
    
      W. H. Allen and others vs. John J. Fogler.
    
    Where there is a special verdict, no fact not stated in it can he inferred from the facts found.
    Gift of lands by deed to H. A. “ and to the heirs of her body, and in case of her death before she has an heir,” then to J. A. in fee : — Held, that the remainder to J. A. was void.
    At the common law a fee in remainder cannot be mounted on a fee.
    
      Before Withers, J., at Barnwell, Fall Term, 1852.
    
    This was an action of trespass to try title. The jury found the following special verdict:
    
      “ We of the Jury find that the land in dispute was granted to John Wickley, by the State, on the 5th June, 1786, as 271 acres ‘ on the High Hill Pond.’
    “ We further find that Elijah Gillett, on the 28th February, 1809, by deed duly executed and delivered, conveyed the land in words and terms following, to wit:
    “ State of South-Carolina, Barnwell District: — Know all men by these presents, that I, Elijah Gillett, of State and District aforesaid, do, for the love and affection I bear towards Harriet Allen and Josiah Gillett Allen, give and bequeath to Harriet Allen, and to the heirs of her body, and in case of her death be
      
      fore she has an heir, I desire whatever I may give to her, may be the right and property of Josiah Gillett Allen, and in case of his death before he has an heir, to belong to Harriet Allen. I give to Harriet Allen a tract of land containing by a re-survey three hundred and twenty-nine acres; it adjoins lands surveyed for Joseph Allen, Ashford Jenkins and John Allen. This tract was granted to John Wickley; this tract is known by the name of High Hill Pond tract; also an equal half of three tracts of land, one sold to me by Lewis Thomas, 125 acres ; one tract by Michael Wilkinson, 141 acres; and one tract sold to me by Joseph Parker, 100 acres, called the old field tract; also, three cows and thieir calves, that runs over the three runs, with their increase that may be with them. I give and bequeath to Josiah Gillett Allen a tract of land sold to me by Tarlton Brown, Sheriff ; a tract granted to John Wickley. It adjoins Logg Branch, Bigg Branch being the waters of Jackson’s Branch, and it adjoins lands of Dr. John Budd ; also another tract of one hundred and nine acres, granted to William Wickley; it also adjoins lands of Joseph Brooker ; also, his equal half of the three tracts given to Harriet Allen; Wilkinson’s tract, 141 acres; Joseph Parker’s tract, 100 acres ; Lewis Thomas’s tract, 125 acres ; also, a negro fellow named Chatham, his wife Nancy, and his son; which said property I relinquish to them and their heirs forever. As witness, my hand and seal, this 28th day of February, 1809.
    Witnesses present:
    John Allen.
    Jos. Allen.
    John McFail.
    ► (Signed:) E. GILLETT.
    ) Seal.
    “We further find that the said Josiah Gillett Allen, named in the said deed, departed this life in 1824, leaving as his distributees Sarah E. Allen, his widow, who afterwards intermarried with Joseph Allen, a son, Wm. H. Allen, another son, Elijah G. Allen, and a daughter, Ann Amanda Allen, who afterwards intermarried with Seth Daniel; and these six persons last mentioned are the plaintiffs in this action.
    
      “ We further find that Harriet Allen, named in the deed of conveyance from Elijah Gillett, above set forth, was the natural and illegitimate sister of Josiah Gillett Allen, also named in said deed.
    “We further find that the said Harriet Allen intermarried with John Jenkins, and on the 8th of August, 1837, by deed duly executed and delivered by the said Harriet and her husband John Jenkins, (with inheritance duly renounced) conveyed the land in dispute to one Charles J. Mixson, who, on the 1st of September, 1849, by deed duly executed and delivered, conveyed the land in dispute to the defendant John J. Fogler.
    “ We further find that after the 8th of August, 1837, aforesaid, the said John Jenkins departed this life, leaving surviving him the said Harriet, who, in 1846, departed this life, never having had any child or children lawfully begotten. We further find that the defendant John J. Fogler, hath, since 1846, and before the commencement of this suit (which was commenced 8th October, 1849,) destroyed timber on the land in dispute to the value of five dollars.
    
      “ If the Court shall be of opinion, that on the above facts as found, the plaintiffs are not entitled to recover the land in dispute, then we find for the defendant.
    “ If the Court shall be of opinion, that on the above facts as found, the plaintiffs are entitled to recover, then we find for the plaintiffs the land in dispute, described in the re-survey plat of L. P. Hext, D. Surveyor, dated 14th October, 1852, contained within the lines A. B. B. C. C. D. D. A. marked in said plat and five dollars damages. D. D. HALLONGUIST, Foreman.”
    His Honor, the presiding Judge, ordered the postea to be delivered to the defendant.
    The plaintiffs appealed and now moved this Court to reverse the decision of his Honor on the following grounds :
    1. That under the deed, 28th February, 1809, from Elijah Gillett, Harriet Allen, (afterwards Jenkins) at most took a fee conditional in the land, which would have reverted to the grantor at hef death without issue; but under the last clause of the deed, the right of reversion was released and relinquished to Josiah Gillett Allen, under whom the plaintiffs claim.
    2. That if the estate was not so released and relinquished to Josiah, then the words “heirs of her body” are qualified by the words “ and in case of her death before she has an heir,” which last words reflect back, and give construction to the first words, and restrain their indefinite import to heirs living at her death, so that Harriet took an estate for life, remainder to her heirs living at the time of her death, in default thereof, contingent
    ' remainder to Josiah. And the limitation not being too remote, and Harriet having died without such heirs, the fee passed to the distributees of Josiah, to whom it had been limited in remainder, and whose existence at the time of the event did not constitute the contingency.
    3. That if the words “ heirs of her body” are not by the subsequent words, “in case of her death before she has an heir,”' restricted to mean heirs living at her death, then the contingency provided for was if Harriet should die before she had issue, or prior to having issue, or without having had issue, so that Harriet took the estate subject to be divested in the happening of that contingency. And the contingency having happened, the fee passed to the distributees of Josiah, to whom it was limited in remainder on the happening-of the contingency, or rather in whom it vested subject to the non-happening of the contingency.
    4. Because in the facts as found by the jury, and under the law applicable thereto, the plaintiffs were entitled to recover.
    
      Bellinger, Hutson, Trotti, for the motion.
    
      Aldrich, Owens, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case without more than merely stating, that the special verdict does not find that the title to the land in dispute was in the plaintiffs’ grantor, but leaves that to be inferred from the facts found, that there are deeds on record, by which his grantees conveyed to the defendant, which would be fatal to the plaintiffs’ motion to enter up judgment; (for no additional fact can be inferred from facts found in a special verdict :) — I proceed to consider the question under the deed.

That the limitation over would be good by way of executory devise, I do not entertain a doubt. For it would be within a life or lives in being and twenty-one years after. But the misfortune to the plaintiffs is that the question arises under a deed, and not under a will. It is a case of remainder.

Mr. Fearne in his book on Remainders, 6th Chap. 8th Sec. p. 371 says, “ A fee at common law cannot be mounted on a fee; as if lands are limited to one and his heirs, and if he dies without heirs, then to another; this last is void.”

In this case the first estate is a fee conditional at common law: and upon that is mounted a fee eventually to Elijah Gillett Allen and his heirs. The latter is void under the rule cited from Mr. Fearne.

The motion to reverse the decision below is dismissed.

Wardlaw, Frost, Withers and WhitNer, JJ., concurred.

Motion dismissed.  