The opinion of the court was delivered by
Me. Justice McGowan.
One George M. Young conveyed a tract of land, containing one hundred (100) acres, to his two sons, Thomas J. Young and John .H. Young, as tenants in common. Thomas J., as a man of family (wife, Amanda Young), had a house .on the common property, and his brother, John IT., a bachelor and in feeble health, lived in his family. Amanda M., the wife of Thomas J., made the clothes, did the cooking for the household, and kindly nursed her brother in law, John H., through his illness until he died in August, 1884, leaving some small debts and the following collateral heirs, viz., his said father, George M., and his brothers and sisters of the whole blood, the plaintiff, Christopher C. Young, Thomas J. Young, and Mary J. Layne.
Soon after the death of John, the brother, Christopher C., claiming that he died seized of his half (50 acres) of the said tract [202]*202of land, instituted this proceeding for partition, first between Thomas J. and the heirs of John H., and then divide John’s part among his heirs. But the defendants, George M., the father, and the sister, Mary J. Layne, disclaimed, the latter by letter and the former in testimony, any interest in John’s part as his heirs at law. So that the only question really involved was whether the plaintiff, Christopher, was entitled to his share as heir at law (12J acres), as against his brother, Thomas J., who, being left in possession of the whole tract, claimed John’s interest under a deed from him, executed and delivered, as alleged, in his life-time upon valuable consideration, in trust for his wife, Amanda M., during her life, with remainder over to her heirs. Such a deed was produced, bearing date August 7, 1884, with the names subscribed of two witnesses, viz., those of Charles Bolt and James M. Greer, regularly probated and recorded August 27, 1884. This deed, however, the plaintiff, Christopher, assailed as inoperative and void, on the ground that James M. Greer, one of the witnesses, who was present in the crowd the night the paper was signed and saw the parties sign it, yet did not actually subscribe his name to the paper as a -witness until some days after, and until after the death of John EL, the donor.
It was referred to the master to take the testimony and report the same, together with his conclusions thereon. He took the testimony, which is printed in the Brief, and reported: “That the written instrument sought to be established by the defendants, Thomas J. Young and Amanda M. Young, was not properly and legally executed, having but one subscribing witness ; that no trust could be created in favor of Amanda M. Young; and furthermore, that said written instrument was without consideration and in favor of a stranger; that the debts of John H., amounting to over $100, which were paid by the said Thomas J., were paid voluntarily, and the said Thomas J. had received of the rents and profits of said land more than the amounts so paid;” and recommended that the land be sold for partition.
Upon exceptions to this report, the cause came on to be heard by Judge Hudson, who overruled this report, finding and ruling as follows: “Before his death, John, being ill, called in Mr. [203]*203Bolt and had him to pi-epare a deed of conveyance of his undivided half to Thomas in fee, upon special trusts for the benefit of Amanda, the wife of Thomas. This was done in the presence of half a dozen of the neighbors, one of whom held the candle. The deed in form was an indenture signed by John, the grantor, Thomas, the trustee, and Amanda, the cestui que trust; but from some oversight Mr. Bolt alone subscribed the deed [as a witness]. Eleven days after this John died, and shortly after this James Greer, a person present at the time of the execution, subscribed his name as a witness, and the deed was duly probated and recorded, having two subscribing witnesses' names subscribed thereto. Greer says that he did not read the deed or hear it read, but saw a paper signed by the three persons and only one paper, which must have been this deed, * * * and that after-wards when requested to subscribe his name as a witness, he did so. Now, the execution of a deed must be complete before the witnesses subscribe their names. The subscription properly follows the complete execution of the deed, and need not be in the presence of the grantor or at the instant of the delivery. Their presence and observation during the process of execution is essential, but if from accident, inadvertence, or ignorance, one should omit just then and there to sign the attestation, I see no reason why he could not in a reasonable time thereafter, and before the recording of the deed, be allowed to sign and thus perfect the deed.
“Again, the deed purports on its face to be for a valuable consideration, but a very inadequate one, viz., five dollars and one dollar; nothing is said of natural love and affection. The testimony of Mr. Bolt, taken in connection with the subsequent action of Thomas J. Young, is, in my judgment, sufficient to establish the fact that the real consideration of the deed was an agreement and understanding between John and Thomas that the latter should pay off the indebtedness of the former, and this he accordingly .did. This gives to the deed a valuable consideration, and in that event equity will sustain it, though signed by only one subscribing witness. Indeed, the doctrine prevails in equity that a deed upon a merely good consideration, though subscribed by but one witness, will be sustained as between the parties or their [204]*204privies in blood, as in the present case. A subsequent valuable consideration will likewise support a deed even as against creditors. Bank v. Brown, 2 Hill Ch., 559. I am, therefore, of opinion that, as against the plaintiff, this deed must stand,” &c.
From this decree the plaintiff, Christopher C. Young, appeals upon the following exceptions:
“1. For that his honor found as matter of fact that J. M. Greer saw John IT. Young sign the instrument of writing set up as a deed of trust by Thomas J. Young and Amanda Young in their answers.
“2. For that his honor found as matter of fact that certain other persons saw J. IT. Young sign the same instrument, which his honor found that Greer saw J. IT. Young sign.
“3. For that his honor found as matter'of fact that there was a subsequent valuable consideration for said instrument of writing.
“4. For that his honor found as matter of fact that the consideration for said instrument was an agreement between John IT. and Thomas J. Young that the latter should pay the indebtedness of the former.
“5. For that his honor found as matter of fact that Thomas J. Young paid the debts of J. H. Young, in accordance with an agreement to that effect with J. II. Young.
“6. For that his honor found as matter of fact that there was privity of blood between the parties to the said instrument.
“7. For that his honor did not find as matter of fact that the signing and delivery of said instrument was attested only by one witness.
“8. For that his honor held as matter of law that the said instrument must stand as against the plaintiff.
“9. For that his honor decreed that the complaint should be dismissed.
“10.
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The opinion of the court was delivered by
Me. Justice McGowan.
One George M. Young conveyed a tract of land, containing one hundred (100) acres, to his two sons, Thomas J. Young and John .H. Young, as tenants in common. Thomas J., as a man of family (wife, Amanda Young), had a house .on the common property, and his brother, John IT., a bachelor and in feeble health, lived in his family. Amanda M., the wife of Thomas J., made the clothes, did the cooking for the household, and kindly nursed her brother in law, John H., through his illness until he died in August, 1884, leaving some small debts and the following collateral heirs, viz., his said father, George M., and his brothers and sisters of the whole blood, the plaintiff, Christopher C. Young, Thomas J. Young, and Mary J. Layne.
Soon after the death of John, the brother, Christopher C., claiming that he died seized of his half (50 acres) of the said tract [202]*202of land, instituted this proceeding for partition, first between Thomas J. and the heirs of John H., and then divide John’s part among his heirs. But the defendants, George M., the father, and the sister, Mary J. Layne, disclaimed, the latter by letter and the former in testimony, any interest in John’s part as his heirs at law. So that the only question really involved was whether the plaintiff, Christopher, was entitled to his share as heir at law (12J acres), as against his brother, Thomas J., who, being left in possession of the whole tract, claimed John’s interest under a deed from him, executed and delivered, as alleged, in his life-time upon valuable consideration, in trust for his wife, Amanda M., during her life, with remainder over to her heirs. Such a deed was produced, bearing date August 7, 1884, with the names subscribed of two witnesses, viz., those of Charles Bolt and James M. Greer, regularly probated and recorded August 27, 1884. This deed, however, the plaintiff, Christopher, assailed as inoperative and void, on the ground that James M. Greer, one of the witnesses, who was present in the crowd the night the paper was signed and saw the parties sign it, yet did not actually subscribe his name to the paper as a -witness until some days after, and until after the death of John EL, the donor.
It was referred to the master to take the testimony and report the same, together with his conclusions thereon. He took the testimony, which is printed in the Brief, and reported: “That the written instrument sought to be established by the defendants, Thomas J. Young and Amanda M. Young, was not properly and legally executed, having but one subscribing witness ; that no trust could be created in favor of Amanda M. Young; and furthermore, that said written instrument was without consideration and in favor of a stranger; that the debts of John H., amounting to over $100, which were paid by the said Thomas J., were paid voluntarily, and the said Thomas J. had received of the rents and profits of said land more than the amounts so paid;” and recommended that the land be sold for partition.
Upon exceptions to this report, the cause came on to be heard by Judge Hudson, who overruled this report, finding and ruling as follows: “Before his death, John, being ill, called in Mr. [203]*203Bolt and had him to pi-epare a deed of conveyance of his undivided half to Thomas in fee, upon special trusts for the benefit of Amanda, the wife of Thomas. This was done in the presence of half a dozen of the neighbors, one of whom held the candle. The deed in form was an indenture signed by John, the grantor, Thomas, the trustee, and Amanda, the cestui que trust; but from some oversight Mr. Bolt alone subscribed the deed [as a witness]. Eleven days after this John died, and shortly after this James Greer, a person present at the time of the execution, subscribed his name as a witness, and the deed was duly probated and recorded, having two subscribing witnesses' names subscribed thereto. Greer says that he did not read the deed or hear it read, but saw a paper signed by the three persons and only one paper, which must have been this deed, * * * and that after-wards when requested to subscribe his name as a witness, he did so. Now, the execution of a deed must be complete before the witnesses subscribe their names. The subscription properly follows the complete execution of the deed, and need not be in the presence of the grantor or at the instant of the delivery. Their presence and observation during the process of execution is essential, but if from accident, inadvertence, or ignorance, one should omit just then and there to sign the attestation, I see no reason why he could not in a reasonable time thereafter, and before the recording of the deed, be allowed to sign and thus perfect the deed.
“Again, the deed purports on its face to be for a valuable consideration, but a very inadequate one, viz., five dollars and one dollar; nothing is said of natural love and affection. The testimony of Mr. Bolt, taken in connection with the subsequent action of Thomas J. Young, is, in my judgment, sufficient to establish the fact that the real consideration of the deed was an agreement and understanding between John and Thomas that the latter should pay off the indebtedness of the former, and this he accordingly .did. This gives to the deed a valuable consideration, and in that event equity will sustain it, though signed by only one subscribing witness. Indeed, the doctrine prevails in equity that a deed upon a merely good consideration, though subscribed by but one witness, will be sustained as between the parties or their [204]*204privies in blood, as in the present case. A subsequent valuable consideration will likewise support a deed even as against creditors. Bank v. Brown, 2 Hill Ch., 559. I am, therefore, of opinion that, as against the plaintiff, this deed must stand,” &c.
From this decree the plaintiff, Christopher C. Young, appeals upon the following exceptions:
“1. For that his honor found as matter of fact that J. M. Greer saw John IT. Young sign the instrument of writing set up as a deed of trust by Thomas J. Young and Amanda Young in their answers.
“2. For that his honor found as matter of fact that certain other persons saw J. IT. Young sign the same instrument, which his honor found that Greer saw J. IT. Young sign.
“3. For that his honor found as matter'of fact that there was a subsequent valuable consideration for said instrument of writing.
“4. For that his honor found as matter of fact that the consideration for said instrument was an agreement between John IT. and Thomas J. Young that the latter should pay the indebtedness of the former.
“5. For that his honor found as matter of fact that Thomas J. Young paid the debts of J. H. Young, in accordance with an agreement to that effect with J. II. Young.
“6. For that his honor found as matter of fact that there was privity of blood between the parties to the said instrument.
“7. For that his honor did not find as matter of fact that the signing and delivery of said instrument was attested only by one witness.
“8. For that his honor held as matter of law that the said instrument must stand as against the plaintiff.
“9. For that his honor decreed that the complaint should be dismissed.
“10. For that his honor further erred in so much of his decree as announces that had the said instrument not been sustained, it would have been decreed that Thomas J. Young be repaid the amount paid by him on the debts of J. IT. Young.”
The first seven exceptions make questions purely of fact, and as this court has often held, and very lately repeated in the case of Pope v. Montgomery, 24 S. C., 594: “It is incumbent on the appel[205]*205lant to show that the conclusions of fact reached by the Circuit Judge are either without any testimony to support them or manifestly against the weight of the evidence. * * The utmost that can be said is, that there was conflict in the testimony, and in such case, this court rarely, if ever, interferes.” We have looked through the testimony very carefully, and while we find it on some points vague and somewhat contradictory, taking it all together, we do not feel authorized to hold that any of the conclusions reached by the Circuit Judge are either wholly without evidence or against the weight of the evidence. His conclusions, therefore, must be regarded as established.
The eighth exception charges error on the part of the Circuit Judge in holding, as matter of law, that the instrument in question must stand as against the plaintiff. The view urged seems to be that the said instrument was not executed in precise accordance with the provisions of the General Statutes (section 1775) declaring legal and valid a particular form of “release” or the “purport” thereof, “If the same shall be executed in the presence of and be subscribed by two or more credible witnesses and in consequence of the accidental omission of one of the witnesses to subscribe his name as' such at the time the deed was executed, the said instrument must be considered, as to all persons and for all purposes, as absolutely null and void as if it had never existed. Is this the correct view ? It seems to us, even if the premises tv ere conceded, that the conclusion would not necessarily follow. Without going into the question whether the facts of the case amount to a substantial compliance with the attestation law, so as to give to the deed of trust the capacity to carry the legal estate to the trustee, we cannot say that it was error in the judge to hold that it must stand as against the plaintiff.
There is no question here as to the debts of the deceased. They have been paid by Thomas J. Young. The action was not brought by a subsequent purchaser or creditor, but by a brother privy both in blood and estate. His claim as heir at law is purely technical, resting only on the alleged defect or informality as to the attestation; for if the witness Greer had signed on the night the deed was executed, there could not have been any controversy [206]*206about it. There is no doubt as to what was the intention of the parties or that they made an honest and bona fide effort to carry it out, and supposed they had done so. We assume, as found by the judge, “that the real consideration between John and Thomas was that the latter would pay off the indebtedness of the former, which has been done.” Under these circumstances, we cannot see that the judge committed error in holding that “equity would sustain the deed, although subscribed by but one witness.”
As an illustration. An instrument purporting to be a mortgage, but imperfectly executed by the omission of a seal or in some other manner, so as to be defective in form, is wholly nugatory at law as a valid mortgage, or as giving any interest in or claim upon the parcel of land described. Equity, however, not saying that the instrument is a true legal mortgage, declares that it is an efficient agreement to give a mortgage, and as such that it creates an equitable lien upon the land, valid for all purposes and as against all parties, except a purchaser of the land for a valuable consideration and without notice. 1 Pom. Eq. Jur., § 380 and note. And see Story Eq. Jur., §§ 165, 166; Love v. Sierra Nevada Co., 32 Cal., 639; Johnson v. Gilbert, 13 Rich. Eq., 42; and Pope v. Montgomery, 24 S. C., 594.
In Johnson v. Gilbert, supra, Chancellor Carroll, in delivering the judgment of the court, said: “The deed to Jesse Gilbert, jr., furnishes satisfactory evidence, at the least, of the executory contract for the sale of the land in fee. With a contract thus manifested and with actual possession by the vendee under it, his claim to a specific execution of the agreement could not be resisted. In this jurisdiction (equity) the vendee, under such circumstances, is treated as the equitable owner. He may transfer his interest in the land, may devise it as land, and as land it passes by descent to his heirs.” Story Eq. Jur., §§ 783, 789.
Can there be serious doubt that there was valuable consideration ? The Circuit Judge found as matter of fact that there was, and this court has held that in a conflict between referee and Circuit Judge on a question of fact in a case in chancery, the latter is prima facie right. Maner v. Wilson, 16 S. C., 469. The judge says: “The testimony as to Thomas as to the full extent of the consideration is excluded; but the testimony of Mr. Bolt, [207]*207taken in connection -with the subsequent action of Thomas J. Young is, in my judgment, sufficient to establish the fact that the real consideration of the deed was an agreement and understanding between John and Thomas that the latter should pay off the indebtedness of the former, and this he accordingly did.”
It was incumbent on the plaintiff to overthrow this conclusion thus prima facie established. Did he do so ? We think not. Leaving out the testimony of Thomas, we agree with the Circuit Judge, that all the circumstances of the case tend to confirm the testimony of Bolt. The deed says nothing about “love and affection.” It mentions a small valuable consideration. It contains the usual warranty. All the parties signed, which, as we think, is not usual in simple deeds of gift. The debts were actually paid before the action was brought, and we fail to see the evidence to authorize the very general statement of the master, that “Thomas had received of the rents and profits more than the amount so paid.” While the board, attention, washing, and nursing must go for nothing as gratuitous, we are not willing to assume that the payment of the debts was also gratuitous and voluntary. In Pope v. Montgomery, supra, it was held that “an informal paper, purporting to be an assignment of the maker’s interest in a tract of land, witnessed by only one witness, but based upon a valuable consideration, is sufficient in equity to transfer such interest, and a proper conveyance could be enforced.”
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
Mr. Chiee Justice Simpson concurred.