all the means of enjoying it, so far as the grantor was pos sessed of those means "; or, as it is more fully expressed by Mr. Justice Field in Sheets v. Selden's Lessee, 2 Wall. 177: "The true rule on the subject is this, that everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the conveyance." Now, in this case the thing granted was the right of way for a railroad over a tract of land in which the grantor had an undivided one-third interest; and it certainly was essential to the beneficial use and enjoyment of the thing granted that the undivided interest of the grantor should be severed from that of her co-tenants in order that the grantee might know whether any, and if so, how much, of its road ran over the lands of others, and how much of it was embraced in the land of its grantor. This could only be ascertained by means of a partition which the grantor had the means of enforcing, and was, therefore, under the rule above stated, bound to enforce, as the grantee, not having any such interest in the land itself as would authorize it to demand partition, had no means of doing.

It seems to us, therefore, that the circuit judge was in error in holding that partition was not contemplated by either of the parties at the time of the execution of the release. For if, as we have seen, "everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing by the conveyance," and if the partition was "essential to the beneficial use" of the right of way, then clearly that must be regarded as in the contemplation of the parties at the time, as it cannot be pretended that there is any language in the release indicating a different intention on the part of the grantor. And for a like reason, we think there was error in refusing the prayer for par tition and dismissing the complaint. See also the case of Steedman v. Weeks, 2 Strob. Eq. 145, 49 Am. Dec. 660, which, though not exactly in point, is quite suggestive, — especially the language of Dunkin, chancellor, hereinafter quoted. In that case Steedman bought from Weeks one half of all the saw-timber on a certain tract of land owned by Weeks, and the bill was for partition of the timber, which was granted, Dunkin, chancellor, using this language: "The defendant sold one half of the timber for the valuable consideration of one AM. ST. REP., VOL. XXVI. — 43

thousand dollars. He is bound to afford his vendee every practicable facility for enjoying the benefit of his purchase." So here, we say that Mrs. Leech sold the right of way over her land to the plaintiff, and she is bound to afford her vendee every practicable facility for enjoying the benefit of its purchase, by a partition which she has full means of procuring, so that plaintiff may enjoy the full benefit of the right of way which she had conveyed to it.

This conclusion, deduced from what we regard as well-settled legal principles, is also in accordance with manifest justice and equity. If the partition is ordered, no injustice can possibly result to any of the parties; but if it is refused, it may result in the grossest injustice to the plaintiff. It is conceded on all hands that in no event can Mrs. Leach be entitled to compensation or damages by reason of the construction of the railroad, for she has released her right thereto. It is likewise conceded that the minor defendants are fully entitled to such compensation and damages as they may have sustained by reason of the construction of the road over any part of their land; but we do not see how it is possible for this to be determined until it is ascertained by a partition what portion of their land has been taken by the railroad. Suppose the proceedings instituted by the minors for compensation and damages is allowed to proceed to final judgment before any partition is made, of course the plaintiff would be compelled to pay to them the amount so adjudged; and suppose that after this, when partition is made, it shall turn out that the railroad does not go through or over any portion of the land allotted to the minors, but goes only over the land allotted to Mrs. Leech, would not this be the grossest injustice to the plaintiff, for in such case the plaintiff will have been required to pay for a right of way over land for which it holds a grant, and to persons who, as it turns out, are not entitled to a foot of the land over which such right of way has been paid for. But if the partition is first made, no possible injustice can result to any one. If the land covered by the track of the railroad is allotted to Mrs. Leech, then the plaintiff would have nothing to pay, having her grant for the same; and if, on the other hand, the whole or any part of the land covered by the railroad is allotted to the minors, then the plaintiff would have to pay them for the same, as it would then appear that it was their property which had been taken, and they would be clearly entitled to compensation therefor.

It seems to us, therefore, that the judgment below must be reversed and the case remanded, for the purpose of enabling the circuit court to proceed with the partition, in the mean time suspending any further proceedings under the partition filed by the minor defendants for compensation and damages until the partition has been effected. The question as to how the partition shall be made, and the claim made by the complaint to subject the share of Mrs. Leach to the payment of any amount which the plaintiff may be required to pay the minor co-tenants by way of compensation or damages, not having been considered by the court below, are matters not now before us, and have not, therefore, been considered.

The judgment of this court is, that the judgment of the circuit court be reversed, and that the case be remanded for the purposes above indicated.

SARY.

CONSIDERATION FOR CONVEYANCE OF LAND-WHETHER MONEY NECES A promise by a grantor is a good consideration for a deed: Smith v. Allen, 5 Allen, 454; 81 Am. Dec. 758, and note. Love and affection is a sufficient consideration for a deed from father to daughter: Pierson v. Armstrong, 1 Iowa, 282; 63 Am. Dec. 440, and note. A grantee's liability as surety for a grantor is a good consideration for a deed: Buffom v. Green, 5 N. H. 71; 20 Am. Dec. 562. Past illicit cohabitation is a good consideration for a deed; but a contract made in consideration of future illicit cohabitation is void: Cusack v. White, 2 Mill, 279; 12 Am. Dec. 669, and note. To constitute a deed of bargain and sale, there must be a money consideration: Cheney v. Watkins, 1 Har. & J. 527; 2 Am. Dec. 530,

CO-TENANCY POWER OF CO-TENANT TO CONVEY ESTATE. A co-tenant cannot convey any greater title or interest than he has: Tuttle v. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652. An attempted dedication of common property to public use by one co-tenant does not affect the rights of the others: St. Louis v. Laclede etc. Co., 96 Mo. 197; 9 Am. St. Rep. 334, and note; note to Benedict v. Torrent, 21 Am. St. Rep. 593.

CO-TENANCY-RIGHT TO PARTITION. - Every co-tenant is entitled to do. mand partition, even though it be injurious to the other parties in interest: Donnor v. Quartermas, 90 Ala. 164; 24 Am. St. Rep. 778, and note; Barber v. Jones, 62 N. H. 497; 13 Am. St. Rep. 586, and note.

KENNEDY V. GRAMLING.

[33 SOUTH CAROLINA, 867.)

STATUTE OF FRAUDS. A DEFECT IN THE DESCRIPTION OF REAL PROPERTY in a contract or memorandum of sale may be supplied by evidence show. ing the situation and surrounding circumstances of the parties; and if from such evidence it is apparent that both parties referred to the same property, the requirements of the statute of frauds are fulfilled, and parol evidence may be resorted to for the purpose of designating the particular piece of property to which the parties so referred. STATUTE OF FRAUDS - DESCRIPTION OF REALTY. — If a person in writing offers another a specified price for property, without describing it other. wise than by stating, in connection with his offer, that if it is accepted, deeds and papers should be sent for examination, and if not accepted, that he is "ready at any time to settle for the year's rent," and the owner responds that he accepts the offer for his house, clear of expenses of title, that the taxes are paid, and that there is one year's insurance on the house which he expects the purchaser to pay, and it further appears by parol evidence that the intending purchaser was a tenant as to a certain house and lot, the proposal and acceptance will be considered as relating to the property of which the purchaser was such a tenant, and that property being ascertained, the offer and acceptance together constitute a memorandum of sale containing a sufficient description to satisfy the statute of frauds.

SALES OFFER MUST BE ACCEPTED WITHOUT QUALIFICATION.-If a proposal to buy real property for a price specified, and no more, is followed by an acceptance providing that the property is to be clear of expenses of taxes, and that the purchaser is to repay one year's insurance which has been paid on the property, this is not an unqualified acceptance of the offer, and there is no contract between the parties. DEED SIGNED "A, PER B," WILL BE PRESUMED to have been signed in the presence and by the authority of the former, if he was unable to read or write, and B was in the habit of signing deeds for him, and the per sons claiming under the deed have been in undisturbed possession for many years.

TRUST DEED MADE TO A GRANTEE, "FOR The Benefit and Behoof of THE GRANTOR'S WIFE," is not presumed to be upon the same trusts as are set forth in an antenuptial trust deed, whereby certain property was vested in the same trustee.

TRUST DEED. WORDS OF INHERITANCE are not necessary in a conveyance vesting property in a trustee, if the purposes of the trust indicate that an estate in fee was intended.

JUDGMENT AGAINST PURCHASER OF REAL PROPERTY, WHAT PROPER. — A decree against a purchaser of real property who has refused to comply with his contract of purchase may be against him personally, making him liable for the amount which he agreed to pay, and authorizing process for its enforcement against his person, and in case of his failure to comply with the decree, to attachment for contempt of court.

SUIT by a vendor to enforce an alleged contract of purchase of real property. Plaintiff was the owner of a house and lot on Spring Street, in Charleston, of which the defendant was

her tenant, and she made the offer to sell the property, and received the acceptance shown in the opinion of the court. The defendant denied the sufficiency of the alleged purchase and sale, and further insisted that the title of the plaintiff was not marketable. One John Magee was, on August 15, 1854, the owner of the property, and a conveyance was executed at that date, which purported to be signed by him, per Arthur Magee, and to be executed in the presence of two subscribing witnesses, conveying the property to Charles R. Cassidy. Cassidy conveyed to P. J. Sires. On this latter conveyance was the following indorsement:

"Mesne Conveyance Office, Charleston County.

"For valuable consideration, I hereby assign all my right, title, and interest in the property described in the within deed to B. S. D. Muckenfuss, trustee of Martha M. Sires, for the benefit and behoof of my wife, the said Martha M. Sires. P. J. SIRES. [L. 8.]

"January 1, 1860.

"Witness:

"HENRY TRESCOT.

"J. W. GRAY.

"Personally appeared James W. Gray, who made oath that he saw P. J. Sires sign, seal, and execute the above assignment, this 1st of January, 1860.

J. W. GRAY. "Sworn to before me this 6th of February, 1866. "HENRY TRESCOT,

"N. P., and Ex-off. Magt."

Muckenfuss, by the antenuptial settlement dated October 4, 1831, between Sires and Martha M. Ireland, who were then about to contract marriage, had been constituted her trustee as to certain moneys and furniture. The trust was for the benefit of the intended wife and the children of the marriage then contemplated, and the husband and wife were given power to apply any portion of the trust fund to the purchase of real property, and "thereafter to revoke the uses therein limited, and to declare new uses." There was no evidence, however, to show that the indorsement on the deed made by P. J. Sires was intended to convey property to be held under the same trusts mentioned in the antenuptial settlement, or that it was in any way connected with that settlement or its trusts, and the contracts and dealings of the parties indicate the contrary intent. With respect to the deed made to Cassidy, the evi