The opinion of the Court was delivered by
Mr. Justice Jones.
This is an action for dower, begun in the probate court in 1897. The probate court decreed in favor of the demandant, and on appeal the Circuit Court affirmed the judgment, and it is now sought to reverse the same. It is undisputed that the plaintiff married W. F. Pruitt in 1863, and that Pruitt died in 1892. The controversy is as to the character of the husband’s seizin during [161] coverture. It is not disputed that, in 1869, Thomas Gist executed to W. F. Pruitt a deed in terms conveying a fee simple title to the premises, and that Pruitt went into possession thereunder, cultivated and improved the premises. In 1873, Pruitt executed to the defendant, his mother, a deed in terms conveying a fee simple title to the premises, and in consideration of $350 expressed in the deed. The plaintiff made no renunciation of dower. Without other facts than these, it is manifest that plaintiff’s husband was seized during coverture of a dowable estate. The defendant, however, sought to establish that when the deed was executed by Gist to plaintiff’s husband, the purchase money was furnished by defendant and her husband, Cyprian Pruitt, the father of W. F. Pruitt; that the deed by Gist to W. F. Pruitt was made under an agreement that W. F. Pruitt would conve}r to the defendant whenever she demanded it, and that the conveyance by Pruitt to the defendant was in execution of said trust; thus seeking to show that the seizin of plaintiff’s husband was as trustee. The principal, if not the sole, evidence sought to be introduced to establish this fact was the declarations of plaintiff’s husband, made both orally and in writing during coverture, and after the execution of the deed under which he entered possession. The declaration in writing sought to be used in evidence was an affidavit of W. F. Pruitt, made in 1888, in the suit of W. F. Pruitt v. Juliett Pruitt and Henry Smith, in which W. F. Pruitt sought to recover a part of the land described in his deed to his mother, which his mother had sold to Smith, in which affidavit the defendant stated: “That although deponent held the legal title to said land before December, 1873, the land was not in fact his, but was the property of his father, C. P. Pruitt, and deponent held the title in trust for him. That in 1873 the deponent, at his father’s request and for his father’s benefit, conveyed said land to his mother, the defendant, Juliett Pruitt, to be held by her upon the same conditions that it had been previously held by deponent, &c.” It was also sought to prove oral declarations by W. F. Pruitt to the wit[162] ness, W. A. Lancaster, tending to corroborate the statements made in the affidavit.
1 The probate court and the Circuit Court ruled such evidence inadmissible as against plaintiff. In this ruling we concur. While in this State one who holds possession under a deed from the husband of the demandant in dower is not estopped to show that the seizin of the husband was as trustee and, therefore, his estate not dowable — Whitmire v. Wright, 22 S. C., 451 — yet it is settled that such trust cannot he shown by the declarations of the husband, made after legal seizin, so as to affect the wife’s dower. Tibbetts v. Langley, 12 S. C., 465. The case last cited held that recitals in a mortgage deed by the husband after seizin are not admissible to affect the wife’s dower in the mortgaged lands, she not being a party to such mortgage. This rests upon the ground that the favored right of dower, which attaches upon the seizin of the husband during coverture, should not be impeached or defeated by subsequent acts or declarations of the husband; for the wife, as to dower, is not in privity with the husband after seizin, and to permit such declarations to defeat the wife’s dower would open,wide the opportunity to destroy the right. Such acts or declarations of the husband constitute no part of the res gestae or transaction under which the legal seizin was acquired.
2 2 4 The main effort of the defendant was to establish an express trust by which plaintiff’s husband was to convey-the land to defendant whenever she required it. Excluding the written and oral declarations of plaintiff’s husband, made after his seizin, there was nothing but parol evidence offered to establish such express trust, and it is well settled that an express trust in land cannot be established by parol. Rogers v. Rogers, 52 S. C., 393. By the authorities cited in the case above mentioned, it is also held well settled that in order to establish a resulting trust by parol, the evidence should be clear and convincing. The probate court and the Circuit Court [163] concur in the conclusion that the evidence fails to establish any resulting trust; and if we have the power to reverse such finding in this kind of a case, we see nothing in the evidence to justify us in so doing, as the competent evidence is neither clear nor convincing.
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The opinion of the Court was delivered by
Mr. Justice Jones.
This is an action for dower, begun in the probate court in 1897. The probate court decreed in favor of the demandant, and on appeal the Circuit Court affirmed the judgment, and it is now sought to reverse the same. It is undisputed that the plaintiff married W. F. Pruitt in 1863, and that Pruitt died in 1892. The controversy is as to the character of the husband’s seizin during [161] coverture. It is not disputed that, in 1869, Thomas Gist executed to W. F. Pruitt a deed in terms conveying a fee simple title to the premises, and that Pruitt went into possession thereunder, cultivated and improved the premises. In 1873, Pruitt executed to the defendant, his mother, a deed in terms conveying a fee simple title to the premises, and in consideration of $350 expressed in the deed. The plaintiff made no renunciation of dower. Without other facts than these, it is manifest that plaintiff’s husband was seized during coverture of a dowable estate. The defendant, however, sought to establish that when the deed was executed by Gist to plaintiff’s husband, the purchase money was furnished by defendant and her husband, Cyprian Pruitt, the father of W. F. Pruitt; that the deed by Gist to W. F. Pruitt was made under an agreement that W. F. Pruitt would conve}r to the defendant whenever she demanded it, and that the conveyance by Pruitt to the defendant was in execution of said trust; thus seeking to show that the seizin of plaintiff’s husband was as trustee. The principal, if not the sole, evidence sought to be introduced to establish this fact was the declarations of plaintiff’s husband, made both orally and in writing during coverture, and after the execution of the deed under which he entered possession. The declaration in writing sought to be used in evidence was an affidavit of W. F. Pruitt, made in 1888, in the suit of W. F. Pruitt v. Juliett Pruitt and Henry Smith, in which W. F. Pruitt sought to recover a part of the land described in his deed to his mother, which his mother had sold to Smith, in which affidavit the defendant stated: “That although deponent held the legal title to said land before December, 1873, the land was not in fact his, but was the property of his father, C. P. Pruitt, and deponent held the title in trust for him. That in 1873 the deponent, at his father’s request and for his father’s benefit, conveyed said land to his mother, the defendant, Juliett Pruitt, to be held by her upon the same conditions that it had been previously held by deponent, &c.” It was also sought to prove oral declarations by W. F. Pruitt to the wit[162] ness, W. A. Lancaster, tending to corroborate the statements made in the affidavit.
1 The probate court and the Circuit Court ruled such evidence inadmissible as against plaintiff. In this ruling we concur. While in this State one who holds possession under a deed from the husband of the demandant in dower is not estopped to show that the seizin of the husband was as trustee and, therefore, his estate not dowable — Whitmire v. Wright, 22 S. C., 451 — yet it is settled that such trust cannot he shown by the declarations of the husband, made after legal seizin, so as to affect the wife’s dower. Tibbetts v. Langley, 12 S. C., 465. The case last cited held that recitals in a mortgage deed by the husband after seizin are not admissible to affect the wife’s dower in the mortgaged lands, she not being a party to such mortgage. This rests upon the ground that the favored right of dower, which attaches upon the seizin of the husband during coverture, should not be impeached or defeated by subsequent acts or declarations of the husband; for the wife, as to dower, is not in privity with the husband after seizin, and to permit such declarations to defeat the wife’s dower would open,wide the opportunity to destroy the right. Such acts or declarations of the husband constitute no part of the res gestae or transaction under which the legal seizin was acquired.
2 2 4 The main effort of the defendant was to establish an express trust by which plaintiff’s husband was to convey-the land to defendant whenever she required it. Excluding the written and oral declarations of plaintiff’s husband, made after his seizin, there was nothing but parol evidence offered to establish such express trust, and it is well settled that an express trust in land cannot be established by parol. Rogers v. Rogers, 52 S. C., 393. By the authorities cited in the case above mentioned, it is also held well settled that in order to establish a resulting trust by parol, the evidence should be clear and convincing. The probate court and the Circuit Court [163] concur in the conclusion that the evidence fails to establish any resulting trust; and if we have the power to reverse such finding in this kind of a case, we see nothing in the evidence to justify us in so doing, as the competent evidence is neither clear nor convincing.
5 6 7 The next matter we notice is whether the Circuit Judge committed error in withdrawing the case from the jury. It appears that defendant, when she appealed from the probate court, gave notice of a motion in the Circuit Court to have the issue of defendant’s title and of plaintiff’s right to dower tried by a jury. The motion was heard by Judge Klugh at a term previous to the trial, and he ordered that the case be transferred to Calendar i for trial of said issues by jury. At a subsequent term the case came on for trial before Judge Gary and a jury. After proceeding some distance with the examination of witnesses dc novo, Judge Gary withdraw the case from the jury. The defendant by her answer plead : (I) pendency of another action; (2) general denial; (3) that she was owner in fee and that plaintiff had no interest; (4) the statute of limitations; (5) adverse possession. Under the issue of title as thus presented, Judge Klugh ordered the same for trial by jury. But this would not tie the hand of the trial Judge, when the issues as they were presented before him were wholly different. Before Judge Gary, in the proceedings de novo, the sole issue presented was whether plaintiff’s husband was seized as trustee, notwithstanding his legal title. ' This defense depended upon the establishment of a trust, an equitable issue, and not an issue of title in the sense of the statute. On appeal from the probate court, the appellant as matter of right can have tried by a jury only such issues as are triable by a jury under sec. 274, Code, viz: (so far as relevant here) an issue of fact in an action for recovery of specific real * * * property. This was an action for the admeasurement of dower in lands, the legal title to which had been in plaintiff’s husband during coverture, and was then confessedly in the defendant, who sought to defeat the right of [164] dower by a purely equitable issue. Under these circumstances, the case was properly withdrawn from the jury. Having withdrawn the case from the jury, Judge Gary, as we construe the “Case” before us, proceeded to hear the appeal upon the record sent up from the probate court. The judgment of the Circuit Court was brief and as follows: “This case coming on to be heard at the June term of the Court, the plaintiff having made out a fee simple title and seizin in her husband during coverture, and no defense having been established: It is ordered and adjudged, that defendant’s exceptions be overruled and plaintiff’s exceptions sustained,' and that plaintiff recover her dower in the premises described in the complaint; and that the cause be remanded to the probate court to admeasure her dower to plaintiff. Let this judgment be certified by the clerk of this Court to the probate court.” The specific rulings of the Circuit Court may be ascertained by reference to the judgment of the probate court, and the exceptions thereto officially reported herewith. In so far as the judgment of the Circuit Court overrules the exceptions by defendant to the judgment of the probate court, we affirm it. We think, however, in sustaining the seventh and eighth exceptions of plaintiff to the judgment of the probate court, the Circuit Court went further than was probably intended. Sustaming these exceptions involved a ruling that the probate court erred in not adjudging that plaintiff was entitled to one-third of $ioo for each year the defendant was in possession of the land after the death of plaintiff’s husband, as rental value of said dower interest. We are not so sure that a probate court, under its statutory authority to admeasure dower, has .jurisdiction to determine any facts except such as are necessarily involved in determining the right to an admeasurement of dower. The question of rents and profits or rental value relate to matter of damages for the withholding of the dower, and not to the question whether the demandant should have a writ for admeasurements. This question, however, has not been discussed, and [165] we prefer not now to make any express ruling thereon. If the probate court had jurisdiction to adjudge damages for the withholding of the dower, it was error in the probate court to deny such rents on the ground that the plaintiff had slept on her rights in not bringing the action sooner, since the action was brought within six years from the death of her husband. But it seems that to adjudge for rents or damages before the return of the commissioners to assess dower would be premature, even if the probate court had power to so adjudge, because the commissioners may not be able to divide the land without manifest disadvantage to one side or the other, and may determine to assess a sum of money based upon the value of the land at the time of alienation by the husband, with interest from the accrual of the right of dower, in which case the interest would be legal compensation for the detention of the dower. As the probate court has made no finding as to the rents and profits or rental value of the premises, and the Circuit Coui't, although sustaining plaintiff’s said exceptions, had remanded the case to the probate court, “to admeasure dower to plaintiff,” we will so modify or construe the judgment of the Circuit Court as not to prejudice appellant as to any right she may have in reference to the claim for rents, if such claim is insisted on in the further proceedings in the probate court.
With the foregoing modification, we affirm the judgment of the Circuit Court, and the case is remanded to the probate court for further proceedings, according to law, in the ad-measurement of plaintiff’s dower in the premises.