#### Robert M'Daniel *and others,*vs. James Moorman *and Wife.*

*In 1785, C. S. conveyed to Iks grandson C. M. half of a tract-of land, and*1791, *conveyed to T.*Jiff. *the father of C. del. the whole tract; who remained in possession of it until his death in*1801.

*J3y his. will, which was not executed so as to pass the real estate, T, j'rl. devised the tract of land in question to complainant, and other lands to his two other sons, with bequests of personal property to-his sons' and daughters. Socm after the. death of his father, (T. M. who was one of his executors, applied to the widow of testator, and obtained her written agreement to acquiesce in the will and carry its provisions into effect', as if it had been duly executed. This was- done accordingly; each of the sons taking* possession of the land assigned him, which possession had been kept ever since. Held that the agreement thus acted upon and acquiesced in was*binding, *and complainant's title confirmed is-the land possessed by him.*

*Hefmdants, (the heirs of C. M, who was dead) applied to*com,w *plamant, and representing their claim under the before mention-, tioned deed of C. S. he made a verbal surrender of the said half of the tract of land, and delivered possession of it to*them•*, *Held that complainant was not bound by this surrender and de - livery, and defendants decreed to re-deliver possession to him.*

Chancellor *Desaussure.*

This is a case of an uncommon com Hcation of circumstances and perplexity in the points brought into discussion. The fact's are of great extent. In substance they make the following case.

Charles Sims', being in possession of a considerable estate, real and personal, but much embarrassed in debt, which he apprehended might sweep away a great part of his estate, made and executed a voluntary deed of conveyance of one half of a tract of land called the Tinker Bottom tract, supposed to contain about three hundred and sixty acres (but since found to contain 380 acres) to. his grand-son, Charles M'Daniel, then an. infant, on the 3d day of-September, in the year *1785; but bo*remained in possession of the land. This deed was not them put on record. It was found among Charles AhUaniePs papers at his death in the year 1801, and was put on record in 1819„ On the 3d September, 1791, Chárles Sims sold and conveyed the whole of the tract of land called the Tinker Bottom tract, to. Thos. M‘Daniel, the father of Charles, for the consideration *109
      *uf 3501.*sterling, and he took possession and enjoyed the landtili his death in the year 1801.

The said Thomas M'Daniel made and executed his last will and testament on the 4th August* 1800, which was good and valid as to personal estate; but not having been executed in the presence of three witnesses, was in-operative as to the real estate. By that instrument he devised to his wife Frances* /now' Mrs. Dugan) the plantation on which the testator then Jived, and at her death to his Son Robert, the complainant, and fais heirs; with permission for bis daughters to live on it till his son Robert should attain twenty-one years of age. He also-devised to his sons diaries and Thomas M‘Daniel and their-heirs, two tracts of land., situate in Chester and Union districts, (one of which was purchased from John M‘Cool and the other from William Pearson) to he equally divided between them. There were bequests of personal property to six daughters and to his sons. The executors were Charles McDa« niel, Richard Fair and Robert Crenshaw', who qualified on the will after the death of the testator.

Charles M-Daniel, one of the executors, represented to the widow' that all the children w'ere satisfied with the will, and requested her concurrence therein; and she expressed in writing her concurrence in the provisions of the. will. And the said widow, in consequence of the said understanding, never claimed her third part of the real estate of the deceased husband, to which she was entitled to in fee simple, in case of his intestacy as to the real estate. And the sons held and enjoyed the real estate conformably to the said imperfect will, as if tho same had been duly executed. The lands devised to Charles more particularly, were held by him in his life time, and are now held *by his*daughter (Mrs. *Moorman)*the defendant. Charles M‘Daniel lived to foe twenty-four years of age, and never during bis life claimed the laud which was contained in the deed to him of the 3d September, 1785, by Charles Sims. Charles M‘D aniel died in the year 1801, leaving a widow-pregnant, who afterwards had a daughter; and she hath since intermarried with James Moorman, the defendant.

*110„ Upon this state of facts, there can be no doubt that the will, not having been duly executed according to the statute *to*pass real estate, the same was inoperative as a will. The defendant contended that no parol proof could be received to establish the same as a will. This is most certainly true. But it was further contended that no parol proof could be received to establish that the parties had agreed to abide by the will, and *to set up any rights under or conformable thereto. If this*had rested in mere parol agreement, there would have been an cad of the question; such parol agreement could neither be admitted to proof nor established by it; but a more serious and difficult question arises. Where parlies have acted under such an agreement; when the widow has given up all her legal rights; when the devisees have received the real *estate*devised *to*them, and have held and enjoyed the same for *twenty years,*are they not bound thereby? And ought not the proof to be iecived to shew on what ground all these actual and important transactions took place; in which Charles took so large a part and derived such substantial benefits? in *my mind it would have been*a fraud to have received these benefits, and then to have denied others similar benefits. On full consideration of the facts of the case, I am of opinion that they are bound, and that such evidence should be received. It would be most mischievous if they were not. The widow’s right to a third part of the real estate would be revived; the daughters might come in for their share of the real estate; and a ruinous contention arise as to the rents and profits of the real estate held by the devisees unde? the family settlement thus made.

It is true that the minority of the younger children would prevent their being bound by the acts of the mother and the elder children. But they make no objection to the family arrangement; the objection is made by the defendant, though Charles M‘Damel, the father of Mrs. Moorman, was the most urgent with the widow and others to adhere to the arrangement of the will, and he took and his daughter now actually holds and enjoys the real estate designated for the said Charles M‘Daniel* under the said imperfect will. If this were not *111■allowed to be proved and tbe veal transactions discovered, what would be the situation of the other parties? The persons named in tbe said imperfect will have held tbe land intended for them upwards of twenty years, claiming them as their own, and the statute of limitations would give them a title. Now could it be endured that the daughter of Charles M'Daniel, one of the de-visees claiming and holding the lands under the parol agreement to abide by the provisions of the imperfect will, should hold her land by possession under said agreement, and be permitted to set up her minority under the same agreement. The whole must be carried into effect or the whole he declared void, in ■order to reinstate the parties in their original rights as if no such express will had been made and no possession bad been held under the same. Indeed under such circumstances as have been stated, the courts of justice, both of law and equity, would after twenty years possession presume agremeents and even grants, to support the title of .the parties. The statute of limitation in support of a possession in this case, began to run in the life time of Charles M‘Daniel, and even if it were more settled than it is, that intermediate disabilities stopped the operation of the statute, it would not he permitted to the parties claiming the operation of that statute to the prejudice of others, to derive a benefit from the law when situated precisely as those others were- The result is that I consider the acts of the parties, the long acquaintances and the actual possession for such a length of time, as establishing their respective rights to the lands in question.

We now come lo the consideration of a very important question in this case. It is as follows: — Is the complainant, Robert M‘Daniel, bound by the deed which he executed on 21st July, 1819, by which he conveyed a moiety of Tinker Bottom tract to Col. James Moorman, and also ten acres, part of the tract of 160 acres of the said tract reserved to the said Robert M'Daniel. This question depends chiefly on the fairness of that transaction. It is insisted upon for the complainant, Robert M‘Daniel, that he was induced to execute that deed by misrepresentation, and by ignorance and misappre-*112bcnsion of his rights, and by threats of being sued and made responsible for heavy arrears of rent and damages; and that the secret and voluntary deed of 1785, (never recorded till 1819,} was not valid against Thos. M'Daniel, a purchaser for valuable consideration in 1791, who held the land till his death; at which time Charles M'Daniel, the grantee, w-as of age, and acquiesced in the disposition of it made by his father, and took and held other lands in lieu thereof, given him *by his*father; and therefore such deed formed no just foundation to claim from Robert M‘Daniel a surrender of his rights in the land.

The case made by the evidence appeared to be, that the defendant, James Moorman, after his marriage with Miss M'Daniel, daughter of Charles MfDaniel, coming into possession of the papers of the estate, found the deed of Charles Sims to said Charles M'Daniel, dated on the 3d Sept. 1785, by which he conveyed to him the upper half of the Tinker Bottom tract of land and ten acres of the other moiety; and supposing his wife entitled, as sole heiress of Charles M'Daaiel, he applied to Robert M'Danicl, who was then and had been many years in possession of the whole of said tract, (held conformably to tiie family arrangement under the imperfect will of the testator, Thos. M'Danicl,) and he (Moorman} required a surrender of half said tract. It appears that he urged his claim strongly, and threatened a suit if it were not given up and conveyed to him. But it does not appear that he was so urgent as to preclude enquiry by Robert McDaniel.

This young man was then recently of age and was not experienced in business, and he appears to have been alarmed at the idea of a suit. He is not however stated to be imbecile, and had experienced friends who were well acquainted with all the facts. His mother, Mrs. Dugan, was living, as well as her husband; and he (the complainant) consulted a legal adviser on the subject, who informed him that he thought the voluntary deed of 1785, from Charles Sims to Charles M‘Daniei4 was valid and would prevail; and he was also advised by a friend to act upon the counsel. This he accordingly did, and made ■a conveyance of rather more than a moiety of the Tinker *113Bottom tract to said Janies Moorman; according to a pi at ok which the two divisions were laid down, and divided by a sur-, t'eyor employed by the parties; and also the ten acres in question. All this indicates examination and deliberation. Nor is it proved that the defendant, Moorman, practised'any fraud; but merely claimed his alledged rights under the deed, and threatened:* suit if his rights were not submitted to. So far it would not appear that the conveyance by Robert M'Dauiel to Moor-man could be objected to. It is then reduced' to the simple question, whether the claim of Moorman was so plainly unfounded, under'all the circumstances stated, that it formed no just right which should have led to the surrender made by Robert M‘Bame3, and whether such surrender’ so deliberately ' made ought now to be disturbed; especially as Moorman gave up bis claim for twenty years arrears for rent, which he might have recovered, if his title to the half of the Tinker Bottom tract had been established; so that Robert M‘Daniel might be said to be buying bis peace. I confess 1 have paused long on this part of the case; and Í still have great difficulty in coming1 tó .a conclusion entirely satisfactory to my own mind.' Upon the whole, however, I have made up my mind that the *conveyance.'*so deliberately made by Robert ■ M'Daniel to the defendant ought not to be disturbed, even though his right to claim the land under the deed of 1785 was very doubtful, and though he had so long acquiesced in the disposition made by bis father. But 1 confess I find it very difficult to reconcile my mind to the idea that the defendant; Moorman, should be allowed to keep the advantages he has thus gained, by obtaining the said conveyance from Robert M‘Daniel, on the ground of right founded' on the voluntary deed of 1785, and also to keep the lánd which his wife’s father obtained and held under the dispositions of the Imperfect will of Thos. M‘Daniel, in consequence of his perfect acquiescence in the disposition^ of the said will. ■ It seems to ' me that it would be most unjust to permit this. I am therefore disposed to say, that if Mr. and Mrs. Moorman insist on one right, they are bound to surrender the other. With respect to the ten acre tract, carved out of the part of die Tinker Bottom *114tract reserved for Robert M'Daniel. It seems that the convey» anee of that was as regular as the others and stands on the same footing.

It is therefore *ordered, and decreed,*that if the defendants insist upon their right to that part of the Tinker Bottom tract allotted to them in the division made on the plat by the surveyor, founded on the conveyance from Charles Sims to Charles M'Daniel, and the conveyance from Robert M'Daniel, that they shall and may retain the same, as well as the ten acre tract, part of the other moiety. But: in that case, Moorman and his. wife shall convey to said Robert M‘I>aniel the lands which they held under the family arrangement, made to give efiect voluntarily to the dispositions of the imperfect will of Thos. M‘Daniel. If however, they should decline to insist on their*rights under these conditions, then each party shall hold the lands acquired under the family arrangement, and which they have held for twenty years. The cost .to be divided.

From this decree the complainant appealed, on the grounds that the option given to defendants, of taking the half of the Tinker Bottom tract of land upon surrendering the lands which they held according to the provisions of the imperfect will of Thomas M'Daniel, should not have been allowed; that the defendants were bound by the arrangement which had been entered into at the instance of Charles MiDaniel, which had been reduced to writing and signed by the widow of the testator, which had been carried into execution by all the parties interested, and sanctioned by an acquiescence of twenty years; that complainant had acquired a title by the statute of limitations, and that the chancellor who heard the cause was mistaken in supposing the fact to be that complainant had *conveyed to*defendant the half of Tinker Bottom; his conveyance having only been of the ten acres of land mentioned, with a verbal agreement to give up the Tinker Bottom land, and delivery of possession.

The defendants also appealed on the grounds, that if the complainant had any right they were legal ones, and there was no ground for the jurisdictipnof this court; that it was a question *115of adverse titles to land, which ought to be tfied at Jaw; that the alledged agreement was without consideration and not of such a nature as that the court could compel a specific ■ performance of it; that the agreement was void under the statute of frauds, and that the evidence relating •to it was incompetent and should have been rejected; that the defendant’s title was good to both tracts of land, and that in fact there was no agree» ment established, by the parties competent to make it; that the daughters ofThomas M‘Daniel are still entitled to their shares of the land devised by the will, and that the operation of the statute of limitations against them is prevented by the minority of some of them.

*Chancellor Dcsaussure*

*delivered the decree of the court.*

This case was of great extent and perplexity; but we do not think when thoroughly understood, ti.e justice of the case is at all doubtful.

The facts of the case are so fully stated in the circuit court decree, that it is unnecessary to recapitulate them; especially as that statement is essentially correct, except in one particular; which when corrected is more favorable to the complainant, M‘Daniel, and removes one of the principal objections which embarrassed the case and made it difficult to do him justice: we mean the alleged fact, that when Moorman urged M'Daniel, as soon as he had come of age, to surrender his claims to the lands in question, he M'Daniel had executed a deed, by which he conveyed the land to Moorman and his wife. It is now agreed on all hands that this was a misapprehension, and that no such deed was executed as to the large tract in question, but merely as to the small tract of ten acres. So that M'Daniel did nothing more than merely make a verbal surrender of his claims, which did not bind him and could not weaken them; but left them in full force and virtue.

Those claims were founded on family arrangements, made at the urgent solicitation of that member of the family under whom Moorman and wife now claim, and were carried fully into effect many years ago. Moorman and his wife have the full benefit of those arrangements and of the property exchange^ *116under them; and it would be monstrous that the complainant should be deprived of the benefits of that arrangment, which was the consideration for the advantage given to Mrs. Moorman’s father. Without imputing misrepresentations or fraud to Moor-man, in procuring Robert M'Daniel, when barely of age, to make a verbal surrender of his rights to the large tract of land in dispute, it is impossible not to see that M'Daniel acted under a misapprehension of his rights, and without any sort of valuable consideration leading to that surrender.

*O'Neal,*and *Clendinin,*for appellants»

Williams» contra.

Under these circumstances, we cannot consider him bound, and the division made under such verbal surrender is void. The decree of the circuit court- must therefore be affirmed. But as that gave Moorman and wife an option to which they are not entitled, the decree must be new modelled.

It is ordered and adjudged that the decree of the circuit court be so far affirmed as it establishes the right of the complainant to relief; and it is further ordered and adjudged, that the surrender of the moiety of the Tinker Bottom tract of land, to Moorman and his wife, be declared null and void, the complainant being entitled to the same; and it is hereby ordered that the defendants do deliver up the possession of the Said -moiety of the Tinker Bottom tract mentioned in the pleadings, to the complainant, and that the defendants do pay all costs of suit.

Chancellors *Gaillard, Waties,*and *James,*concurred.

I do not concur in this *decree*

W. *Thompson.*