
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    Murrell v. Mathews.
    Devise to testator’s son, “ to him, and the lawfully begotten heirs of his body; but in case he, or the lawfully begotten heir, should die without a lawfully begotten heir,” then to a grandson of the testator, “ to him and the lawfully begotten heirs of his body forever.” Held, that the devisee took a fee simple conditional at common law, and upon the birth of issue might aliene in fee ; and that any form of conveyance, usetl in the transfer of real estate in this State, is sufficient to bar the issue, and the reversioner. [vide 2 Bay, 397. S. C.}
    This was an action of debt on bond, in which the jury found the following special verdict : “ We find that Robert Murrell by his last will and testament, legally executed, and bearing date the 20th of March, 1789, did, inter alia, make the following devise: ‘I give to my son, John Jonah Murrell, all my lands, wheresoever they may be, to him, and the lawfully begotten heirs of his body. But in case he, or the lawfully begotten heir, should die without a lawfully begotten heir, then, and in that case, I give the plantation containing twelve hundred and' forty acres, more ov less, where my son, Jonah, lives, to my grandson, Robert Huggins, to him, and the lawfully begotten heirs of his body forever.” That the testator died after making the said will, and his son, the said John Jonah Murrell, entered into the said devised plantation of land, by virtue of the said devise. That the said John Jonah Murrell was lawfully married, and had issue born : and that during the tifo time of such issue, to wit, on the 9th of August, 1794, the said John Jonah Murrell did absolutely sell and convey the aforesaid plantation, in fee simple, to the defendant Mathews ; in part payment whereof, the bond on which this action is brought, was founded. If, therefore, under these circumstances, the said John -Jonah Murrell, the plaintiff, had an absolute right, vested in him by the aforesaid devise, to the said plantation ; and his conveyance thereof be valid, and sufficient to transfer an estate, in fee simple, absolute to the defendants ; then we find for the plaintiff. Otherwise, if his conveyance was not sufficient, then for the defendant.”
   The court

were of opinion, that the plaintiff, by force of the devise in question took an estate, in fee simple conditional at common law ; and that by having issue the condition was performed, so as to enable him to aliene : and that having aliened after such performance, and in the life time of the issue, the estate so aliened became absolute in the purchaser. 2 Bl. Com. 110. Co. Litt. 18, 19. 2 Bac. Abr. 257. The verdict was, therefore, ordered to be entered for the plaintiff. The court were also of opinion, that any form of conveyance, used in the transfer of real estate in this State, such as lease and release, feoffment, or bargain and sale, as prescribed by A. A. 1795, is of sufficient validity and operation to bar the issue of a donee of the fee conditional, or the ieVersioner.

Judgment for plaintiff.  