
    John Bonner et. ux. vs. Richard Cunningham and Heirs of Charles Cleapor.
    Heard before Chancellor J. Johnston, Charleston January Term, 1885.
    Complainants. John Bonner and Eliza Maria, his wife, lately before her intermarriage with the said John Bonner named Eliza Maria Day, in their bill, state, — That Elizabeth Oats, daughter of Edward and Elizabeth Oats, long since deceased, at the death of her said mother, became entitled, as tenant, in common with her two brothers, Edward and Charles Oats, to one third part or share of certain real estate in the city of Charleston, by the partition of which, under the authority of this court, a certain lot of land on the north side of Ellery street, fifty feet front by seventy feet deep, was allotted to her as her several property in fee, as appears by the return of the commissioners, confirmed 8th September, 1794. That said Elizabeth Oats, on the 6th February, 1794, not then seventeen years old, intermarried with George Day, and that previous thereto a marriage settlement, dated-February, 1794, was made between the said Elizabeth Oats, and George Day, and Edward Oats, as trustee, whereby said Elizabeth Oats conveyed the said lot of land to the said Edward Oats, as trustee, upon certain uses and trusts specified in said deed, reserving, however, to herself the power of revoking the same whenever she should be so disposed. That afterwards, to wit, on the 2d and 3d days of April, 1795, the said George and Elizabeth, (she being still in her minority,) and the said Edward Oats, as trustee, to testify his assent, joined in-executing a lease and release, for the purpose of conveying the said lot to Thomas Boone, wherein the said Elizabeth Day, by virtue of the power reserved in the marriage settlement, revoked the same, so far as it related to the lot aforesaid ; and the inheritance being in her, she, the said.Elizabeth Day, (still a minor,) did, on 4th April, 1795, release her inheritancé in said lot, to the said Thomas Boone, agreeably to the provisions of the act of assembly, 17311 and that the said Boone, £>y virtue of said cotwyanee entered into,ana continued in possession for many years. That the said Boone, after-wards, in 1801, conveyed the eastern half of the said lot, twenty-five feet front by seventy-five deep, to Charles Cleapor, but remained possessed of the other half until 1805, when it was sold by Site city sheriff, to John Cunningham. That Elizabeth Day died 31st April, 1804, leaving, living, her husband, George Day, and two young children, a son George Oats Day, not nine years old, and oratrix Eliza Maria, less than' eight years old, whereby the said George Day, the husband, became entitled to one third of her real estate, and the said two children to the other two thirds, and, consequently, the said Thomas Boone, or his assigns, became well entitled to an indefeasible estate in one third of said lot, thus descended to the said George Day, party to the conveyance to the said Thomas Boone, but the other two thirds descended to the said, children. That the said George Day afterwards died on 29th Junef 1811, leaving, living, his said son, George Oats, and daughter. Eliza Maria, oratrix, still in their minority; and shortly afterwards the said George Oats Day, to wit, 1st November, 1814, also died intestate, unmarried, and without having attained his full age, whereby oratrix became entitled to his share or proportion of said lot, in addition to her own, thus entitling her to two thirds of the same. That oratrix attained her full age on or about the 9th Sep. tember, 1818, and very shortly after, to wit, 21st January, 1819, believing that she was entitled to the whole of the lot under her mother’s marriage settlement, (the power of revocation having been overlooked,) sued out writs of trespass to try tille, in Court of Common Pleas, against Henry Gray, tenant of Richard Cunningham, the heir of John Cunningham, aforesaid, to recover one half of said lot, and against Charles Cleapor, aforesaid; to recover the other half then still in his possession ; which suits were regularly proceeded m, and docketed, for October, 1819, and from thence regularly continued from term to term, until May or October, 1822, about which time the suit against Charles Cleapor abated by his death, and that against Henry Gray, also by his death; besides which, there was a proposal to compromise between-the parties in the latter case. Oral or and oratrix intermarried about 28th December, 1823, about which time it being discovered that a power ol revocation was reserved in the marriage settlement aforesaid, and had been executed, and oratrix was not entitled to the whole of the said lots, but only to two thirds thereof, in common with those claiming under her father, orator, in right of oratrix, his wife, took possession of that part of said lot, which had been conveyed to Charles Cleapor, some time in August, 1824, and still keeps possession thereof, as tenant, in common with the heirs of the said Charles Cleapor; but that reiving upon the prospect of a compromise with Richard Cunningham, complainants did not enter upon that part of the said lot which had been conveyed to John Cunningham, his father, until a year after their intermarriage, but that some time in January, 1825, finding that a compromise was not likely to be effected, very speedily entered peaceably into the possession of that part of said lot. also, as tenant in common, and without molesting the tenant of the said Richard Cunningham, (John T. Smart,) who still continued to reside therein, until his death; and that complainants, for nearly a year, had the sole posses, sion of the said portion of the lot, until they gave it up to said Richard Cunningham, some time in August, 1826, upon, an agreement, that their respective claims should be submitted to arbitrators, for which purpose an arbitration bond was signed, as well by orator, as by said Richard Cunningham; but nothing was defi. nitely done m said proposed arbitration. That they have frequently applied for account of rents, &c. and partition, without success ; and they pray an account, partition, and general relief, and for subpoenas against said Richard Cunningham, and the heirs of Charles Cleapor.
    Defendant, Richard Cunningham, in his answer, states, that he knows nothing of Edward and Elizabeth Oats, their family, or property, or concerning the proceedings in partition, referred to in bill, and prays strict proof of said allegations, as well as those concerning the relationship of said persons, and those claiming by or under them, as the manner in which the said .lots were acquired and transmitted. Defendant admits, that Elizabeth Oats did intermarry with George Day, but requires proof of the time of marriage, age of Elizabeth Oats, and execution of marriage settlement. Also, admits, lease and release from George Day, and Elizabeth, bis wife, and Edward Gets, and renunciation and release of inheritance, by Elizabeth Day to Thomas B «me, of the dates mentioned in bill, but denies dint ihe said Elizabeth was under any disability when the said release mid renunciad in were executed. Also, admits, Thomas Boone’s possession for many years, and that the half of the said lot. (now in bis possession^ was purchased at sheriff’s sale, as the property of I'. Boone, by his, defendant's, father, John Cunningham, 5tli February, 1805, for $1,825, who entered upon, and enjoyed the premises, until iiis death, and tint he, defendant, inherited the same from his said father, and co ’.tinned to enjoy it without hindrance, until the beginning of 1819, when, as stated, in bill, an action of trespass was brought against Henry Gray, his tenant, by Miss Eliza M. Day, who, defendant has been informed, since intermarried with John Bonner. That be regarded himself, from the first, as the real defendant in the s rid suit, and was always ready to defend it; but it was continued, by plaintiff, from term to term, until said Henry Gray died, and defendant was then desirous that it should proeeed, notwithstanding the death of the nominal defendant, and lie denies that he ever entered into any compromise with complainants, for settling the dispute ; on the contrary, he has constantly relied on his long adverse possession of said lot, and his undoubted title. Defendant avers, that complainants got possession of said lot by stratagem, or collusion with another tenant of his about the time mentioned in bill, 1825, and that he was obliged to have recourse to proceedings under the sta-. tue of forcible entry and detainer, to get restitution of his property. And so far from the truth is it, (as stated by complainants,) that they gave up the possession to defendant, upon an agreement to submit their claims to arbitration, that he could not, in fact, gee the possession until Bonner perceived that the court of magistrates and freeholders was organized and proceeding to business, and then, reluctantly, gave up. Defendant admits entering into bond to abide an arbitration, but the bond distinctly provided that the award should be made to January term, 1827, which was not done —and, indeed no arbitrators were appointed. This was done, however, not with any view to a compromise ; but simply to have the dispute settled in a fair and reasonably way, and defendant avers, that since that time he had no notice of any intention of complainants to pursue their claim, until a short time belore the filing of the present bill, when he received notice from complainants’ solicitors, to that effect. Defendant avers, that he stands on his legal title, that his claim has been constantly and “directly adverse to complainants, and that he is protected by the statute of limitations, which he relies on, and prays to have the benefit of, as if formally pleaded.
    DECREE. — It is ordered, that the bill, as against Richard Cun. ningham, be dismissed. But that a writ of partition issue, to divide the part of thei lot purchased by Charles Cleapor, by allotting one third to his distributees, and the other two thirds to the plain, tiff, Mrs. Bonner. The plaintiff’s to pay Cunningham’s costs, and the costs, as between them and the Cleapors, to be borne according to their respective interests in the lot.
    J. JOHNSTON.
    Kins & M'Ceady, for motion.
    Dunkin', contra.
    Filed 21st March, 1837.
   From this decree, plaintiffs appeal, as to so much as dismisses the bill, as against Richard Cunningham, — Because it is respectfully submitted, that his honor erred in dismissing the bill as to Ri« chard Cunningham, as it appears by the decree against the Cleapors, that he was satisfied with the proof of complainants’ title, and the facts did not support the plea of the statute of limitations.

It is ordered and decreed, that the decree of the circuit chancellor be affirmed, and the motion dismissed.

DAYID JOHNSON,

J. JOHNSTON,

WILLIAM HARPER.

21st March, 1827.  