#### The So. Ca. R. R. Company *vs.*Anthony S. Toomer, and others.

Where the Court of Equity'orders an action at law, an appeal lies from the decision‘of. the Circuit Court at Law to the Law Court of Appeals.

Where an issue is ordered, no appeal lies from the decision at law to any Court; but, on the return of the issue to the Court from which it emanated, a motion may be made for another issue, or for a new trial.

Where the question is, whether a purchaser is bound to accept the titles, it is not requisite to order an action at law.

Where a testator directed his debts to be paid out of monies due him ; “ but in case my creditors will not wait a reasonable time, to allow my executors to collect my debts, or to raise the sums I owe from the income of my estate, that then, and in such case, I empower my executors to sell and dispose of such part of my estate, real and personal, as they shall think most to the advantage of my *estate*— Held, that the power was conditional, and could not be exercised unless the necessity therefor existed.

The testator died in 1787, and, in 1798, the executors conveyed his land, but made no reference, in the conveyance, to the power. More than fifty years afterwards,-it was submitted to the jury to determine whether the condition had been performed, and their verdict, that it had not, was not disturbed.

BEFORE DARGAN, OH., AT CHARLESTON, MARCH, 1856.

Largan, Oh. This cause was brought up by a bill of interpleader filed by the South Carolina Eail Eoad Company against these defendants. The bill sets forth, that the Com-, pany had purchased, for the sum of ten thousand dollars, a certain tract of marsh land on Charleston Neck, formerly granted to William Cleland, from A. Y. Toomer, one of the defendants. That the said Company were ready and willing to pay the purchase money to the defendant, Toomer, and that he was willing to receive; but that the other defendants, *271Gadsden, LeBruee, and Tucker, bad given them notice not to pay, as they claimed a title to tbe land in question paramount to tbe title of tbe defendant, Toomer, in tbe first instance; and secondly, if the title of Toomer was good, that they held a concurrent title to one moiety of tbe premises. Tbe bill prayed, that the said Company have leave to pay tbe money into Court, and that tbe defendants be enjoined from suing at law. By an order of reference, Master Tupper was directed to report on tbe conflicting claims of tbe several defendants. Tbe Master reported in favor of the title of tbe defendant Toomer, and recommended tbe purchase money be paid to him. Tbe other defendants filed exceptions to tbe report, and upon tbe bearing, two issues at law were directed, to try tbe question of title to tbe land in dispute; in both of which tbe defendant, Toomer, was ordered to be tbe plaintiff, and bis co-defendants, tbe defendants. One issue was as to tbe paramount title, and tbe other as to tbe concurrent title. Tbe report of tbe master, which gives a full abstract of tbe conflicting titles, as well as a full statement of tbe evidence taken before him, was ordered to be read as testimony in tbe cause in tbe Law Court, with leave to produce other testimony. Tbe issues were tried at March Term of tbe Common Pleas for this district, 1855, before Judge Withers, and verdicts were rendered by tbe jury in favor of tbe defendant, Toomer, in both issues, which have been certified by tbe Presiding Judge to this Court. Grounds of appeal were served, and a motion for a new trial made before tbe Law Court of Appeals ; which Court refused to bear tbe appeal, as contrary to tbe practice of that Court; see *Mayrant and Moses*vs. Miller, 8 Bicb. 284; and of this Court, see *Taylor*vs. Mayrant, 4 Eq. Bep. 514, — where it was held, “ that tbe appeal, in such cases, should be to tbe Court ordering tbe issue.” Tbe case came up before me, at this term, on an appeal from tbe verdicts of tbe jury, and an error of law in tbe charge of tbe Presiding Judge. Tbe charge of tbe Judge has been submitted to me, *272and in this instance tbe Chancellor fully concurs in the charge of the Law Judge, and the verdicts of the jury.(a)

*273As to tbe paramount title, it was a mere question of location, wbicb bas been settled by tbe survey and location of tbe two grants — wbicb do not conflict — and there can be no constructive possession against a grant, without an actual possession within its limits. See *GKbson*vs. *Chappell,*Harp. 28; *Slice*vs. Derrick, 2 Picb. 627; *Steedman*vs. *Silliard,*3 Each. 101. As to tbe concurrent title, it is clear, that tbe power conferred on tbe executors of Yanderborst by bis will, to sell, is a naked power, and is to be strictly pursued. Tbe power was expressed in tbe words following, to wit: *“*I order and direct all my just and lawful debts to be settled, paid, and *274satisfied, with all convenient speed, out of sucb monies as may be due to me; but in case my creditors will not wait a reasonable time, to allow my executors to collect my debts, or to raise tbe sums I owe from tbe income of my estate, that then and in sucb case, I empower my executors and executrix, or sucb of them as take upon them tbe burden and execution of this my will, to sell and dispose of sucb part of my estate, real and personal, as they shall think most to tbe advantage of my estate; and I do hereby empower them to make and execute proper titles to tbe purchasers thereof.” Tbe executors conveyed a moiety of tbe marsh to Philip Gadsden. There is no evidence, other than presumption, that tbe contingency bad arisen in February, 1798 — upon which tbe direction and authority to sell vested. Tbe title to the premises vested in tbe devisee of Vanderborst, and could not be divested by those having a naked power, coupled with a condition, or a contingency, unless tbe condition be performed, or tbe contingency occur, and which those claiming under the executors’ conveyance were bound to prove, as part of their muniment of title. Such has been the settled rule of law, from the time of Sir William Jones to the present. See Sugden on Powers, 211; *Williams*vs. *Peyton,*4 Wheaton, 77; *Minot*vs. Prescot, 14 Mass. 496. As to presumption, that question has been settled by the verdict of the jury; but moreover, it could not apply here, as no one was in actual possession of the lands, and a constructive possession is always in him who has the right; and, if the executors’ conveyance conveyed nothing, then, it can convey nothing now, but was void from the first.

It is therefore ordered and decreed, that the appeal to the Chancellor be dismissed, and the verdict of the jury be sustained.

It is further ordered, that the defendant’s exceptions to the Master’s report be overruled, and that the report be confirmed.

*275And tbat tbe said Master do deliver to tbe said A. Y. Toomer bis bond, taken by tbe said Master-for tbe fund paid into Court in this case; and tbat be do satisfy tbe mortgage on bis plantation and negroes in Christ Cburcb Parish, taken to secure tbe said bond.

And tbat it be referred to tbe Master to tax tbe costs in tbe case. Tbat tbe defendant, Toomer,.pay half tbe costs; and Mrs. LeBruce, and Gradsden, and J. H. Tucker, pay tbe other half.

John H. Tucker, one of tbe defendants, appealed first from tbe decretal order directing issues at law to ascertain tbe title of tbe conflicting claimants, on tbe ground tbat tbe order should have directed an action, and not an issue; so tbat any legal questions involved might have been submitted, if necessary, to tbe appellate legal tribunal for settlement.

He also appealed from tbe decretal order of Chancellor Largan, dismissing tbe application for a new trial, on tbe grounds:

1. Tbat as tbe defendant, if asserting a claim to land through tbe Courts of Law, would have been entitled to a second action of ejectment or trespass to try title, tins Court should, by analogy, allow him tbe same opportunity for a second trial, where it becomes necessary for tbe Court to rely absolutely upon tbe conclusions of a jury, in disposing of bis title or interest in land.

2. Tbat bis Honor, Mr. Justice Withers, erred in charging tbe jury, tbat tbe power given to tbe executors of Yander-borst, to sell bis real estate to meet pressing debts, was a conditional power; and tbat it was incumbent on parties making out title through tbe exercise of tbe power, to prove tbe existence of such condition; whereas, it is submitted, tbat this *276was only to be regarded as tbe object of conferring a power, not as a necessary condition to render its exercise valid.

3. Because Ms Honor erred in not charging the jury, that even if the power were conditional, the jury ought, after so great a lapse of time, to presume that the condition had been performed, and that the power had been legally executed.

*Mitchell,*for J. H. Tucker.

*W. Whaley,*for Toomer.

*Yeadon*and *McBeth,*for Gadsden.

*Rutledge,*for Mrs. LeBruce.

*Petigru*and *King,*for So. Ca. R. R. Company.

(a)

**The report of Judge Withers, and the grounds of appeal, are as follows:

An issue was directed from the Court of Equity, one branch of which raised the question, whether the executors of the will of Vanderhorst had properly executed a power to sell real estate for the payment of debts,* upon the due execution of which power the estate of the defendants, as tenants in common, or as holding a concurrent title with Toomer, the plaintiff, depended.

Vanderhorst^ will was dated February 27th, 1786; was admitted to probate February 27th, 1787; and the conveyance by the executors was made on the 13th February, 1798. Ko reference was made, in their title, to the will, or the power given to them therein. The power was expressed in the words following, to wit:

> “I order and direct all my just and lawful debts to be settled, paid, and satisfied, with all convenient speed, out of such monies as may be due to me; but in case my creditors will not wait a reasonable time to allow my executors to collect my debts, or to raise the sums I owe from the income of my estate, that then, and in such case, I empower my executors and executrix, or such of them as take upon them the burden and execution of this my will, to sell and dispose of such part of my estate, real and personal, as they shall think most to the advantage of my estate; and I do hereby empower them to make and execute proper titles to the purchasers thereof.”

The qualified executors conveyed (as already stated) a moiety of marsh land *(i. e.*one-half of forty-three acres) to Philip Gadsden. There was no evidence, other than presumption, that the contingency had arisen, in February, 1798, upon which the direction and authority to sell vested.

X declined to charge the jury that there was no condition, so far as a purchaser was concerned, upon.which depended'the accrual of the power of the executors to sell. I held the contrary, to wit, the title to the premises in question had vested in the devisee of Vanderhorst, and there remained for the space of very near eleven years before the executors conveyed, and that it could not be divested by those having a naked power,' coupled with a condition or contingency, unless the condition be performed, or the contingency occur. That the lapse of eleven years might be. viewed in double aspect, or accounted for on two diverse suppositions, as, first, that the executors had struggled long to keep the creditors at bay, and at last had to yield to the pressure, and sell; or, second, that they had satisfied them in tbe meantime, since it was not usual for creditors of a testator to wait so long, and hence no reference to the power and the contingency which made it absolute, in the deed of the executors. There was no proof of any specific fact, on the part -of 'defendants, to determine, or guide to, the true interpretation.

I declined to charge the jury, it was a presumption of law, that the executors had the power to sell, or, in other words, that the contingency had occurred which made their power absolute. But I did charge them, that their act should be referred to the power, if that had been called into perfect existence, notwithstanding no reference was made to either power or contingency in their deed; and I assumed, *273throughout, that the testator did leave debts *to*be paid. I moreover charged, that the jury might infer, as matter of fact, the existence of that state of things, in February, 1798, which warranted the act of the executors, provided they were so convinced from any evidence in the cause; and hero the jury were duly admonished of the great potency of along lapse of years in warranting a presumption of fact requisite to sustain a continued state of things, meantime affecting possessions, enjoyment, or right of property.

In opposition to such a presumption, Toomer adduced various circumstances, as that the executors sold to Gadsden on credit; that Gadsden never paid; that judgment was obtained against him as late as 1816; that, in a schedule, under the insolvent debtor’s law, in the year 1804, he did not specify this land as part of his estate.

Toomer traced a perfect chain of paper title from himself to a grant, in 1785, to one Cleland.

The jury rendered this verdict: “"We find a good title in the plaintiff.”

The attorney for J. H. Tucker, one of the defendants in the above stated issue, gives notice that he will move for a new trial on the issue directed to try the question of concurrent title in the plaintiff, and J. H. Tucker, defendant, on the following grounds:

1. That his Honor erred in charging the jury that the power given to the executors of Vanderhorst, to sell his real estate to meet pressing debts, was a conditional power, and that it was incumbent on parties making out title through the exercise of the power, to prove the existence of such condition; whereas, it is submitted, that this was only to be regarded as the object of conferring a power, not as a necessary condition to render its exercise valid.

*2.*Because his Honor erred in not charging the jury, that even if the power were conditional, the jury ought, after so great a lapse of time, to presume that the condition had been performed, and that the power had been legally executed.

The opinion of the Court was delivered by

JOHNSTON, Ch.

The defendants, though perhaps not amenable under this bill, as a bill of *interpleader,*submitted to the jurisdiction, and, of course, to the decree proper to be made in such a case.

If an action had been ordered, the appeal would have been to the Law Court of Appeals, from the trial had ; otherwise, when the order is of an issue, or an issue in the nature of an action. In such cases the motion must be made, on the return of the issue, in. the Court from which it emanated, — not by way of appeal, but for another issue or a new trial, — if that Court is not satisfied with what has been done.(a)

We have no'doubt, in this case,it was not requisite to order an action. The question was similar to what occurs in cases *277of purchase of lands. To ascertain whether the purchaser is bound to accept the titles, the titles are referred, and if a good title is reported, the decree is made for specific execution of the contract.

We would remark, that if an action, and not an issue, had been tried in this case, it would by no means follow, that a provision of law which entitles a 'plaintiff., who has brought suit and been nonsuited, let fall his action, or had a verdict against him, to bring a second action within a statutory period, would entitle a *defendant,*against whom a verdict has been rendered, to turn round and sue the plaintiff

On the other grounds, we concur with the Chancellor; and his decree is affirmed, and the appeal dismissed.

DunkxN, Dargaw and Wardlaw, CO., concurred.

*Appeal dismissed.*

(a)

 Lubé, Eq. PI. 161; Adams’ Eq. 378.