
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Warnock & Wife, v. Wightman.
    Conveyance of lands to E. W. “ and to the heirs of her body, and to the survivors of them foreverhabendum “ to the said E, W., and the heirs of the body of the said E. W., and the survivors of them, and their heirs and assigns foreverwith warranty “ to the said E. W., and the heirs of her body, and the survivors of them, and their heirs and assigns forever.” E. W, had issue, two sons, who survived her, but died without issue ; and no alienation had been made by her or them. Held, that E. W. and her sons did not take as joint tenants, nor her sons as purchasers; nor did E. W. take a fee-simple expectant on failure of her issue: but she took a fee-simple conditional at common law; and upon the death of the survivors of her sons, the lands reverted to the heirs, or devisees, of the grantor.
    A remainder in fee cannot be engrafted upon a fee-simple conditional at oommon law: nor after the grant of a fee-simple conditional by the premises of a deed, will a limitation in the ’habendum, to the heirs of the body of the grantee, in fee, enure, by operation of the rule in Shelly’s case, to enlarge the estate of the grantee to a fee-simple absolute. But it seems, that the possibility of reverter remaining in the grantor, after granting a fee-simple conditional, is a devisable interest.
    It is very questionable, whether the rule, that estates can descend only to the blood of the first purchaser, ever had root in this country; and whether all estates do not descend to the heirs general of the person last seized, whether the inheritance came ex parte paterna, or ex parte materna.
    
    Possession for five years previous to the 4th July, 1776, exempts land from the operation of the escheat act of 1787; and therefore bars the right of persons claiming as heirs of the half-blood, under the 14th section of that act.
    The 9th section of the escheat act of 1787, saving the rights of infants, femes covert, lunatics, and persons beyond the limits of the United States, saves only the right to traverse an inquisition of escheat; and cannot be so construed, as to divest a title acquired by possession for five years previous to the 4th July, 1776, or to affect the operation of the act of 1712, in relation to a possession subsequent to the escheat act, by parties who d'.d not acquire their possession by virtue of any of the provisions of the latter act.
    The several acts of 1789, 1790, and 1791, suspending the operation of the statute of limitations, in relation to suits for the recovery of lands, merely extended to a fixed period, the time at which the statute should bar the recovery, in cases where the statutory limitation would have been complete earlier ; and they do not apply to cases where the statute had not run out at the period designated. Vide ¡Sims v. Randal, ante, 85, and Hicks v. Pouncey, ante, 115. •
    A conveyance lodged at the register’s office, to bo recorded, takes precedence, under the act of 1698, of a conveyance lodged subsequently, although the latter is actually first recorded by the register.
    A purchaser having actual notice of a prior conveyance, is bound by it, although his own conveyance is first recorded pursuant to the provisions of the act of 1698,
    
      The plaintiff in trespass to try title must recover on tlie strength of his own title, and not on the weakness, or deficiency, of the title of his adversary. (See note at the end of the case.)
    Motion for a new trial. This was an action of trespass to try the titles to a messuage and tenements in the city of Charleston ; and was-tried before Brkvard, J. in Charleston, in January, 1804.
    The plaintiffs claimed urdei a deed of conveyance from John Breton, dated in 1735, to Elizabeth Withers, which purports to be made in consideration of natural love ami affection, and jSlOO currency ; the operative words of which are the following : “ to my said grand-daughtcr-iu-law, the said Elizabeth Withers, and to the heirs of her. body, and to the survivors of them forever ; to have, and to hold, to the said Elizabeth Withers, and the heirs of the body of the said Elizabeth Withers, and the survivors of them, and their heirs and assigns forevtr:” uarranted “ to the said Elizabeth Withers, and the heirs of her body, and the survivors of them, and their heirs and assigns forever.” In the same deed, Breton reserves an estate for his own life in the premises. By his last will, in 173--, he devised the residue of his estate to Magdalen, the mother of Elizabeth Withers, then the wife of Juneau, her third husband. Magdalen afterwards, by her last will, left her daughter Mary her residuary devisee. Elizabeth Withers, the grantee of the premises in question, the wife ol Laurence Withers, had issue by her husband, two sons, namely, Richard and Nathaniel, who survived her, and lived to be men, but never were married : she had no other issue living at her death, nor any lineal descendant. Sue made no disposition, by will or otherwise, ot the premises in question, but the same descended to Richard and Nathaniel, who made no disposition thereof by will or otherwise. The next heir at law ot Richard and Nathaniel, on the part of their father, was one Rand, a descendant of Lester, the sister of Laurence Withers, who conveyed his interest to Butler, under whom the defendant claimed. Mary, who was the daughter and residuary devisee of Magdalen, the mother of Elizabeth Withers, by her first husband, John Mitherington, had two daughters; namely, Anne, by her first husband, Bennett; and Mary, by her second husband, Hamlin; who were married, in succession,to Butler, the vouchee of the defendant, who claimed under a deed from Butler and his last wife. Magdalen, the mother of Elizabeth Withers, married, in succession, four husbands, namely: 1. John Mitherington; 2. Beauchamp ; 3, Juneau ; 4. Deveaux. By her first husband she had issue, a son named John, and a daughter named Mary, as aforesaid. By her second she had Elizabeth Withers, the grantee 0f ¿he land in dispute. By her two last husbands she had no *ssue- -Aud there are no known heirs of Beauchamp, her second husband, other than the heirs of Elizabeth Withers. John Hither* ington> son Magdalen, left issue, a son named John, who had issue, a daughter, the plaintiff, Anne Wamock,
    
      
    
    
      For the plaintiffs it was contended, that by force of the grant, or gift, from Breton to Elizabeth Withers, she took an absolute estate in fee simple, upon failure of issue ofher body : that upon the death of Richard and Nathaniel, to whom the land passed in the course of descent, without issue or heirs of their bodies, there being no heirs of the whole blood on the part of their mother, the first purchaser of the land, to take, the same escheated to the State; and that by the escheat act of 1787, being granted to the next heir of the half blood, the same was vested by virtue of that law, in the plaintiff. Anne Warnock.
    The defendant contended, that Elizabeth Withers, by force of the conveyance from Breton, took a fee-simple conditional only; and that upon the death of Elizabeth Withers, without heirs of her body, or upon failure of heirs of her body, and without having alienated the estate, it reverted to the heirs of Breton, the grantor, or donor : and that this reversion, or possibility of revert-er, having been devised by the residuary clause of the will of Breton, passed to Magdalen, the mother of Elizabeth ; who by a like .residuary devise in her last will, gave the same to her daughter, Mary, at whose death it passed in the course of descent, in coparcenary, to her two daughters, the wives of Butler, under whom the defendant claims, by virtue- of a conveyance from Butler and his last wife. For the defendant it was further contended, that admitting the estate vested absolutely in Richard and Nathaniel, by virtue of the conveyance of Breton, and it was argued, that if the words of the deed do not create a fee conditional, they must be construed to pass an absolute estate in fee simple to Richard and Nathaniel, by description, under the name of heirs of the body of Elizabeth Withers; then that the estate so passed, must be regarded in the light of an ancient estate, of indefinite antiquity, a feudura novum, ut antiquum : and therefore, upon the death of Richard and Nathaniel, the same would not go by descent to the heirs ex parte materna, but would go to the heirs ex parte paterna, and vested in Rand the next collateral heir on the part of their father, Laurence Withers ; from which Rand, the defendant, produced a conveyance of the premises. The plaintiffs also, produced in evidence a conveyance from the same Rand, which was posterior in date to the defendant’s, but had been registered in the proper pub" lie office, prior to the registry of the defendant’s conveyance.
    The other facts involved in the case, may be collected from the arguments of the counsel, which were to the effect following :
    Parker, Pringle, and Simons, the counsel for the defendant,
    argued, that the words of the grant , in the premises, are clearly words of limitation, and not words of purchase, and convey art estate tail, or fee-simplo conditional at the common law, and no other. That the Words “ to the survivors of them forever,” must he construed with reference to the foregoing words, “ heirs of her body,” and mean surviving heirs of her body in succession. So also in the habendum, the same words have the same moaning, being no more than what must be understood as implied and intended bv the foregoing words, ‘"heirs of her body.” Expressio eorum, qua incite insilnt, nihil operatur: for heirs could not take collectively by the lump, but successively. 1 Fearne, 4lh edition, 118.
    That the words superadded in the habendum, “ and the survivors of them, and their heirs and assigns, for ever,” cannot be legally construed to alter and defeat the estate given in the premises, by enlarging the same to a fee-simple expectant on failure of heirs of the body : but that the word heirs ought to be construed to mean the same kind of heirs before mentioned, namely, heirs of the body, and not heirs general. That this construction is more correspondent to the general intent or design of the deed ; and that deeds, as well as wills, ought tobe expounded so as to effectuate the intent thereof, if compatible with the rules of law. That clear words and a settled rule of law, ought not to be set aside, or broken down, by doubtful, uncertain, or ambiguous words. 2 Bur. 1100. 1 Fearne, 124, 141. 1 Rep. 95. 1 Ld. Raym. 1437. 1 Atk. 412, 432.
    That such a construction should he given to the words, as might make them agree and consist together, so that every word may have its effect, and not such as must necessarily set them at variance, and render some of them inoperative, or void. That if the words be so construed m the present case, ut res magis valeal quam pereat, survivors must be taken to mean, the heirs of tne body of Elizabeth Withers, one after another, as they shall become heirs of that description ; as they become entitled to claim, each one in turn, as heir, for nemo est hares viventis : and heirs, must be taken ,to mean the heirs of sucli survivors in succession, and to import the same design and intention, belore fully and technically expressed by the words heirs of her body.
    
    That the word ‘* assigns,” cannot be construed to affect the legal operation and effect of the preceding words, and ought to be considered as redundant, and of no importance. Litt. sec. 1. 3 T. R. 143.
    That an estate deafly defined, and expressly given in the pre. mises oí a deed, cannot be changed and destroyed by subsequent words in the habendum. That the legal effect of preceding words, cannot be restrained, or rendered ineffectual by subsequent ambiguous, insensible, or redundant words. 1 Atk 412, 432.
    That the possibility of reverter was descendible a..d deviseable. 2 Bur. 131. 2 Ves. 170. 2 Bl. Com. 290. See 1 H. Bl. 31. 3T. R. 88. 2 Inst. 335. 10 Mod. or Luc. 528, 421.
    That if the estate created by the deed, was not an estate in fee-simple conditional, Richard and Nathaniel must have taken as purchasers, by construction of the words in question, as descriptive of the persons to take, under the denomination, or by the description of heirs of the body of Elizabeth Withers, and the survivors of them -, and that they took as joint-tenants, and the survivor took the whole under the deed. That such survivor must be regarded as the propositus, or root of succession, and not the grantee, his mother, who only had the estate for life.
    That deeds should be construed by the same rules that apply to wills. 2 Bur. 1105. 10 Mod. 77. 2 Ves. 121.
    That the rule in Shelly’s case cannot be made to apply to the present, the same not being strictly within it; and because the reason of the rule has long since ceastd, and it is not favored. I Fearne, 292. Doe v. Laming, a Bur. 1100-
    That a tee-simple absolute cannot be limited upon, or after a fee-simple conditional. This ground was very slightly touched on.
    The counsel tor the defendant further argued as follows : If the rule in Shelly’s case is to be recognized at all, it will only be applied to cases coming strictly and literally within it. In this case, it would defeat the intent of the grantor ; for tt is clear that he did not mean to give the first donee or grantee a right to aliene, and so deteat the conditional limitation. 1 Fearne, 31, 36, 288. Besides, this construction would mark out two different and incompatible courses of descent. If the former words are to be construed as merged in the Words superadded, then they will not be satisfied, and it will be the same as rejecting them altogether., 1 Fearne, 283 — 4—5, &c. 5 Bac. Abr. new ed. 15 Via. Abr. 361. As to merger of estates.
    But even ,-hould the court be of opinion, that Elizabeth Withers took as purchaser, yet the plat tiffs have no. right to recover ; for the title of those under whom they claim, was lost by virtue and operation of the act of limitations. The southern moiety, of the tenements in dispute, was held and occupied by Calvert, five years prior to the 4th of July, 1776. Calvert gave evi. deuce of his own possession for twenty years, during which time .he paid no rent. Thomas Corker, who tv as a relation of Laurence Withers, claimed the land, and in 1768, devised it to a Mrs. Withers, who also had possession. Calvert, understanding the proPerty was in dispute, refused to pay rent. Alter the escheat act was passed in 1787, P. L. 430, the escheator sued Calvert, and Calvert prevailed in that suit.. But afterwards Butler, the defend, ant’s vouchee, and the real defendant in this action, sued Calvert and recovered. This moiety, therefore, was proved not to be subject to the escheat law ; and if not subject to escheat, the half-blood. under whom tt.e plaintiffs claim, never acquired any right. The preamble to that act is a key to unlock it, and by which to expound the enacting part thereof. 4 T. R. 703. It relates to lands and property escheated, i. e. already fallen in by escheat, and having no legal owner. The legislature in the preamble speak of “the necessity ot appropriating such estates ” One section of the act was purposely meaut to exci pt from the general operation of the-act, all lands which had been in the actual pet ceabJe and quiet possession of any person five years prior to the 4th July, 1776. Calvert was therefore clearly secured by this clause of the ac.t, and the lands so held and possessed by him, could not, and did not es. cheat. The plaintiffs, therefore, as they claim under this act. must shew that they are entitled under it. The escheat act did intend to give lands, which would otherwise escheat, to the halt-blood: but this land did not, and could not, otherwise escheat; and therefore the half-blood are uot entitled to it. The escheator sued for the State, and had a verdict against him : the right of the State was thereby barred ; and the S.ate being barred, the right of the half-blood are likewise barred. Butler got possession in 1789, and continued in possession until 1706. A feme covert is not disabled to sue, see tile act ot assembly of 1713, P L. 104, but is allowed a longer time, seven years. This time elapsed, and the plaintiffs are barred by the limitation act. The acts suspending the operation of the limitation acts, do not ap. ly to this case.
    As to the northern moiety, it vested in Butler by force oí the limitation act. It was in the possession of one Price, prior to the revolution. Frico left the State, and one Marshall, as the agent of Price, had possession claiming in behalf of the heir at law. Chandler was put in possession by Marshall. He put one Haddon in possession. When Butler recovered against the escheator, he applied to Haddon, to get possession of the moiety in his possession, and offered toiudemufy him. Chandler was applied to, who said he claimed for Marshall, who claimed for the heir. Haddon afterwards paid rent to Butler, until the fire of 1796 consumed the buildings. Haddon attorned, or paid rent io Butler, in 17w9. Butler therefore gained an indefeasible title under the limitation act. Butler altenvards sued Chandler, in order to settle a dispute about rent, in an action of ejectment; but it was proved, that at the time of bringing the action he 'vvas in pos session, and was in the reception of the rents : and therefore the pregumption arising on the face of that record, of his being out of possession at that time, is rebutted. Butler did not recover for Price, or the heir, but for himself: there is no evidence of any trust, or ¡fiduciary interest.
    The plaintiffs will, however, contend, that even admitting Rand, under whom the defendant claims title, to have been the right heir at law of the land, yet they have the best title from Band. Rand couyeyed to Butler on the lHth June, 1799, and afterwards to the plaintiffs. The conveyance to Butler was carried to the register’s office, and lodged to be recorded, and the receipt of it noted in a book kept in the office for that purpose, according to custom. The counsel of Butler afterwards spoke, to the register, and requested him to delay recording it, in order to see. whether the plaintiffs would not procure a conveyance from Baud ; and if so, and it should be brought to be recorded, then to record Butler’s deed first. It appeared very clearly, that the plain, tiffs knew of the existence of tills deed of conveyance to Butler; for upon their applying for a conveyance, they were told of it; and it appeared that Rand was fearful he might be brought into trouble about if, if he should make a second conveyance, but he was prevailed upon by the plaintiff', Warnock. who prom.sed to bear him harmless, to make a second conveyance to the plaintiffs. It appeared, indeed, that the plaintiff- caused a search to be made ia the register’s office, in order to find out whether Butler’s convey, anee was recorded or not : and also, that the successor of the former register did not know of the loctem mt of Butler’s deed ; and that he recorded the plaintiff’s deed, without any knowledge of the other deed having heen previously brought to be recorded These being the facts, there can be no doubt hut that Butler’s deed should have been first placed, on record ; and its not having been done, was the omission or mistake of the register, which oughi not to prejudice the defendant, whose act in requesting a temporary delay in recording his deed, had no view to defraud or injure any one. The act against double mortgages, &c. see act of assembly of 1698, P. L. 8, ought to be liberally expounded, according to the expositions given to the registry act, 7 Ann, c. 20, in Ec gland. 1 Fonbl. 25. The party having knowledge of an unregistered deed, cannot take advantage of its not being recorded. 1 Str. Cowp. 712. Le Neve v. Le Neve, 3 Atk. 646. 2 Eq. Ca. Abr. 63. The act was made to guard against fraud, and shall never be turned into a vehicle or instrument of fraud. Getting the last deed registered first, knowing of the prior deed, for the same la.id, is a fiaud ; and it is not material by what means notice was given of the first deed. 1 Eq. Ca. Abr. 358. Ambl. 436. Notice to an agent, has been deemed sufficient. 3 Atk. 654. The procuring the last deed to be first recorded, to circumvent and defeat the first, was a manifest and foul fraud : such a machination to circumyent as the plaintiffs are estopped to allege or avail themselves of, to overthrow a bona fide deed. It is dolus modus, machinatio ad circumveniendum. Therefore on every ground, and guacunque via data, the plaintiffs are not entitled to recover : for they cannot recover but upon the strength of their own title, and this is not sufficient.
    Bailey, Ford, Lowndes, and Dusausskre, for the plaintiffs,
    contended, that Elizabeth Withers was intitled under the deed in question, to a fee simple expectant, by implication, upon failuie of a lineal heir, or heirs of her body. 2 Fonbi. 1L6. 70. The rule in Shelly’s case must govern, and has a controlling power in regard to deeds, as well as to wills. The words in the habendum,, go farther than the words in the premises, and expand and enlarge the estate before given ; superinducing a fee simple absolute, in expectancy, engrafted on an estate for lile. I Fearne, 26, [3!.] et sequentes. Though the fee conditional could not merge, yet it might be extinguished. Ib. 36, 42, 51, 62. The estate given for life will unite and incorporate with a gieater estate given in expectancy; although an equitable estate will not. Ib. 58. 68. Equity cases form an exception to (he rule. Ib. 118. 2 Bl. Com. 220. Wherever the sense has been restrained to the premises, or the preceding words, it has been done to effectuate the intent of the testator, where the construction has been upon a devise. 1 Fearne 243. There could be no reversion of an estate conditional. Co. Litt. 22 b. At any rate, it was a mere possibility, which was not deviseable. 8 Vtn. Abr. 2 Eq. Ca. Abr. Roe v. Jones. 3 T. R. 88. 2 Ves. Co. Litt. 214 b. 211 b. 1 Fearne. The reverter could not attach till entry of the reversioner, and could not be claimed by a devisee. Co. Litt. 378. 7 Vin. 507. The land escheated upon the death of the last surviving issue of Elizabefh Withers, the donee ; and was vested in the State, at the time when the escheat law passed iu 1787. That law -contains a legislative grant thereof to the next relations of the half blood. The possession of Calvert and Butler could not affect the State, or the hall blood. The possession, by Calvert, was not adverse; for he did not pretend any right to the land himself, but insisted on keeping possession till the true owner should appear, and refused to pay rent only -because he did not know that the person claiming, was the person iutitled to it. lie therefore held in trust fur the true owner. • The action of ejectment, brought by Butler, and his possession afterwards, cannot bar the plaintiffs, because the plaintiff Ann was a feme covert and her right is expressly saved by a special provision in the escheat law. With respect to Rand’s title to the plaintiffs, although it is not depended on, yet it is better than the defendant’s title. If Rand had any title, he has disposi d of it to the plaintiffs. All the cases cited in relation to the ngistry act of 7 An. c. 20. in England, are cases decided in equity, and cannot affect the. legal estate. Besides, there, the case is different; for the plaintiffs had not only notice of a sale, hut also notice of a conveyance. Here, the plaintiffs had no notice of a prior conveyance, chough they might have had something of a parol notice relative to a sale. But the notice ought to be clear and full, which it was not in this .case. Dodd v. (fine. 2 Atk. 275. The language of the act of assembly is imperative : and not to be got over by construction.'
    Brevaku, J. charged the jury as follows :
    I am happy, at last, to have it in my power to congratulate you on having reached sight of land, after a tedious navigation upon the almost boundless ocean of this perplexing cause'. We have beeu rolled about, and tossed to and fro, upon the billows of the law, until, I am afraid, you are sickened with the doctrines you have been taught, and more puzzh d than convinced. I am afraid, that in the conflict of ingenious argument which you have heard, you have been sometimes ready to exclaim, alas, the glorious uncertainty of the law !” This cause, however, is of great importance, as well as difficulty ; and, therefore, requires our utmost attention and consideration. Gentlemen of- the greatest learning and talents at the bar of this country have exercised their abilities on it; and have declared, after all their laborious researches, and after all the consideration they have bestowed upon it, that it still remains charged with difficulties, and involves much abstruse learning, and some very doubtful points of law. U nder these circumstances, it might he arrogant in me to pretend, notwithstanding the great advantage, I have had, of hearing all the able and instructive arguments of the learned counsel.who have spoken in the cause, on the one side, and on the other: it might, I say, seem arrogant in me to protend, that I had formed a decisive opinion, upon a clear view, and satis. factory understanding, of the various intricate and abstruse questions whi.ch have been so ably and ingeniously debated at the bar. Nevertheless, as it is my duty on this occasion to expound the law, I shall endeavor to do so to the best ot my ability. I cannot, however, forbear to express my regret, that I should be under the necessity of delivering an opinion singly, in a case .of so much legal difficulty, without having an opportunity of consulting with my brethren. I was in great hopes that the counsel engaged in the cause, would have agreed to a separation of the questions of fact, from the questions of law ; and, that the former only, would have been submitted to your determination on the present occasion. They have not, however, been able to agree on such a statement of facts} to be drawn up in the form of a special verdict, as would have referred the matters of law arising in the case to the whole bench of judges ; and, therefore, it must be left to you to determine absolutely between the parties, upon a full view and consideration, not only of the matters of fact, but also of the questions of law involved in the case. The opinion I feel bound to give upon the principal questions of law', upon which the cause must turn, upon the best consideration I have been able to give them, and the best judgment I have been able to form, is against the claim of the plaintiffs, I will endeavor, with as much clearness, and as briefly as l possibly can, to state the grounds and reasons of my opinion, arid then leave you at full liberty to judge and decide for yourselves, the matters of law and fact, which have been so amply discussed and submitted to you; and I pray you to found your verdict upon what you may conceive, and believe to be, the legal justice of the cause.
    This action being brought for the purpose of recovering the possession of the land in dispute between the parties, and in. order to try the titles by which the parties claim the same, it is incumbent on the plaintiffs to establish, by legal proof, a good and subsisting title in themselves, before the defendant is under any necessity of shewing any title whatever, by which he holds possession. It is a clear principle of law, applicable to all actions of this sort, that the plaintiff must recover by the strength of his own title, and not by the deficiency or weakness of his adversary’s title.
    This being the case, let us examine the grounds upon which the plaintiffs found their title, and the legal doctrines by which they have endeavored to sustain it.
    In order to have a more comprehensive and perfect view of the subject, it will be necessary to premise a statement of the facts conceded in the case. These are as follows: Johu Breton, being the lawful proprietor of the premises in dispute; in the year 17:35, by his deed in writing, expressed to be “ tor and in consideration of natural love and affection, and ol £100 currency,” gave, granted, and conveyed the same unto Elizabeth Withers, by the following words, viz : “ To my said grai d daughter in-law, the said Elizabeth Withers, and to the heirs of her body, and the survivors of them, forever: To have, and to hold, to the said Elizabeth Wilbers, and the heirs of the body of the said Ehzabe¡li Withers, and the survivors of them, and their heirs and assigns forever.” And in the clause of warranty, the same words as in the habendum are used,viz: “ To the said Eliz both Withers, and the heirs of her body, and the survivors of them, and their be rs and assigns forever.” In the same deed, John Breton reserves an estate for his own life in the premises. Elizabeth Witlitrs, to whom 'he premises were thus conveyed, was the wife ot Laurence Withers, by whom she had issue, two sous, named Nuthamel, and Richard, who outlived their mother, and died seized ot the land, but without issue, and without having alienated, or otherwise disposed of it. The first and principal question which occurs, is, who became intitled, in that event, to the land, as reversioner, heir at law, or devisee 1 The defendant insists, that the land reverted to the donor, who devised the' reversion to Magdalen Juneau, who again devised the same to Mary Mitherington, from whom the plaintiffs can derive no title. Or, if the land did not revert, it having vested in Nathaniel, and after, wards in Richard Withers, absolutely in fee simple, upon their death without issue or lineal heirs, descended to the next collateral heir on the part of their father, Laurence Withers. And the defendant has adduced evidence to prove that one Rand, under whom he claims title, i- the true heir at law, being a descendant of Hester, the sister ot Laurence Withers. This evidence it will be your duty to consider and decide on. The plaintiffs, although they deny that Rand ever had any right, as heir at law, have, nevertheless, produced in evidence a deed of conveyance of the land in question, from the same Rand to them, which appears to have been duly recorded, whereas the conveyance from Rand to Butler, under whom the defendant claims, has not been put on record. Now, as the defendant admits that Rand had the best title to the land as heir at law ; therefore, ii the plainttlis’ deed of conveyance from Rand, is to be preferred to the defendant’s deed from the same Rand, then the plaintiffs’ title is sufficient, and you will be bound to find your verdict for them. I will, therefore, in the first place, pro» ceed to consider the question relative to these interfering deeds of conveyance, in order that it may be disposed of and laid out of sight, so as not to embarras the further investigation of the cause.
    The conveyance to the defendant was first executed, but that to the plaintiffs was first recorded in the register’s office, according to the act of assembly of 1098, which declares, that “that sale,, conveyance or mortgage of lands and tenements, except original grants, which shall be first registered in the register's office in Charleston, shall be taken and held to be the first sale, &c.; and to be. good and lawful in all courts within the province : any former, or other sale, &c. of the same land, not before registered, notwithstanding.” See P L. 3. But it was proved that the defendant’s deed was in fact lodged in the register’s office to be recorded, and an enlry made of such lodgrae.it in the office, in a book which he kept for that purpose ; and the register was directed to record it, although he was afterwards requested by the counsel of the parly to omit or delay to record it, u itil a second conveyance of the same Laud to the plaintiffs should be brought to Do recorded, which was suspected to happen, and then to record it. The view or intention of the party in requesting such suspension, cannot be impeached as fraudulent, and there does not appear in it any thing improper ; since it has been very satisfactorily proved, that the plaintiff's had notice of the prior sale, and it may be fairly presumed, of the prior conveyance of the land to the defendant. The defendant., it seems, was reluctant to give a second deed, but was persuaded to do so by the plaintiff. The first deed ought, I think, to have been recorded first; and may he now considered as registered from the time it was lodged for that purpose : at any rate, so far as regards persons who had a knowledge of its existence before they purchased. But whether it may with propriety he considered as a registered deed or not, the cases cited from the English books, relative to the registry act of 7 Ann, c. 20, which is similar to our act of assembly, are strong authorities, and the reasons they afford are convincing to tny mind, to satisfy me that an unregistered deed, under circumstances such as appear in this case, of a subsequent purchaser havi g notice of the prior sale and conveyance, ought to be preferred, and take the place of a subsequent registered deed. See Chipan. Rep. 64. •
    The intent of the act was, without doubt, to give notice of (he existence of deeds of transfer and of the sale and transference of property, in order that fair purchasers might not be deceived, m 
      the purchase of property which might be previously sold aud transferrea to another: and therefore, if a person, having no notice of any prior sale, purchases, fairly, property which appears afterwards to have been antecedently sold and conveyed to another, and that other purchaser shall omit to have his conveyance registered agreeably to the act, his conveyance shall be postponed, and give place to the subsequent recorded deed ; and it shall always be presu. ined, where the first deed is not registered, that a subsequent yendee had no notice of it, until the contrary appears. But if the latter purchaser had notice of the former sale, no matter by what means his information was acquired, he cannot with truth say that he was deceived, having bought with his eyes open ; and he ought not to claim, aud cannot be entitled to the same favor as a bona fide purchaser without notice of any prior sale or incumbrance. Indeed, I think if he were allowed to take such an advantage, it would be converting the act, which was intended as a guard against fraud, into an instrument for accomplishing a fraud, which, the law will never permit;
    It has been argued, that the liberal and equitable construction Which has been given to the registry act in England, has been applied only in Chancery; and a distinction has been attempted to be drawn between notice of a Sale, and notice of a conveyance : but L can discern no solid ground for these distinctions; The courts of law and equity have a concurrent jurisdiction in relieving, against fraud. They only differ in their modes of administering rebel: and in many cases, a court of equity only is competent to give relief, by calling all parties concerned before the court, and searching the consciences of the parties implicated. This a court of common law cannot do ; but if the fraud can be detected by the ordinary means which the courts of law are competent to employ, What possible reason can be offered to shew, that the courts of law may not examine the fraud, and administer such relief as their jurisdiction affords?
    Upon this question, therefore, I am of opinion, that the deed of conveyance from Rand to the defendant, must be considered as the prior sale and conveyance.
    The other title by which the plaintiffs claim, and which they rely most on, is much more intricate to investigate, and difficult to decide on. In order to understand it, a further statement of the facts agreed on will be necessary. Elizabeth Withers, the person to whom the land was granted or given by John Breton, as before mentioned, was the daughter of Magdalen Tiveroon, by her second husband, Beauchamp. Elizabeth Withers had a brother, Stephenj who died before her, in childhood ; and Beauchamp had no colí ^a,era^ heirs to claim the land in question. Magdalen Tiveroon had four husbands in succession, as tollows : I. John Mitheringtotl ’ Reauchamp ; 3. Juneau; 4. Beveau. By her two last she had no issue. By her first she had issue, a son, named John Mitherington, who was married, and had issue, one son, and two daughters. The son, whose name was John, had issue, á daughter, Anne, who intermarried with Joseph Warnock, the plaintiff. This last John had other children, who died young, and without issue. The two daughters of John Mitherington above mentioned,' son of Magdalen, and half brother of Elizabeth Withers, were named Magdalen and Mary. The first died young, and without issue. Mary had two husbands By the firs!, Bennett, she had issue, a daughter, Ann ; and by her second, Hamlin, she had issue, a daughter, Mary. Both these daughters were married, in succession, to Butler, under whom the defend nt claims, as heir of Mary Mitherington, the residuary devisee of Magdalen Juneau, the residuary devisee of John Breton, the donor, to whom the land, as it is said, reverted, upon the failure of the issue of the body of Elizabeth Withers.
    The plaintiff, Ann Warnock, is a lineal descendant from Magdalen, the mother of Elizabeth Withers, the donee, or grantee of the land, but she cannot derive her descent from Beauchamp, the father of Elizabeth Withers ; and therefore she is not a relation of the full blood, but only of the half blood, as it is called, of EliZabeth Withers. The plaintiffs claim in behall of the said Ann* under an act of assembly passed in 1787, commonly called “the Escheat Law,” which declares, “that nothing in that act contained, shall be construed to vest in the State the property of which any one died possessed, interested in, or entitled unto, where such person has left any relation of the half blood, but the same shall be, and is hereby vested in such person of the half blood.” See § 14, P. L. 430. They first contend that the estate given to Elizabeth Withers, was an absolute estate in fee-simple, upon the con. struction their counsel give to the words, “ and the survivors of them, and their heirs and assigns forever,” in the habendum, of the deed of conveyance, to Elizabeth Withers; and that it descended to Richard, and Nathaniel, her sons, in succession, and upon their death escheated to the State, there being no person in being of the whole blood of Elizabeth Wi hers, the persou who first acquired the estate, entitled to the inheritance. It is undoubtedly a principle of the English law of succession in relation to lands, that it shall always savour of the first purchaser, and shall descend to his blood only. And therefore, those who intermairy with that race cannot inherit; nor any who are not of the whole blood of the first purchaser, but the land shall rather escheat,
    The defendant insists that the land in question never was liable to es. cheat; hut even admitting that it was, yet it is excepted from the operation of the escheat act by an express proviso in these words : "‘provided fhat no lands claimed under grant, or under an actual possession for five years prior to the 4th ot July, 1776', shall be affected fay this act.” I am of opinion, that if any person under whom the defendant claims, had such possession for five,years prior to the 4th of July, 1776, the land so possessed did not escheat. The legislature doubtless intended by this provision, to. quiet the inhabitants of the country in their possessions, who had been in possession for five years before the declaration ot independence, and whose grants, or other evidences of their titles, might have been lost in the con. fusion and casualties of the war. But the evidence of such possession does not seem to me very satisfactory. It has been submitted to you, and you are to decide upon it. Calvert proves that he himself had possession for twenty years, and paid no taxes ; but whether he pretended any right to the land, does not appear. Be. sides, I think the evidence of Calvert under such circumstances improper; as it might be productive of mischief, to allow any man in a suit depending between others for land, to prove a title in the plaintiff by possession, by proving that he himself, the witness, had possession for the time limited by the act, by bis own oath. With respect to the moiety, which is claimed in virtue of the possession of Butler under the limitation, act, it appears that Butler recovered in an action against the escheator, who claimed the land as es-cheated ; and kept possession from the time of the recovery. It appears, however, that he afterwards brought an action of ejectment against Chandler for the same bind, by which it may be presumed that he was then out of possession : but, this has been explained, and the presumption done away; for it has been shewn by evidence, that the action against Chandler was not in fact to recover possession, but in order to settle a dispute about rent, and that Butler was then actually in possession. But sne question is, was he in possession, and holding adversely, for a sufficient ¡-pace of time to bar the plaintiffs’ right of action ? The title ,»f the p aintiff, Ann, as heir of the half-blood, did not accrue, descend, o come, until the year 1787, when the eseheat law passed. By the limb tation act of 1712, married women are allowed seven years to pro» secute their rights, titles or claims. A feme covert is not disabled to prosecute an action to try titles to land, but is expressly authorized by the limitation act of 1712, to. constitute an attorney, to Sue either in her own name, or in the joint names of herself and her husband. The present action was not commenced until 1798 s the recovery ot Butler was seven years before, as seems from' the evidence.
    But it has been contended, that the general rule of limitation as to married women, does not hold in this case ; inasmuch as the 9th section of the escheat law declares, that, nothing herein contained shall prejudice the rights of individuals having legal title, and who may be under the disabilities of infancy, coverture, lunacy, or bevond the limits of,the United States, until three years afi fer such disabilities shall be removed. I am however of opinion, that this provision of the act cannot ayail the plaintiffs in this case; because this period of three years after disabilities removed, is allowed merely to traverse the escheat, and to shew that the land Was not subject to the operation of the act. It cannot be so conBtrued, as either to divest a title acquired by possession for five years prior to the 4th July, 1776 ; or to affect the operation of the limitation act of 1712, in relation to á possession subsequent to the escheat act,.by parties who did .not acquire their possession by yirtue of any of the provisions of that act, But whether the evidence of seven years notorious, actual, and adverse possession, be sufficient or not, you are to decide, if you should be of opinion .that the plaintiffs’ title is in other respects sufficient. I do not think the case pan pome within any of the acts made to suspend .She operation of the limitation act. A*1 act of 1784 fixed a period for the commencement ot the operation of the act of limitations. The Subsequent suspending acts lengthen the period when suits were to be barred. The final period fixed, was the 1st of November, 1791; and the provision relates only to such actions as would have been barred on the 26th day of March next preceding, if the act of February, 1791, had not passed to extend the time to the 1st of November. Now the present action was not one which would have been barred on the 26th of March, 1791, nor one within the scope or meaning of the suspending acts.
    . But, if I am not mistaken in the opinion I have formed upon . the principal points of the case, every doubt and quest,ton on the subject of possession, and the acts of limitation, may be laid entire. Iy aside, .as of no kind of importance or relevancy in the pause? For if the plaintiffs must recover by the strength of their own title, .and if that title is insufficient, the defendant is entitled to a verdict, whether he shews a good title, or none at all.
    In order to ascertain the sufficiency of the plaintiffs’ title, it will be necessary to consider with attention, the meaning, construction, and operation, of the words of the grant, or gilt, from John Bieton to Elizabeth Withers.
    It is a rule of construction, which applies as well to deeds as to ■wills that the intention oí the parties shall be regarded and favored : and therefore, although deeds are to be construed most beneficially for the persons to whom they are made, and strongly against the makers of them ; yet. the exposition of them should be reasonable, and so as to effectuate the intent of the • parties, with the greatest advantage to the grantee, but without wrong to the grantor. This rule is hid down in the case of Throckmorton v. Tracey, in Plowden, 160, 161, and is, in njy judgment, the true rule in the construction of deedjs. Upon this-principle it is laid down, that if the habendum, or that part of the deed -which begins with the words “ to have and to hold,” be not pursuant to the estate before granted by the premises, or preceding part of the deed, bui is either not so extensive, or is contrary to it, or repugnant, then the estate before given shall stand, and the habendum shall not alter or control it.
    Now let us apply these rules of construction to the words in question. The words in the premises are, “ to the said E. W., and the heirs of her body, and the survivors of them for ever;” and the words of the habendum are, “ lo the said E. W., and the heirs of her body, and the survivors of them, and their heirs and assigns for ever."
    
    But, first, it is necessary to ascertain the meaning and intention of the parties. It is uncertain what precise meaning was intended to be expressed by the words in question. They may be understood differently by different men. I think, however, that the most natural and obvious meaning or intent of them was, to give to Elizabeth Withers an estate for her life in the first place, and the remainder over to the heirs of her body in succession ; to the eldest son, and his issue, and in default of issue, to the next eldest son and his issue, and so on, as long as there might be any issue or lineal descendant of Elizabeth Withers to inherit the estate, and then to the last surviving heir of her body, or lineal descendant, in fee-simple. The words “ survivors of them,” in the premises, must be construed to mean, by necessary relation, survivors of the heirs 
      
      of the body of Elizabeth Withers. The same words in the hay J u bendum immediately following, cannot be construed, I apprehend, so as t0 bear any different meaning. The only difficulty is to as. certain what was intended by the subsequent words superadded in die habendum, viz. “ and their heirs and, assigns foreverand I must confess that it seems somewhat,questionable what was meant; although I am much inclined to think, that by the word “ heirs," was intended the same kind of heirs, just before mentioned, namely, “heirs of the body.” This opinion is much strer-gthened by this consideration, that without admitting this construction, the survivors could not be benefited. B.y “ survivors,” I tbiuk. was meant heirs of the body, in succession.; and- therefore the ultimate successor only could take a fee-simple, without defeating the object of the donor’s bounty, which was to limit the estate so that it might go to the heirs of the body of the donee, so long as there might be heirs of her body, and to vest at last absolutely in the surviving heir of her body. 1 Fearne, 305. 1 Bro. 218,.
    In the construction of wills, adjudged cases may be,properly argued from, if they establish general rules of construction to find out the intention of the testator : which intention ought to prevail, if agreeable to the rules of law. 1 Bur, 223, per Mansfield.
    In the construction of words of uncertain import, or doubtful-meaning, it is necessary and proper to call in the aid of certain rules, or principles of construction, by which the words may be tested, and the meaning oí them fixed. This is necessary, in order to preserve consistency and uniformity in judicial determinatious : and it must be safer to be guided by rules which the wisdom of ages has sanctioned and established, founded in reason, and ap. proved by experience, rather than by arbitrary notions of justice, applied to each particular case. Now, it is a rule of law, well established, that in the construction of deeds, and other writings, the construction must be given upon a consideration of every part of the instrument: the whole mus! be taken together, and expound, ed so as to give force and effect to every part thereof, and a con. sistent operation to the whole ; and not such an interpretation, as will set at variance different parts of the same instrument, and necessarily make void, or impair some part thereof, as contradictory, repugnant, or idle and useless : útres. magis valeat mam pereat. Upon this principle, it seems to be a settled rule of construction in cases like the present, where an estate is given to a man and the heirs of Ms body, and in a subsequent part of the deed, or will, the estate is given, or warranted to his heirs, without any qimlifk cation, or further description ; that such limitation of the estate in the premises, shall not be defeated by the subsequent words, but "that thé subsequent word heirs, shall be construed to mean the same kind of heirs, as the precedent word heirs,' viz. heirs of the body. 1 Fearne. See Dyer, 171. 1 Eq. Ca. Abr. 197. 8 Vin. 272. 2 Bac. 68 Doug. 321. Coop. 234, 308, 410.
    Upon the same principle it has been decided, that where there has been a preceding devise to issue, or children, the words in default of issue, afterwards mentioned as a contingency upon which the estate shall vest, shall he taken to mean in default of Such issue, who would be entitled to tales under the devise. 2 Fearne, 153. 1 Salk. 224. 1 P. Wms. 600. Doug. 251.
    It is also a rule, that where an estate is given by words sufficiently clear and explicit, it shall not be defeated or restrained by subsequent doubtful, repugnant, or contradictory words. 1 Fearne, 246 — 7.
    These rules of construction will clearly authorise us, in my opinion, to construe the words, “ survivors of them and their heirs,” to mean survivors of such heirs of her body, and the heirs of their bodies; which seems to have been the intention of the douor to express.
    As to the word “ assigns,” it can have no legal operation where it stands; but is quite inefficacious, and perfectly harmless. It can neither add to, nor derogate from the other words with which it is coupled in the sentence.
    I cannot conceive, that the words in question, were intended to •describe, or designate, any particular person, who should take the estate absolutely; but, if they could be so construed, the persons described would be Nathaniel, and Richard, and the survivor, which would carry the estate to their heirs on the part of their father, Laurence Withers. Neither can I believe that the words were intended to give the estate absolutely, to the immediate issue of Nathaniel, and Richard, and the survivor of them. But, if the heirs general, of Nathaniel, and Richard, are entitled to the inheritance, or either of them, the heir must be sought for in the paternal line; for, m the collateral descent from any one who dies without issue, the heirs on the part of the father, who are of the blood of the male ancestors, in the lineal ascent by the father, are entitled, by the laws of England, to an exclusive preference over the heirs of the part of the mother, or who are of the blood of females, in the lineal ascent by the father or mother. The law considers the male as most worthy. This was the doctrine of law in force in this country when the estate descended upon the death of Nathaniel, and Rich» ard Withers, although it has been wisely altered since.
    Having endeavored to establish (he meaning and true constriic. tion of the words in question; it remains to determine their legal operation and effect. If the interpretation I have given them should be lound correct, then the words “survivors of them, and their heirs and assigns,” must be rejected as void, oh the ground of their creating a perpetuity, which the law is said to abhor. For, suppose in this case, Elizabeth Withers had died leaving several children, and grand-children ; the contingency of all their issue becoming extinct, or reduced to the last survivor, must be extremely remote, and might not happen for many future generations. See 2 Fearne, 73, 129, 115. 2 Wooddes.
    If the words “survivors,” and “heirs,” be rejected, then Eliza, beth Withers took a conditional estate in fee simple ; or, in other words, an estate in fee simple, upon condition of her having heirs of her body ¡ or, else the immediate issue of her body took an es; tate in fee simple, upon the performance of the condition.
    It has been very strenuously contended on the part of the plaintiffs, that Elizabeth Withers took an estate in fee simple, expectant on the failure of heirs of her body, by force of the subsequent words, “ survivors of them, and their heirs and assigns forever the subsequent words being more comprehensive than the fore, going. According to this construction of the words, the grant might be thus expounded : To the grantor for life ; remainder to Elizabeth Withers for life ; remainder to Nathaniel Withers in tail; remainder to Richard Withers in tail; remainder to the right heirs of Elizabeth Withers in fee. This would bring the case within the famous rule in Shelly’s case, about which you have heard so much. According to this construction, Elizabeth Withers took an estate in fee simple absolute. And if so, it has been contended, that as she acquired the estate, it cannot be inherited by any one who is not of her blood; although, upon her death, it passed to her issue as an absolute estate, when either of her sons, who were seized thereof, might have sold, or devised ,it his will and pleasure.
    If the same liberality and latitude of construction were allowable in regard to deeds, which has been extended to wills, which I be. lieve is not the case, (and perhaps it would be better to restrict the construction of the latter to the rules prescribed for the construction of the former, than to indulge the same latitude' of. interpreta, tion in both,) yet, I believe, that consistently with- the rules of con. struction which have obtained, and the cases adjudged, the words In question cannot be strained to bear the construction contended for. Some of the words must be changed, or their meaning perverted 5 or else the intention of the grantor must be defeated. It is clear, that his intention was to give Elizabeth Withers an estate for life only, if she had issue, and that the estate should enure to the benefit of tier issue s but; according to this construction, the words “ heirs of her body,” would not be satisfied, and the principal object of the. grant might be defeated ; not by the principles and rules of construction, but by the natural effect of the words themselves; not because the prescribed mode of descent, and limitation of the estate, aré inconsistent with the rulés óf law; but, because the legal effect of one set of words in the grant overthrows and defeats the legal effect of the other pieceding words in the same grant.
    But eveu admitting that Elizabeth Withers did take an estate in Fee simple, by force of the rule in Shelly’s case; yet, as at her death the éstate descended to her heir general, her son, and; at his .death, descended to his heir, and her right heir-,' I should in-line much iti support the doctrine; that an estate so descended, may be considered as an estate of indefinite antiquity, although the original purchasér can bé dscerlained. The feudal principle Upon which the rule of succession, which requires that estates shall de. scend only to the blood of the first purchaser, was established, perhaps never had root in this country ; and one reason of the rule, ■which was to multiply escheats; Í trust will never have any influence in expounding or making the laws of this State. Then, unless the old feudal principle; of rejecting every claimant who is not of tne blood of the first purchaser;- however far removed from the person last actually seized, and the absolute owner of the estate; who might have disposed of it as he pleased ; unless, I say, this very unreasonable; impolitic, and unwise principle should be adhered to, the estate, upon the death of Richard, and Nathaniel Withers, descended to their next heir at law, which was some person of the blood of their father, Laurence Withers; and, could not descend to the half blood of Elizabeth Withers, under whom the plaintiffs claim.
    But, there is no necessity to lay stress on this point; because, I think, it must be pretty clear, that Elizabeth Withers did nut take an estate in fee, by the operation of the rule in Shelly’s case. .
    Having thus investigated the grounds of the plaintiffs’ cl im, and and determined what estate Elizabeth Withers did not take, it uow remains to iuquire and determir.e what estate she did take, ami to wham it passed upon the death of her issue: and, to consider the 
      effect and consequences which resulted, as they regard the present contest.
    By the common law of England, prior to the 13th year of the reign of Edward I., all estates of inheritance, were fee simple, or Conditional. The statute of Westm. 2, commonly called the statute de donis, converted conditional estates in fee into estates tail. The real design of that statute was, to introduce perpetuities, for the purpose of preserving the dignity and power of the nobility, although the preamble affects to aim ouly at a compliance with the ■will of the donor. The legislature of this country appears to have entertained, iu former times, a great antipathy against this statute. It was passed over unnoticed by the act.of 1712, which makes of force here a number of English statutes: and, in 1734, the legislature, as if afraid this obuoxi.ius.statme might, for some cause or other, he considered of force here, enacted iu express terms, “ that estates conditional at the common law in fee simple, shall not be construed to be estates in fee tail.” it. is, -therefore, very certain, that the deed in question did not create an estate in fee tail, by force of the statute de donis.
    
    It has been insisted in behalf of the defendant, that the estate created by the deed, was an estate in fee simple conditional at common law. 1 should be extremely unwilling, however, without an absolute necessity, to' admit, the old common law doctrine of England, in relation to conditional fees, as the law here', as it subsisted in E ¡gland prior to the 13th of Edward the first, in all its intricacy, inconvenience, and injustice. It may he justly questioned whether it was ever transplanted into this country ; and, whether we may not have a Common law of our own on this subject. The common law of every country must vary and adapt itself to the changing and .mproving state of affairs, and condition of society. Might not this common law doctrine of England be pruned of its excresceucies, and moulded to suit the convenience of a commercial people, and the genius of our republican government ? I should feel very much disposed to substitute, instead of the very intricate, inconvenient, and unjust doctrine of the old English com. mon law, the following, viz : That all estates given on condition, which in England would anciently have been called estates in fee simple conditional, and which, since the statute de donis, would be called estates tail, shall vest an absolute estate in tee, in the issue of the first donee in tail; and, that the first donee shall have an estate, equal to the estate of a tenant in tail, except as to the power of barring his issue in tail, or charging the estate with hie debts after his death.
    
      If this doctrine should be admitted, and Ebzabeth Withers took an estate tail, and her issue the absolute estate in foe, then upon the death of her is.-ue, the estate must have passed to the heirs general of Nathaniel, and Richard Withers viz. their next heir on the part of Laurence, their lather.
    But let us take it for granted,'and perhaps it must be admitted, that Elizabeth Withers did uke an estate in fee simple conditional, according to the Common law of England ; that is to say, an estate in fee-simple, upon condition of her having heirs of tier body : then according to the doctrine of the English law applicable to estates of this description, after having issue of her body, she might have alienated the estate, and barred her issue of the inheritance as well as the donor of his reversion, tío upon her death, her issue might have alienated, and prevented the reversion' of the fee. Co. Lilt. 19. But there was no alienation of the estate by either; and therefore on failure of issue, according to the limitation of the grant, it reverted, or returned buck to The donor and bis heirs.
    To explain what is meant hy the reversion of the land, you must understand, that tile grantor, or donor, John Breton, when he made the grant in question, annexed as a condition, that the donee should have heirs of her body ; a- d therefore, if the donee should not have heirs of her body, or if j.uch heirs should . become extinct, then the condition having tailed, the estate must revert, or return back to him wt<o g..ve it MJtiject to such condition. By the grant, two estates were created, namely,a par tcalar estate on condition was given to Elizabeth Vt ittiers, and the possibility o! .everler, or residue of the laud, or tee-simpl - thereof on conditio still remained t,i .he grantor, depeude.it on the failure of the cu -dition tac ken to the particular estate. Tne particular es.ate was extinguished by tne failure of the conditio.., whereupon the reversion attached ; that ts to say, the esia.e seven ted. and went back to the grantor.
    It has been argued, that the reversion was exptessly given by the gram, and having been expressly disposed of, could not after-wards be reel umtd by tin grantor, or his heirs. But this argument is easily answered, by s.asi ¡g that the reversion was granted on the same condition as the rest of tne es.ate ; and that upon tne failure of the condition, the grantor was entitled t, it again: or that the grant- of the reveision under the circumstances of the case was repugnant, incompatible, and void.
    It is unnecessary to discuss the question, whether the reversion was deviseable or not ; because, if it was not, it must have passed U the right heirs of John Breton, or escheated to the Sítate; and, in either event, would have gone in a direction adverse to the line? 0p (]escent jn the plaintiffs claim title : and if it was devise., able, then it has been devised, and the defendant claims under that devise, tío that taking it either way, it cannot support the plaint‘^s> tble. I fed no hesitation, however, in saying, that in my opinion, the reversion was deviseable. Before the statute de donis, the donor in a case like the present had only a possibility, barrable after issue, as has been already mentioned, at the pleasure of the donee ; yet this was a possibility descendible to the heir. 2 Inst. 335. 10 Mod. 421. And whatever is descendible to the heir law, as real estate, is deviseable. Lucas’ Cases, or 10 Mod. 528. See Pow. on Devises, 234, 235. Note A. A.
    Upon the whole, I am of opinion, that the plaintiffs have no£" shewn a sufficient lega} title to the }and in dispute, and' that your verdict ought to be given for the defendant. However, if you should have doubts, which upon due deliberation you shall be unable to satisfy, upon any of the material points of law submitted to you, I would recommend to you to find a special verdict; which, after finding the material facts of the case, shall leave the questions of law to the determination of the judges.
    The jury found a verdict for the defendant.
    In the Constitutional Court, Charleston, May, 1804, all-the judges being present, except Bay J. absent, and Johnson, J. resigned, and promoted to the Federal Bench : a new trial was mo» ved for, on several ground». 1. That Elizabeth Withers took afee, simple under the conveyance from Breton, and that the plaintiff, Anne Warnock, is her right heir of the half blood by force of tho es» cheat act : and that the court was mistaken in the opinion delivered to the jury, viz. that Elizabeth Withers took a conditional estate, and not a fee-simple absolute, and that upon her death without issue, or heirs of her body, the estate given by the conveyance reverted to the heirs of Breton ; or that if Elizabeth Withersdid not take afee-simple absolute, she took an estate for life, and the immediate issue of her body estates tail in succession, remainder over, in default of issue at the death of .either, to the survivor in fee, and therefore that Nathaniel took the estate as purchaser, which upon his deash without issue, descended to his collateral heir ex parle paterna, ('Fite court did not deliver .any such opinion, although it is so staled m the brief.) 2. That if Rand ever had a legal title to the land in question, he had paried therewith to the plaintiffs ; and that the title of the plaintiffs from Rand, being first recorded according to law, is entitled to be preferred to the defendant’s title from the same Rand.
    
      Bailey, and Desaussurk, for the plaintiffs,
    argued, that the words heirs and assigns were not inserted carelessly, but intentionally, to enlarge the estate upon failure of issue of Richard and Nathaniel, or their dying without leaving issue of their bodies at their deaths. That this const! uctiou gives effect to all the words, which if possible must always be done, to comply with the intention of the donor. 2 Bl. Com. 379. A fee-simple absolute may be engratted upon a fee-conditional; but the. rule in Shelly’s case forcibly applies . and the rule being a well established rule .of property, ought not to be impugned or disregarded. That this rule has, in regard to trusts, been sometimes relaxed and modified, but no} in other cases where there is no trust. 1 Fearne, 5th ,ed. 56, 34, 42, 58, 77, 91, 141. And here was a dry legal estate. Ib. 172, 202, 227, 233. The word heirs is a word of limitation, and not of purchase, being in the plural. That the express reservation of a life estate in Breton proves that he meant to part with the reversion. That the unregistered deed, or last registered deed of the defendant, ought not to be preferred. The plaintiffs might have had notice of a prior sale of the- laud to Butler, but had uo previous notice of a prior conveyance ; and the act requires recording to guard against parol sales, atid antedated conveyances; and notice by parol is not sufficient. It would be mischievous to admit parol evidence to prove notice of a prior conveyance. Hiñe v. Dodd, 2 Atk. $}75 L« Neve v. Le Neve, 3 Atk. 646. The cases on this point are all cases determined in Chancery ; but there cannot be produced any authority to shew that relief has been given in any such ease in the courts of law.
    Pakkkb, and Pringle, contra,
    
    argued, 1. Admitting that Nathaniel took by purchase, he took feudum novum, ut antiquum, which would descend to his right heirs, or heirs geru ral, arid the plaintiffs have no title. 2. That Elizabeth Withers did r,ot take a fee-simple absolute, because the word heirs in the habendum must be taken to mean heirs of the body. The word survivors was inserted to the end that the lineal heirs might take in succession. 1 Fearne, 118. That clear words in the premises ought not to be rendered inefficacious by vague and uncertain words. Goodright v. Pul. lyn, 2 Ld. Raym. 1437. 2 Str. 729.
    The superadded words are not incompatible with the former, but may be construed to consist with the foregoing words, and both may be satisfied. The words assigns, and forever, make no difference. Lift. sec. 1, The premises give a fee-conditional, which the subsequent words have no power to change. The subsequent words cannot be construed as descriptive of the person, but are virtually included in the premises. The words survivor, anc' survivors, axe superfluous, and tuuiaulogous. They mean heirs of the body,in successive generation,exviterminorum; and express no more tb3!1 is before expressed or intended by the preceding words : and earpressioeorum, qua incite insunt, nihil operalur. 1 Fearne, 246.
    The subsequent words cannot operate to merge the precedent estate conditional. It is not the same as a fee tail, with a fee-simple expectant, as was formerly insisted. Here is an intervening estate, to Elizabeth Withers, on condition, which cannot take effect by this construction ; for at the same breath by which it is created it is eo instanli destroyed, by its union with the fee-simple, and is swallowed up by it. This construction is incompatible with- the intention of the donor. 2 Bur. 1112. 10 Mod. 47. 2 Veutr. 196. 2 Ves. 121. The donor probably intended to give a fee-simple to the last lineal descendant of Elizabeth Withers, after an indefinite failure of issue ; but this cannot be done even by executory devise. Estates cannot be rendered unalienable upon so remote a contingency-. 1 Fearne, 170, 180, 322. A fee simple cannot be engrafted on a fee-conditional. 2B1. Com. 113. Christian’s notes. 2 Ves. 180, 170. The rule in Shelly’s case is not accurately laid' down, and must be restricted, not extended,-because it favors (he heir at law more than the intention of the tesiator or donor. Hargrave and Fearne were bigots in their reverence of Lord Coke, and were interested in defending the rule in all its rigor.
   The court took further time to advise, and in May, 180-5, at Charleston, present, Wattes, Bay, Brevard, arid Wilds, Justices, in the absence of Guimke, J. and Trbzevant. J.. delivered their opinions seriatim. viz. Watibs, Bay and Brevard, and the opinion of Trezuvajyt, J was read by consent of parties. Wilds,, J. not having heard the arguments, declined giving any opinion.

Brevard, J.

In delivering my opinion in this case, I think it unnecessary to premise a statement of the facts, or of the points of law involved in it. The case has been several times fully and ably argued in court, and must be familiar to all who are interest, ed in its discussion and determination. The question of most difficulty and importance to be discussed, arises on the words of the grant of John Breton to Elizabeth Withers. The words in question are these : “ to the said El zabeth Withers, and to the heirs of her body, and the survivors of them for ever ; to have and to hold, to the said Elizabeth Withers, and the heirs of the body of the said Elizabeth Withers, and the survivors of them, and their heirs and assigns for ever warranted “ to the said Elizabeth Withers, and. the heirs of h'er body, and the survivors of them, and their heirs and assigns for ever.”

In the construction of legal conveyances, the following rules are to be observed :

1. That the Words should be taken most strongly against the donor, or party conveying, and in favor of the donee, or party conveyed unto ; but nevertheless, the construction should be reasonable, and so as to satisfy the intent of both parties.

2. That effect should be given to all the words if possible, as agreeable to reason and confoimable to law ; and a consistent operation to the whole : and that words which may appear repugnant or contrariara should be reconciled, if it can be done, without violating the principles of law, or the rules of legal construction. See Plowd. 152 et seq. Ib. 10, 103, 140, 243, 290, 396, 540. 1 Rep. 65, 96. Hard. 94.

In the interpretation of the words in question, I shall endeavor to adhere to the true sense and spirit of these rules.

The first words, “ to the said Elizabeth Withers; and the heirs of her body,” clearly create an estate tail, or fee-conditional, the limitation being restrained to lineal, in exclusion of collateral heirs. The next words, “ and the survivors of them forever,” have no fixed or determinate meaning, or legal effect, as they are employed in this place.

If we take all the words of the premises together, and suppose them to be expressive of an intention to convey an estate to Elizabeth Withers and her two children in joint-tenancy; they must be considered as having taken, all together, a fee-simple absolute, which fell to the survivor, and vested in him as sole and absolute proprietor. In this case, upon the death of the survivor, Richard or Nathaniel, without issue, his next relation of the blood of the male ancestors, in the lineal ascent by the father, became entitled to the estate, by the law of succession as it then stood, and bis heirs of the* blood of the mother could not inherit. See Plowd. 444, 445.

But I think there is no good ground for this construction. The expression, “ survivors of them,” in the plural, seems to preclude the notion, that a joint estate was intended. It appears to me most probable, that the donor intended to convey the estate to Elizabeth Withers, and the heirs of her body; and that the same should continue to descend to such heirs in succession forever : the more remote to fake after the more near by survivorship.

If such intention can be fairly collected from all the words considered together, and I am of opinion it may ; and the particular words now tinder consideration can be construed to accord with such intention, which certainly cannot be denied ; then the latter words may be considered as abundant and superfluous : being intended to effect no more than wiutt the preceding words are fully competent to ; for, the technical expression, “ heirs of the body,” comprehends, in point Of description, heirs of the body of such heirs of the body; who, after the death of the immediate heirs of the body, will be heirs of the body, and include the whole line; dr denomination of heirs of the body. See Co. Lltt. 26 b. 1 Fearne. 6th Ed. 108, 109. 1 Atk. 412. If this bdnstruction should be admitted; Elizabeth Withers took a fee simple conditional; by the words in the premises.

The words superadded in the habendum, and 'claude of warranty; may very well, in my judgment, be reconciled with this construction of the words in the premises; and, it seems to the, a more easy, natural, and beneficial exposition, than any other which can be given to the words in question: more so than that which would make the superadded words operate to enlarge the estate before given in the premises, and superinduce a fee simple absolute in expectancy, upon an estate in fee simple conditional.

The words, “ and their heirs and assigns, forever,” in the lice* bendum, do not, by necessary construction, oppose or contradict the effect of the preceding words, according to the construction given them. The word heirs,” although expressed in general, without any qualification, or particular description, to confine the meaning to special heirs, must be understood with reference to the preceding Words, and in conformity with the intention of the donor, and must tnean the same kiud of heirs before described, if this word should be construed to mean any other kind of heirs, as heirs general, the intention manifested by. the preceding words would be contradicted; and a different intent, inconsistent with the prior intent, would be set up, one of which must be defeated, for both cannot be satisfied.

The prior intent seems to be very clearly signified, by plain and effectual words; but, the latter intent, if any latter intent repug. xiant id the former can be supposed, is at least doubtful and uncertain : and, therefore, as an estate in fee simple conditional is clearly given in the premises, by words sufficiently explicit, it shall not be defeated by subsequent doubtful, or contradictory words.- See 2 Ld. Raym. 1437. 2 Str. 729. 1 Fearne, 246-7. This word “ heirs,” cannot be construed to mean the heirs general of any particular heir of the body of Elizabeth Withers. The expression, “ their heirs,” excludes any such construction. To contend that these words, “ their heirs,” do necessarily include the heirs of Elizabeth Withers, would be absurd. Besides, it would not be true; for, the right heirs of Nathaniel, and Richard Withers, being the collateral heirs on the part of their father, are not the heirs of Elizabeth Withers, their mother. Ii the word “ heirs” could be construed in any way so as to give a fee simple absolute to Elizabeth Withers, it would entirely overthrow the preceding words, “.heirs of her body.” See Cowp. 835, 839.

Nothing decisive, or certain, can be infered from the additional words “ assigns.” The donor may have intended by it to convey an assignable estate; but, we are not thence to conclude, that he meant to convey to the donee a fee simple 'absolute. The word “assigns,” is not a word of inheritance. Litt. §. 1. 2 Bl. Rep. 1185.

A man’s assigns are included in himself. The word imports no more than the preceding words. It is a redundant and superfluous word. Plow. 289. 3 Leon. 5. The same may be said of the word “ forever.”

The following authorities support the construction, that the word “ heirs,” in the habendum, must be taken to mean' the same kind of of heirs before described in the premises, viz: heirs of the body of Elizabeth Withers, Wright v. Pearson, Ambl. 358. 1 Fearne. Devise to the use of the heirs male of R. T. a-.d their heirs: Lord Keeper Henley was of opinion that the words, “their heirs,” were redundant and surplusage, and that R. T. took an estate tail. Webb v. Herring, Cro. Jac. 415. See 2 Ld. Raym. 720. 3 Bur. 1103. 2 P. Wms. 341. Doug. 266, 321. 1 Ves. 89. 2 Fearne, 153. 1 P. Wms, 23. Cowp. 234, 308, 410. Dyer 171. 1 Eq. Ca. Abr. 197. 8 Vin. Abr. 272.

Upon the same principle it has been decided, that where there bad been a preceding- devise to issue, or children, the words, “ in default of issue.” afterwards mentioned as a contingency upon which the estate should vest, shall be taken to mean in default of such issue, as would be intitled to take under the devise. 1 Salk. 224. 1 P. Wms. 600. Doug. 251

The rules of law seem to require, that the word “ heirs,” iu the habendum, which occasions the principal doubt in this case, should either be construed to mean heirs of the body, according to the premises, or considered as a word of doubtful intention. In either case, the estate given in the premises, must stand unaltered, and uncontrolled by the habendum. This must be the result, if the decision in this case is to be directed by former determinations, and the rules that have been settled by adjudged cases ; and, the general security of titles, and the quiet enjoyment of properly, require that it should be so.

It all doubtful and difficult cases, it is wise and safe to abide by former precedents, and the rules marked out by former decisions. It would be mischievous and dangerous to depart from them, and listen to the suggestions of an arbitrary and fluctuating discretion. And for what purpose should we do so in this case? To favor a rigid and hard rule of law, or to give effect to the conjectural intent of doubtful words in a deed 1 See 1 Fearne, 267, et seq. It is the duty of the courts of justice, and one of great importance to the community, to expound the law they administer, upon such principles of argument and construction, as may furnish rules which shall govern in all similar and analogous cases.” Doug. Pref. to his Rep.

The strongest argument for the plaintiffs, is bottomed on the rule laid down in Shelly’s case. .1 Rep. 96. “That wherever a freehold estate is limited to the ancestor, and in the same conveyance an immediate, or mediate remainder is thereon limited, to his heirs, the word “ heiis” shall be a word of limitation, and not of purchase, and the heirs shall take by descent.”

It has been strenuously urged, that this rule applies directly to, and must govern the pieseut case. That the word “ heirs.” in the habendum, must he taken to mean heirs general; and especially, being combined witli the words “survivors of them and their assigns,” must be construed to expand and enlarge the estate given by the precedent words, and engraft thereon a fee simple absolute, in expectancy, to Elizabeth W ithers, and her heirs general, upon failure of the special heirs before described. Co. Litt. 183, 299. Plowd. 433. 14 Vin. Abr. 152. 9 Rep. 49. And, therefore, that upon failure of heirs of her body, the absolute estate in fee simple, haying vested in Elizabeth Withers ; and, she having taken the same by purchase, the inheritance, at her death, could not devolve on any one who was not of her whole blood : and, that her whole blood failing, the land escheated to the State ; and, the legislature of the State, by the escheat act of 1787, having.granted the same to the half-blood of the last proprietor, from whom it escheated, the plaintiffs became entitled as next heir of the halt-blood.

By the law of England, a deed in the premises to A., and the heirs of his body, may he enlarged in the habendum, to a fee simpie expectant, by the words, “ to him and Ins heirs;” because# •therwise, the habendum would be void. 2 Bi, Com, 298,

But, in the principal case, the words in the habendum are not to him, and his heirs, bui to the survivors of the heirs of the body of Elizabeth Withers, and their heirs, vi hich import a different meaning, or involve the intention in obscurity and doubt: and, it is a rule of law, that in conveyances of estates, they are not to be ad¡mitted to pass by implication, as in devises. Vaugh. 261.

But, if we admit that the donor’s intention, by construction of law, must be expounded with a view to give the land in question to Elizabeth Withers for life, remainder to her two sons in tail, remain, der to her right heirs, as contended for; although, according to the doctrine of the English law, founded on the statute de donis. Elizabeth Withers must have taken the entire estate in fee, divided by, and subject to the estate tail of her issue, see Fearne on Coining. Rem. 6th Ed 105. 14 Vin. Abr. 153, 156, yet, inasmuch as the statute de donis was never oí force with us, no such remainder could be limited.

In England, a fee simple expectant may be limited upon an estate tail, by construction of the statute de donis„ 2 Inst. 335. 2 Woodes. 12, 13. For the statute abridges and divides the estate; and the estate tail cannot merge m, or unite with the fee simple: but, according to the principles of the common law, no such remainder can be limited upon, or after a fee simple absolute, or conditional. At the common law, before the statute de donis, all estates of inheritance were fee simple absolute, or conditional; and, if. a man gave, or devised lands to another, and the .heirs of his body, the donor could limit no remainder. Co. Lift. 19. 22. Plowd. 235, 242. 15 Vin. Abr. 364. 2 Rep. 74. 1 Salk. 338. 2 Bl Com. 178. 4 Com. Dig. Tit. “Estate,” B. 13. 1 P. Wms 74, 366. Co. Litt. 327. Butler’s notes. Fearne on Ex. Dev. 87. Pow. notes.

The condition implied in the donation being if the donee shall nave heirs of his body, when he has issue, the condition is per. formed, and he may alienate the tee; but a limitation over upon failure of heirs of his body, would be inconsistent with this power of alienation : for issue might be born, which would enable die donee to aliene, and afterwards the donee might die withoui issue; and, by the common law, upon having issue, the estate was subject to forfeiture for felony. Plow. 250, 251.

The statute de donis never was in force with us. It is expressly enacted by the act of 1734, “• that estates conditional, at the common law, in fee simple, shall not be construed to be estates ir. fee tail.” P. L. 139. It seems clear, then, ou principies of common Jaw, that the limitation over, if such were intended, of a fee-siraP'e a^SH^ute’ after a fee.simple conditional, is repugnant and void : f°r a man cannot create a new sort of inheritance, or model the course of descent contrary to law. If this position he correct, the plaintiffs have no right to claim the lands in dispute, as heirs of the half -blood to Elizabeth Withers.

Let us go a step further, and admit that a fee-simple absolute, may be grafted on a fee simple conditional; and that the word heirs, in the habendum, may be construed to enlarge the estate in the premises, to a fee.simple absolute : yet it will not follow, that the rule in Shelly’s case is applicable to, and decisive of the present., According to Mr. Hargrave, see Fearne on Conting. Rem. 6th Ed, 294, “ the rule in Shelly’s case is no medium for finding out the intention of the testator; on the contrary, the rule supposes the intention already discovered, and to be a superadded succession to the heirs general, or special, of the donee, for life, by making such donee the aucestor, or terminus, from which the whole generation, or posterity of heirs, is to be accounted : and whether the conveyance has, or has not, so constituted an estate of freehold, with a succession engrafted upon it, is a previous question, which ought to be adjudged before the rule is thought ot.” The ordinary rules for interpreting the language of wills, which have principally in view the intention of the testator, do not strictly apply in the construction of deeds. See Plowd. 162 — 3. Vaugh. 261. Yet if we allow the same latitude and liberality of construe, tion in this case, as if it were the case of a devise, I believe it would be difficult to collect from the words of the deed in question, an intention to limit over the absolute fee simpl - to Elizabeth Withers, and her heirs general, on failure of heirs of her body. It seems to me clear, that the intention was different, for the reasons before assigned. It is more probable, I think, that the intention was to give the estate in perpetual succession, to her, and the heirs of her body, in case there should continue to be heirs of her body; and in case of the failure of such heirs, then, that the absolute fee» simple should vest in the last surviving heir of her body, and go to his heirs general. This construction gives meaning to all the words; but they cannot be satisfied according to such intent. The limitation, being intended to take place after an indefinite failure of issue, is clearly void, as tending to a perpetuity. 2 Wooddes. 2 Fearne, 73, 115, 129, 324. To say, that in the present case there could be no perpetuity, because Elizabeth Withers had only two children, who survived her, and they both died without issue} Would be idle, since for any thing that could have been fóre-known, she might have had many children, and grand-children ; and the .contingency of their becoming extinct, or being reduced to the last .survivor, might be very remote, and might not happen for many generations : and it is against the’ policy of the law, that estates should be lied up, aud rendered unalienable for a great or indefinite length of time. But if wé should go still further, and allow that the word ‘‘ heirs" in the habendum, can admit of no other .construction, than that which has been contended for, arid must be taken to mean the heirs general of Elizabeth Withers ; yet the application and conclusive operation of'the rule in Shelly’s case, may nevertheless, I conceive, well be doubted. The rule .itself I do not mean at present to question, although t think it may admit of a serious question, how far it should be permitted to operate, teven in cases where its application is admitted. Perhaps the rule itself may safely be denied, as incompatible with the nature of our estates, their succession, and transmission.

The foundation upon which the principle was adopted, which gave rise to the rule, has long since failed by the abolition of tenures. See Stat. 12, Car. á, c. 8, P L. 99. Yet the technical import of such limitation having been established, the construction of the instrument continued the same. But the courts iri England have been very cautious and subtle, to avoid the rigor of the rule, since the reason of it has ceased ; and therefore admit no cases to be governed by it, but such as come strictly within it. The principle which gave rise to the rule, was founded on a feudal maxim, that an heir should not take a contingent remainder of an estate as purchaser; where his ancestor took a freehold estate by the same conveyance ; because the lord might be defrauded of the fruits of Ms tenure. See 2 Bur. 1107. 1 Fearne, 235. Pow. on Dev. 355 — 8; The coutts of this country, it is presumed, will be little influenced by the fundamental reason of the rule, and not very indulgent to the principle upon which it has arisen. They will hardly be inclined to favor the rule, and stretch it to reach doubtful cases, or those not clearly within it, by giving a rigid technical interpretation to ivords of doubtful import, in order to enforce their subjection to its rigorous operation. The distinction which has been insisted on between trust estates in equity, and mere legal estates, has been induced by the necessity and propriety of curbing the rigor of the rule. 1 Fearne, 168, 183. The effect of the distinction is, to give the heirs of the body of cestui que trust, by 4he description of heirs of the body, she estate as purchaser, á!» though limited to the cestui que trust for life, instead of giving the cestui que trust an estate tail, which would be the construction, if the estate were merely legal. But this distinction does not prove that the rule is favored in its application to estates merely legal ; or that its operation is not, in some measure, restrained, although not to the same extent, as in cases of trust estates m equity.

For the defendant it was contended, that under the description of heirs of the body, and survivors of them, thé sons of Elizabeth "Withers took as purchasers ; and that the estate ought to be considered as commencing in them. See I Fearne, 107. But this position, I think, cannot be maintained. The cases cited in support of the position, are very .distinguishable from the present. In Archer’s case, 1 Rep. 06, the estate was given to R. A. for life, and after his decease to the next heir male of R. A., and to the heirs male of the body of such heir male. The words “ next heir male,” were adjudged to be a description of the person to take the fee. But there are no such words of description in the present case. In the case of King v. Melling, 2 Lev. 58, 1 Ventr. 214, 225, an estate was devised to B. for life, and after his death, to the issue of his body by his second wife, and for default of such’ issue, over. There, although the estate was expressly given for life to B., yet it was adjudged that he took an estate tail, and that the words were not sufficiently descriptive of a person, to take as purchaser by the terms of the devise. See Anders. 110 1 Roll 839. 2 Roll. 253. 2 Lev. 60. In the case of Goodright v. Pullyn, 2 Ld. Raym. 1437. 2 Str. 729, the devise was to N. L. for life, and after his decease, unto the heirs male of the body of N. L. and his heirs for ever : but if he should die without such heir male, then over. Here, although it might seem that the words heir male, in the singular number, and his heirs for ever, manifest an intent to describe a person to take by purchase, yet the court adjudged otherwise, and that N. L. took an estate tail, and that the operation of plain and clear words, viz. heirs male of the body; and that a settled rule of law, should not be defeated or bmke into by uncertain and doubtful words, viz. if he should die wvhout such heir male, which do not necessarily imply that the heirs so described shall take by purchase, and not by descent: and heirs in the plural is generally construed a word of limitation, and not a word of description of a particular heir, especially where the intent is uncertain and conjectural. See Pow. on D v. 373. Amb. 344. 1 East, 264, 276,

In the case of a will, if the testator’s intent be clear, from other parts of the will, the word “ heir#” may be construed a word of description, and the heir shall take as purchaser ; but the intent should appear by plain expression, or necessary implication. 4 Bur. 2579. Perrin v. Blake, 1 Bl. Rep. 672. The present is not a case of a devise : and if it were, the intent does not manifestly appear. If the sons of Elizabeth Withers took by words of description, or either of them, as purchaser, it is clear that her collateral heirs can have no right to the land by descent. But, it may be said, upon the death of the first •purchaser, without lineal heirs, his collateral heirs could not succeed to the inheritance, upon the feudal principle, that the personal merit of the first feudatory is supposed to be the moving cause of the grant, and that the teud could only go to the blood or issue of such feudatory. 2 Bl. Com. 220. If this should be granted, the plaintiffs ought not to recover, because they must recover on the strength of their own title, and not on the weakness or deficiency of their adversaries’ title. Run. on Ejectm. But the grant, in the present case, must now be considered as of a new feud, to be taken as an ancient feud, descend, ed from the ancestors of the grantee. 2 Bl. Com. 212, 222. And therefore, on failure of lineal heirs, the collateral heirs of the grantee are entitled to the succession.

In short, my opinion is, 1. That Elizabeth Withers, and her sons, did not take a fee-simple ahsoluteas joint-tenants. 2. That her sons did not take by words of description, as purchasers. 3. That she did not take a fee-simple absolute, expectant, engrafted on a fee-simple conditional by force of the superadded words in question : first, because I think that the s uperadded words may he legally expounded to mean the heirs of her body, in successive generation, ad infinitum; second]}, because, if they cannot beso construed, yet inasmuch as they are uncertain and doubtful, and the precedent words are clear and explicit, and give an unquestionable estate in fee-simple conditional, therefore the estate so given, cannot be defeated by such uncertain and inconsistent words: thirdly, because 1 am of of opinion, that no such estate in expectancy can be limited up. on, or after an estate in fee-simple conditional: and fourthly, because the estate in fee-simple conditional cannot be merged and extinguished in an estate in fee-simple absolute, by force of the sub. sequent words in the habendum of the deed ; as it would be making the deed operate by implication and construction, contrary to a plain and manifest intent. 4. I am of opinion, that the intent of the deed was to give the land in question to Elizabeth Withers, and the heirs ot her body, or posterity, in succession forever ; and that she took a fee-simple conditional, according to the principles of the common law of England ; and consequently, that the fee never vested absolutely in her, and therefore cannot be legally reco« vel'ed by any one claiming by descent from her. 5. Í am of opinion, that upon failure of heirs of the body of Elizabeth Withers, the land reverted, or returned back to the donor, John Breton, or his heirs, or devisees, according to the implied condition of his grant. See Litt. § 13. Co. Litt. 22, 27. Plowd. 153, 235, 242. The reversion, or possibility of reverter, was descendible and deviseable, and might, pass to the residuary devisee of Breton, Magdalen Juneau, and from her, in like manner, might pass to Mary Mitberington, the mother of Butler’s wives, from whom the defendant derives his title. 2 Inst. 335. 10 Mod. 528. Pow. on Dev. 234. 235. A. A. 1734, P. L. 139. The donee having had issue, the condition was perlormed, and she might have aliened ; but her issue having died without issue, before any alienation, the donor, by the common law of England, was intitled to a formedun in reverter. Florid, 235, 245,251.

If it could be maintained on any legal principle, that the estate vested absolutely in the sons of Elizabeth Withers, and was transmissable to their heirs general, it must be admitted, that upon failure of lineal heirs, it would go to their collateral heirs by thoir fathers’s side; and that Rand was the rightful heir. But even on this ground, the plaintiffs would have no right to recover. Although the plaintiffs’ deed of eonveyain C from Rand was first recorded in the register’s office, yet there can be no doubt but that he knew, at the time when he accepted this conveyance, that Rand had previously sold and conveyed the laud to the defendant: for Rand’s wife, in a conversation with the plaintiff about the conveyance he was obtaining from her husband, expressed her fears that her husband would be brought into trouble, if be made a-second conveyance of the laud be had already sold. The act to prevent deceits by double mortgages, passed in 1698, declares, that “ that sale, conveyance, or mortgage, of lands and tenements, except original giants, which shall be first registered in the register’s office in Charleston, shall be taken and held to be the first sale, &c. and to be good and lawful in all courts within the province ; any former or other sale, &e. of the same land, notwithstanding.” The design ot this .act, and the mischief intended to be guarded against, appears by the preamble : “ Whereas, the want or neglect of registering and recording of sales and con. veyances of lands, negroes, &c. hath encouraged and given opportunity to several knavish and necessitous persons to make two or more gales, conveyances, and mortgages of the land, &o., to se. Vo ral persons, whereby buyers and lenders do often lose their mo. irey, &c.” In order to favor the design of the act, and prevent knavish and fraudulent consequences, the act should be construed liberally, so as to suppress the mischief, and relieve against the ef. feels of such frauds; and not so as to be made the instrument of protecting fraud. Lex. Prœtor. 9. 1 Fonbl. 23, 113. 2 Fonbl. 38. 5 Rep. 60 Cowp. 434. Ambl. 67. 1 Ves. 221, 125. “ What has been said ot the statute of frauds, may, with more propriety, be applied to every rule of law, drawn from the principles of natural equity, to prevent fraud; that it should never be turned, construed, or used, so as to protect, or be a means of fraud.” 3 Bur. 1919. The construction given to the registry act, 7 Ann, c. 20, by the court of Chancery in England, is founded on this liberal and salutary doctrine. That act requires, that deeds, or conveyances, and all in. cumbrances upon lands, lying in the county of Middlesex, shall be registered in a certain dffice, within a certain time; otherwise every such conveyance shall be void, against any subsequent purchaser, for a valuable consideration. The intention of this act was to secure subsequent purchasers and mortgagees, against prior secret conveyances, and fraudulent incumbrances, as appears by the preamble ; and, therefore, it has been decided, that where a man purchases, with notice of a prior incumbrance, or of a prior unregistered deed, his deed, although registered, shall not be established, because, he must be presumed to have purchased with a fraudulent object in view. 1 Str. 664. 2 Eq. Ca. Abr. 63. 3 Atk. 646. Ambl. 436. Cowp. 712. The object of both acts appears to be the same, and they ought to receive the same construction. In the case of Le Neve v. Le Neve, 3 Atk. 646. Ambl. 436, a subsequent registered deed was set aside in equity, and the execution of a trust, according to prior marriage articles, unregistered, was decreed, on the ground that the party had notice of the prior incumbrance.

It has been objected, that the authority of this case can have no influence in the decision of the principal case, seeing that it was a determination in equity ; and that it seems agreed by the opinions given in equity, that at law the legal estate must remain where the effect of registering has placed it: also, that the end proposed by registering, was to prevent parol proof of notice. 2 Atk. 275. To this Í answer, that I can discern no good reason why the same principle and doctrine should not apply, as well in the courts of law, as in equity, when the question can be fairly made, and inves. tigated, by the rules of the common law. The courts of law and equity have concurrent jurisdiction in matters of fraud. 1 Bur. 396. 1 Fonbl. 110. Cowp. 434. Our courts of equity differ from those 0j. jaw> more ¡n exteriur ¡natters of practice, than in principle ; and more >n the mode of relief, than in determining the essential merits of the cause, as to the naked question, who shall prevail in litigahon. They can give relief in cases where, by the rules of common law, relief cannot be obtained, by compelling a discovery, decreeing tt performance in specie, &c., and may modify the relief to answer all the particular exigencies of the cause. 1 Wooddes. 209. But where, by the rules of the common law, relief may be administered in any cause, properly instituted and examinable in a court of law,, it seems absurd to suppose, that the same sound principles of reason, and natural justice, should not apply with equal force-in that court, as in a court of equity. In the cases decided in equity, it appears thatthere was a necessity for resorting to that court for relief. Therefore, when it is said that the statute of Anne leaves the legal estate where-the effect of registering has placed it, nothing moréis meant, than that this must be the effect, until equitable circumstances shall be shewn to take the case out of the statute, which, in the cases quoted, could not be done by the rules of the common law : but, in many cases, it may be done. As to the dictum, that the statute was made to prevent parol proof of notice. Hine v. Dodd, 2 Atk. 275, I cannot conceive its truth or propriety. The statute was made to guard against the evil consequences of secret conveyances} without any notice at all, and not to prevent parol proof of notice. By requiring the registration of deeds, it may be said, that written notice of prior incumbrances is made necessary; but, there are no negative words to shew that parol notice may not be sufficient.

To conclude, I am of opinion, that the verdict is right, and that a new trial ought not to be granted.

New trial refused.

[Note. The notes at the head of this ease must be regarded as an index to-the principles laid down by the presiding judge, in his charge to the jury, and in the opinion subsequently delivered by him in the Constitutional Court, rather than as an abstract of the points of law decided by that court. As the opinions of the other judges are not given, it is impossible to ascertain what points of law were settled by the decision of the court. The plaintiffs may have failed, for want of title originally, or because they were barred by the statute of limitations : and, although it might be inferred, from the refusal of a t.-ew trial, that the charge of the presiding judge was sanctioned by a majority of the court, yet, as the case did not depend upon the weight of evidence, except upon one point in relation to the statute of limitations, if the court were satisfied, that in any view of it, the plaintiffs were not entitled to recover, a new trial would scarcely have been ordered, although there had been a misdirection on some of the points made. The charge, too, presented several distinct and independent grounds on which the defendant was intitled to the verdict; and it would have been sufficient, if the court had sanctioned any one of them, alth 'Ugh they may have differed as to others. For instance, if a majority of the court were of opiuion, that the estate of Elizabeth Withers was enlarged by the habendum to a fee simple; yet, if they concurred with the presiding judge in rejecting the rule, that the inheritance could only descend to the -blood of the first purchaser, the title on which the plaintiff relied, would have failed, and. the case would have depended on the priority of the conveyances from Rand. The case, however. is curious, and instructive, in exhibiting the diversity, and the vagueness., and uncertainty, of the opinions then prevalent, as to the application and effect of English rules of construction, under the modification of our system, occaj -sioned by the exclusion of estates-tail.]  