
    SARAH GASS ET AL. v. HAWKINS AND WIFE.
    (S. C., Thomp. Cas., 238-252.)
    Jackson,
    April Term, 1860.
    1. TITLE BOND. Creates equitable estate, not impaired by will; descends to heirs.
    A father made to his son a title bond in the penalty of $5,000, for a deed in fee simple, with covenants of general warranty, • to certain described land, to be made to the son or to his children, as the father (the obligor) might elect. If the father made the deed to his son’s children, then the son was to have a life estate in the land. If the father died without making such deed, then his personal representatives • were required to make it to the son. The father reserved in himself a life estate in the premises. The son with his family immediately took possession of the land, and then died before the father made the deed to him or his children. The father never made the deed,, but by will devised the land to his son’s “family.” The personal representatives of the father never made any deed, but recognized the will as a performance of the bond by a.suit in equity. Upon this bond and these facts it was held that the son took an equitable estate in fee simple to said land, subject to the life estate of his father, and subject to be divested by deed from his father to his children; that upon the death of the son, his equitable estate in' the land descended to his children and heirs at law; that the demise in the will must be held a satisfaction of the bond, and to convey to the son’s heirs the legal title to the land in which they owned the equitable estate; that the will could not alter or impair the title of the heirs; and that the word “family” did not include the widow so as to entitle her to dower or any other rights.
    2. SAME. Eacts from which presumption of consideration arises.
    Such bond is not voluntary, but is founded upon a valuable consideration. A sufficient consideration, and "a sale instead of a gift, is to be presumed for the following reasons: (1) The writing is under seal; (2) there is no intimation upon its face of a gift; (3) a penalty is annexed on failure to convey; (4) the conveyance is to be made with covenants of warranty; (5) the obligor’s acknowledging the bond and causing it to be registered; (6) neither the obligor nor his heirs ever claimed the land after the bond was executed; (7) want of any averment or testimony that it was intended as a gift.
    3. SAME. Prima facie evidence of a sale.
    A title bond is prima facie evidence of a sale, and it devolves upon him who controverts it to rebut the presumption by proof, for the court will not presume from the absence of the price in the bond that none existed, but just the contrary.
    4. SAME. Consideration necessary and presumed though, not named.
    While the consideration need not be stated in the title bond, it is just as necessary now as before the statute of frauds; but its existence may be shown by parol or other common law proof, and all the presumptions in favor of its existence in an instrument like this continues as it existed at common law before the statute of frauds. [The consideration may be proved by parol evidence. Perry v. Railroad, 5 Cold., 144; Mowry v. Davenport, 6 Lea, 93; White v. Blakemore, 8 Lea, 61; Hill v. McLean, 10 Lea, 114.]
    5. SAME. Signed by vendor and accepted orally by vendee is valid.
    It is not necessary that the purchaser should sign the title bond in order to bind him as to his part of the contract. It is sufficient that it is signed by the vendor who is the party to be charged therewith, and that it contains a sufficient description of the land to be conveyed, which if accepted orally by the vendee, binds him according to the terms of the trade. [See notes 56-58 under sec. 3142 of the Code.]
    Cited with approval: Whitby v. Whitby, 4 Sneed, 473; 1 Dev. & Batt. (N. C.), 103.
    6. DOWER. None in remainder estate.
    The son’s widow took no dower in this land, because- the life estate of the father was subsisting' when the son (her husband) died. The son had only a remainder, and there cannot be any dower in a remainder. [See note 17 under sec. 4140 of the Code. Eor dower generally, see Code, secs. 4139-4162, and notes.]
    Cited with approval: Apple v. Apple, 1 Head, 348.
    7. JURISDICTION OE PARTITION. Chancery cannot review partition made by county court.
    Concurrent jurisdiction of partition cases is conferred upon the county, circuit, and chancery courts, and the action of the court first taking' jurisdiction must, as to the other tribunals of the same or concurrent power, be final. So, where the county court decrees partition, the chancery court cannot review its decree, nor correct its errors, where there is no fraud, nor irregularity affecting1 its power. [See Code, secs. 5014, 6031, 6034, and notes; notes 3-6 under sec. 6050; Cox v. Cannon, 1 Cold., 370; Cate v. Little, ante, p. 39.]
    Cited with approval: Thompson v. Hill, 3 Yer., 167; 4 Johns. Chy., 276; Code (1858), secs. 3266, 3271, 3289, 3291, 3292; Shannon’s Code, secs. 5014, 5019, 5038, 5040, 5041.
    Cited and distinguished: Nicely v. Boyles, 4 Hum., 177; Whillock v. Hale, 10 Hum., 64.
    8. SAME. Disputed title; dispute as to shares or interests of parties.
    If the title be disputed, partition will not be made in chancery till the dispute is settled in ejectment or other appropriate form of action at law. But if there is merely an uncertainty of the shares, the respective shares or interests of the parties may be ascertained by the court, and the division made accordingly; and those having- no interest will be dismissed from the case. [Chancery court has jurisdiction now to determine questions of title, preliminary or incident to partition. See note 2 under see. 5014 of the Code, and sec. 6109, and note 6.]
    Cited with approval: Nicely v. Boyles, 4 Hum., 177; Whillocic v. Hale, 10 Hum., 64; Ag-or v. Fairfax, 17 Yes., 531; 3 Johns. Chy., 302, 305; 1 Johns. Chy., Ill, 118; Mills v. Wetherington, 2 Dev. & Batt. (N. C.), 433; Clapp v. Bormyham,-9 Cowan, 530, 598.
    9. SAME. In equity where title is equitable and disputed.
    Where the question about title arises upon an equitable title, such as an unassigmed dower right, it will be decided in equity, because it cannot be sent to law. A party having such equitable right in a proceeding for partition, being in court, and not asserting it, cannot afterwards do. so. [See Carter v. Taylor, 3 Head, 30, 35; Almony v. Hicks, 3 Head, 39; Leverton v. Waters, 7 Cold., 23; Hopkins v. Toll, 4 Hum., 46. But see note to last syllabus.]
    Cited with approval: Coxe v. Smith, 4 Johns. Chy., 271; Code (1858), secs. 3271, 3289, 3291, 3292 (Shannon’s Code, secs. 5019, 5038, 5040,. 5041.)
   Wright, J.,

delivered the opinion of the court:

This bill is filed by Sarah Gass, the widow of Hezeldah B. Gass, deceased, and his six children, against Mary Ann Hawkins, his remaining child, and her husband, Henry M. Hawkins, in which the complainant seeks to have the dower of said Sarah assigned to her out of a certain tract of land in Greene county, and partition of the residue, alleging that said tract descended from the said Hezekiah B., on the 9th of February, 1836.

John Gass, the father of the said Hezekiah B., executed to him a bond in the penalty of $5,000, conditioned that he would make to the said Hezekiah B., or to all of his children, as the said John might elect, a deed in fee simple with covenants of general warranty to a certain tract of land, describing the same by metes and bounds, of which the above tract is a part; excepting, however, from the conveyance all the land contained within the boundaries which he had previously conveyed to others, and also- fifty acres below said John’s grist mill, as the said John might choose to have the same run out and surveyed.

In the said bond it was stipulated that if the said John executed said deed in his lifetime to the children of the said Hezekiah B., then the said Hezekiah B. was to have a life estate in the said land, and if the said John should die without making the deed, either to the said Hezekiah B. or his heirs, then the personal representatives of the said John were required to execute the deed to the said Hezekiah B., and said John reserved to himself a life estate in the premises to be conveyed, with the exeception of a saw mill, which the said Hezekiah B. was about to erect, and timber to saw in said mill; the said Hezekiah to do whatever sawing the said John might want, he to furnish the logs, and, also, excepting the houses and buildings which the said Hezekiah had put upon the place, and the field which he then had in possession and cultivation, and firewood for his own use, and timber to keep up the place. The said Hezer kiah B., with his family, immediately took possession of the tract of land, made improvements and continued to reside thereon until his death, in 1836, and his widow and heirs have had possession of the same ever since. They claimed it absolutely as their own and were never disturbed or any .claim made to it either by the said John Gass or his other heirs. In 1836, but whether before or after the death of the said Hezekiah B. does not appear, the said John went before the clerk of the county court of Greene county and acknowledged said bond, and the same was registered. In June, 1840, the said John Gass, without having executed the deed in compliance with the bond, died, leaving a will bearing date the 1st of March, 1837, in which he devised said tract of land to his son, Hezekiah B. Gass’ “family,” describing the same as 300 acres, the place whereon he died. And in a bill in equity subsequently filed by the executors of the said John Gass against those interested in his estate, for a construction of the will and the execution of the trusts therein contained, it was alleged and not denied, that the devise of three hundred acres of land to Hezekiah B. Gass was made in pursuance of the title bond under which he and those claiming under him had such length of possession as that the absolute title was vested; and they therefore asked to be exonerated from any further trouble in regard to said land, and never did claim it, or further intermeddle with it. "What quantity of land was contained in the bond does not appear, nor how much John Gass had conveyed to others before its execution; but it seems from the bill that after he made the bond he conveyed to one Samples fifty acres of land therein embraced, which is now, and has been for many years, in possession of one William C. Babb, as to whom complainants have dismissed their bill, conceding that they have no valid claim on that part of the tract. We are, of course, unable from anything in this record to state the quantity of land that remains to the heirs of Hezekiah B. Gass after making the deductions above mentioned.

Upon these facts we are of opinion first, that this cannot be regarded as a voluntary bond between John Gass and his son, Hezekiah B., but on the contrary, an instrument founded upon a valuable consideration, the legal effect of which, in equity, was to invest the said Hezekiah B. in his lifetime with a title in fee simple to said land, subject to be divested by a deed from John Gass to the children of ITezeldah B., but which was never made.; and also subject to the life estate of said John, which closed at his death; and that, therefore, upon the death of Hezekiah B. the tract of land came by descent to his children and heirs at law. The bill so alleges and such we think the legal effect of the bond. In arriving at this conclusion we do. not deem it necessary to consider what effect the engagement of said Heze.kiah B. to said John to saw his lumber, contained in said bond, might have in relieving it of its supposed voluntary character. Nor do we go into the question whether, even if the bond were clearly wanting in any valuable consideration, a court of equity might not have executed it by decreeing a conveyance upon the nature of meritorious consideration, it being between father and child. Burn et al. v. Wenthrop et al., 1 Johns. Ch. Rep., 327, 329; Montener v. Seymour, 4 Do., 497, 500.

As before stated, we think aside from these views it must be held to have invested Hezekiah B. Gass with the equitable title in the land, according to the' authority of the case of Whitby v. Whitby, 4 Sneed, 473. This bond is not to' be taken as a gift but as a contract for the conveyance of land valid under the statute of frauds, even though no price be named or recited; and we are not to presume from the absence of the price in the bond that none existed, but just the contrary. The title bond is prima facie evidence of a sale, and it devolves upon him who controverts it to rebut the presumption by proof. In this case there is not the slightest evidence to show that this bond was a gratuity or that it was not founded in a valuable consideration, and no such thing is averred in the. pleadings. I speak of a consideration other than such as appears upon the face of the bond. A consideration is just as necessary now as before the statutes of fraud, but it need not be stated in the writing or title bond; its existence may be shown by parol or ■ other common law proof, and all the presumptions in favor of its existence, which, at the common law, arose out of an instrument like this, are still obligatory upon us as a court. It was [not] necessary that a bond like this should have been signed by Hezekiah B. Gass in order to bind him as to his part of his contract, he being bound for„the price whatever it was, upon common law principles independent of the staute. It was sufficient that it was signed by John Gass, who was to be charged therewith, and that it contained an apt description of the land to be conveyed by him, with the terms upon which the conveyance was to be made. 4 Sneed, 473, 1 Dev. & Batt. law, 103. A sufficient consideration is to be presumed not only from the fact that the writing is under seal, there being no intimation upon its face of a gift. But this is very materially aided by the penalty annexed on failure to convey, and by the covenants for warranty, and, indeed, by the terms of the entire instrument, the true construction of which much more naturally imports a sale than a gift. The presumption is not affected by the relation of father and son, nor by the power retained in John Gass to convey to the children of Hezekiah B. This does not prove that some valuable consideration did not pass from the said Hezekiah B., or his children, to the said John. Ilawood’s Heirs v. Moore, 2 Hum., 584. The proof aliunde, that he acknowledged the bond and caused it to be registered; that neither he nor his heirs ever claimed the land, together with the want of any averment or testimony that it was intended as a gift, support also the presumpion of a sale.

Second. The demise in the will must be held a satisfaction of the bond, and the legal title united with the equitable estate, to be in the heirs at law of Hezekiah B. Gass. Even the word “family,” as used in the will, could ordinarily embrace the widow, it cannot be allowed to be so here, because, by force of the bond the title to this land was in Hezekiah B. Gass at his death, and descended to his heirs, and the will of John Gass could not alter or impair their title. Its only effect was to¡ pass to them therlegal estate, and we will not suppose that anything else was intended. Though John Gass, .in his lifetime, might have exercised the power in'favor of the children of Hezekiah B. by the execution of the deed to them, thereby defeating the estate of Hezekiah B., he could neither by deed nor by will bring in the widow. The execution of the deed must have been either to Hezekiah B. "or his children, and could be to no one else. This result is not changed by the recital in the will that John Gass paid Hezekiah B. Gass’ administrator for the sawing done for him by the said Hezekiah B. He was not bound to do so; even if Hezekiah B. meant' he should. But there is no evidence that he so intended. And besides, how could anything that might take place between John Gass and the administrator of Hezekiah B. affect the rights of the heirs of the latter in this land? It certainly could not; and it is plain from this will itself that John Gass did not intend any such thing.

Third. The widow of Hezekiah B. Gass took no dower in this land (unless it be the portion excepted in favor of her husband), because the life estate of John Gass was subsisting when her husband died, and he had only a remainder, 1 Head, 348. But as six of the heirs who unite with her as complainants in the. bill concede her right to dower, and ask that it may be allotted to her, she may have a decree for six-sevenths. As to the other one-seventh the defendants deny her right.

Fourth. We think the decree of partition had in the county court of Greene county, under which the defendant, Mary Ann Hawkins obtained her share or one-seventh conclusive upon the parties; and that a court of chancery cannot revise its proceedings or correct errors if any there be, in the decree, and the complainants certainly cannot, as is attempted here, by a new and distinct suit, pass by the proceedings of that court altogether, and ask for a repartition. The code under which this proceeding was had and by which it was authorized, confers concurrent jurisdiction of partition cases- upon the county, circuit and chancery courts, and the action of the court first taking jurisdiction, must, as to the other tribunals of the same- or concurrent power, be final. Code, sec. 3266. "When a court of law and a court of equity have concurrent jurisdiction of the matter in dispute, the court which first takes jurisdiction settles the-matter conclusively. Thompson v. Hill, 3 Yer., 167. The complainants, including complainant, Sarah, were parties by actual service, and we see no irregularity affecting the authority of the county court. No fraud in the decree is alleged or pretended, and, indeed, no- irregularity, the division being in precise conformity to the rights of the parties, save that it is insisted that complainant, Sarah, did not get her share. But we have seen that under the will she took nothing, and by law has no right to dower unless it be in that portion of the land in which John Gass did not reserve a life estate, and as to that the decree of the county court ends the matter. The remedy, if any, being by appeal or writ of error to a revising court, and not by an original suit in a tribunal of concurent authority. The cases of Nicely v. Boyles, 4 Hum., 177, and Whillock v. Hale, 10 Hum., 64, to which we have been referred, cannot help complainants. The doctrine of these cases is that a bill for partition is not a bill to settle title, but a bill to divide that which belongs to tenants -in common among them in severalty; and if the title be disputed, partition will not be made till the dispute is settled in ejectment' or other appropriate form of action at law; and hence that in an action of ejectment a partition by decree was not conclusive upon the rights of the parties as to the title. But this doctrine can have no applicaion where the question arises upon an equitable title, such as an unassigned do-wer right, which must be decided in equity and cannot be sent to law. Coxe v. Smith, 4 Johns. Ch. R., 271.

In a proceeding to divide the ireal estate of an intestate among the heirs, in whatever court it may be had, every person entitled to dower, if the same has not been allotted, is required by the Code, sec. 3271 [Shannon’s Code, sec. 5019], to be made a party and a dower set apart by commissioners as in other cases, sec. 3289 [Shannon’s Code, sec. 5038]. And when complainant, Sarah, was brought into the county court as a defendant upon the petition or bill of defendants for a partition, the court could recognize and protect her right to dower upon the partition, and it was her duty there to have asserted it (4 Johns. Ch. Rep., 276), and if the same were not allowed or allotted to her in the decision, by which Hawkins and wife got more than their share, her remedy cannot be by a new and distinct bill.

The Code, sec. 3291 [Shannon’s Code, sec. 5040], provides that partition made as therein directed shall be conclusive on all parties named in the proceedings who have at the time any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises after the termination of any particular1 estate therein; or who, by any contingency in any will, conveyance, or otherwise, may be, or may become, entitled to any beneficial interest in the premises, or who- shall have any interest in any individual share of the premises, as tenants for years, for life or by the curtesy or in dower, and on all persons interested in the premises who shall have any interest in any undivided share of the premises who are unknown and to whom notice has been given by publication as therein directed, and upon the privies of the parties above enumerated. But by sec. 3292 [Shannon’s Code; sec. 5041], it is provided that such judgment and partition will not affect any tenants or persons having claims, as tenants, in dower, by the curtesy, or for life, to the whole of the premises, nor preclude any person except those specified in the last section from claiming any title to the premises or from controverting the title or interest of the parties between whom .the partition has been made. Iiow far it was intended by these two sections and the other provisions of the Oode upon the subject to change the rule in Nicely v. Boyles and Whillock v. Hale, as to the non-conclusive nature of a decree of partition upon the title of the parties thereto', it may not be very easy to state, and we do not attempt it here. It is enough that we think the complainant, Sarah, standing as she did in the case, is concluded by the decree of the county court.

We may remark, however, that it seems to have been well settled that in a court of chancery the uncertainty of the shares is not a ground for definitely refusing a partition, but that the interest of the parties might be ascertained by the court through the medium of the master, and if it appeared that the parties, complainant and defendant, respectively, or some of them, were entitled to the whole subject, then to order a partition according to the rights of all or such of them as appeared entitled, dismissing from the case such as appeared to have no right; and after the court had thus ascertained the proportions and rights of the parties, it was the duty' of the commissioners to make the division in those ascertained proportions. Agor v. Fairfax, 17 Ves., 531. It was not every case where the title was litigated, even upon the legal title that was to be sent to law, but only cases of doubt and difficulty, as to the extent of the undivided interest of the respective claimants. 3 Johns. Ch. R., 302, 305; 1 Johns. Ch. R., 111-118. And the authorities generally lay down the rule that the judgment or decree in partition establishes a title -which in an ejectment suit must be conclusive. Mills v. Wetherington, 2 Dev. and Batt. Law R., 433; Clapp v. Bormyham, 9 Cowan, 530, 598.

The allotment to> defendants, will stand, and partition will be made among complainants of tbe residue, first allowing tbe widow six-sevenths of ber dower.

.Tbe decree of,tbe chancellor will be reversed and tbe decree entered in conformity to tbis opinion.  