This case was argued at the November term, 1902; but on account of a difference of opinion between the three Justices then on the bench, no judgment could be pronounced, and a reargument was ordered during the April term, 1903.
June 5, 1903. The opinion of the Court was delivered by *Page 366 The plaintiff, as widow of Edward M. Boykin, deceased, instituted proceedings in the court of probate for Kershaw County, demanding dower in certain lands in the possession of the defendants. The probate court denied the claim, holding that demandant's husband was not at any time during coverture seized in fee of the land described, but had only an equity therein. The Circuit Court, on appeal, reversed the probate court, holding that demandant's husband was seized in fee of the one-fourth interest in said land, and decreed that plaintiff was entitled to dower therein. The decree of the Circuit is officially reported herewith.
From this decree the defendants now appeal on exceptions which raise practically but one question, whether demandant's husband was ever, during coverture, seized of such an estate in the land as would entitle plaintiff to dower therein. It appears that the land in question was originally owned by Duncan McRae, who by his will in 1824 devised the same to his daughter, Sarah Lang, during her natural life, and after her death to the heirs of her body surviving her. Sarah Lang was the wife of W.W. Lang, and at time of the proceedings hereinafter mentioned had eight children, four of whom were of age, viz: Serena C., Mary E., Sally W., Duncan M., and four, who were minors, viz: J.B., William, Kitty B. and Scota McRae. On the 21st day of August, 1846, Sarah Lang, with her husband and the three first named children, entered into a covenant with Edward M. Boykin (demandant's husband), C.A. Boykin and K.L. Boykin. The Boykins owned certain lands in Alabama, and it was desired by the parties to affect an exchange of lands so that the Langs should take the Alabama lands and the Boykins take the South Carolina lands. The covenant was as follows:
"Whereas the undersigned, William W. Lang, is in the use and occupation of a certain Real Estate situated on the West side of the Wateree river, in the District and State aforesaid (hereinafter more particularly described) which *Page 367 has been devised by the undersigned Sarah Lang, from the last Will and Testament of her late father Duncan McRae, which is therein limited to the said Sarah Lang during her natural life and from and after her death to the heirs of her body, her surviving, and of those remaindermen, Serena C. Lang, Duncan M. Lang, Mary McRae Lang, and Sally W. Lang, (children of the said William W. Lang and Sarah Lang) are now of full age; and whereas the undersigned, Charlotte A. Boykin, John A. Boykin, Edward M. Boykin and Kitty L. Boykin, heirs-at-law of the late John Boykin, are seized and possessed of certain Real Estate, situated in the State of Alabama, in the Counties of Wilcox and Dallas, (hereinafter more particularly described); and whereas the said parties have agreed to exchange the Real Estate aforesaid. Now therefore know all men by these presence, that in consideration of the premises and covenants and agreement of the parties of the second part hereinafter set fourth, the said William W. Lang, Sarah Lang (his wife,) Serena C. Lang, Duncan McRae Lang, Mary McRae Lang, and Sally W. Lang, parties of the first part to those presents, for themselves and in behalf of the other remainderman (not of age) under the said Will of Duncan McRae, deceased, intending to remove to the State of Alabama, have covenanted and agreed, and do hereby covenant and agree, to and with the said Charlotte A. Boykin, John A. Boykin, Edward M. Boykin and Kitty L. Boykin, parties to the second part to these presents, as follows, to wit: The said parties of the first part do hereby grant, bargain, sell and release to the said parties of the second part, their heirs and assigns, all and singular the said premises, first above mentioned, being that plantation or parcel of land situate on the west side of the Wateree river, designated as No. 2, (two,) in the partition of the land of the late Duncan McRae, among the remaindermen entitled thereto, under and by virtue of his last Will and Testament, having such form, marks, buttings and boundaries as are represented on a plat of survey, a copy whereof has been executed by Colin McRae, dated December the first, *Page 368 eighteen hundred and forty-three; together with all the interest and shares of the said Sarah Lang in any other parcel of land whatever that may be situated on the West side of the Wateree river to the which present possession of, she may be entitled under the said last Will and Testament of her father, the late Duncan McRae. And the said parties of the first part do hereby further covenant and agree to and with the said parties of the second part that they will without unnecessary delay seek the aid of the proper Court to enable them to convey and assure to the said parties of the second part the fee simple estate, in and to all and singular the said several premises last above mentioned, free from any estate in remainder or other incumbrance. And in consideration of the premises the said parties of the second part do hereby covenant and agree, to, and with the said parties of the first part, that, so soon as they, the said parties of the second part, are assured in the fee simple estate in and to the said last mentioned several premises, they will convey to the said parties of the first part, or any of them, or to any other person for them, either in fee simple or subject to limitations of the Will of the late Duncan McRae, as applicable to the said last mentioned Real Estate and as a substitute for the same, all and singular the said plantation situated in the State of Ala. and in the Counties of Wilcox and Dallas now in the occupation of the said parties of the second part, as a portion of the Estate of the late John Boykin, represented by a plat hereunto annexed, marked `A' Consisting of sundry parcels of land situated in range 10 North Township 12 13 west, bounded on the South by lands of the Estate of William C. Clifton, West by lands formerly belonging to Major Betts now belonging to the Estate of William C. Clifton, North by lands belonging to Samuel Dennis; East by lands belonging to Mrs. Capehart, containing Fifteen Hundred acres more or less; together with the dwelling house and the lot conveyed by William C. Clifton to Charlotte A. Boykin adjoining the House tract of the late William C. Clifton; and for the faithful performance of the said several Covenants *Page 369 and agreements the said parties of the first part and second part do bind themselves, each to the other, in the sum of Fifteen thousand dollars, as stipulated damages, to the payment whereof, they do hereby bind themselves, their Heirs, Executors, Administrators and Assigns. And it is hereby further agreed by and between the parties aforesaid that possession of the premises hereby intended to be conveyed to the respective parties to these presents, shall be placed in possession of each party on or before the first day of January, eighteen hundred and forty-seven.
"Witness our hands and seals this twenty-first day of August, in the Year of our Lord, One thousand eight hundred and forty-six.
Signed W.W. Lang, L.S.
Sarah Lang, L.S.
Serena C. Lang, L.S.
Mary E. Lang, L.S.
Sally W. Lang, L.S.C.
A. Boykin, L.S.
K.L. Boykin, L.S.
Edw. M. Boykin. L.S."
It appears that Edward M. Boykin went into possession of the land in question in 1847, and on the 15th day of January, 1849, the Boykins, including demandant's husband, executed to Thomas Lang a deed with general covenant of warranty, conveying said land, together with all their right and interest under the said covenant. Subsequently proceedings were instituted in the court of equity to perfect the exchange of lands as covenanted for, and on June 12, 1850, the Court, having been satisfied that the heirs of John Boykin, deceased, had transferred their right to Thomas Lang, ordered that he be substituted in the place of the said heirs of John Boykin, deceased, in receiving titles to the land in question, and that the commissioner execute to Thomas Lang a conveyance of said land to be delivered when the Boykins had executed the deed of the Alabama lands to Sarah Lang and her children, under the same limitations as provided in the will of *Page 370
Duncan McRae. After this the Boykins made the deed to Sarah Lang and her children as provided for, and on December 7th, 1850, the Court ordered the commissioner to deliver the commissioner's deed to Thomas Lang, as the substitute of the Boykins. The plaintiff was the wife of Edward M. Boykin at the time of the execution of the said covenant to exchange lands, and at the time of the delivery of the commissioner's deed to Lang. Demandant's husband died in November, 1891, and this action was commenced in 1900.
Dower exists in this State as at common law. "Dower at common law is an estate for life to which the wife is entitled on the death of the husband in the third part of the legal estates of inheritance in lands and tenements of which the husband was seized in deed or in law, in fee simple or in fee tail, at any time during coverture, and to which any issue which the wife might by any possibility have been heir." 10 Ency. Law, 2d ed., 125. As stated in Secrest v. McKenna, 6 Rich. Eq., "Dower is a legal right and can attach only on a legal seizin of the husband during coverture.' We do not agree with the Circuit Court that demandant's husband acquired an estate of inheritance in the land in question under the instrument set forth herein. This instrument, construed as a whole, is not a present grant in fee, but a covenant to grant in fee in exchange of lands, to be consummated when the proper court, whose aid was to be thereafter invoked, would enable the Langs to convey and assure the fee.
It must be noticed that, under the will of Duncan McRae, Sarah Lang was life tenant and her children were contingent remaindermen of said lands. Faber v. Police, 10 S.C. 376. The covenant was signed by three of these eight remaindermen, of whom four of these not signing were minors. A contingent remainder, technically speaking, is not an estate in lands, but is the possibility of one. If the remaindermen be ascertained, it is a possibility coupled with an interest, and it is devisable, transmissible, and in equity assignable; but if the remaindermen be not ascertained, such bare possibility *Page 371 is not capable of devise, transmission or assignment. 20 Ency. Law, 849; Alston v. Bank, 2 Hill Eq., 235; Roundtree v. Roundtree, 26 S.C. 451. A court of equity, however, in a proper case made, and with the proper parties before it, may convey the fee disposing of all contingent interests therein, and it was doubtless in view of this that the parties covenanted to convey lands in exchange when enabled to do so by the Court. Whatever rights or equities Edward M. Boykin had under the covenant, they did not amount to a seizin of a legal estate of inheritance. His possession of the land in 1847 and 1848 was doubtless under the last clause of the covenant stipulating that possession of the lands should be given to each party by January 1, 1847; but such possession did not constitute seizin, in the sense of the law of dower. The agreement of the life tenant, Sarah Lang, who had right of possession, was all sufficient to put the Boykins in possession, pursuant to the proposed plan of effecting an exchange of lands, but as a life estate is not an estate of inheritance, nothing that the life tenant could do would confer an estate of inheritance. The fee in the land in question did not pass until the Court, by its commissioner, conveyed the same in 1850; but, unfortunately for plaintiff's claim, the fee was not conveyed to demandant's husband, but to Thomas Lang, the assignee of the plaintiff's husband's rights and equities under the said covenant. The case of Secrest v. McKenna, 6 Rich. Eq., 72, decides that "where one enters under a written contract to receive titles on payment of the purchase money, and after payment under a bill for specific performance, to which his creditors are parties, the premises are sold as his property for the payment of his debts, his widow, after his death, will not be entitled to dower therein, he never having had a legal seizin." So, in this case, the claim of dower cannot be supported because demandant's husband never had legal seizin.
The judgment of the Circuit Court is reversed, and the judgment of the probate court is affirmed. *Page 372