The opinion of the court was delivered by
Mr. Justice McGowan.On April 2,1866, Richard Gregoi-y, sr., as alleged, executed and delivered to his son, Richard Gregoi’y, jr., the following note or obligation, viz.: “One day after date I promise to pay Richard Gregory, jr., or bearer, the sum of two thousand dollars, to support me my life-time, including to let him use my farm and implements my life-time, and it is to come out of my land and other property that I hold at this time. "Witness my hand and seal this 2 April, 1866.
“RICHARD GREGORY, Sr., [l. s.]”
*95On July 7, 1866, the said Richard Gregory, sr,, executed and delivered to his wife, Margaret, a paper which, in consideration of love and affection, and of five dollars acknowledged to have been paid, purported to convey to her, the said Margaret, all his personal property and five hundred acres of land described, “to have and to hold the said plantation and all the personal property that I may be possessed of at my decease, unto the said Margaret Gregory, her executors, administrators, and assigns forever,” &c. This paper contained a warranty, was delivered, probated, and recorded, but had but twTo witnesses.
In November, 1866, the said Richard Gregory, sr., died intestate, and his widow, Margaret, continued to live on the land included in the paper delivered to her as aforesaid, until she also died intestate on December 19, 1879. On the estate of Richard Gregory, sr., no administration was granted until after the death of the widow, Margaret, when, on February 12, 1880, letters were granted to Jonathan Gregory, but he died before administering the estate, and letters de bonis non were granted to Richard Gregory, jr., who, as creditor and administrator, on March 8, 1883, instituted these proceedings in the Probate Court in the nature of a bill to marshal assets; but there being no personal estate, it was manifestly for the purpose of setting aside the deed to Margaret, and making the land covered by it still the property of his father, Richard Gregory, sr., and as such liable for his debt. The other heirs of Richard Gregory, sr., and of his widow, Margaret, were made parties, and they denied that the plaintiff was a creditor of his father, Richard; but if so, that the said Richard did not die seized and possessed of the lands, which he had previously given to his widow, Margaret, and that they, the said lands, belong not to the heirs of Richard, the father, but to those of Margaret, the mother. And further, they insisted that the judge of probate had not jurisdiction to decide that point, as it involved a question of title to land.
The creditors of Richard Gregory, sr., were called in, and the probate judge, after taking much testimony, Held that two debts of the intestate were established, viz., that of the plaintiff for $2,000, and interest, upon the obligation before referred to, and one of J. G. Steadman, on a balance of two notes, one for $221.77, *96and the other for. $341.95; but he held that the Probate Court had not jurisdiction to determine the title to the land. Both parties appealed to the Court of Common Pleas — the plaintiff on the question of jurisdiction, and the defendants on the ground that the plaintiff’s claim was not established as a debt by the evidence. Judge Kershaw concurred with the probate judge, that the plaintiff’s claim was established as a debt of the intestate, but he held further that the probate judge ought to have considered the question of title raised, and his failure to do so was error. But taking the view that there was involved a question of law, Avhich should finally dispose of the litigation, he thought it unnecessary to remand the case for a further hearing in the court below, but decided it on the ground that, after so long a delay, the plaintiff ought not now to have the aid of the court in enforcing his demand, and that upon the ground of laches, as applied in the courts of equity, the complaint should be dismissed. The plaintiff appeals to this court upon several grounds, which will be considered in their order.
The first exception is, “That his honor erred in not holding that the paper from Richard Gregory, sr., to Margaret Gregory, bearing date July 7,1866, was testamentary in its character, and hence void, as against the claims of the plaintiff and other creditors, because it had but two witnesses,” &c. It does not appear that this point was made in the Probate Court, or in the grounds of appeal from that court. But it may possibly be considered as embraced in the question of jurisdiction, because the title to land was involved. Considering it as involved in that objection and before the court, we concur with the Circuit Judge that the Probate Court should have decided the question. It may be conceded that, if the proceeding had been instituted simply for the purpose of setting aside the deed, in order to make the lands in the possession of the heir or donee liable for a debt of the ancestor, it would have been purely equitable in character and hot within the constitutional jurisdiction of the Probate Court.
But the proceeding is in form, at least, for the purpose of marshalling the assets of the estate of Richard Gregory, sr., under section 40 of the Code, which gives to the Probate Court jurisdiction for that purpose. “And whenever it shall appear to the *97satisfaction of any judge of probate that the personal estate of any person deceased is insufficient for the payment of his debts, and all persons interested in such estate, being first summoned before him, and showing no cause to the contrary, such probate judge shall have poAver to order the sale of the real estate of such person deceased, or of so much thereof as may be necessary for the payment of the debts of such deceased person, upon such terms,” &c. It seems to us that in such cases this provision necessarily gives the right to determine, at least in the first instance, what is “the real estate of such person deceased,” subject, of course, to the right of appeal to the Court, of Common Pleas, where a trial by jury may, if desired, be demanded. Any other construction would tend to make the whole jurisdiction nugatory. Besides, while it may be that title to land was involved in the decision of the question, it is clear that it was one of law as to the proper construction of the paper in contention, viz., whether it was valid or void, or merely voidable as against prior creditors of the donor. See Faust v. Bailey (5 Rich., 107), where it was held that in an application for partition the old Court of Ordinary had jurisdiction to decide in the first instance upon a question of title, subject, of course, to appeal.
The second exception is, “That his honor erred in holding ‘that the plaintiff’s complaint should be dismissed upon the ground of laches on the part of the plaintiff in prosecuting his claim,’ in that it is submitted that the plaintiff was guilty of no laches, for the testimony shows that he acted within the statutory period, and within the time required by good faith and conscience,” &c. In respect to a question of laches, we do not understand that a proceeding to make land liable for the obligation of a deceased debtor, is identical with an action on the obligation itself against the personal representative of the deceased debtor. In the latter case there is privity of contract, and the action must be at law, while in the former there is no privity, and the proceeding is in equity. Where a legacy has been delivered to a legatee, and he has had separate and exclusive enjoyment thereof for more than four years, the Court of Equity will not allow it to be recovered back for the purpose of paying a debt of the deceased, although the debt is in the form of a bond, and not subject to the statute of limitations. *98Brewster & Dickson v. Gillison, 10 Rich. Eq., 435. Even where the land sought to be charged has descended to the heirs, upon whom the law imposes certain liabilities to the creditors of the ancestor, it has been held that it cannot be sold under a judgment against the administrate!', if it has passed into the actual and exclusive possession of the heirs before the judgment was recovered. In such case the land can only be reached by the usual proceeding to subject real estate in the hands of the heir to the payment of the debts of the ancestor, in which proceeding the heir must, of course, be a party, with the opportunity to defend himself. Huggins v. Oliver, 21 S. C., 159, and the authorities cited.
This being the principle as to lands devolving upon the heirs, it would seem to apply with increased force to one who is in exclusive possession of land claiming as donee of the deceased debt- or, and, therefore, this proceeding must be regarded as having a double aspect, first, to marshal the assets of Richard Gregory, sr., and then, as incidental thereto, to set aside his deed to the widow, Margaret. In this view, the case is not analogous to that of Suber v. Chandler, 18 S. C., 528, cited by the appellant. The proceeding in that case was simply to remove an obstacle in the ■way of enforcing a judgment, and was substantially inter vivos. It is true that the defendant in execution was dead at the time the bill was filed, but he was living at the time the debt was sued and until a short time before judgment was recovered; while the proceeding in this case was primarily to marshal assets, and only for that reason was maintainable in the Probate Court. To enable him to institute such a proceeding, it was not necessary that the creditor should have a judgment at all. He might file a creditor’s bill upon a simple note of the deceased. The appellant had the same right to institute this proceeding at the death of his intestate, Richard Gregory, sr., that he has now. If his right of action could not accrue until he had judgment and a return of nulla bona, it has not yet accrued, for there was no such proof in the case. If administration was indispensably necessary, he might have taken out letters at any time after the death of the intestate, as he has lately done. Without stopping to consider the peculiar character of the deed to Margaret, or whether the Circuit Judge was right in holding that it was good between the parties until *99set aside by proper proceedings, it is certain that the widow, holding under that deed, had exclusive and adverse possession for more than ten years, and with full knowledge of the plaintiff.
The Judge held as matter of fact, “That no proceedings were had until the commencement of this action in 1883, a period of nearly seventeen years after the plaintiff had notice of the deed. During all these years there has been possession under the deed, and the plaintiff stood by in silent acquiescence. True, there was no administrator of the estate of Richard Gregory until recently, but that need not have prevented a proceeding in equity against Margaret Gregory in her life-time or against her heirs after her death, to subject the land in question to the plaintiff’s claim. Vernon & Co. v. Valk, 2 Hill Ch., 257.” As a rule, ten years adverse possession of land gives title as against all who are capable of suing and do not. If such possession is held under a defective deed, it cures the defect and gives good title; Lyles v. Kirkpatrick (9 S. C., 265), in which the court say: “In itself, the deed is deficient in point of proof for want of two subscribing witnesses; but inasmuch as a possession of upwards of ten years had been held under it of an adverse character, without the assertion of title in opposition to it, the validity of the deed cannot be disputed at this time.”
It is true this proceeding to make the land liable is equitable in its character, to which the statute of limitations, as such, has no proper application. But if the creditor has been guilty of laches in asserting his equity, the court may refuse him its aid, and bar the equitable remedy at a period short of that, which would raise a presumption of payment. Lott v. DeGraffenried, 10 Rich. Eq., 346; Mobley v. Cureton, 2 S. C., 148; Blackwell v. Ryan, 21 S. C., 112; Smith v. Smith, McM. Eq., 134. In this last ease Chancellor Dunkin said: “In regard to equitable titles, courts of equity are to be considered as affected only by analogy to the statute of limitations. If a party be guilty of such laches in prosecuting his equitable title as would bar him if his title was solely at law, he shall be barred in equity.”
The third exception charges that there was another debt proved, against which no objection was made, and therefore, in any view, the land should be sold for the payment of that debt. It is true *100that the probate judge held as proved a debt of the intestate to one A. G. Steadman, but the Circuit Judge made no separate reference to it in his decree. Upon looking to the proof, it seems to have been the balance of a debt older than that to the plaintiff, and we assume that the judge considered his ruling as applying alike to both.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.