The opinion of the court was delivered by
Mr. Justice McGowan.This was an action to recover a tract of land in Marion County, containing three hundred acres. The land was originally granted to Samuel Smith, Sr., who died, intestate in 1843, leaving three children, viz., Samuel Smith, Jr., Elizabeth Moody, and Frances Page, wife of William Page, and among these heirs the lands of the intestate were divided by consent, the tract in question here falling to Frances Page.
It seems that William Page, by request of his wife, Frances, put his daughter, Isabella Platt, and her husband, David W. Platt, in possession of the land, at what time does not appear; but within a year after the division of her father’s estate, Frances. Page died, leaving as her heirs and distributees her husband, William, and children, viz., Samuel J. Page, John S. Page,. Pinckney C. Page, Isabella (Mrs. Platt), Rena (Mrs. Bethea), Frances (Mrs. Watson), Polly (Mrs. Deer), Betsy (Mrs. Hayes), and William J. Page. On January 6, 1854, William Page, executed a deed pf the premises to Isabella Platt, “to have and to hold during her life, and after her death to be equally divided, *44between the lawful heirs of her body.” On December 5, 1856, the sheriff of Marion County, under executions against D. W. Platt, sold all his interest in the premises, which was purchased by William J. Page and conveyed to him by the sheriff. On December 25, 1856, Samuel J., John S., Pinckney 0., Rena (Mrs. Bethea), and Frances (Mrs. Watson), conveyed all their respective interests in the premises to W. J. Page, “in trust for the sole and separate use of Isabella Platt.” The conveyance of Watson and wife did not, however, contain a relinquishment of Mrs. Watson’s inheritance.
Isabella Platt, the life tenant, died in 1882, and the plaintiffs, her children, instituted this action for the recovery of the land against W. J. Watson and Catharine S., his wife, who, in some way or other not clearly explained, had “gone on the lands in-1873,” and were still in possession. They insisted in their answer that they were in possession under Samuel Watson (brother of W. J.), who purchased the land for a valuable consideration, which, however, was not made to appear.
Upon hearing the pleadings and evidence, Judge Cothran granted a non-suit, and the plaintiffs appeal upon the grounds:
I. “The objections made by the defendants that the rule in Shelley’s Case applied to the deed of William Page to Isabel Platt of date January 1, 1854, is erroneous. 1. That it is contrary to the decisions of our courts. 2. That the act of 1853, in force at the time of the execution of the deed of William Page to Isabel Platt, abrogates the rule in Shelley’s Case, and this act is made of force by the general statutes of 1882.
II. “That the interest of David W. Platt, the husband of Isabel, was sold at sheriff’s sale in August, 1855, and that interest vested in defendants, and there being no alienation by Isabel, the estate of Isabel at her death vested in the plaintiffs, at least to the extent of two-thirds, even under the rule in Shelley's Case, as, according to that rule, Isabel was entitled to the whole estate in fee, and the husband was entitled to one-third as distributee of his wife, and the sale in 1855 did not vest even that interest in defendants.
III. “Because his honor erred in holding that the defendants could not be sued at law, for the reason that W. J. 'Watson was a *45co-tenant with plaintiffs, notAvithstanding the proof that possession of the premises Avas demanded before suit, to which he replied, admitting that he was in possession, but denying title of the plaintiffs, and set up the statute of limitations as a bar to plaintiffs’ claim, which was a complete ouster of the plaintiffs, and entitled them to sue at law even a co-tenant.
IV. “It Avas urged in argument that there might be an estate by the curtesy in David W. Platt, the surviving husband. To this it is submitted: 1. That the estate by the curtesy in this State only obtains when there is a fee conditional, and the deed here does not create a fee conditional. 2. That to constitute an estate by the curtesy there must be a seizin in fict at the time of the death of the Avife, and Isabel Avas divested of possession by the sheriff’s sale in 1855. 3. That even if there was an estate by the curtesy in David W. Platt, it could not avail the defendants, who claim by assignment under sheriff’s sale in 1855, before the estate originated.
V. “Because his honor, having intimated the opinion that this was a proper case for equity jurisdiction, should, according to the liberal provisions of the code, have allowed plaintiffs to amend their pleadings and make it a case in equity,” &c.
The Circuit Judge did not assign his reasons for granting the non-suit, and therefore we will have to consider the whole case to ascertain whether there is in the order error of law. As Ave understand it, the land in question, by the division of the estate of Samuel Smith, Sr., became the property of Frances Page, the Avife of William Page, in 1843. She lived only about a year after she became the owner in severalty, and during that time she did not alienate it. True, 'her husband, William Page, with her consent as it is said, put it into the possession of his daughter, Isabel Platt, but there is no pretence that she joined her husband in a regular deed and relinquished her inheritance as was then required by law; and therefore at her death the land Avas her property and descended to her heirs — one-third to her husband, William Page, and the remaining two-thirds to her children, Samuel J., John S., and Pinckney O. Page, and Isabella (Mrs. Platt), Rena (Mrs. Bethea), Frances (Mrs. Watson), Polly (Mrs. Deer), Betsy (Mrs. Hayes), and William J. Page. After the *46'death of his wife, viz., January 6,1854, William Page did undertake to convey the land to his daughter Isabel, “to have and to hold unto the said Isabel Platt during her natural life, and after her death to be equally divided between the lawful heirs of her body,” but that deed conveyed no more than the third which belonged to William Page as heir of his wife.
At this point the estate divides, and we must consider the branches separately. First. As to the third inherited by William Page. Did the deed executed by him to Isabel Platt give her as expressed only a life estate with remainder over to the heirs of her body, or was her estate, under the operation of the rule in Shelley’s Case, enlarged into a fee conditional giving her husband, Platt, who is still alive, a life estate therein by the curtesy? We incline to think that, according to the terms of the 'deed itself, without regard to the provisions of the act of 1855, the rule in Shelley’s Case is not applicable. The words are “to have and to hold unto the said Isabel Platt during her natural life, and after death to be equally divided between the lawful heirs of her body.”
It is always open to inquiry whether the words “heirs” or “heirs of the body” are used in their proper technical sense or in a more inaccurate sense to denote children, issue, or next of kin, &c. It seems to us that the words here used indicate an intention to give in remainder to those described as heirs of the body of Isabel, not in indefinite succession as heirs, but at a particular time, absolutely as individuals creating “a new stock of inheritance.” Myers v. Anderson, 1 Strobh. Eq., 344; McLure v. Young, 3 Rich. Eq., 576; Evans v. Grodbold, 6 Rich. Eq., 26; McIntyre v. McIntyre, 16 S. C., 290. In the case of McLure v. Young, in delivering the judgment of the court, Chancellor Dunkin said: “The authorities all agree that if the estate limited to the heirs of the body or issue be of a quality or be given to be enjoyed in a way incompatible with the idea that they are to hold it in indefinite succession (as that it be given to them as tenants in common or to be equally divided between them), this takes it out of the rule in Shelley’s Qase, and the immediate heirs or issue take as purchasers.” ,
But if we should be in error as to the general doctrine (and *47we confess that the cases upon the subject are not all in accord), we suppose that the act of 1853 (Gfen. Stat., § 1862) must have some bearing upon the question. The deed was executed after and therefore subject to the act, which declares that “whenever in any deed * * * an estate either in real or personal property shall be limited to take effect on the death of any person without heirs of the body or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person.”
There can be no doubt that this provision has special reference to the question of remoteness, with a view to sustaining remainders; but it would be strange if this statutory interpretation of certain words and phrases should not have some bearing also upon the construction of these identical words when used to designate those who are to take in remainder. The question of remoteness, if not entirely, is almost always identical with that as to indefinite succession, one being in most cases the cause of the other. If the terms of the deed to Isabel had been to her and the heirs of her body, and in default of such heirs then over, it is clear that the words “heirs of her body,” under the statute,'could not have been construed to mean an indefinite failure of issue, but a failure at the time of the death of Isabel. As was said by Mr. Justice Mclver, in Simons v. Bryce, 10 S. C., 365: “In construing a will [and deed] which took effect after the passage of that act [1853], we are required to read a devise to one and the heirs of his body or to one and his issue, and in case of his death without heirs of his body or without issue then over to some one else, as if the gift were to one and the heirs of his body, and in case of his death without leaving issue living at the time of his death then over, in which case the limitation would undoubtedly be good,” &c.
Now, as we understand it, the rule in Shelley’s Case does no more than to turn an estate expressly for life into one precisely such as we have described above. When an estate for life is given to the ancestor, and a remainder be thereon limited to his heirs, or heirs of his body, the rule comes in and executes immediately the remainder in possession of the ancestor, who takes an *48estate in fee or in tail according to the terras of the limitation (Williams v. Foster, 3 Hill, 193); that is to say, it takes the words “heirs of the body” from the remainder and incorporates them in the gift to the first taker, thereby changing an estate expressly for life to one of inheritance, to him and “the heirs of his body.” This being the case, and the statute forbidding that a particular interpretation shall be placed on the words “heirs of the body” when found in express terms, it can hardly be that the forbidden interpretation of the very words must be allowed where they are merely supplied by operation of the rule in Shelley’s Case. So far as we are informed, this is a new question under the act of 1853. The argument was not full upon the subject, but from the lights before us, we do not see why the interpretation required by statute to be given to the words “heirs of the body,” when found in a deed or will, should not also be applied to the same terms when raised and inserted merely by implication,
Assuming, then, that Mrs. Isabel Platt took only a life estate under the deed, it follows that the sale of the premises by the sheriff in 1856, under executions against David W. Platt, the husband of the life tenant, could give an interest only during the life of the said Isabel, and she being now dead, that such interest has terminated. It seems that the interest of David W. Platt thus sold by the sheriff was conveyed to William J. Page, trustee of Mrs. Isabel Platt. It was, however, assumed in the argument that that interest had been, in some way or other, transferred to the defendant, Watson. We have not been able to find any such statement in the “Case”; but if it were as claimed, we do not see how that could now benefit the defendant. The whole one-third interest, which was well conveyed by the deed of William Page, vested, at the death of Isabel Platt, in the persons who at that time answered the description of “heirs of the body” of the said Isabel; not, however, as such heirs, but as individuals by purchase.
Second. Then as to the two-thirds interest not covered by the aforesaid deed, but which, upon the death of Frances Page, descended to her heirs. In the first place, the plaintiffs, children of Isabel Platt, are entitled in their own right to the share *49proper of their mother, Isabel. Besides, the other distributees, Samuel J. Page, John S. Page, Pinckney C. Page, Frances Watson and her husband, and Rena Bethea and her husband (seemingly for the purpose of carrying out the purposes of the deed from their father, William Page, to Isabel), conveyed, or attempted to convey, their respective shares to William J. Page, in trust “for the sole and separate use of Isabel Platt.” None of the other distributees are claiming any interest in the land except W. J. Watson, who, being a son of Prances Watson and a grandson of Frances Page, claims through his mother (supposed to be dead) an interest in the lands as heir of his grandmother. It appears that his father, Samuel Watson, and wife, Frances, in January, 1857, conveyed, as before stated, their interest in the lands to W.. J. Page, trustee for Isabel. But it seems that the wife, Frances, did not renounce her inheritance, and W. T. Watson now insists that her share was not well conveyed, and, as one of her children, he has an interest as tenant in common with the plaintiffs; and therefore their action at law. for the land cannot be maintained. On the other hand; the plaintiffs insist that the defendant, being in possession, refused on demand to yield possession, in whole or in part, and thereby ousted them and subjected himself to an action at law for the land.
We do not think it necessary to go into the matter of ouster, or to consider the question whether, under the facts as. developed, an action at láw for the land was the proper proceeding. -The decision of that question either way would not tend to adjust the complicated interests of the parties. We agree with the Circuit Judge that this is a proper case for equitable jurisdiction. The parties are numerous, and in several ways and in different amounts are interested as tenants in common. The rights of the parties are somewhat involved, and can be more certainly reached under the flexible rules of equity. Both law and equity are now administered by the same court, and as the spirit of the code favors amendments in the interest of justice, we do not see any insuperable difficulty in the way of allowing plaintiffs to amend their complaint so as to ask partition according to the rights of the parties. Small v. Small, 16 S. C., 72; Graveley v. Graveley, 20 S. C., 110.
*50In the case of Small v. Small, Mrs. Mary Small claimed a tract of land which she had purchased at sheriff’s sale, but it turned out that the execution under which she purchased was good only against two of the parties who owned the land. It was held that the sheriff’s deed only conveyed the interest of two to Mrs. Small, which made her a tenant in common with the other owners, who had a right to partition, and for that purpose the cause was remanded.
In the case of Graveley v. Graveley, it is said: “The spirit of the code is in favor of amendments, and of having all cases which have a status in court tried and decided upon'their merits. In most cases where it can be done without surprise or injustice to the defendant, leave will be given to amend. We think the law upon the subject, properly stated by Mr. Pomeroy in his work on Remedies, § 580: ‘The prayer for relief is generally regarded as forming no part of the cause of action, and as having no effect, and as furnishing no test or criterion by which its nature may be determined. * * * The fact that, after the allegation of facts relied upon, the plaintiff has demanded judgment for a sum of money by way of damages, does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief,’ and authorities.”
As it has turned out that the defendant is a tenant in common with the plaintiffs, I think that the cause should be remanded, with leave to make the question of partition. But as my brethren think that this court has not the power to remand with a view to amendment, and that the non-suit should be affirmed, the judgment of this court is that the judgment of the Circuit Court be affirmed.