
    
      Hartford Jones and Wife, and Peter Vaught and Wife, vs. William S. Reeves.
    
    ITo parol partition of land can avail, especially against a, femme covert, unless it be sanctioned by a possession sufficient to give title under the statute of limitations, or by such lapso of time as will presume omnia esse rite acta.
    
    A purchaser from the husband alone of the wife’s inheritance, will not be protected by the statute of limitations as against the wife, until the statutory period has run out after the husband’s death.
    
      Before Fhost. J., at Horry, Fall Term, 1852.
    The report of His Honor, the presiding Judge, is as follows :
    “ This was an action of trespass to try title. Th’e plaintiffs and the defendant both claimed under John Harris, who died intestate, in 1834, leaving his widow, Honor Harris, and two daughters, Prances, then the wife of John E. Vereen, and Sarah, then the wife of William Lee, his distributees. John E. Vereen died in 1840, and in 1842 his widow married Hartford Jones. In 1842 William Lee died, and 'in 1845 his widow married Peter Vaught. John Harris, at the time of his death, was seized and possessed of a tract of 1450 acres, granted to Thomas Livingston, a part of which, containing 1250 acres, was the subject of the suit. The plaintiffs proved an ouster by the defendant; and there rested their case.
    
    
      “ The defendant claimed under an" alleged parol partition of the lands of the testator, between Honor Harris and Vereen and Lee, by which the tract in dispute was assigned to Honor Harris, for her distributive share, and another tract, known as Star Bluff, was assigned to Vereen and Lee in right of their wives.
    “ In support of defendant’s claim the following deeds were offered in evidence : A deed from Honor Harris to Thomas Smith, her son by a former marriage, dated the 5th May, 1835, by which, ‘ in consideration of love and affection, and for his better maintenance,’ Honor Harris did give to Thomas Smith, ‘ at her death,’ (reserving the use of the same to herself during her natural life,) two négroes, all her stock of horses, cattle and hogs, and 
      furniture of every kind ; and ‘ all’ her ‘ real estate, be the same more or less,’ which ‘ by these presents’ she did ‘ give and deliver to her said son, his heirs and assigns.’ This deed was recorded the 27th January, 1849. By an endorsement on this deed, Thomas Smith assigned to the defendant, in consideration of $150, all the property mentioned in the deed of gift. This assignment was dated the 5th March, 1846, and was attested by two subscribing witnesses. By a previous deed, dated the 8th January, 1845, Thomas Smith had conveyed to the defendant the tract of land in dispute, in consideration of $500. By a deed, bearing date the 14th June, 1837, John E. Yereen and William Lee, styling themselves administrators of John Harris, in consideration of $300, did sell and release to Honor Harris, ‘ her executors, administrators and assigns,’ all their ‘ right and claim’ to two tracts'of land containing 1550 acres, be the same more or less. It was not denied that the land in dispute was included in the description of this deed. The deed was attested as having been ‘ signed, sealed and acknowledged’ by the releasors. But while a seal was affixed to the signature of John E. Vereen, none was affixed to that of William Lee. The next deed was that of John E. Yereen and William Lee to Robert. Livingston, bearing date the 30th May, 1838, and in consideration of $1,000 conveying to Robert Livingston the Star Bluff tract of land. On this deed the wives of Lee and Harris renounced their inheritance. It was not stated, when the deed was offered in evidence, that they had joined with their husbands in the deed.
    
      “ For the defendant it was argued that the deeds of Yereen and Lee to Honor Harris and to Robert Livingston, were made in execution of a parol partition of the lands of John Harris, between Yereen and Lee, in right of their wives and Honor Harris. To confirm this inference the defendant offered to produce evidence of a division of the personal estate of John Harris between his said distributees ; that Honor Harris had entered on the Tom Livingston tract, soon after the death of her husband, and had continued in possession until her death in 1849, either occupying the .land herself, or by her son, Thomas Smith ; that the Star Bluff tract was worth, at the time of the alleged partition, twice as much as the Tom Livingston tract; that £ in the year 1837, or thereabouts/ an agreement was made between Honor Harris and Yereen and Lee, for the partition of the lands of John Harris, by which the widow was to take the land in dispute as her portion, and Yereen and Lee were to take the Star Bluff land as the portion of their wives; that Honor Harris was present at the execution of the deed of Yereen and Lee to Robert Livingston, and did not assert nor claim any right to the land conveyed to Robert Livingston; who has ever since been in possession. These are the principal facts of which evidence was tendered. The evidence was excluded, as immaterial in that view of the legal rights of the parties on which the issue was to be decided.
    “ It was held that a parol partition of the wife’s inheritance, made by her husband, was not valid and binding on the wife ; and that the inheritance of a femme covert could be released only in the manner prescribed by law.
    “ That possession, under a parol partition by the husband, was not an ouster of the wife from her inheritance.
    “ But even if such possession could operate as an ouster of a femme covert, that the possession of Honor Harris, under the deed of Yereen and Lee to her, operated no ouster of their wives ; because the deed purported to assign only the right and title of Yereen and Lee.
    “ That neither Honor Harris nor Thomas Smith could support a claim by the statute of limitations against the plaintiffs’ wives, because no right to sue accrued to either of them until the death of her husband. If Honor Harris claimed adversely, in her own right, her possession continued only nine years after the right and title of Frances Yaught had accrued, by the death of Yereen; and only seven years after the right and title of Sarah Jones had accrued by the death of Lee. And if Honor Harris held possession in right of Thomas Smith, that adverse possession was of yet shorter duration; he having conveyed to the defendant in 1845.
    
      “ In the course of the argument, which was somewhat irregular, several doubts were suggested to the counsel of the parties, and several intimations of opinion were made. These it is not important to notice, since the right of the plaintiffs to recover was not rested on them. I will only remark that the sixth and seventh grounds of appeal do not correctly represent the opinions which I intimated in the course of the argument.
    “ Among other objections to the defendant’s recovery, it was intimated that the parol evidence which was offered, even if it were received, could not counteract the legal effect of the deeds. By these it appears that, under the alleged parol partition, Vereen and Lee only assigned to Honor Harris, ‘her executors, administrators and assigns,’ all their right and title to the Tom Livingston tract. Their wives were, in no manner, parties to the deed, nor was their interest transferred. And while it was said, Honor Harris was present and assented to the execution of the deed of Yereen and Lee to Robert Livingston, she was not a party to the deed.
    “ The jury found for the plaintiffs two-thirds of the land in dispute.”
    . The defendant appealed and now moved this Court for anew trial on the grounds
    1. Because his Honor erred in rejecting the testimony offered by the defendant and of the partition betwixt the widow of Jno. Harris andLee and Vereen, who were the husbands of the femme plaintiffs in this case, when possession accompanied said partition till 1849, at the time of the death of Honor Harris.
    2. Because his Honor erred in rejecting said testimony; in holding the said partition void as to the femme plaintiffs, when they received their share of the real estate of John Harris by said partition, by the sale to Robt. Livingston of the absolute fee in the Star Bluff lands, which were given by the widow as a consideration for those now in dispute, inasmuch as the widow was barred not only by the deed to Livingston, to which she assented, but by his possession for more than 10 years of said land, which he held by virtue of the said partition, and inasmuch as the femme plaintiffs set up no claim to the land in dispute till the death of Mrs. Harris.
    3. Because his Honor held that possession under said partition was not an ouster as to the femme plaintiffs, and even if it were, Mrs. Harris’s possession under the deed of Vereen and Lee was no ouster, so as to make such a possession adverse to the femme plaintiffs till the death of their husbands, Lee and Vereen.
    4. Because his Honor erred in holding that if adverse possession could be held in her own right by Mrs. Harris, it did not continue for ten years, as the deed from Thomas Smith to defendant was made short of 10 years from the time he acquired the title from his mother by her deed of May, 1835.
    5. Because his Honor erred in holding that though Mrs. Harris reserved a life estate in the lands given to her son, Thomas Smith, and was in possession of said lands till her death, a period of more than 12 years, yet such possession -could not avail defendant, as Thomas Smith conveyed to him in January, 1845.
    6. Because his Honor erred in holding that though the femme plaintiffs were discovert for more than two years each, before their marriage to their present husbands; such discoverture did not preclude them from the saving in the statute of limitations, giving them one year after their husbands’ death to bring their actions, as the statute had not run out before the death of their husbands, Lee and Vereen.
    
      7. Because his Honor held that the possession of Mrs. Harris was as tenant for Thos. Smith, till January, 1845, when he conveyed to defendant, and then was tenant for defendant, and that her possession would not give the defendant the benefit of the statute, whereas it is insisted that having the life estate in the land and holding adversely for more than 12 years, such possession was a bar to plaintiffs’ recovery against the defendant, and that the possession of Thomas Smith was also a similar bar.
    
      Harllee McDuffie, for the motion.
    
      Munro <£* Mmiro, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case the Court is satisfied with the result below.

No parol partition can avail especially against/emmes covert unless it he sanctioned by a possession sufficient to bar their rights by the statute of limitations, or by such lapse of time as will presume omnia esse rite acta.

The statute of limitations cannot run against the femme plaintiffs. Their first husbands’ deed conveyed their right of possession during their respective lives. This action was brought in less than ten years .after the death of the husbands, and the statute does not therefore bar it. The case of Brown vs. Spand, 2 Mill, 12, decides the exact point.

The testimony excluded could not legally affect the rights of the plaintiffs, and was therefore properly shut out from the jury.

The motion is dismissed.

Wardlaw, Frost, Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  