm, Cannon Doughty the southern moiety, or equaj half part, and to Thomas Doughty, the northern moiety, or equal half part, of a lot of land in Cannonsborough. To hold “ *the southern moiety, or half fart, to the said Wm. Cannon Doughty, and. the northern moiety, or equal half fart, to the said Thomas Doughty, their resfective heirs and assigns forever ; under and subject to this froviso, that if the .said Wm. Cannon Doughty, or Thomas Doughty, should die without lawful issue of their bodies, then, their or either of their resfective moieties, is hereby given and granted unto Martha Doughty, Mary Doughty and Rebecca Doughty, (daughters of the said William Doughty,) their heirs and assigns forever, as tenants in common and not as joint tenants.”*In 1816. Wm. Cannon Doughty conveyed in fee to his father, William Doughty, his moiety of the said lot, and afterwards, to wit, in 1836, departed this life without issue.

It is insisted on the part of the complainants, (who are some of the residuary devisees and heirs at law of Daniel Cannon, deceased,) that, on the death of Wm. Cannon Doughty without issue, the estate reverted to the grantor.

If the estate of Wm. Cannon Doughty was absolute, or if the limitation over be valid, the result is equally fatal to the claim of the complainants! But I think that both these points are definitively ruled in *Adams*v. *Chaflin.*It is true the cases are not precisely analogous; but the difference does not aid, the complainants. That was an adjudication on a *102will, in which the intention of the testator is much favored ; and it was there necessary also to resort to the Act of 1824, to enlarge the estate of the first taker. The devise was to. the testator’s “ son, John Chaplin, but if he should die without an heir lawfully begotten by him, then I desire that the said tract of land be given to my brother, William Chaplin.” The testator died in 1776. John, the devisee, died in 1826, leaving no issue, and never having been married. The complainants claimed as heirs at law of William Chaplin, if the limitation should be held good, Or that failing, as heirs at law of the testator, if the reversion was in him. It was held by the Court of Appeals, first, that the limitation over, being after an indefinite failure of issue, was too remote and void • secondly, that the devisee took a fee simple absolute ; “ for the testator,” say the Court, “has used words which-in legal contemplation mean that the land should not go over to the remainderman only upon an indefinite failure of issue, and then that it should not revert to him... These words are equivalent to a grant of the fee to him, and as much import a fee simple as if he had used the words forever.” The bilL of the heir at law was dismissed, and the purchaser from the-devisee declared entitled to a fee simple estate in the land. It is scarcely necessary to add that a deed is construed most strongly against the grantor, and that the terms are sufficiently comprehensive to express not only “the ampleness and greatness of the estate, but also the perdurableness of the same.” In any view it would be very difficult to maintain that this was a fee conditional at common law. There is no express gift to the issue of the body, nor is there any reason for implying it. When an estate is devised to A generally-,, and for want of issue, remainder over to B, A shall take an-estate tail by implication. Because as A had only a life estate by the devise, and B could not take while there was-issue of A, the intermediate interest would be undisposed *of}*the Court, therefore, implied an intention that A should so take that the property might be transmissible through him to his issue. The grant in this deed is not to A for life, orto A generally, but to A “his heirs and assigns forever.”' If he had died, leaving issue of his body, they could no more claim-, *per formam doni,*than could the remainderman in such an event. In case of his intestacy it would be disposed of as any other estate of which he died seized in fee. simple. Lord Coke says that where the gift is to the donee and to his heirs generally, subject to a condition that there should be heirs of his body, the person to whom an alienation was made would have a fee simple, and not merely a fee determinable, on failure of heirs of the body of the donee.

2 Fonbl. 56.

1 Inst. 385. Cited by Preston on Estates 306.

It is very strong, and not strictly warranted by *the*terms, to say, that the fee simple to' William Cannon Doughty was *103subject to the condition that there should be lawful issue of his body. The grant was ample and absolute; but it is pro-videcl that, in a certain event, the estate thus given to him, should he given~ and granted to another. This the law does not permit. But the donor, by the terms of the deed, has parted with his whole interest, and forever. The conveyance of Win. Cannon Doughty to his father, vested a perfect title in the alienee, and the bill of the complainants must be dismissed, and it is so ordered and decreed.

2 Seh. & Lef. 718, and 1 Ei~hardson's Eq. Reports,

The complainants appealed from the above decree, on the following grounds, viz:

1. Because the deed of gift of Daniel Cannon to Win. C. Doughty created a fee conditional at common la~v, and, therefore, upon the death of Wm. 0. Doughty without having been married, the estate reverted.

2. Because his Honor erred in concluding that the conveyance of Wm. 0. Doughty to his lather vested a perfect title in the alience.

3. Because the decree is otherwise repugnant to Law and Equity.

El. PINCKNEY WALKER, comp'ainant's solicitor.

The defendants, Edward Harleston, Francis D. Quash, Sarah Quash, Susan Quash and Francis P. Quash, Jun. also appealed from the decree, upon the following ground:

Because the correct rule, as laid down by Lord Eldon, and adopted by this Court, is that "where a case is made out between defendants, by evidence arising from pleadings and proofs between plaintiffs and defendants, a Court of Equity is entitled to make a decree between the defendants, and is bound to do so. And the rule was applicable, and should have been applied to this case, and the bill retained, and a decree made between co-defendants, in conformity with the opinion of his Honor the Chancellor, as expressed in the Circuit decree.

3. B. CAMPBELL, for appellants.

H. P. WALKER-In support of his grounds of appeal, cited 2 ]31. Corn. 210, Bacon's abridgement, Title Estate Tail, Co. Lyt. 10 and 206; 1 Preston on Estates, 475; 2 Preston on Estates, 289, 292, 4, 5, 302, 7, 8, 320, 346, 505, 7, 8; Idle v. Cook, Lo. Raymond 1152; Agar v. Agar, 12 East, 259; and the Circuit decree of Chancellor DeSaussure, in Cave Johnston and wife v. Ezecutors and Devisees of Wrn. Dought~y, deceased-being the construction this Court put upon the same deed in 1822, vide M. S. Charleston District. He particularly brought to the notice of the Court, the cases of #S~impson v. Simpson, 4 Bin gham, 333, and Blesard v. Simp-.

*1042 Bailey' 246. 2 Hill E. B.. 199.

*son,*3 Manning and Grainger, 930, and compared and contrasted the decisions in those cases, with that made- in the: 'case of *Adams*v. *Chaplin,*1 Hill’s Ch. R. 265.

Petigru, contra,

J. M. Walker, in reply,

Dunkin, Ch.

delivered the opinion erf the Court.

If this question had arisen on a will and not on a deed,, and were to be decided at Westminster Hall and not in South Carolina, there would be much authority to sustain the claim of the complainants. But the rule of law is to construe a deed most strongly against the grantor — and the policy of this country, the course, both of legislation and judicial decisions, has been to unfetter estates and declare the interest absolute in the first takdr. It was not doubted in the argument, nor is it open to question, that the point made by the pleadings, and determined by the Circuit Court, was distinctly adjudicated in *Adams*v. *Chaplin*; but it was strenuously pressed on the Court, that the decision in that cause was not well founded in authority, and should be reviewed and reversed. *Adams*v. *Chaplin*was decided in 1833, and by the unanimous concurrence of a Court consisting of Justices-Johnson, O’Neall and Earle. It has been repeatedly adverted to in subsequent decisions. The general principles are recognised in *Bedon*v. Bedon; and in *Barksdale*v. *Edwards,*the case itself is quoted, its authority recognised, and the principles there adjudicated re-affirmed. The Court is not aware that the authority of the case has ever been questioned in any subsequent decision — it is not a decision in relation to the practice of the Courts, but is, substantially and practically, a Rule of Property, and, after so long an acquiescence, the Court is indisposed to disturb what has been settled, in the vain attempt to conform our decisions to artificial and technical rules, in the application of which the ablest jurists have differed, and continue to differ.

Some of'the defendants have appealed, on the ground that the Court, "having sustained the demurrer, should have made a final decree between the co-defendants. The authorities cited are inapplicable. The demurrer of the principal defendant admits the facts only as between the complainants and himself. As between the co-defendants, no case whatever was made “ by the pleadings and the proofs.”

The decree of the Circuit Court is affirmed, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*