Mr. Justice CATRON.
I concur with the majority of the Court, that the decree be reversed; but, differing most materially with the reasons and principles on which the opinion of my brethren proceeds, I will briefly state the difference, hoping sincerely I may be mistaken.
The cause must be reviewed here in the same form that the parties presented it to the circuit court: this is due to the court below, and the only mode we can pursue as a court of appeals.
The bill was filed in July, 1833: the answer in May, 1834: the replication in April, 1835: and, on the 11th of May, the cause was, by agreement, set for hearing; and on the 26th of October, 1835, was heard upon the bill and answers, with two additional facts, which the parties admitted of record; to wit: 1. That George Jenkins was, at the date of the deed from his daughter to him, in 1813, a man of large fortune, and so continued till his death. 2. That the deed conveyed all the estate to which the said Eleanor was in any manner entitled. Upon this case, the court, on the 26th of October, 1835, decreed for the complainants; and ordered an account to be taken of the rents of the property in litigation since George Jenkins' death, the parcels sold by him in his lifetime, and the value of the estate in 1813, &c.
On the 13th of May, 1837, the master commissioner eported; and on the 31st of October, 1837, the report was confirmed by a final decree of the court. Upon this proceeding, it will be remarked, that the decree of October, 1835, could not be reversed by that of 1837, on evidence furnished to the commissioner in taking the account, and which he reported to the court. The first decree could only have been reached by a petition for a rehearing, (if filed in time) or by a bill of review; and we must, therefore, examine the decree of 1835, on the facts then presented to the circuit court.
The bill alleges the conveyance of 1813 to have been executed without any valuable consideration; and that the daughter acted under the influence of parental authority. That it was executed without valuable consideration, the answers admit; but they deny that any constraint or parental authority was exercised, and respond that the deed was made freely and voluntarily. They also admit, that Eleanor Jenkins was born the 17th September, 1790; that her mother died in 1796; that when the deed was made, Eleanor was only eighteen months over twenty-one years of age, and that she was the sole heir of her mother; the father and grantee being tenant by the curtesy of the lands descended. That George Jenkins had two other children by a different mother, who are the defendants; and that he died in 1831, intestate as regarded his real estate.
Eleanor Jenkins married in 1815, and died in 1818; leaving the complainants her heirs.
It is also averred in the answers, that the property in 1813 was in a dilapidated condition; and that it had suffered by fire, which was a principal reason for making the conveyance. The averment is independent of any statement in the bill, is traversed by the replication; and no proof having been made to sustain the averment, of course it cannot be noticed here. The defendants also insist, that the bill should be dismissed because of the lapse of time, and the death of parties and witnesses.
This being the case presented to the circuit court in 1835, the question is, did that court err in ordering the defendants to account? Time and the death of George Jenkins aside, I think it impossible so to hold; consistently with the best established doctrines governing a court of chancery.
The elements of the decree below were, 1. That the grantor, Eleanor Jenkins, was a young heir, and a woman, when she made the conveyance; that it was of her whole estate, without consideration, and to a parent of large wealth.
2. That she was an heir of an estate in reversion, which descended to her in tender infancy; and in regard to the possession and enjoyment of which she must be deemed and treated, in a court of chancery, as an expectant heir.
3. She conveyed to the adult tenant for life, who was her father and natural guardian, with whom she resided, and on whom she was dependent.
I propose to examine the cause, such as it is found; not to speculate upon supposed cases of remainders acquired by purchase, and sold by him who thus acquired; nor upon cases where the tenant for life joins in the sale. These and other transfers of remainders, may depend on very different principles from the case before the Court.
The two first grounds, governing the decision of the circuit court, will be treated together; disregarding for the present the relation of father and daughter.