The opinion of the court was delivered by
Mr. Justice McIver.
The plaintiff in this action seeks to recover possession of a certain tract of land in York county, “And that the title should be adjudged in the plaintiff in fee simple, and in the event that judgment in his favor should be for only an undivided interest in the same, the plaintiff will demand judgment that the premises aforesaid be divided between plaintiff and the parties in interest according to their respective shares, or if division in kind be impracticable, that the said premises be sold, and the proceeds divided as aforesaid.” In his complaint he sets out his chain of title as follows:
1. A grant to Daniel Peeler, sr., dated July 19th, 1819.
2. Death of Daniel Peeler, sr., intestate, about 1830, leaving as his heirs at law his widow, Levicey, and ten children.
3. Releases from the children to the widow.
4.-Deed from widow to R. V. Gist, dated March 14th, 1863.
6.Deed from Gist to Daniel Peeler, jr., date unknown.
6. Deed from Daniel Peeler, jr., to the King’s Mountain Iron Company, dated June 12th, 1863.
7. Deed from sheriff of the interest of said company sold under execution to T. J. Dell.
8. Deed from clerk of court to plaintiff, dated May 6th, 1881, in pursuance of a sale made by him under proper proceedings for that purpose.
In the second count of the complaint, as it is called, the plaintiff simply sets up a claim that he is seized in fee of the premises in dispute, without specifying the sources of his title; and in the third count he claims that he was lawfully in possession of the premises in question, and that defendants unlawfully entered upon and disseized the plaintiff and forcibly keep him out of possession. The answers contained a general denial of the plaintiff’s [65]*65title, and no further statement of what they contain need be made as the question turns upon the validity of plaintiff’s title.
A trial by jury was waived, and an order was granted referring it to a referee, “to hear, determine, and report upon all the issues of law and fact raised by the said pleadings, with the right reserved to either party to file exceptions to said report, and to have the same heard in this court; it being understood that neither party waives the right to a subsequent trial by jury of the issues raised, whether Thomas J. Bell, Esq., through whom the plaintiff claims, acquired title to the property in dispute by possession subsequently to the execution sale, at which it is alleged he purchased the same.”
Accordingly, the case came before the Circuit judge upon the • report of the referee, with exceptions thereto filed both by plaintiff and defendants, and he held that the plaintiff had failed to establish the-fourth link in the chain of title, as the Circuit judge stated the chain, but the fifth link in the chain of title as herein above stated; and that as plaintiff must recover, if at all, upon the. strength of his own title, and not upon the weakness of his adversaries’, who may rely simply upon their possession, he rendered judgment dismissing the complaint. The judge, however, does go on to express his dissent from certain legal propositions announced by the referee, in reference to the effect of the releases of such of the children of Levicey Peeler as were married women at the time — the 'papers claimed to operate as releases being signed* by the husbands and not by their wives — and in reference to the right of the husbands to estates of tenancy by the curtesy, which are made the basis of one of the exceptions.
The plaintiff appeals upon numerous grounds, which are fully set out in the “Case,” and need not be repeated here. The first and most material question made is, whether the judge erred in holding that the plaintiff had failed to establish any conveyance from Gist to Daniel Peeler, jr., the fifth link in the plaintiff’s chain of title as we have stated it. The referee having found that such a conveyance was proved by the evidence before him, it is contended that as this is a case at law, the Circuit judge had no right to overrule this finding of fact, but was bound to accept it as a verdict of a jury. It will be observed, however, that the [66]*66terms of the order of reference plainly show that such was not the intention of the parties, but that all the findings of the referee, both of law and fact, were open to review, and under such an order of reference, as is intimated in Ross v. Linder, 18 S. C., 605, the parties would be estopped from making the question.
But in addition to this, where, as in this case, the finding of fact by the referee is based upon incompetent testimony, there surely cannot be a question as to the right of the judge to reverse such finding upon the ground of error of law. Here the referee based his finding of fact upon certain minutes made upon the books of the King’s Mountain Iron Company, of which Gist was agent, and certain declarations made by Gist, which we think were clearly incompetent, amounting to nothing more than declarations of pai’ties under whom the plaintiff claims, in favor of their own title. The question whether Gist had conveyed to Peeler was a question of fact, and the decision of the Circuit judge is conclusive. The point made in the argument, though not appealing very distinctly in the exceptions, that Gist, when he bought from Mrs. Peeler, though he took title in his own name, really bought for the company, and that the purchase money was paid out of the company’s funds, rests upon the declaration of Gist and the minutes of the company, which, as we have seen, were incompetent testimony, and for this reason cannot be sustained.
Next, as to the effect of the papers claimed to operate as releases to Levicey Peeler of the interests of her several children. So far as the rights of those of them who were married women are concerned, we agree with the Circuit judge in the view which he has taken. The only mode by which a married woman, prior to 1868, could dispose of her estate of inheritance in land, is that prescribed by the act of 1795, and unless that mode is strictly pursued, the interest of the wife does not pass. McLaurin v. Wilson, 16 S. C., 402.
So, too, we agree with the Circuit judge that the necessary effect of the act of 1791 was to abolish the husband’s right to hold as tenant by the curtesy lands of his wife which she held as tenant in fee simple. This question, so far as we are informed, does not seem to have been distinctly decided in any reported [67]*67case in this state, though Chancellor Dargan, in Wright v. Herron, 5 Rich. Eq., at page 446, in speaking of the effect of the act of 1791, says: “Upon the construction of this act it has been held, that the husband is not entitled to his curtesy in fee simple estates,” notwithstanding the fact that he does go on to use language which would seem to imply that he was inclined to a different opinion.
It seems to us, however, that the necessary effect of this act was to abolish the husband’s estate by the curtesy. The object of the act, as expressed in its title and preamble, was not only to abolish the right of primogeniture, but also to provide for the “equitable distribution of the real estates of intestates,” as specially enjoined by art. x. §5 of the constitution of 1790.
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The opinion of the court was delivered by
Mr. Justice McIver.
The plaintiff in this action seeks to recover possession of a certain tract of land in York county, “And that the title should be adjudged in the plaintiff in fee simple, and in the event that judgment in his favor should be for only an undivided interest in the same, the plaintiff will demand judgment that the premises aforesaid be divided between plaintiff and the parties in interest according to their respective shares, or if division in kind be impracticable, that the said premises be sold, and the proceeds divided as aforesaid.” In his complaint he sets out his chain of title as follows:
1. A grant to Daniel Peeler, sr., dated July 19th, 1819.
2. Death of Daniel Peeler, sr., intestate, about 1830, leaving as his heirs at law his widow, Levicey, and ten children.
3. Releases from the children to the widow.
4.-Deed from widow to R. V. Gist, dated March 14th, 1863.
6.Deed from Gist to Daniel Peeler, jr., date unknown.
6. Deed from Daniel Peeler, jr., to the King’s Mountain Iron Company, dated June 12th, 1863.
7. Deed from sheriff of the interest of said company sold under execution to T. J. Dell.
8. Deed from clerk of court to plaintiff, dated May 6th, 1881, in pursuance of a sale made by him under proper proceedings for that purpose.
In the second count of the complaint, as it is called, the plaintiff simply sets up a claim that he is seized in fee of the premises in dispute, without specifying the sources of his title; and in the third count he claims that he was lawfully in possession of the premises in question, and that defendants unlawfully entered upon and disseized the plaintiff and forcibly keep him out of possession. The answers contained a general denial of the plaintiff’s [65]*65title, and no further statement of what they contain need be made as the question turns upon the validity of plaintiff’s title.
A trial by jury was waived, and an order was granted referring it to a referee, “to hear, determine, and report upon all the issues of law and fact raised by the said pleadings, with the right reserved to either party to file exceptions to said report, and to have the same heard in this court; it being understood that neither party waives the right to a subsequent trial by jury of the issues raised, whether Thomas J. Bell, Esq., through whom the plaintiff claims, acquired title to the property in dispute by possession subsequently to the execution sale, at which it is alleged he purchased the same.”
Accordingly, the case came before the Circuit judge upon the • report of the referee, with exceptions thereto filed both by plaintiff and defendants, and he held that the plaintiff had failed to establish the-fourth link in the chain of title, as the Circuit judge stated the chain, but the fifth link in the chain of title as herein above stated; and that as plaintiff must recover, if at all, upon the. strength of his own title, and not upon the weakness of his adversaries’, who may rely simply upon their possession, he rendered judgment dismissing the complaint. The judge, however, does go on to express his dissent from certain legal propositions announced by the referee, in reference to the effect of the releases of such of the children of Levicey Peeler as were married women at the time — the 'papers claimed to operate as releases being signed* by the husbands and not by their wives — and in reference to the right of the husbands to estates of tenancy by the curtesy, which are made the basis of one of the exceptions.
The plaintiff appeals upon numerous grounds, which are fully set out in the “Case,” and need not be repeated here. The first and most material question made is, whether the judge erred in holding that the plaintiff had failed to establish any conveyance from Gist to Daniel Peeler, jr., the fifth link in the plaintiff’s chain of title as we have stated it. The referee having found that such a conveyance was proved by the evidence before him, it is contended that as this is a case at law, the Circuit judge had no right to overrule this finding of fact, but was bound to accept it as a verdict of a jury. It will be observed, however, that the [66]*66terms of the order of reference plainly show that such was not the intention of the parties, but that all the findings of the referee, both of law and fact, were open to review, and under such an order of reference, as is intimated in Ross v. Linder, 18 S. C., 605, the parties would be estopped from making the question.
But in addition to this, where, as in this case, the finding of fact by the referee is based upon incompetent testimony, there surely cannot be a question as to the right of the judge to reverse such finding upon the ground of error of law. Here the referee based his finding of fact upon certain minutes made upon the books of the King’s Mountain Iron Company, of which Gist was agent, and certain declarations made by Gist, which we think were clearly incompetent, amounting to nothing more than declarations of pai’ties under whom the plaintiff claims, in favor of their own title. The question whether Gist had conveyed to Peeler was a question of fact, and the decision of the Circuit judge is conclusive. The point made in the argument, though not appealing very distinctly in the exceptions, that Gist, when he bought from Mrs. Peeler, though he took title in his own name, really bought for the company, and that the purchase money was paid out of the company’s funds, rests upon the declaration of Gist and the minutes of the company, which, as we have seen, were incompetent testimony, and for this reason cannot be sustained.
Next, as to the effect of the papers claimed to operate as releases to Levicey Peeler of the interests of her several children. So far as the rights of those of them who were married women are concerned, we agree with the Circuit judge in the view which he has taken. The only mode by which a married woman, prior to 1868, could dispose of her estate of inheritance in land, is that prescribed by the act of 1795, and unless that mode is strictly pursued, the interest of the wife does not pass. McLaurin v. Wilson, 16 S. C., 402.
So, too, we agree with the Circuit judge that the necessary effect of the act of 1791 was to abolish the husband’s right to hold as tenant by the curtesy lands of his wife which she held as tenant in fee simple. This question, so far as we are informed, does not seem to have been distinctly decided in any reported [67]*67case in this state, though Chancellor Dargan, in Wright v. Herron, 5 Rich. Eq., at page 446, in speaking of the effect of the act of 1791, says: “Upon the construction of this act it has been held, that the husband is not entitled to his curtesy in fee simple estates,” notwithstanding the fact that he does go on to use language which would seem to imply that he was inclined to a different opinion.
It seems to us, however, that the necessary effect of this act was to abolish the husband’s estate by the curtesy. The object of the act, as expressed in its title and preamble, was not only to abolish the right of primogeniture, but also to provide for the “equitable distribution of the real estates of intestates,” as specially enjoined by art. x. §5 of the constitution of 1790. Accordingly, in the first section, it declares, amongst other things, “that when any person possessed of, interested in, or entitled unto a real estate in his or her own right, in fee simple, shall die without disposing thereof by will, the same shall be distributed in the following manner,” and then proceeds to provide for the various contingencies which may occur, and the mode of distribution in such contingencies, amongst others, as follows: “On the death of any married woman the husband shall be entitled to the same share of her real estate as is herein given to the widow out of the estate of the husband,” etc. It will be observed that the language of the act is imperative, that the real estate of an intestate “shall be distributed” in the manner prescribed by the act, and therefore any other disposition of it would not be lawful.
It will also be observed that while the act nowhere recognizes the preexisting estate of curtesy, it does, in section 6, expressly recognize, but does not undertake to create or reestablish, the preexisting estate of dower. It will be further noticed that the act gives to the husband, not the same interest which a surviving wife would take out of the real estate of her. deceased husband, but “the same share of her real estate as is herein given to the widow out of the estate of the husband.” It would seem to follow, therefore, that while the act of 1791 cannot be regarded as excluding the "widow’s right of dower, inasmuch as it expressly recognizes such right, it must be construed as excluding the right of curtesy, which is not recognized, and which, if allowed, would [68]*68disturb and defeat the mode in which the act declares the estate of an intestate “shall be distributed.”
Looking to the special features of the act as above pointed out, we are unable to see the force of the view suggested by Chancellor Dargan, above referred to. His language is as follows:“But as the widow is allowed to elect between her distributive share and her dower, and as the act expressly declares that the husband shall be entitled to the same share in his deceased wife’s real estate as it allows to the widow out of the husband’s estate, would it not be a just construction to allow the husband his election between his distributive share and his curtesy, and this even in fee simple estates? Is there any case which adjudges this question which refuses him his election?” As we have seen, however, that while the act expressly recognizes the estate of dower, and shows by the plainest implication that the intention was not to abrogate, or in any way interfere with that estate, it does not recognize the estate by the curtesy, and its recognition or allowance would seriously interfere with and practically defeat the scheme of the act. Again, as we have said, the estate of dower is not “herein given,” it is not created or provided for by the act, and it only gives to the husband “the same share of her real estate as is herein given to the widow out of the estate of the husband.” There is, therefore, no ground for construing the act as intending to give to a surviving husband an equivalent estate to that of dower, for it expressly provides that his share shall be the same as that provided for the widow by the terms of the act, and the estate of dower is not so provided for.
It is true that there is a case(Gray v. Givens, 2 Hill Ch., 511) in which the husband ivas allowed to elect to hold his deceased wife’s lands, as tenant by the curtesy, or to take under the statute of distributions, but in that case the question was not raised or discussed. On the contrary, the bill itself prayed that the 'husband might be required to elect whether he would hold as tenant by the curtesy or take his share under the statute of distributions. The case cannot, therefore, bé regarded as any authority upon the question under consideration.
In the case of Wright v. Herron, supra, the question arose whether a surviving husband was entitled to hold, as tenant by [69]*69the curtesy, the lands of which his deceased wife had held in fee. conditional, and it was in discussing that question that Chancellor Dargan threw out the obiter dictum, in reference to estates held in fee simple, which has been quoted above. Inasmuch as the act of 1791, in express terms, applies only to estates held in fee simple, and could not well apply to an estate held in fee conditional, where by the very nature of the estate the succession is limited to a particular class of heirs, it is quite clear that the question in Wright v. Herron was a totally different one from that which we are called upon to determine. But even the question there presented does not seem to have been by any means free from difficulty, for at the request of two of the chancellors it was referred to the Court of Errors (6 Rich. Hq., 406), and that court being equally divided upon the question, it was referred back to the Court of Equity, which held that the husband was entitled to hold, as tenant by. the curtesy, lands of which his deceased wife held an estate in fee conditional, and that decision has been subsequently approved in Withers v. Jenkins, 14 S. C., 597; but from what is said by the chief justice, at page 608, in delivering the opinion of the court, it is very apparent that a different conclusion would have been reached if the éstate of the wife had been a fee simple instead of a fee conditional estate.
The next point raised by appellants’ sixth, eleventh, and twelfth exceptions is as to-the plaintiff’s right to recover the interest of Daniel Peeler, jr. It seems-that on June 12th, 1863, he conveyed, with general warranty, the premises in dispute to the King’s Mountain Iron Company, whose title the plaintiff holds. The effect of this deed, containing a. general warranty clause, was to convey to that company, and consequently to the plaintiff, not only whatever interest he then had, but also any that he might thereafter acquire. Reeder ads. Craig, 3 Mc C., 412; Harvin v. Hodge, Dud., 25; Starke v. Harrison, 5 Rich., 8. It is true that he had previously sold his interest as heir at law of his father to his mother, but if he subsequently acquired an interest in the land, either as heir at law of his mother, or otherwise, such interest would pass under his deed to the company. It is likewise true that the plaintiff introduced a deed from his mother conveying the land to Gist, but the defendants [70]*70contend that Grist abandoned his claim to the land in favor of the heirs at law of Levicey Peeler, of whom Daniel Peeler, jr., was one. Be this, however, as it may, we find Daniel Peeler named as one of the defendants in this action, and his deed to the King’s Mountain Company will certainly estop him, as well as any who claim under him as heirs at law or otherwise (it being suggested in the argument that he has died since the commencement of the action), from disputing the title of the plaintiff, who holds the title of said company. Upon this point, therefore, we think the Circuit judge erred, and that the case must go back.
This disposes of all the exceptions except those which raise questions of fact, which we have no power to review.
The point made in the argument, but not in the exceptions, based upon what is called the third count in the complaint, that the plaintiff, without regard to title, is entitled to recover on account of his priority of possession, from which he was wrongfully ejected by the defendants, is not properly before us. It does not appear to have been presented to, and certainly was not passed upon by, the Circuit judge, and there is no exception raising the point.
The judgment of this court is, that the judgment of the Cir-* cuit Court be reversed, and that the case be remanded to that court for a new trial.