
    Corinna J. Myers, Sarah A. Myers and W. Allen Benton vs. William McBride.
    
      Trespass to try Title — Tenant in Common — Ouster—Power— Feme Covert.
    
    In trespass to try title by tenants in common against a co-tenant, the question of ouster having been submitted, upon the evidence, to the jury, who found for the plaintiffs, the Court refused to set aside their verdict.
    A wife having power under a marriage settlement to convey the land by deed, the deed of herself and husband, not purporting to be in execution of the power and without a valid release of her inheritance, held not to convey her title to the land.
    BEFORE WHITNER, J., AT CHESTERFIELD, FALL TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trespass to try title, the parties claiming from a common source — the plaintiffs as heirs at law, and the defendant as a purchaser.
    
      “ The main question in the case was as to the deed from Jeremiah Benton and wife, Bachel P. Benton, formerly Bachel Chapman. The land was acquired under the will of Allen Chapman, who died in 1823. In 1826, Jeremiah Benton and Bachel Chapman were married, having first executed a deed intended as a marriage settlement, the terms of which will be better understood from the paper itself, but in which will be found a power to Mrs. Benton 'to dispose of any property of any description ’ ' already acquired ’ or ' hereafter acquired.’ This deed was recorded duly in the Begister’s Office in Anson County, N. 0., and in Darlington District, S. C.
    “In 1832, or early in 1833, the estate of Allen Chapman was divided amongst the legatees by commissioners chosen by the executors, according to the provisions of the will, of which a brief memorandum was made in writing and subscribed by the commissioners, but which had not been preserved. The division thus made had been acquiesced in by the parties, the lands in question had been allotted to Mrs. Benton, and on the 12th February, 1838, Mrs. Benton and her husband, Jeremiah Benton, executed the deed in question ; and in the month of March after, Mrs. Benton made the acknowledgment certified to by thé persons whose names appear. The particular fact bearing on this part of the alleged transaction will appear sufficiently, I presume, by the following statement: Wm. Allen testified that L. Bushing and himself were acting magistrates at the time in North Carolina, and that the signatures to the certificates were genuine; that the former was attested by himself, separately, and that these magistrates were both present when the latter certificate was made, Mrs. Benton being present, and that a paper of the import certified was produced, but whether genuine or not, he had no means of knowing, otherwise than from a mere inspection, as there was nothing apparent to excite his suspicion; but he had no personal knowledge of the signature of John Craig or of the alleged seal of office appended to the paper called a dedimus potestatem. It appeared by evidence otherwise that John Craig was the Clerk of the Court for Chesterfield at the time, and that the office of the Clerk and the papers of defendant had been searched without success for the original. There was no record found in books.
    
      “ It appeared further that Mrs. Benton shortly afterward departed this life, to wit, May, 1833, and was survived by her husband and two children; one of whom, the son, Wm. Allen Benton, is one of the plaintiffs in this action; the other, a daughter, Sarah P. Benton, had intermarried with-Myers, and died, leaving her husband still living, and two minor children, Corinna J. and Sarah A. Myers, the other plaintiffs, now suing by their next friend. The deeds from Jeremiah Benton and wife to Thomas Chapman and from Thomas P. Chapman to the defendant and J. T. Burch were produced on the call of the plaintiffs, and submitted for the purpose, I presume, of showing that defendant also derived title from like source with the plaintiffs.
    • “ When the plaintiffs closed their evidence a motion for nonsuit was submitted. Even although the deed from Benton and wife might not be sufficient to convey the fee, yet it was manifest an interest had passed to the defendant, of which he had a good title, an undivided third part of the land in question derived through the husband, Jeremiah Benton, (surviving,) under his deed.
    “I refused the motion, preferring to refer the question of ouster to the jury, which was subsequently done. The evidence on this point consisted of such facts as, that defendant had entered upon the lands, claiming them as his, cultivating large portions and in no way that had appeared accounting for any portion-of profits, and had actually sold off part of the land, executing titles under a general warranty in fee simple, and from the character of his defence, though set up under the general issue, maintaining an exclusive title to the lands in dispute.
    “ The grounds of appeal very fairly indicate the nature of my instructions to the j ury, whereupon a verdict was rendered for plaintiffs for an undivided five-ninths of the land in question, and five dollars damages; three-ninths or one-third being in defendant, and one-ninth in the surviving husband of Sarah P. Myers, who was no party to the proceeding.
    " It may be proper to add, there was no imputation of want of fairness in the deeds, though the first was for a nominal sum; this was to the brother-in-law, to enable him the more conveniently to sell and convey for their benefit. This was subsequently done to tbe defendant at a fair price which enured to Benton, so that if the Appeal Court should be of opinion the deed, called a marriage settlement, gives validity to the deed of the wife joining with her husband without further act, it may be that further litigation would be unnecessary.”
    MARRIAGE SETTLEMENT.
    This indenture, made this-day of August, in the year of our Lord one thousand eight hundred and twenty-six, between Jeremiah Benton, Esq., of the County of Anson, in the State of North Carolina, of the first part, Bachel Chapman, of the District of Darlington, in the State of South Carolina, of the second part, and William H. Benton, of the State of North Carolina, and County of Anson, of the third part: Whereas a marriage is shortly to be had and solemnized between the said Jeremiah Benton and Bachel Chapman, upon the contract of which marriage it was agreed upon by and between the said Jeremiah and the said Bachel that any property which the said Bachel now has or may hereafter acquire from the estate of Allen Chapman, deceased, her father, or from the estate of any person or persons whatsoever, or any property which she, the said Bachel, has already acquired, or hereafter may acquire, by descent, purchase, devise, gift, or bequest from any person or persons whatsoever, should be settled upon her, the said Bachel, to her own sole and separate use and benefit, without any control whatsoever of the said Jeremiah, her intended husband : This indenture, therefore, witnesseth, that for and in consideration of the premises, and also for and the further consideration of the sum of ten dollars to the said Jeremiah in hand paid by the said William H. Benton, the receipt whereof is hereby acknowledged, he, the said Jeremiah, hath bargained, sold, delivered, set over, conveyed, and confirmed, and by these presents doth bargain, sell, deliver, set over, convey, and confirm, as far as it is in his power in law or equity so to do, unto the said Wm. H. Benton, his heirs, executors, or administrators, all the money, effects, and property, whether real or personal, which the said Eachel, his intended wife, may hereafter acquire [or has already acquired] from the estate of Allen Chapman, deceased, her father, or from the estate of any other person or persons whatsoever; and all the money, effects, and property, whether real or personal, which the said Eachel, his intended wife, has already acquired, or hereafter may acquire, by descent, purchase, devise, gift, or bequest, from any person or persons whatsoever, and all the estate, right, title, and interest of him, the said Jeremiah, of, in, and to, all the money, effects and property which the said Eachel, his intended wife, has already acquired, or hereafter may acquire, as aforesaid, unto him, the said William H. Benton, his heirs, executors, or administrators, forever, and to the only proper use and behoof of him, the said Wm. H. Benton, his heirs, executors, or administrators, forever, upon the trust, conditions, and limitations, nevertheless hereinafter expressed, to wit: 1st. It is agreed upon by and between the parties to these presents, that all the money, effects, and property, whether real or personal, which the said Eachel, his intended wife, has already acquired, or which she may hereafter acquire, from the §state of Allen Chapman, deceased, her father, or from the estate of any other person or persons whatsoever, and all the money, effects, and property which the said Eachel has already acquired, or hereafter may acquire, by descent, purchase, devise, gift, or bequest, from any person or persons whatsoever, shall be held, enjoyed, and possessed by the said Wm. H. Benton, to the sole and separate use and benefit of the said Eachel, for and during her- natural life, without any control whatsoever of the said Jeremiah, her intended husband. 2d. It is further agreed upon by the parties to these presents, that the said Eachel have it in her power to dispose of any property of any description -which she has already acquired or may hereafter acquire, as aforesaid, by will or deed. 3d. It is further agreed upon, by and between the parties to these •presents, that if the said Wm. H. Benton should die in the lifetime of the said Jeremiah and the said Eachel, the trusts herein contained shall not cease, but continue to be exercised and executed by any person whom the said William H. Benton shall by will appoint; and if the said William shall die without making such appointment, then the trust herein contained shall continue to be executed and exercised by his executors or administrators. 4th. It is further agreed, by and between the parties to these presents, that on the death of the said Eachel, any property of any description which she has already acquired, or may hereafter acquire, as aforesaid, shall survive to her personal representatives, or descend to her heirs at law, as the case may be; and more completely to effectuate the intentions of the parties to these presents, the said Jeremiah doth hereby covenant and agree, to and with the said Wm. H. Benton, that he will, at anytime hereafter, at the request of the said Eachel, or at the request of the said Wm. H. Benton, execute any other or further conveyance which may, by counsel learned in the law, be deemed necessary.
    «In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in presence of [all additions made in different ink before the signing, sealing, and delivery of the same.]
    JEEE. BENTON. [seal.]
    EACHEL P. CHAPMAN, [seal.]
    WM. H. BENTON. [seal.]
    Peter K. McIver.
    A. Little.
    Elizabeth MoIver.
    
      Anson, October 9th, 1826. — Then this contract was duly proven in open Court, by A. Little, and ordered, to be registered.
    Wm. Desmarres, Olerh.
    
    November 9th, 1826. — Then this marriage contract was duly registered in the Register’s Office of Anson County, in Book V., page 330.
    Wm. Marshall, Register.
    
    Recorded 5th January, 1829, in the Office of Register of “ Mesne Conveyances” for Darlington District, S. C.
    DEED*
    This indenture, made the 12th day of February, in the year of our Lord one thousand eight hundred and thirty-three, between Jeremiah Benton and Rachel P. Benton of the one part, and Thomas P. Chapman of the other part, witnesseth, that for and in consideration of the sum of one dollar to the said Jeremiah Benton and Rachel Benton, his wife, in hand paid by the said Thomas P. Chapman, at or before the sealing and delivery of these presents, the receipt whereof they do hereby acknowledge, and therefore do release, acquit and discharge the said Jeremiah Benton and his wife, Rachel P. Benton, their heirs, executors, and administrators, by these presents they, the said Jeremiah Benton and his wife, Rachel P. Benton, granted, bargained, sold, aliened and confirmed, and by these presents doth grant, bargain, sell, alien and confirm unto the said Thomas P. Chapman and his heirs, a certain piece or parcel of land, situate, lying and being in the District of Chesterfield, and State of South Carolina, on the south side of Thompson’s Creek, bounded as followeth: beginning at a maple near the bank of said creek and runs southwest forty-five degrees seventy-eight chains to a pine, then southeast eighteen degrees twenty-four chains to a field cleared by Gipson, then southeast forty degrees ninety-one chains and fifty links to a post oak, then northeast seventy degrees and thirty chains to a pine, then northwest twenty degrees and sixteen chains to a stake, then northeast forty-four degrees one hundred and eleven chains and fifty links to a stake and red oak, then one hundred and thirty-two chains up the creek, then southwest twenty-four degrees and twenty five chains to a dogwood, then northwest sixty-six degrees twenty-five chains to a red oak, then northeast twenty-four degrees and thirty chains to the creek, then twenty-eight chains up the creek to the beginning; and all profits, commodities, hereditaments and appurtenances whatsoever, and the remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, dower, trust property, claim and demand whatsoever of them, the said Jeremiah Benton and Bach el P. Benton, his wife ; to have and to hold the lands hereby conveyed and every parcel thereof unto the said Thomas P. Chapman, his heirs and assigns forever, to the only proper use and behoof of him, the said Thomas P. Chapman, and his heirs and assigns forever. And the said Jeremiah Benton and Rachel P. Benton, his wife, for their heirs, executors, and administrators, doth convey and grant the same to the said Thomas P. Chapman in manner and form aforesaid, and that the said premises now are free and clear of all former gifts, grants, Bales, dower, right and title of dower in the said Jeremiah Benton and his wife Rachel P. Benton, or any other person whatsoever; and that the said Jeremiah Benton and Rachel P. Benton, his wife, and their heirs, all and singular, the premises hereby bargained and sold unto the said Thomas P. Chapman, his heirs and assigns, against them, the said Jeremiah Benton and his wife, Rachel P. Benton, and their heirs, and all and every person or persons whatsoever, shall warrant and forever defend by these presents.
    In witness whereof, the said Jeremiah Benton and his wifé, Rachel P. Benton, have hereunto set their hands and seals the day and year first above written.
    JEREMIAH BENTON, [seal.]
    RACHEL P. BENTON, [seal.]
    Signed in presence of—
    Wm. Allen.
    S. Rushing.
    State op North Carolina, Anson County :
    Agreeably to a commission to us directed, William Allen and Stephen Rushing, two of the Justices of the Peace for the County of Anson, to take the private examination of Rachel P. Benton, separate and apart from her husband, touching 'her consent, without compulsion or threats from her husband, to join him in the above deed of conveyance to Thomas P. Chapman, she does state clearly that it was a voluntary act of hers, and not done under the compulsion or threats of her husband, and that she did join her husband at least seven days after the commission was shown to her, and at least seven days previous to her examination.
    Given under our hands and seals this 18th day of March, 1833.
    RACHEL P. BENTON, [seal.]
    S. Rushing, J. P. [seal.]
    Wm. Allen, J. P. [seal.]
    State op North Carolina, Anson Countt :
    Agreeably to a commission to us, Stephen Rushing and William Allen, two of the Justices of the Peace for said County, directed from John Craig, Esquire, Clerk of the Court of Chesterfield District, and State of South Carolina, to take the privy examination of Rachel P. Benton, separate and apart from her husband, touching her consent, without compulsion or threats from her husband, to sign the within deed of conveyance to Thomas P. Chapman, the said Rachel P. Benton does state clearly that it was a voluntary act of hers, and not done under the compulsion or threats of her husband.
    Given under our hands and seals this 6th day of March, 1883.
    RACHEL P. BENTON, [seal.]
    Signed in presence of—
    Wm. Allen, J. P. [seal.]
    S. Rushing, J. P. [seal.]
    South Carolina, Chesterfield District :
    Wm. Allen personally came before me, and, being duly sworn, saith, that he was present and saw Jeremiah Benton and Rachel P. Benton, his wife, sign, seal, and deliver the foregoing deed of conveyance to Thomas P. Chapman for the uses and purposes therein mentioned, and that S. Rushing and himself witnessed the due execution thereof.
    WM.'ALLEN.
    Sworn to and subscribed before me, this 11th June, 1835.
    W. J. Hanna, J. P.
    Register’s Office, Chesterfield District. Recorded 28th February, 1839, in Book S, page 389. Examined and certified by J. C. Craig, Reg. C. D.
    The defendant appealed, and now renewed his motion for a nonsuit, on the ground, that the plaintiffs showed, by their evidence,-that they were tenants in common with the defendant, and failed to show any legal ouster.
    And also moved for a new trial, on the following grounds, to wit:
    1. Because his Honor charged that the jury might presume, from the general conduct of the defendant, the deeds executed by him, and his conversations not recognizing the rights of the plaintiffs, though they were at no time mentioned, that an ouster had been committed.
    2. Because his Honor erred in charging the jury that, as a matter of law, the certificate of Rachel P. Benton’s relinquishment of inheritance on the deed from Jeremiah Benton and Rachel P. Benton to Thomas P. Chapman was informal and insufficient to complete the deed so as to pass the fee of. the land.
    8. Because his Honor erred in charging that the indenture, or marriage settlement, between Jeremiah Benton, Rachel P. Chapman and William H. Benton did not avail to enable Rachel P. Benton (under a power therein reserved toherself, to convey by deed or will) to convey by deed without joining her husband in the execution of the deed, and relinquishing her inheritance according to the requirements of the Act of 1795.
    4. Because his Honor erred in not charging that the deed from Jeremiah Benton and Rachel P. Benton to Thomas P. Chapman, under the power reserved to Rachel P. Benton in the said marriage settlement, was sufficient to pass her inheritance.
    5. Because the verdict was, in other respects, contrary to the law and evidence.
    
      Austin, Johnson, and Dudley, for appellant.
    1. The Court should have granted the motion for nonsuit, no ouster having been proved. Harvin et al. vs. Hodge, Dud. 23.
    2. The evidence showed that the plaintiffs and defendants were co-tenants, and the evidence offered was not sufficient to establish an ouster. Harvin et al. vs. Hodge, Dud. 23; 
      Reeder ads. Craig, 3 McC. 412; Taylor & Young vs. Stocledale, 3 McC. 302.
    4. The relinquishments of inheritance executed by Kachel P. Benton were sufficient to complete the deed executed by Jeremiah Benton and wife to Thomas P. Chapman. Kotman and wife vs. Ayer, 1 Strob. 552.
    4. In a conveyance of land made by a married woman, under a power of appointment conferred before marriage, it is not necessary that she should join her husband in the execution, or that she should relinquish her inheritance before a magistrate or other officer, as directed by the Act of Assembly, 1795. Converse vs. Converse, 9 Bich'. Eq. 535; Wilson vs. Caines, 9 Bich. Eq. 420; Reid vs. Lamar, 1 Strob. Eq. 27; Ciarle vs. McKenna, Cheves Eq. 163 ; Thompson vs. Murray and wife, 2 Hill Eq. 204; Robinson and wife vs. Dart, Dud. Eq. 128; 4 Kent, 318,321, 322; Doty vs. Mitchell, 9 S. & M. 435 ; Missi. Bep.; Lester, aclrn'r, vs. Frazer, adm'r, 2 Hill Ch. 429; Clancy’s Bights of Women, 290, 291, 293, 349 ; Crimby vs. Cox, 2 Ves., Sen., 517; Sugden on Powers, 385, 388, 419, 420, 424.
    
      Prince and Mclver, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The first ground, which questions the ruling of the presiding Judge on the matter of the ouster, presents no difficulty to this Court. The case of Harvin vs. Hodge, Dud. 23, is relied upon by the defendant. That case held that tenants in common, peaceably in possession, were guilty of no ouster, in the naked fact, that they had conveyed to one a part of the fee. In this case, the question of ouster was submitted to the jury; they have found the fact, and after that it is in vain to ask us to set aside their verdict.

Beyond all doubt, the relinquishment of inheritance was insufficient, if regarded as applying to the real estate of the wife alone; Kotman and wife vs. Ayer, 1 Strob. R. 552; Brown vs. Spann, 2 Con. Rep., by Mills, 12; Bruce vs. Perry, 11 Rich. 121. But if this be regarded as a conveyance of her real estate secured by marriage contract, still I think it must be shown, that the conveyance is according to the power reserved ; or if the power be not followed, or does not apply, that then the conveyance is according to the Act of 1795. Beyond all doubt the conveyance is not according to the power; and the relinquishment has none of the incidents under our Act of the Legislature. It is the attempt to give effect to an awkward effort to follow in North Carolina the requirements of our statute law.

The motion for a new trial is dismissed.

Johnstone, J., concurred.

Motion dismissed.  