The opinion of the court was delivered by
Mr. Justice Pope.This was an action to recover 741- acres of land. After plaintiffs had closed their testimony, defendants moved for a non-suit. 'This motion being denied, defendants offered their testimony. There were no requests to charge. The Circuit Judge expounded the law very carefully. The verdict was for the plaintiffs. After entry of judgment, the defendants appealed upon the following grounds: 1. For that his honor erred in holding that there was sufficient evidence connecting the land sued for with the deeds offered in evidence by the plaintiffs. 2. That his honor erred in refusing defendants’ motion for a non-suit, based upon the ground that there was no sufficient evidence connecting the lands sued for with the deeds offered in evidence. 3. That his honor erred in submitting to the jury “whether Mary Marion was a married woman at the time she made the deed, or a widow?” while all the testimony on this point was conclusive that she was a married woman at that time, and that fact was neither denied nor contradicted. 4. For that his honor erred in charging the jury, that “if the parties (that is, the defendants and those under whom they claim,) were there claiming under a life estate deed from Mary Marion, why, then, common sense and common justice and law would say that they could not claim any more than a life estate now — they are limited to that;” whereas he *38should have charged, that eveu if Andrew McConnell held under a deed for the life of Mary Marion, that deed could affect the character of only his possession; and that in the absence of other evidence upon the point of the character of the possession claimed by the defendants, and of their grantors, S. M. Bradford, John James, William Bell, William Bobertson, and Thomas W. Babb, is determined by the nature of the respective deeds under which they claim, and which were shown to be fee simple.
1 The second ground of appeal questions the decision of the motion for a non-suit, as alleged by the appellants in this exception, because there was not sufficient (italics ours) evidence connecting the lands sued for with the deeds offered in evidence. Surely the question here propounded has been emphatically and repeatedly decided by this court. We will never undertake to review the decision of a Circuit Judge as to the sufficiency of testimony, in a law case, on a motion for non-suit. The Circuit Judge has this responsibility fixed upon him by the law. Let this exception be overruled. The appellants in their first ground of appeal again present, in a new phase, the matter referred to in the second ground of appeal. Again the sufficiency of testimony is brought to this court.. Under our repeated decisions, we will not interfere in such cases with the action of the Circuit Judge. This exception is overruled.
2 The Constitution of this State makes it the duty of a Circuit Judge not to charge the j uries on questions of fact. The pleadings are silent as to status of Mrs. Marion. The testimony refers to the husband and wife — that the husband Marion died in 1844; that Mrs. Marion made a deed to her brother, Andrew McConnell, for the land in dispute, without stating that it was in the lifetime of Mr. Marion, her husband. Under such circumstances, it became necessary for the Circuit Judge to explain the law relating to a deed made by Mrs. Marion. If she was a widow and of legal age, she had a perfect right to convey lauds. If she was feme covert, under our law, as it then existed, the deed had to be made in a certain way; amongst the requisites in such condition, the married woman *39bad to renounce her inheritance. The Circuit Judge had to be careful not to assume any fact that was not conceded as such. We do not think he erred in this particular, and we, therefore, overrule this exception.
3 Lastly, the appellants question the accuracy of the proposition of law contained in his charge to the jury, and which is copied in this exception. Stripped of verbiage, it seems to amount to this: that where one receives a deed whereby a restriction is placed upon the estate, such as for life, and the grantee under that deed conveys a greater estate than he has had conveyed to him, that such subsequent grantee and other subsequent grantees are bound by the defect of the title in the first, grantee, unless they can bring themselves under such beneficent rules as subsequent purchaser for valuable consideration without notice, or unless they refuse to claim title under the first deed. If they still claim title under the first deed, they are bound to take only such title as is there given. We think the Circuit Judge, under the admitted facts in this cause, has properly defined the law.
4 To so much of this exception assets up what the judge ought to have charged as law, we reply, if appellants so thought, they ought to have given the Circuit Judge an opportunity to have expressed himself thereon by a request to so charge. They did not pursue this course. Hence we are powerless in the premises. Let the exception be overruled.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.