MARGARET STOCKTON against MARTIN. Columbia, 1802. TROVER for sundry negroes. Verdict for plaintiff. A settlement Motion for new trial. he made by a father on his daughter for life, and after her children, her death to and share but limited in the habendum the heirs of deemed too remote,so that the whole rests in the first taker and By a deed produced on the trial, it appeared that one Havens, the father of the plaintiff, previous to her marriage to Mr. Stockton, lately deceased, settled on his daughter the negroes in question during her life, and then to her children share and share alike. In the habendum of this deed, the of the deed to negroes were given to Miss Havens for life, and then to her body, the heirs of her body; and in the warranty of this deed, warrants the negroes to his daughter for life, and then to the heirs of her body. After Stockton's death, these negroes were seized and sold for his debts, and the defendant Martin, at the sheriff's sales became the purchaser. Stockton died, leaving several children. This was therefore a suit by Mrs. Stockton, the guardian of her children, on behalf of herself and them, to recover back these negroes. And the jury, under the direction of the presiding Judge, gave a verdict for the plaintiff. This, therefore, was a motion for a new trial, on the ground of the verdict being against law. Mr. Nott, for defendant, in support of the motion, argued, that the limitation over in this case was too remote, and consequently that the property vested in the first taker Mrs. Stockton, and as such upon the marriage, it became the property of the husband and liable for his debts. That the limitation in this case being to the heirs of the body, it created an estate tail of a chattel interest, which had been determined in this court to be too remote, and vested in the first taker, in the case of Dott v. Cunnington, vol. 1. p. 453. Riley's edit. That if any doubt could arise upon able to the husband's debts. Stockton V. Martin. the construction of this deed from the premises, the habendum and warranty had both explained it and put it beyond all doubt, as they both confined the limitation to the heirs of the body only. For the plaintiff, against the motion, it was admitted, that if there had been no other words in this deed than those contained in the habendum, that it would have been an estate tail, and consequently it would have been too remote for the limitation of a chattel; it would have vested in the pretaker, on the authority of the case of Dott v. Cunnington; but it was contended, that there was a wide difference between that case and the one under consideration. There were no words in the deed in that case, which could be laid hold of, to shew that it was not an estate tail. Every part of it, both the premises and habendum limited the property to the heirs of the body, and there was nothing further explanatory of the donor's intention. Whereas, in the present case, it was most evidently the father's intention to make a provision for the daughter for life, and after her death to her children share and share alike; that is, to such children as she might have living at the time of her death. This limitation was not too remote, but to persons in esse at the time of her death, who could take, and within every rule of law. It was true, that the habendum differed from the premises, inasmuch as it was to her during her life, and after her death to the heirs of her body; but these latter words, ought in a case like this, where the donor's intention was to make a provision for his daughter, and such children as she might have at her death, to have a liberal construction for the benefit of a young family; and these words, heirs of the body, in the habendum, ought in conformity to the donor's intention, expressed in the premises of the deed, to be construed to extend to her children; because, " heirs "of the body" here means children, and the words share and share alike confine it to those living at the time of her death, and not to indefinite issue. That these words, share and share alike, have always had a very liberal construction given to them when applied to children, both in wills and deeds, whenever it appears to have been the testator's or donor's intention to make provision for a family. The majority of the judges were of opinion, that as the habendum of a deed is that part of it which declares and limits the use of the thing conveyed, and as the negroes in question are limited in the habendum to the heirs of the body of Mrs. Stockton, after her death, it created an estate tail of a chattel, which was too remote, and vested the property in the first taker, Mrs. Stockton; consequently, Stockton upon his marriage acquired a right to such property, and of course it became liable for his debts. They were therefore of opinion, that the verdict should be set aside, and a new trial granted. BAY differed in opinion, and agreed with the presiding Judge on the trial, that as this deed would admit of an equitable construction, and was intended as a provision for a young family, it should be construed liberally, and not be trammeled with the rigid rules of law. That if this deed was dissected and examined critically by piecemeal or by fragments, and the latter part was construed to control the former, it might admit of the construction contended for. But if, on the contrary, the premises and habendum were taken together with reference to each other, and as explanatory of the donor's intention, he was of opinion, that the limitation over to the children, after the mother's death, was regular and within all the rules of law on that subject, and that the words in the habendum might be qualified by the plain and obvious intent and meaning of those in the premises. And this construction would not militate in the smallest degree against the case of Dott v. Cunnington, where there was not one sentence in any part of the Stockton Martin. Stockton V. Martin. deed to justify the court in giving an equitable con struction to it. Rule for new trial made absolute. All the Judges present. Columbia, 1802. A plaintiff in support of his title in an action of trespass, is not Que title only, on as many and if any one bears him out he may even MACKAY against REYNOLDS. TRESPASS to try titles to land, in Spartanburgh district. Verdict for defendant. Motion for a new trial. The land which was the subject of this controversy, was confined to originally the property of Reynolds the defendant, who bebut may rely ing pressed for money, borrowed it of one Alexander, and as he pleases, made him an absolute conveyance of the land; which was to be reconveyed again to him on payment of the sum borit is sufficient; rowed. Alexander soon after conveyed the land to one rely on pos- Harrison, who conveyed it to Mackay the plaintiff. The session alone, if all the money was afterwards tendered to Alexander, who refused to receive it. Shortly after the sale by Harrison to Mackay, the land was levied on by the sheriff of the district, and sold in consequence of a judgment prior to all the sales and conveyances, at which sale Mackay again became the purchaser, and bought in the land a second time, and got the sheriff's deed. thers fail. In support of the plaintiff's title, he produced his first deed from Harrison, but as some circumstances of fraud were alleged against this deed from Harrison, he offered his sheriff's deed in evidence in support of his right; but the presiding Judge (GKIMKE) refused to allow this second deed to be given in evidence, ruling that the plaintiff was bound to rely on one deed or the other, and to make his election, which he refused to do, on which there was a verdict for defendant. This was a motion for a new trial, for misdirection on the part of the judge, and the verdict being against law, When, after argument, all the other Judges were of opinion, that the verdict should be set aside, and a new trial granted, as a man had a right to offer as many titles to land as he pleased, and should not be restricted to one only; for, if one fails him, the other may bear him out: nay, further, if they should all fail him, he may resort to and depend upon his possessory right alone. Rule for new trial made absolute. All the Judges present. Mackay V. Reynolds. JOHN MITCHELL ads. W. H. GIBBES. DEBT on bond. a new trial. Verdict for the plaintiff. Motion for The bond on which this suit was brought was a joint and several obligation given by the defendant in this action, and his brother, W. B. Mitchell. On the trial several discounts which IV. B. Mitchell had against this bond were offered in evidence, which, it was urged, were payments on account of, and should be credited on, the bond. But the presiding judge refused to admit them in this suit, as they were not in defendant's own right, but in right of another, who was not a party before the court. The Judges, after hearing counsel on both sides, were of opinion, that if the discounts were such as were allowed by |