delivered the decree of the court.
This case was of great extent and perplexity; but we do not think when thoroughly understood, ti.e justice of the case is at all doubtful.
The facts of the case are so fully stated in the circuit court decree, that it is unnecessary to recapitulate them; especially as that statement is essentially correct, except in one particular; which when corrected is more favorable to the complainant, M‘Daniel, and removes one of the principal objections which embarrassed the case and made it difficult to do him justice: we mean the alleged fact, that when Moorman urged M'Daniel, as soon as he had come of age, to surrender his claims to the lands in question, he M'Daniel had executed a deed, by which he conveyed the land to Moorman and his wife. It is now agreed on all hands that this was a misapprehension, and that no such deed was executed as to the large tract in question, but merely as to the small tract of ten acres. So that M'Daniel did nothing more than merely make a verbal surrender of his claims, which did not bind him and could not weaken them; but left them in full force and virtue.
Those claims were founded on family arrangements, made at the urgent solicitation of that member of the family under whom Moorman and wife now claim, and were carried fully into effect many years ago. Moorman and his wife have the full benefit of those arrangements and of the property exchange^ *116under them; and it would be monstrous that the complainant should be deprived of the benefits of that arrangment, which was the consideration for the advantage given to Mrs. Moorman’s father. Without imputing misrepresentations or fraud to Moor-man, in procuring Robert M'Daniel, when barely of age, to make a verbal surrender of his rights to the large tract of land in dispute, it is impossible not to see that M'Daniel acted under a misapprehension of his rights, and without any sort of valuable consideration leading to that surrender.
O'Neal, and Clendinin, for appellants» Williams» contra.Under these circumstances, we cannot consider him bound, and the division made under such verbal surrender is void. The decree of the circuit court- must therefore be affirmed. But as that gave Moorman and wife an option to which they are not entitled, the decree must be new modelled.
It is ordered and adjudged that the decree of the circuit court be so far affirmed as it establishes the right of the complainant to relief; and it is further ordered and adjudged, that the surrender of the moiety of the Tinker Bottom tract of land, to Moorman and his wife, be declared null and void, the complainant being entitled to the same; and it is hereby ordered that the defendants do deliver up the possession of the Said -moiety of the Tinker Bottom tract mentioned in the pleadings, to the complainant, and that the defendants do pay all costs of suit.
Chancellors Gaillard, Waties, and James, concurred.I do not concur in this decree
W. Thompson.