j George Washington Flowers Memorial Collection DUKE UNIVERSITY LIBRARY ESTABLISHED BY THE FAMILY OF COLONEL FLOWERS Digitized by the Internet Archive in 2010 with funding from Duke University Libraries http://www.archive.org/details/reportsofcasesin06nort REPORTS OF CASES IN EaUITY, AKGUED AND DEl'EKMINED IN THE SUPREME COUET OF NOETH CAROLIIA, FROM DECEMBER TERM, 1860, TO JUNE TERM, 1863, BOTH INCLUSIVE. VOL. VI. BY HAMILTON C. JONES, R£}POIiT£R. SALISBURY, N. C. : PKINTIiD BY J. J. BKI'I\'1:R, 1863. Cov{: JUDOES OF THE SUPREME COURT, During the period comprised in this Volume^ nON. K. M. PEAKSON, Chief Justice, " WILLIAM H. BATTLE, " MATTHIAS E. MANLY. JUDGES OF THE SUPERIOR COURTS. HON. JOHN M. DICK, " JOHN L. BAILEY, « E. M. SAUNDERS, « ROBERT R. HEATH, " J. G. SHEPHERD, « JAMES W. OSBORNE, " GEORGE HOWARD, Jk., " ROBERT S, FRENCH, " THOMAS RUFFIN, Jr., ♦' WILLLA.M M. SlIIPP, " ROBERT B. GILLIAM. TO THE NAMES OF CASES IN THIS VOLUME. Adams v. Jones, Allen, Att. General v. Allen V. Pearce, Allen, Smitherman v. Alston V. Lea, Attorney Gen. v. Allen, Att. General v. Osborn, Att. General v. Pierce, Ballantyne v. Turner, Bell, Clark v. Bennett v. Merritt, Bevis V. Landis, Biddle v. Carraway, Bitting, Lynch v. Blacknall v. Parish, Blackwell, Hughes v. Bowers v. Strudwick, Boylan, Mordecai v. Brown v. Haynes, Bradley, McNeill v. Bramble, Sealy v. Butcher, White v. Caldwell, Douglas v. Camp V. Mills, Carman v. Page, Carraway, Biddle v. Gates, "Whitfield v." Chambers v. Kerns, Chambers v. Reid, Chambers v. Payne, Cherry, Eason v. Chesson, Johnston v. Clark V. Lawrence, 221 Clark V. Bell, 272 IM Clay, Long v. 350 309 Clements v. Mitchell, 171 17 Conyers, Joyner v. 78 27 Cook V, Ellington, 371 144 Cook, Martiu v. 199 298 240 Daniels, Myers v. 1 Deans, Thompson v. 22 224 Dickey, Falls v. 357 272 Dillin V. Sessoms, 256 263 Douglas V. Caldwell, 20 312 Dulin, Sain v. 195 95 238 Eason v. Cherry, 261 70 Eborn v. Waldo, 111 73 Ellington, Cook v. 371 288 Elliott, Henry v. 176 365 Elliott V. Pool, 42 50 41 Fairly, McLaurin v. 375 295 Falcon, McWilliams v. 235 231 Falls V. Dickey, 357 Floyd V. Gilliam, 183 20 Fleming v. Murph, 59 274 Foy, Whitley v. 34 37 Frazier, Hunt v. 90 - 95 Frizzle v. Patrick, 354 136 Futrill V. Futrill, 337 280 304 Gerock, Jones v. 190 276 Gillis V. Harriss, 267 261 Gilliam, Floyd v. 183 146 Godwin, Richardson v. 229 83 Gray, Worth v. 4 INDE.T. Gray, Worth v. 380 Green v. Harrison, 253 Griffin, Hackney v. 381 Hackney v. Griffin, 381 Hadley v. Rountree, 107 Harding v. Yarbrongh, 215 Harrison, Green v. 253 Harris, Gillis v. 267 Havens v. Hoyt, 115 Haynes, Brown v. 50 Henderson, Qnickel v. 286 Henry r. Elliott, 175 Herndon v. Pratt, 327 Hill V. Williams, 242 Hooper, White v. 152 Hofl'man, Rhyne v. 335 Hoyt, Havens v. 115 Hughes V, Blackwell, 73 Hunt V. Frazier, 90 Jackson v. Rheni, 141 Johnston v. Chesson, 146 Johnson v. Malcom, 120 Johnson v, Peterson, 12 Jones, Adams v. 221 Jones V. Gerock, 190 Jones V. McKenzie, 203 Joyner v. Conyers, 78 Joyner v. Joyner, 322 Knight V. Knight, 134 Kerns, Chambers v. 280 Landis, Bevis v. 312 Latham v. Moore, 167 Lawrence, Clark v. 83 Lea, Alston v. 27 Lee, Rouse v. 352 Lloyd V. Whitley, 316 Long V. Clay, 350 Luterloh, Partin v. 341 Lynch v. Bitting, 238 McLaurin v. Fairly, 375 McKay v. McNeill, 258 McKay, Rountree v. 87 McKenjie, Jones v. 203 McLean, Mims r. 200 McLean v. McPhaul, 15 McNeill v. Bradley, 41 McNeill, McKay v. 258 Mc Williams v. Falcon, 235 McPhaul, McLean v. 15 Malcom, Johnson v. 120 Mallett, Malloy v. 845 Malloy V. Mallett, 345 Martin v. Cook, 199 Martin, Smith v. 179 Mason v. Sadler, 148 Merritt, Bennett v. 263 Mills, Camp v. 274 Mims V. McLean, 200 Mitchell V. Ward, 66 Mithell, Clements v. 171 Moore, Latham v. 167 Moore v. Moore, 132 Mordecai v. Boylan, 365 [Morehead, Smith v. 360 Murph, Fleming v. 69 Myers v. Daniels, 1 Nooe v. Vannoy, 185 Norfleet v. Slade, 217 Osborn, Att. General v. 298 Page, Carman v. 37 Partin v, Luterloh, 341 Parish, Blacknall v. 70 Patrick, Frizzle v. 354 Payne, Chambers v. 276 Pearce, Allen v, 309 Peterson, Johnson v. 12 Pierce, Att. General v. 240 Pool, Elliott V. 42 Pratt, Herndon v, 327 Quickel v. Henderson, 286 Ray V. Scott, 283 Reid, Chambers v. 304 Rhem, Jackson v. 141 Riggs V. Swann, 118 Richardson v. Godwin, 229 ¥1 NIDEX. Robinson, Sanderlin v. 155 E,ountree, Hadley v. 107 Rountree v. McKay, 87 EiOnse v. Lee, 352 Rhyne v, Hoffman, 335 Sain V. Dulin, 195 Sadler, Mason v. 148 Sanderlin v. Robinson, 155 Scales V. Scales, 163 Scott, Ray v. 283 Sealey v. Brumble, 295 Sessoms, Dillin v. 256 Slade, ITorfleet v. 217 Sims V. Smith, 347 Smith V. Martin, 179 Smith V. Morehead, 360 Smith, Weisman v. 124 Smith, Sims v. 347 Sitherman v. Allen, 17 Swann, Riggs v. 118 gtrudwick. Bowers v. 288 Tatham v. Wilson, 250 'yhompBon v. Deans, 22 Tillman v. Tillman, 206 Turner, Ballantyne v. 224 y annoy, Nooe v. 185 Waldo, Eborn v. HI Ward, Mitchell v. SQ Weisman v. Smith, 124 White V. Butcher, 231 White V. Hooper, 152 Whitley v. Foj, 34 Whitley, Lloyd v. 316 Whitfield V. Gates, 136 Williamson v. Williams, 62 Williams, Williamson v. 62 Williams, Hill v. 242 Wilson, Tatham v. 250 Worth V. Gray, 4 Worth V. Gray, 380 Yates, In the matter of, 212 " " 306 Yarbrough, Harding v. 215 Yarbrough v. Yarbrough, 209 CASES IN EQUITY, ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. DECEMBER TEEM, 1860. A. E. MYERS V. WILLIAM DANIELS* Where a cause was referred to arbitrators, no pleas having been entered, it was held that the reference was nothing more than a parol reference, and that the presiding Judge had no power to have it stricken out. Where the defendant, in his answer, admitted that a cause was referred, (no pleas having been entered,) and that the reference was stricken out with- out notice to the other party, and the cause was submitted to a jury, and a judgment obtained against him without his knowledge, the Court refused to dissolve an injunction granted to restrain the collection of the same. Appeal from an interlocutory order, made at Spring Term, 1860, of Wilkes Court of Equity. Osbokne, J., presiding. *This cause was decided at Morganton, but was inadvertently taken away, *o that the Keporter could not get it. 1 IN THE SUPREME COURT. Myers v. Daniels. This was a bill filed by A. E. Myers, to vacate and set aside a judgment rendered at Fall Term, 1859, of Iredell Su- perior Court, and to enjoin the collection of the same. Plain- tiff alleges, in his bill, that in 1856, he sold to the defendant a valuable horse ; that shortly afterwards, said defendant al- leged that plaintiff had practiced a fraud upon liim in the trade, and brought suit against him to Fall Term, 1857, of Iredell Superior Court ; that plaintiff and defendant before return term of said writ, agreed to refer the cause to Jacob Fraley, Steptoe Bennet, Williamson Campbell, and Davidson Sharpe, with leave to choose an umpire; that at Fall Term, 1857, of said Court, one of defendant's attorneys entered the reference on the docket, and shortly afterwards the referees met, and after selecting an umpire, decided the cause in fa- vor of plaintiff, Myers, and filed their award in the office of the clerk of said court, in which they used the following lan- ffuaee : " We find all issues in favor of the defendant," the present plaintiff'. Plaintiff alleges further, that it was dis- tinctly agreed between them, that the cause was " taken out of court," and the decision of said referees was to be final. Plaintiff' further alleges, that M'hen said referees decided the cause in his favor, defendant, Daniels, expressed himself sat- isfied, and he distinctly understood that the suit was at an end ; that he, Myers, shortly afterwards removed to Wilkes county, where he still resides. Plaintiff further, states, in his bill, that at the Spring Term, 1858, of said Court, defendant's counsel moved to set aside the award, because there were no "issues to be found," no pleas having been entered in the cause, and the award was stricken out ; that at Fall Term, 1858, the reference was stricken out, on motion of the coun- sel of said Daniels, without any notice being given to plain- tiff, Myers ; that at Spring Term, 1859, a judgment by de- fault and enquiry was entered against him, and at Fall Term, 1859, a jury was empannelled and a verdict rendered against him, in favor of Daniels, for $296.00, and execution was issued to collect the same. Plaintiff charges that defendant conducted these proceedings fraudulently, and that he knew DECEMBER TERM, 1860. Myers v. Daniels. notJiiiig of the same same, until the sheriff applied to him for the mone}-^ dne on said execution. Defendant admits the reference as set forth in the bill ; ad- mits that the referees met, examined the witnesses, aud deci- ded the cause in favor of Myers, but he deni-es that he consid- ered their decision final ; he admits that the reference was stricken out witliout any notice being given to plaintiff, My- ers, and that the award was set aside without the knowledge of Myere, and that Myers never employed counsel in- the cause. On the coming in of the answer, the defendant's counsel mov- ed to dissolve the injunction. The defendaut's counsel insisted that the Court of Equity had no jui-isdiction of this cause, for the reason, tliat the judg- ment, by default, was an othce judgment, and if improperly obtained, was subject to revision at a subsequent term on mo- tion ; that the award M-as informal, and was properly set aside by the presiding Judge; that defendant, Daniels, was not bound to give the plaintiff, Myers, notice of the proceeding in this cause, as it was his duty to employ counsel. Plaintiff's counsel insisted, that although the judgment, by default and enquiry, was an office judgment, the final judg- ment rendered b}^ the Court, on the finding of the jury duly -erapannelled, under the instructions of the Court, was a regu- lar judgment, and could not be set aside on motion; that no award could be a rule of court, unless the reference was made after the cause was put at issue ; that our courts cannot en- force the pei-formance of an award by execution, except in 'those cases where, at common law, awards were enforced by attachments for contempt; that at common law, an attach- ment was only allowed where the cause was referred in the nisi prius courts, (the pleas having been entered in the courts of Westminster). Plaintiff's counsel insisted that the Court had no control of the reference; and that the decision of the referees was final ; that the defendant's answer admitted facts, showing that unfair means were resorted to, to obtain the j udgment in the cause. The Court refused to dissolve the injunction, but ordered IN THE SUPKEME COFKT. Worth V. Gray. it to be continued to the hearing ; from which the defendant appealed. Barber, for the plaintiff. Boyden, for the defendant. Manly, J. This is an appeal from an interlocutory order continuing an injunction until the hearing. We have considered the bill and answer, and concur with his Honor, the Judge below, in the propriet}'- of the interlo- cutory order made by him. The equity of the bill, which has not been met by the answer, rests upon the authorities of the QdtBQoi Simpson y. McBee,^ Dev. 521, and the principles laid down in Billings on Awards, 230-31. Without deciding at this stage of the case, upon the merits of this equity, we think there is enough, not met by the answer, to send the case to a final hearing, with the injunction, in the mean time, continued. This opinion will be certified to the Court of Equity, for Wilkes county, that it may proceed in the cause. Per Curiam, Judgment afllrmed. JONATHAN WORTH, AdrrCr, against ALEXANDER GRAY and others. The orders and decrees of a court of Equity, are not necessarily absolute, but may be moulded and shaped to meet the exigence of each particular case. Where a bill was demurred to, which seemed to be deficient in equity, yet, as there were facts and circumstances incident to the matter disclosed, which would have an important bearing on the case, some of which were not set out at all, and others but vaguely, and the amount involved was large, the Court, without costs and without prejudice to the defendants equi- ty, overruled the demurrer in order Ihat the plaintiff's bill might be amend- ed. DECEMBER TERM, 1860. Worth V. Gray. Where a husband having a right to receive satisfaction for or release the equi- ty of his wife, permitted a long time to elapse without bringing suit, during which time his adversary was in the open use of the property, claiming it as his own, it was held that a presumption of abandonment, release or satisfaction arose against the equity, which would be fatal, unless the delay was accounted for. Whether ignorance of the claimant's right is sufficient to repel the presump- tion arising from the lapse of time; Quere? Whether where a bill by way of anticipation sets forth facts to repel the pre- sumption of satisfaction, release or abandonment, which avers that in fact there was none, and the defendant pleads the statute of presumptions, it is necessary to support such plea by an answer to the plaintiff's allegations; — Quere ? Cause transmitted from the Court of Equity of Randolph count3^ The bill alleges that on the IStli of August, 1809, in con- templation of a marriage, then about to be solemnized be- tween the defendant, Alexander Gray, and Nancy Parke, widow, articles of agreement, of three parrs, were made and entered into between the said Alexander- Gray and the said Nancy Parke, and one Solomon K. Goodman therein named, as trustee, the material portion of which is as follows : "That whereas, a marriage is shortly intended to be so- lemnised between the said Alexander Gray and Nancy Parke, with whom the said Alexander Gray is to have and receive all sucii property, both real and personal, as the said Nancy is now possessed of or may hereafter be possesed of in consequence of any lawsuit which now is, or hereafter may be brought for the recoveiy of any moneys or property to which slie is entitled : it is therefore, covenanted and agreed between the said parties to these presents, in manner and form following: First, that tlie said Alexander Gray, for himself, his heirs, ex- ecutors or administrators, doth covenant and agree with the said Nancy Parke and Solomon K. Goodman, their heirs and assigns, that they, the said Alexander Gi-ay and Nancy Parke, his intended wife, in case the intended marriage be solemn- ised, by some good and sufficient conveyance in law, shall settle and assure all such property, whetJier real or personal, m THE SUPEEME COURT. Worth V. Gray. whereof she, the said Nancy is seized as aforesaid, to the use and behoof of her, the said Nancy, and her friend and agent^ Solomon K. Goodman, for her nse and benefit during her na- tural life, and the said Alexander Gray, doth, by these pres- ents, covenant and agree, that Solomon K. Goodman, the agent or trustee aforesaid, shall liave full power and authori- ty, by the advice and counsel of the said Nancy, to prevent the said property from being sold or wasted, and doth further- covenant and agree that the said Nancy Parke, his intended wife, sliall have full power and authority over the said prop- erty, and may, at any time, give or convey any part of the same to her relations, and sliall have full power by these pre- sents, by will or otherwise^ to dispose of the whole of the same to her friends and relations at her death : Provided^ nevertheless, that if the said Nancy shall have children by the said Alexander Gray, she shall not dispose of the said property so as materially to injure them ; and in ease the said Alexander Gray shall first die, it is on his part, by these pre- sents, covenanted and agreed that the said Nancy, his intend- ed M-ife, shall hold by herself and the authority of lier said agent, all such real or pei'sowal property as she now is enti- tled to, and in case the said Alexander Gray sho'uld depart intestate, that the said Nancy shall, in addition to her own estate, have, hold, possess awd enjoy a distributive share of him, the said Alexander Gray." That the whole of these articles are in the hand-writing of Gen, Gray, except the signature c;f Mrs. Giay and the trustee, and one Henry r>urro\v, the snbscribiw^' M'itness ; that Goodniaii was the brother-in-law of Mrs. Gray, and Burrow, the witness, herbrot]>er; that said Goodman retained the said marriage articles in his j)ossession until he ren>oved to the ttate of Ten- nessee about thirty years ago, when he committed them to the safe keeping of one Kennedy, who after holding them for many years transmitted them to Stephen Moore, who deliver- ed them to the plaintiff, who caused them to be duly proved and registered in the county of Randolph. That the said intended marriage was solemnised, and in the DECEMBER TERM, 1860. Worth V. Gray. year 1810, a child was born of the marriage, to wit, Mary, who, subsequently, at about the age of twenty, was married to the said Stephen Moore, of Hillsborough ; that in 1852 or 3, she, with her husband, removed to the State of Arkansas, and there died, and at May, Term, 1860, of Randolph county court, the plaintiff, Worth, took out letters of administration on her estate. That General Gray never made any deed or assurance as stipulated in the marriage articles, and that his wife, the said Nancy, died in 1818 or 19, without making any will, and without ever having disposed of any of the property owned by her at her marriage ; that General Gray married a second wife some five years afterwards, by whom he had several chil' dren, whose names are set out in the bill, and who are made defendants. The bill sets out the nature and quality of the property owned by the said Nancy, and which he was posses- ed of by virtue of his marriage, and the articles aforesaid, consisting of land and a large number of valuable slaves; that Moore and his wife sold to Gray the reversion in the land after the expiration of his life-estate. The plain- tifi", by his bill, insists that the effect of these articles was to limit the use and benefit of the property to the said Alex- ander Gray, during the joint lives of him and his wife, and after the death of the latter, then to their daughter, the said Mary, absolutely, and that at any time after the birth of the said Mary, she (the mother) might have insisted on convey- ances to that effect, saving the power of a disposition to a moderate amount in favor of her friends and relations during her, (the mother's) life, and that the plaintiff, as the adminis- trator of the said Mary, is entitled to an account of all the personal estate upon that basis. The bill sets out that the personal propcrt3'^ aforesaid was ta- ken into possession by the said Gray, and ever since has been treated, used and enjoyed as his own absolute property, or has been disposed of for his own benefit ; that of the slaves, several were given to his children, who are made defendants, and are called on to account for the same ; that within a year or IN THE SUPEEME COURT» Worth w. Gray. two before filing the bill the said Stephen Moore called his at- tention to the said marriage articles ; he seemed to have for- gotten them, and at first denied their existence, but when produced, lie admitted their genuineness, and stated that it had always been his intention that the property of Mary's mother should be given to her (Mary) and her children ; and at one time it was agreed between the said Moore and the said Gray, that the matter should be referred to the arbitra- ment of counsel, or to compromise the same themselves; but on the next day Gray expiessed a desire that the matter might be settled by a bill in equity, and refused to account in any oth- er manner. The prayer of the bill is for an account of the slaves and their hires and profits. The defendants demurred; there was a joinder in demur- rer ; and the cause being set down for argument, was sent to this Court. Graham^ for the plaintiff. Fowle, Morehead and Kittrell, for the defendants. Pearson, C. J. The demurrer raises two questions: 1. The construction of the marriage articles. 2. The effect of the lapse of time during which the de- fendant Gray has been in possession, enjoying the property as absolute owner, and the presumption of a satisfaction or aban- donment of the equity. Our opinion inclines with the defendants on both of these questions; but, as the amount involved is very large, and the Court is not, by the bill, as now framed, put in possession of {ill the facts and circumstances which are relevant and may have an important bearing on its decision, we will avail our- selves of the fact, that the orders and decrees of this Court are not necessarily ahsolute like a judgment in a court of law, but may be " moulded and shaped to meet the exigence of each particular case," and order the demurrer to be overruled without allowing costs, and without prejudice to the equity or DECEMBER TEEM, 1860. «>• Worth V. Gray. defense of the defendants which may be set up by plea or answer as they shall be advised, for the purpose of giving the plaintiff an ^opportunity of amending the bill by making fur- ther allegations, and the defendants an opportunity to rely on the presumption of satisfaction, release or abandonment of the equity by plea, (if so advised) and of afterwards setting out all of the facts and circumstances relevant to the question by averment in their answer, should tho plea be overruled. 1. The plaintiff alleges that by the proper construction of the marriage articles, the legal effect is to give an estate to the wife for life in all of the estate belonging to her before the marriage, with full power to dispose of it by giving it to her relations or friends, unless there should be issue of the marri- age ; in which event, the intention was to vest the ulterior in- terest after the life-estate, in such child or children, and he in- sists that although this intention of making a limitation over in favor of any child or children that might be born of the marriage is not expressed in the articles, it will be implied by the Court from the nature of the relation which the parties had in contemplation, which furnishes the natural and ordina- ry presumption that the intention is to provide, as well for the issue of the marriage as for the wife, and relies on the fact that this is an executory, as distinguished from an executed trust, where greater latitude of construction is allowed, in order to give effect to the apparent intention of the parties, a*)d the Court is not bound b3' the use or omission of technical words. On the ]iart of the defendants, it is insisted that the oidy purpose of the parties, in making the marriage articles, was to give to Mrs. Gray power to dispose of the estate which she owned before the marriage, by giving it to her relations and friends, with a restriction upon the power, in case she should have children, and that no limitation was intended to be made and none in fact was made, so as to vest in them an estate af- ter her death; for, if she died first, the husband, it was pre- sumed, would be able to provide for the children, and if he died first, they would be amply provided for out of his estate, and out of the estate which was secured to her. In aid of 10 IN THE SUPREME COURT. Worth V. Gray. this construction, it was urged that the subsequent acts of the parties were in conformity thereto ; for, after the birth of a child, and the death of his wife, General Gray treated the marriage articles as having no further force or effect, and used and disposed of the property as if absolutely his own, and Moore and wife so acted in respect to the land, by selling him the reversion after his life-estate ; whereas, if the articles had been in force, according to the construction contended for by the plaintiflP, he was not entitled to an estate for life as tenant by the curtesy, and Mrs. Moore was entitled to the whole es- tate, and not simply to a reversion. It is manifest that the condition of the parties, and the state of things at the date of the marriage, may have an important bearing upofi this question of construction, and the Court should be put in possession of all the facts : was General Gray an improvident, thriftless or dissipated man? — a man of no propert}', and " a fortune hunter," who was not likely to be able to take care of his children ? Or was he a prudent busi- ness man, with property of his own, and one who could rea- sonably be confided in to take care of his children, if he should have any? "What was the age of Mrs. Parke at the date of her contemplated second marriage? How long had she been married to her first husband without having borne a child ? Had she any destitute relatives for whom she suppos- ed he#self under an obligation to provide? These facts have an important bearing as tending to distin- guish the case from that of two young people just starting in life, with whom the first and uppermost idea on their mar- riage is to make a provision for children ; whereas, in this case, judging by the face of the articles, the most prominent idea was to give the wife power, notwithstanding her marriage, to provide for " her kin-folks." 2. As Moore had power to receive and accept satisfaction for, or release his M'ife's equity, a presumption arises from the lapse of time during which the defendant Gray had possession and used the property as his, even according to the case of Coiten v. Davis^ 2 Jones Eq. 430, unless the defendants are DECEMBER TERM, 1860. 11 Worth V. Gray. able to account I'or the delay, or to repel the presumption. It was said on the argument that Moore, the husband of plain- tift''s intestate was not informed of tlie existence of the mar- riage articles, and of the estate which had vested in her by force thereof until within less than two years before the bill was filed. Tliis fact is not distinctly alleged in the bill, and our purpose in not disposing of the case definitely at this stage, is to give the plaintifi' an opportunity to amend his bill, and aver the fact distinctly, if it is so, and present the question M'hether ignorance of the right will prevent the presumption. It was also said, on the argument, that the admissions of General Graj', when a demand was made and his attention was called to the existence of the marriage articles, and par- ticularly his oifer to refer the matter to the arbitration of mu- tual friends is sufficient to repel the presumption. These mat- ters are not set out in the bill with the degree of certainty ne- cessary to give to the demurrer the eflect of a positive admis- sion which would i-epel the presumption ; and the demurrer is overruled for the purpose of removing all difficulty in this respect. The j>laintiff may amend his bill and charge these matters with certainty by way of anticipating the plea of the defendants, (if they are so advised) setting out the fact of the long enjoyment and possession of the property, and relying on the presumption of a release, or satisfactioii or abandon- ment, which the law makes therefrom. Whether the defendants will be required to answer, in sup- port of this plea, an allegation in the bill charging that there has been no satisfaction and no release, will be an interesting question in regard to which we intiinate no opinion. The statute, and the rule of the common law, obviously give to the lapse of time a technical effect over and beyond that of a mere circumstance, as upon an enquiry in regard to an open question of fact. AVhether it is consistent with tiie policy of this rule to require a party to make admissions as to a mat- ter of fact which will defeat his plea, is a question we leave for future consideration. Per Curiam, Demurrer overruled without costs, and without prejudice. 12 IN THE SUPKEME COURT. Johnson v. Peterson. JOSEPH JOHNSON against JOSHUA PETERSON. A conveyance, by a woman, after a marriage engagement, and upon the eve of its solemnization, is a fraud upon the rights of the intended husband and will not be upheld, unless it appear clearly and unequivocally, that the hus- band had full knowledge of the transaction and freely assented to it. Where a woman, being under an engagement to marry, made, a week before the marriage, a voluntary secret conveyance of all her property, including slaves, to the defendant, a man of slender means, who, after the marriage, took the slaves into his possession, and refused, on demand, to give them up, but claimed them as his own, under such conveyance, it was held that the husband was entitled to writs to restrain the defendant from removing the slaves out of the State, although no threat to do s© was made to ap- pear. This was an appeal from an interlocutory order, made in the Court of Equity of Sampson county, refusing to dissolve am injunction, and continuing it over to the hearing. French, J., presiding. The bill sets forth, that the plaintiff intermarried with Su- san Peterson on 14th of March, 1860 ; that shortly before the said marriage, and after an agreement had been entered into with the said Susan, that they should marry, and only a week before that event, she secretly, and without his knowledge, and in fraud of his marital rights, conveyed to the defendant, Joshua Poterson, by three several deeds, her interest in ten slaves, (naming them) and a right to live upon and enjoy a tract of land of 186 acres, during the time of her, the said Susan's, marriage life, and providing in said deeds, that on her becoming discovert, her right to the said property should revive; that the said deeds are expressed to be, each, on the consideration of five dollars, but that no money or other thing of value was paid for the said property ; that the said Susan had, under the will of a former husband, a life-estate in the said negroes and land, and that the defendant has taken possession of the said slaves and land, and on the same being demanded, refuses to give them up, and has threatened to run tJiem out of the State ; that the defendant is irresponsible 'DECEMBER TERM, 1860. 13 Johnson v. Peterson. in respect of financial means, having no property, except a remainder in two of these slaves after the death of the said Susan. The prayer of the bill is for an injunction and seques- tration to prevent defendant from running the slaves out of the State. These writs were issued in vacation, and the de- fendant answered at the next term. lie does not deny the execution of the deeds, nor the time nor circumstances under which they were executed. lie denies, however, that any fraud was intended, and says, though he paid no money, that the said Susan had promised him, before the engagement of marriage, to make him such conveyances, and that she owed him for one year's work he had done for her, and that he in- tended to give her a credit for Avhat she owed him. He de- nies that he ever threatened to remove the said slaves from the State, or that he intends to do so, but admits he is a man of slender means, beyond his claim in these slaves, and in- sists on the validit}' of his claim to the property, under tiie deeds, lie denies that the plaintiff was ignorant of the exist- ence of these deeds, for that one of the family had put him on his guard, by telling him in the presence of the said Susan, that he would not get what he expected to get by his inter- marriage with her, to which he replied, that "it was not the projterty he wanted, but the woman." On the coming in of the answer, the defendant moved to dissolve the injunction and sequestration, which was refused by his Honor, who or- dered them to be continued to the hearing; from which or- der, the defendant appealed. W. A. Wright, for the plaintiff. Person, for the detendant. Manly, J. The interlocutory order appealed from, con- tinuing the injunction to the hearing, is justified by the facts of the case, api)arent upon the bill and answer. The equity of the bill seems to us to be manifest. The time, manner, and circumstances altogether, when, and where- by the woman strippedherself of every particle of her property, 14 m THE SUPREME COUET. Johnson a. Peterson. was a fraud upon the rights of her intended husband. Such a conveyance after a marriage engagement, and upon the eve of its solemnization, is fraudulent, and not fit to be upheld, unless the intended husband have full knowledge of and free- ly assent to it. Such knowledge and assent ought to be clear and unequivocal, and not inferable merely from casual re- marks by an indifferent person in the hearing of the husband, and from responses of his, made in a spirit of gallantry. When the riglit to the relief sought is clear, the Court will incline favorably to ancillary writs intended to make sure that relief. Thus, in the case before us, where the bill is to declare fraudulent and void deeds for slaves, and to compel a reconveyance and redelivery of them, the Court will, upon any grounds that are not light and frivolous, put the defend- ant under an injunction not to withdraw the property from the reach of its process. An injunction imposes no obliga- tion on him that he was not already bound in conscience to fulfil. It only adds a legal penalty to a moral obligation. Although tlie principal allegation, in the bill, of a purpose to remove the slaves beyond the juristiction of our courts, is denied by the defendant, yet, he admits he sets up claim to them under the deeds in question, and does not deny that he is a man of little or no means beyond the slaves in contro- versy. This, we think, is sufficient, when added to the clear equity of the plaintiff's bill, and the consequent unconscien- tiousness of the defense, to cause the Court to leave the de- fendant under the injunction. It should be certified to the Court below, that there is no error in the interlocutory order appealed from, and that they do, therefore, proceed. Per Curiam. Judgment affirmed. DECEMBER TERM, 1860. ^ $^ McLean v. McPhaul. HECTOR McLEAN against NEILL McPHAUL AND OTHERS. A distributive share in the hands of an administrator, due the wife of a non- resident debtor, cannot be subjected to the payment of the husband's debts in this State, by means of an attachment, in equity, under the statute, Rev. Code, chap. 7, sec. 20. CArsE removed from the Court of Equity of Robeson county. The bill sets out, that Catliarine McLean died intestate, in the county of Robeson, sometime in the year 1858, seized and possessed of a considerable estate, and left among other next of kin, a sister, Margaret, wlio had intermarried with the de- fendant, Neill ]V[cPhaul. As one of the next of kin of her sister Catharine, Margaret McPhaul was entitled to a distri- butive share of her estate. Letters of administration upon the estate of Catharine McLean were granted to one Morri- son, who is made a party defendant in this suit. The bill fur- ther states, that Neill McPhaul, the defendant, is a non-resi- dent of the State, and is indebted to tlie plaintitf in the sum of one hundred and forty-five dollars, due upon a former judg- ment, and it prays that the distributive share of the estate of Catharine McLean, to which defendant is entitled in right of his wife, and which is still in the hands of the administrator, Morrison, may be decreed in satisfaction of this debt. Defendant demurred for the want of equity, and the cause being set down for argument upon the bill and demurrer, was sent to this Court by consent. M. B. Smith, for the plaintiff. LeitcJi, for the defendants. Pearson, C. J. The question is, can the creditors of a non-resident reach a distributive share in the hands of an administrator, which is due to the wife of the debtor, by means of an " attachment in equity" under the statute, Rev. Code, chap. 7, sec. 20 ? l^ m THE SUPREME COURT. ' McLean v. McPhaul. "We are of opinion that the case is not embraced by the statute, for this very satisfactory reason : the distributive share, while in the hands of the administrator, does not be- lon.o; to the husband. It is true, by the jus mariti, he may reduce it into possession during the coverture, and if he does 80, it belongs to him, or he may assign it, and if the assignee reduces it into possession during the coverture, it Avill belong to hi'm, but until it is reduced into possession, it belongs to the wife, and if the husband dies before that is done, either by himself or his assignee, the interest of the wife is absolute. This is settled ; Arrington v. Y^arharo, 1 Jones' Eq. 73, where the subject is fully entered into and disposed of. The fact, that a legacy in the hands of an executor, or a distributive share in the hands of an administrator, which is due to the wife, belongs to her and not to the husband, is the ground of the well-established doctrine, i. e., equity will not interfere, at the instance of a creditor of the husband, in or- der to subject the fund to the satisfaction of the debt, either by compelling the husband to reduce it into possession or as- sign it for the benefit of his creditors, and thus enable them to reduce it into possession. If the husband chooses to do so, the courts of equity, in this State, will not interfere to prevent him and require a settlement on the wife. But neither in North Carolina, nor in England, nor any where else, that we are informed of, do courts of equity interfere actively- to the prejudice of the wife, and subject her interest without the consent and co-operation of the husband, to the payment of his debts, because it would be doing injustice to the wife to deprive her of the chance to have the absolute ownership if she survives, and of the right to have the interest devolve up- on her personal representative if she dies first ; whereby it would be first applicable to the satisfaction of he?' own cred- itors, before it passes to the husband and becomes liable to his creditors. In Allen v. Allen, 6 Ire. Eq. 293, and Barns V. Pearso7i, Ibid. 482, the general doctrine is assumed, and those cases are made exceptions, on the ground, that where the husband makes an assignment and an interest vests in the DECEMBER TERM, 1860. It Smitherman v. Allen. assignee, the courts are then called on to aid the assio-nee iu like manner as they would aid the husband, to reduce the in- terest into possession, whereby the wife ceases to be the own- er of the fund. On the same general principle, it is held, at Law, that a legacy of the wife cannot be taken, under an attachment, by the creditor of the husband ; Arringtoii v. Screios, 9 Ire. 42. In short, there is neither authority nor principle to support the position on \vliich the bill is based. Per Curiam, Demurrer sustained. SMITHERMAN & SPENCER against HIRAM ALLEN AND OTHERS. Where a debtor conveyed all his property with an intent to defraud his cred- itors, and then left the State, it was held that a creditor could not main- tain a suit, iu equity, to have his debt satisfied out of the property, under the statute, Rev. Code, chap. 7, sec. 20, his remedy being at Law. Cause removed from the Court of Equity of Montgomery county. Hiram Allen, one of the defendants in this case, was in- debted to the plaintiffs in the sum of $175.00, due by note and account ; and the said Allen, in the month of September, 1859, was seized of a tract of land, in the county of Mont- gomery, and was also possessed of a valuable chattel proper- ty. Some time during that month, the defendant, Hiram, conveyed all his property to his brother, David Allen, and his brother-in-law, Martin Ilunsucker, who are the other de- fendants in this suit, and then left the State. ^ The bill charges that this conveyance was intended to de- fraud creditors, and that there was a combination among the defendants for that purpose. 2 18 m THE SUPREME COURT. Smithermau v. Allen. The prayer is for a discovery of the matters relating to this transaction, and that the payment of plaintiffs' debt may be decreed, according to the statute. Revised Code, chapter 7, section 20, against the defendants, and for general relief. — The defendants demurred to the bill, for the reason, that the plaintiffs had a remedy by an attachment, at law, and also for that the plaintiffs had not reduced their debt to a judg- ment. The cause being set for argument upon bill and demur- rer, was transferred to this Court. Mason and Jackson, for the plaintiffs. IlcGorkle, for the defendants. Peakson, C. J. A debtor conveys all of his property with an intent to defraud his creditors, and then leaves the State. The question made by the pleading is, can a creditor main- tain a bill to have his debt satisfied by what may be called, " an attachment in equity," under the provisions of the stat- ute, Rev. Code, chap. 7, sec. 20 ? We are of opinion that the case does not come within the provisions of the statute. It is said the grantee holds the property upon a secret trust for the debtor, and the statute applies to any estate or effects in the hands of a " trustee," holding for the use of the debtor. It is clear, that the debtor, himself, could not enforce such a trust, for the conveyance, although void by the statute of Elizabeth, as to creditors, is good between the parties, and neither a court of law nor a court of equity will interfere at the instance of the debtor ; in other words, the confidence reposed by him in the grantee is not recognised by the courts as a trust fit to be enforced, and as the proceeding, under the statute, rests on the footing of enforcing a trust, it follows that a trust, like that under consideration, does not fall with- in the meaning. It is settled that such a trust does not come within the meaning of the act of 1812, and cannot be sold under an execution, at law ; Page v. Goodman, 8 Ire. Eq. 16. So it is settled, such a trust cannot be sold on the petition DECEMBER TEEM, 1860. 19 Smitherman v. Allen. of can administrator, under the act of 1846; Ithein v. Tull^ 13 Ire. 57, and it is said the creditors may reach the proper- ty, not on the ground of a trust, but on the ground of frauds which proves that the Avord " trustee," used in the statute, under consideration, does not embrace a case of this kind. It was next insisted, that the case is that of an absconding debtor, having " an estate in the hands of a third person, wliich cannot be attached at law, or levied on under execu- tion." Wiiy may not this property and estate be attached at law? The conveyance is void as to creditors, so they may treat the property as if it still belonged to the debtor, and, in fact, it is his property for the satisfaction of debts. This disposes of our case. The case of Gentry v. Harper^ 2 Jones' Eq. 177, referred to, on the argument, is distinguisha- ble from this, but may serve to illustrate the principle. There the interest of the debtor could not be reached at law by a creditor, who had obtained « judgment, and it was subjected in equit}^ not on the ground of a trust, but on the broad ground, " that it was against conscience for debtors, to at- tempt, in any way, to withdraw property from the payment of their debts, and where a court of law cannot reach it, a court of equity will." In exercising this jurisdiction, the courts of equity require that the question of debt, or no debt, being a legal one, should be settled by a judgment, at law. To meet this, the statute, under consideration, was passed. It may be that a fraud, like that in Gent?'}/ v. Harper, is not provided for by it. But our case is expressly excluded, on the ground, that the fraud is one, which does not stand in the way of creditors, and they may have an attachment at law, and do not need the inter- ference of a court of equity. Per Curiam, Demurrer sustained and bill dismissed. 20 m THE SUPEEME COUKT. Douglas V. Caldwell. GEORGE B. DOUGLAS, Guardian, v. A. H. CALDWELL, Guardian. Where it appeared that the property, in this State, of a ward residing in an- other State, consisted of good bonds, at interest, in the hands of his guar- dian here, a part of which arose from the sale of land, and the ward was near- ly of age, and there was no special necessity made to appear for making a transfer of the property, the Court of Equity, in the exercise of its discre- tion, refused to order a transfer of the estate to the hands of a guardian ap- pointed in such other State. Cause removed from the Court of Equity of Eowan county. This was a petition by a guardian, in another State, to ob- tain the property of his ward in the hands of a guardian here. The petition is filed by George B. Douglas, the father of the ward, George C, Douglas, alleging that in the month of April, 1858, he was duly appointed by the Court of Ordinary of Dougherty county, in the State of Georgia, guardian of the person and property of his said son, and gave bond with two good sureties, according to the requirements of the law, as it is in that State. An exemplified copy of such appointment, with the bond taken, is filed, and depositions are taken, es- tablishing the validity of the bond as to form, and as to the solvency and pecuniary ability of the sureties. The petition states, that in the year 1858, the ward was about fourteen years old, and that it is his purpose, and that of the petitioner, his father, to remain, permanently, in the State of Georgia. The petition sets out further, that as guardian of the person of his son, he has been allowed for the support and mainten- ance of his son, since the year 1855, by the Court of Equity of Rowan, the annual sum of $300, which, in the year before the petition was filed, to wit, in 1858, was increased to $400. — The answer of the defendant is filed, and discloses the fact, that the estate of his ward is between 25,000 and 30,000 dol- lars ; that he has not yet fully settled with the former guar- dian, but he thinks there will be about that amount ; that in January, 1859, by a decree of the Court of Equity of the county of Rowan, N. C, the negroes of his ward were sold at DECEMBER TERM, 1860. 21 Douglas V. Caldwell public auction, and bonds, bearing interest from date, well secured by sureties, were taken by a commissioner appointed by said Court, and that wlien the answer was tiled, the credit had not expired. The answer also sets out, that about twenty- ifive hundred dollars of the fund arose upon land, which was sold by a decree of the Court of Equity of Rowan, which also is investd in bonds, with good security, bearing interest. The evidence taken in the cause, clearly established the tacts set out in the pleadings. The cause being set down for hearing on the bill, answer, exhibits and proofs, was sent to this Court by consent. Fowle, for the plaintiff. Wilson^ for the defendant. Manly, J. There are several reasons which induce us to deny the object of tlie petition : The minority of the ward is now of short duration. The fund is safely invested in interest-bearing stocks of medium value, and with respect to a portion of it, at least, it cannot be changed, without loss, at this time. The unavoidable loss- es and hazards of collecting and re-investing so large an amount, makes such a measure inexpedient in any stage of a minor's wardship. There ought to be some object of prima- i-y importance m view to justify it, so near the close. No such object is suggested. The transmission to the guardian ■of the ward's person of such amounts, as, from time to time, may be deemed proper and necessary for his maintenance and education, at thisimportant period of his life, is matter of kittle inconvenience. Beyond this, we can conceive of no reason for the removal of the fund at this time, and against it stands the risks and incidental losses, which must, necessa- rily, attend the transfer. The petition sets forth, that a portion of the fund belonging to the ward, consists of moneys and securities for moneys, arising from the sale of land. This, in connection with the provision in the Rev. Code, chap. 54, sec. 33, suggests another reason, m THE SUFKEME COUKT. Thompson v. Deans. •which has some weight in influencing the discretion of the Court : The Code provides, that when personalty is substi- tuted for realty by a sale of a minor's propert}^ the substitu- ted personalty shall be enjoyed, alienated, and devised and shall descend, as by law, the property sold, would have done, had it not been sold, until it shall be restored b}^ the owner, to its original character. Considering this part of the fund, therefore, as real estate, subject to descend upon the heirs-at- law of the present owner, a further reason for retaining it within the jurisdiction of the Court, until the ward is of age, is apparent. Upon the whole case, we are of opinion that* it is unadvisable, at the present time, to make a decree for the removal of the estate. The petition should be dismissed, but without costs. Per Cueiam, Petition dismissed. ALFRED THOMPSON AND OTHEES- agmmt JOHN DEANS. AVliere a dispute existed between the owners of contiguous lands as to their dividing lines, and it Avas agreed in writing to submit the matter to arbi- tration, arKl to stand to and abide ly such lints as should be made and laid doion by the referees, and the arbitrators made an award designating divid- ing lines between the parties, which the recusant party failed to show were erroneous, it was held a proper case for the Court to decree a specific per- formance. Cause removed from tlie Coui-t of Equity of Kash county. This was a bill to compel a specific performance of an award. John Mathis, Alfred Thompson, one of tlie plaintiffs, and the defendant owned contiguous lands, and a disagree- ment having arisen among- the three as to the dividing lines between them, they entered into^ a penal obligation, dated 19th of April, 1&51, conditioned as follows : " Whereas there DECEMBER TERM, 1860. 23 Thompson v.. Deans. is a dispute between the said John Deans, Alfred Thompson and John Mathis, in regard to the dividing lines of their lands, and the said parties liave referred the said dispute to Exum L. Curl, Jesse Beal and A. B. Baines, to make lines and settle said dispute ; now, therefore, if the above bounden John Deans, Alfred Thompson and John Mathis, their heirs, exec- utors and assigns, shall stand to and abide by the said lines, as they shall be made and laid down by the said referees, and let each peaceably enjoy the same, as allotted to him by the said referees, then the above obligation to be void, otherwise, to remain in full force and effect." Signed and sealed by the parties mentioned. The abitrators met on the day the sub- mission bond was signed, and having all the parties present, went upon the premises and surveyed such lines ot the several tracts as at all concerned the controversy, and exam- ined such deeds and living witnesses as were produced. The matters in controversy may be illustrated by the follow- ing diagram : D I Dean's Lands. i *' / / Thompson's Land. B / j A Thos^. norm i Tho'mpson'3 line. \ Eatry. G E 1 F The defendant had insisted that the true boundary of his U IK THE SUPREME COURT. Thompson v. Deans. land was as represented by the letters G, F, D, whereas, the plaintiffs said it was G, E, C, so that the land in dispute is that embraced in the area E, F, D, C, of which the spaces A, B, H, and E, F, A, B, were claimed by Thompson, and the rest of it by Mathis. After examining into the matter, the arbitrators made up and delivered to the parties the following award : Know all men by these presents that we, the undersigned referees, hav- ing been called on by John Deans, Alfred Thompson and John Mathis, to settle a dispute in regard to the lines of land between them, and having met on said lands on 19th day of April, 1851, do agree to the following boundaries viz, begin- ning at a lightwood pine (G), Dean's corner in A. Thompson's line, then east 130 poles to a stake, Dean's corner in Thomp- son's line (F), then JN^orth to the original, Thomas ITorne line (A), then along the said line West to a stake, on the West side of the Great Branch, Thompson's corner in Dean's line (B), thence iSTorth, a line of marked trees to a stake, Dean's corner, in Mathis line (C)." By which award, it will be seen, that Deans obtained of Thompson the area E, F, A, B, which is about seven acres, and Thompson and Mathis obtained of the land claimed by Deans, the space B, A, D, C, about forty acres. It appears from the testimony, that on the delivery of this award each party took possession according to the lines fixed upon by the arbitrators, and in that manner continued to hold until some time after the death of John Mathis, when the defendant en- tered upon the territory embraced in the figure B, A, D, C, and still holds the same in his possession. Also, that he con- tinues in possession of the land E, F, A, B, surrendered to him by the award. The suit was brought by Thompson who ofiered to make title to the part taken from his claim, and by the children and heirs at law of Mathis, and the prayer is for a specific performance of the award by making deeds, &c., and for an injunction. The defendant in his answer insists that there is a palpable mistake in the award of the arbitra- tors, and that it would be hard and unconscionable for the DECEMBER TERM, 1860. Thompson v. Deans. plaintiffs to have a specific execution of it. The proofs taken in the case are voluminous and contradictory, but it seems that the arbitrators based their judgment chiefly on the fact that tlie lines adopted by them were old marked lines, corres- ponding in date with the deeds of tlie parties, and there were no marks on the lines rejected by them. The cause w^as heard upon bill, answer, proofs and exhibits. JS. F. Moore and Dortch, for the plaintiffs. Miller, Foiole and Iioe)'sonal property was giv- en to the widow, with an expression of mere expectation, that she would use and dispose of it discreetly as a mother, and that no trust was created in relation to it. The case was ably and elaborately argued by counsel, on both sides, and in the opinion of tlie Court, as delivered by Lowkie, J., the doctrine of both the Roman and the English law on the subject, is re- viewed with great ability; so that the decision is justly enti- tled to more than ordinary respect and consideration. In the course of the opinion, the learned Judge says : " It cannot be denied, that tiiere is a considerable discrepancy in the Eng- lish decisions on this subject, and nothing less can reasonably be expected. An artificial rule, like the one insisted on here, that is founded on no great piinciple of policy, and that sets aside, while it professes to seek, the will of the testator, must continually be contested, and must be frequentlj' invaded. And no one can read the English decisions on this subject, without suspecting that all important wills, wherein similar words are found, became the subjects of most expensive con- tests, and gave rise to those family quarrels, which are the worst and most bitter and distressing of all sorts of litigation. We m{\y well desire that such a rule may never constitute a 32 IN THE SUPREME COURT. Alston V. Lea. part of our law. It rejects the plain, common sense of ex- pressions, and it is not in hnmau nature to submit without a contest." In accordance with the spirit of this decision, we find that, not only among the later English cases, but among those of several of the States of this Union, " a strong disposition has been indicated in modern times not to extend this doctrine of recommendatory trust ; but as far as the authorities will al- low, to give the words of wills their natural and ordinary sense, unless it i:^ clear that they were designed to be used in a peremptory sense. See 2 Sto. Eq. Jur. sec. 1069 ; jScde v. Moore, 1 Sim. 34; Laioless v. SJimo, 1 Lloyd and Goold, 15J:; Forclv. Fowler, 3 Bea. 156; Knight v. Knight, lb. 148; Hart V. Hart, 2 Desaus. 83 ; Van Dijch v. Van Buren^ 1 Caines 84; Ball v. Vardy, 2 Yes. (Sumner's Ed.) 270, note b." 1 Jarm. on Wills, (Perkins' Ed.) 339, note 1. Tested by the principle of these modern adjudications there is strong ground tor contending that the testator's widow, in the case now before us, took an absolute interest in all his es- tate under his will. Such seems to be the plain import of the words ; for he gives it to her " to he hers,^'' in the strongest language which he could employ, and he gives it to her, not for their children, so that they may have a direct interest in it, but " so that she can have the right'''' of giving it to them " as she may think best." His intention appears to have been, to substitute her in the place of himsdf, and to place her as he had been, under the moral, but not legal, obligation to provide for children who were as much hers as his. And considering that he was much in debt, of which he shows by the first clause of his will tliat he was aware, and that some of his ciiildrcn were grown up and married, we need not be sur- prised that he was anxious to provide for his " beloved wife," and to leave her children dependent upon her, ratlier than her upon them. This construction is not at all opposed by the decision of this Court in the case of Little v. Bennett, 5 Jones' Eq. 156, re- ferred to and relied on by the counsel for the plaintiffs. There DECEMBER TERM, 1860. 33 Alston V. Lea. tlie devise and bequest by the testator to his widow was ex- pressly " to raise and educate my children and to dispose of the same among all my children as their circumstances may seem to require." The intention to create a trust for the chil- dren, was too direct and obvious for the Court to hesitate a moment in giving effect to it. But we need not, and do not, decide this question, because we are clearly of opinion that if the testator's widow, in the case now under consideration, did take all his proi)erty, real and personal, in trust for their children, slie took it with a power, necessarily implied from the terms of the will, to sell either the land or the personal chattels, at her discretion, and to give the proceeds to the ciiildren, or to reinvest for their benefit. The tract of land which she did sell to the defend- ant, was sold, as is clearly proved by the testimony, to save the slaves, forming part of the estate, from being taken under execution for the payment of the testator's debts. The land may be, therefore, regarded as having been converted into slaves for the benefit of the children, and this, we are satis- tied, was within the scope of her discretionary power over the estate. This view of the question is strongly corroborated by the adjudication of the Court of Appeals in Virginia, in the case of Steele v. Zivesay, 11 Grat. Rep. 454, to which our attention tion was called by the counsel for the defendant. In that case, the testator said that "having implicit confidence in my beloved wife, and knowing that she will distribute to each of my childaen in as full and tair a manner as I could, I hereby invest ray said beloved wife with the right and title of all my property, both real and personal, to dispose of to each of my children in any way she may think proper and right." By a subsequent clause of the will it was provided that if the wid- ow shotdd die without making a will, the children should have an equal distribution of the testator's estate. After a full argument, it was decided by the Court that the widow iiad an unlimited discretion as to the time and manner of dis-^ tributing the property {imong the testator's children. She 3 34 IN" THE SUPREME COURT. Whitley v. Foy. might distribute it, or any part of it, in her life-time, or at her death by any instrument proper for the purpose, or she might distribute to either child such kind of property as she might choose to give him or her. It was held further, that the wid- ow might sell or convey the whole, or any part of the proper- ty and distribute the proceeds of sale. xYnd that having a discretion as to the time and manner of distribution, a pur- chaser of land from her was not bound to see to the applica- tion of the purchase money. The course of argument which led the Court, in that case, to the conclusion that the will of the testator conferred upon liis widow an implied power of sale, will lead to the same re- sult in our case. Here the legal title of the testator's whole estate of every kind, is unquestionably vested in his widow, and the property is declared to be hers, for the very purpose that she may have " the right of giving " it to the children "as she ma^'- think best." The intention of the testator to give his wife an ample discretiona.iy power over his estate, to l3e exercised for the benefit of his children, is too clearly mani- fested to be disregarded. The bill must be dismissed with costs. Per Curiam, Decree accordingly. JOSEPH C. WHITLEY AND OTHERS Ex's against CHRISTOPHER FOY, Adinr AND OTHERS. Where an agent deposited money in bank as an ordinary deposit, stating at the time that it was the money of his principal, but desired the officer to place the money to his own credit on the books of the bank, alleging that he might have occasion to use it for the benefit of his principal, and the agent died shortly afterwards insolvent, it Avas held that the principal was entitled to the fund, and might follow the same in a court of equity. DECEMBER TEJRM, 1860. 35 Whitley ». Foy. Cause removed from the Court of Equity of Craven county. Edward S. Jones, the testator of the plaintiffs, resided in the State of Alabama, but owned a plantation and slaves in the county of Onslow, in the State of North Carolina, upon which he was engaged in planting cotton. The intestate of the defendant, Foy, one John Oliver, was the overseer for the said Jones upon this plantation, and was in the habit of dis- posing of the crops as his agent. In the spring of 1858, Oli- ver went to Newborn and sold the crop of the preceding year, and received the money therefor, which amounted to the sum of $1000. This money the said Oliver deposited at the Branch of the Bank of the State at Newbern. When he made tliis deposit, he stated that it was the money of Edward S. Jones, but that he wanted it placed to his own credit on the books of the bank, as he might have occasion to use it for the benefit of his principal, as he lived in Alabama, Shortly af- terwards, Oliver died, when the plaintiffs' testatof Jones, made a demand on the officers of the bank for the money, which they refused to pay. It was admitted by the plaintifts' coun- sel in this case, that the deposit was not a special one, but that the money was mingled with the other monies of the bank. The bill is filed to obtain a decree for the payment of the fund to the plaintifis as the executors of the said Jones, who has since died ; the claim is resisted by the defendants, the administrators of John Oliver, who claim the fund as assets of the estate of their intestate. The bank of the State is also made a party defendant. The cause being set for hearing upon the bill, answer, ex- iiibits and proofs, was transferred to this Court by consent. J. W. Bryan^ for tiic plaintiffs. Huhbard, for the defendants. Batfle, J. The claim of the plaintiffs to the funds in con- Iroversy, is clearly sustained both by reason and authority.— This contest being between the personal representatives of a 36 IN THE SUPKEME COUET. Whitley v. Foy. principal and agent for an amount of money which the agent had received for the principal, which he always admitted to- belong to the principal, the latter certainly has the right ta claim what is conceded to be his own, so long as he can iden- tify it. This proposition is too plain to be denied, but the counsel for the defendant, Foy, the administrator of the agent, insists that the money cannot be identified, because it was de- posited in bank as an ordinary, and not a special deposit, to the credit of the agent, and that it tliereby became the money of the agent, and he at the same time became the debtor of the principal for the amount. That cannot be, because it was deposited expressly as the money of the princi[)al and not of the agent, and was placed by the latter to his own credit, sole- ly for the purpose of enabling him to x)ay it with more con- venience to his principal, or apply it to his use. Such being the state of the case, the rule applicable to it is, that "a principal in all cases, where he can trace his pro- perty, whether it be in the hands of the agent, or of his repre- sentatives or assignees, is entitlecl to reclaim it, unless it has been transferred honoyjide to a purchaser of it or his assignee, for value without notice. In such cases, it is wholly immaterial whether the property be in its original state or has been con- verted into money, securities, negotiable instruments or other property'-, if it be distinguishable and separable from the oth- er property or assets, and has an earmark or other appropri- ate identity ; Taylor v. Phimmei\ 3 Maul, and Sel. 562 ;. Yeil V. Mitchell 4 Washington C. C. Eep. 105 ; Jackson v. V. Perhins, 3 Mason's Eep. 232 ; Scott v. Surman, Willes' Eep. 400 ; Whitecomh v. Jacot, 1 Salk Eep. 166 ; Jaclcson v., Clark^ 1 Young and Jer. 216." The above extract is from the case of 0-vefseers of the Poor of Norfolk v. The Bank of Virginia^ 2 Grat. Eep. 544, in which it was held that the plaintiffs were entitled to money deposited to his own credit by their agent, he having soon after died insolvent. The same principle, which is that of following a fund in equity, is clear- ly settled by several decisions- in our State. See Black v. DECEMBER TERM, 1860. 37 Carman v. Pajre. ^ay, 1 Dev. and Bat. Eq. 433 ; Bateman v. LatJiam, 3 Jones Eq. 35, and Wood v. jReeves, 5 Jones Eq. 271. The plaintiffs are entitled to a decree for the amount claimed. Pee Cueiaai, Decree accordingly. TERESA CARMAN against STEPHEN PAGE. Where both parties to a trade for the sale .of slaves had full time for delibera- tion, and the deeds were executed without secrecy, and attested by a re- spectable witness, and there was no evidence of mental incapacity, and no sufficient proof of a gross inadequacy of price, it was held that the transac- tion should be sustained. -Gross inadequacy ofprice is not sufficient, in itself, to set aside a deed, al- though it is a strong circumstance, tending with others, to make out a case of fraud or imposition. Cause removed from the Court of Equity of Carteret county. The bill seeks to have a conveyance of certain land and slaves set aside, on the ground of fraud practised in procuring it. It alleges that the plaintiff was joint-owner with her sis- ter, one Mary Heath, of a remainder in a valuable lot of slaves, dependant upon a life-estate in one Edmund Heath, which slaves, it allogesj wore worth ten or twelve thousand dollars. The bill further alleges, that in the summer of 1857, defendant applied to plaintiff to purchase her interest in said slaves, having several times before importuned her to sell them to him, and informed her that he was the owner of the interest that had before belonged to Mary Heath, and offered $1000 for plaintiff's interest, which offer, was declined ; that fiome days after this conversation, defendant again called and informed her that he had been informed by a gentleman of the bar, that there was some doubt about the title to the re- mainder in these slaves, after the death of Edmund Heath, IN THE SUPREME COURT, Carman v. Page. and proposed that they should compro-mise with the children of Edmund Heath, who were, as he alleged, the claimants of the slaves, and would bring suit for them when the life-estate determined ; that some time after this last interview the plain- tiff was taken sick, and that while prostrated hj disease, she yielded to entreaties of the plaintiff, and signed the deed in question, which was not even read to her and of the contents of which she was entirely ignorant, and that the . price men- tioned in said deed, was only $1100. The answer denies that the defendant importuned the plain- tiff, but alleges that plaintiff, on several occasions, sent for him and offered to sell her interest in the slaves at the price of $1500, and that on the occasion when the deed was made, he called on her by her request ;, that the terms of the sale were proposed by the plaintiff herself, and were, that defendant should pay her 100 dollars down, and the balance in one, two, three, four and five years, with good security^ without interest, and that this was a fair price, as Edmund Heath, though a man in advanced life, being between seven- ty and eighty years of age, was, nevertheless, of robust con- stitution, and had promise of a long life, Elizabeth Pearce deposed that she was acquainted with the plaintiff in 1857; that just before the execution of the deed in question, plaintiff sent for her, and desired her to see the defendant and request him to call and see her, that she might sell him her interest in the slaves ; that she informed defendant of plaintiff's request, and was at plaintiff's house when defendant called ; that the former offered the p-roperty for the price of $1500, which the latter refused to give ; but offered lier $1000, but that they did not conclude a bargain. Witness further testified, that the plaintiff after- wards sent for her again, and desired her to request defend- ant to call again, which she did ; that she was present at this interview, and that plaintiff still asked $1500, which defend- ant still refused to give ; that the plaintiff then offered to take $1100, payable, as alleged in the answer, and that these terms were accepted by the defendant ; that he then infornir- DECEMBER TERM, 1860. 39 Carman v.. Page. ed the plaintiff, that he would have the notes and the bill of sale drawn, and thereupon left the house ; that he afterwards re- turned with one O'Leary ; that Mrs. Carman was sitting on the bed ; that O'Leary took a seat near her and read the bill of sale to her and afterwards read the notes ; that the $100 was then paid and O'Leary left, and that Mrs. Carman seem- ed satisfied, and that her mind, at these interviews, was as good as she ever saw it ; that she afterwards had many con- versations with her, and that she always seemed perfectly satisfied with the whole transaction. A number of witnesses testified that they considered the plaintiff a woman of sound mind, capable of transacting or- dinary business, and also that $1000 was a fair price for the remainder in the property dependant on the life-estate of Ed- mund Heath. James A. Perry, a son-in-law of the plaintiff, testified that he had managed her business for her for some years, and that her mind was weak, and that she was easily influenced. Dr. O. W. Hughes testified, that the plaintiff sent for him in the year 1857, in regard to these negroes, and asked him $1200 for them ; and gave as a reason for desiring to sell them, that she was on bad terms with her son-in-law, and wanted to realise means to live on. Daniel O'Leary testified, that he drew the bill of sale and the notes at the request of the defendant, and went with him to the house of Mrs. Carman, and read them over to her twice or three times, and that she remarked that they were accord- ing to the contract. This witness attested the bill of sale. The cause being set for hearing upon the bill, answer, exhib its and proofs, was transferred to this Court by consent. ♦ J. W. Bryan, for the plaintiff. McBae, for the defendant. Pearson, C. J. The allegations of the bill are not sustain- ed by the proof. It is not proved that the plaintiff was of un- sound mind at the time of the dealing mentioned in the 40 IN THE SUPEEME COURT. Carman v. Page. pleadings. There is no proof that any fraud or artifice was resorted to, for the purpose of inducing her to sell. Both parties had full time for deliberation, and the deeds were ex- ecuted without secrecy, and attested by a respectable witness. So, the plaintiflFhas no ground to stand on, except the allega- tion of gross inadequacy of the price, which is not sufficient to set aside a deed, although it is a strong circumstance, tend- ing with others, to make out a case of fraud or imposition. The price, in this case, does not appear to have been gross- ly inadequate. The plaintiff offered several times to sell at $1500, and the difierence between that sum and $1100, can hardly be treated as enough to make out the imputation of fraud. Upon the whole, we are satisfied that the plaintiff had made up her mind that " a bird in the hand was worth two in the bush," and having some fear that the title might be drawn into question, and having no particular wish to retain property, of which she could not have the enjoyment, except as a fund to bestow upon her nephews and -nieces, who were the parties by whom she apprehended her title might be dis- puted, was willing to sell at a " low figure." And the de- fendant did no more than avail himself of what he considered a chance " for a speculation." Such dealings, though not en- couraged by the courts, are not forbidden by law. The plaintiff having failed to establish any equity, the bill "will be dismissed. Pek Cueiam, Bill dismissed. DECEMBER TEUM, 1860. ^% ^IcNeill V. Bradley. DAVID SWINDALL, by his next friend, WILLIAM J. McNEILL, v. WILLIAM BRADLEY. Where the owner of a life interest in slaves, a demoralised and needy man, who had made a sale of all his property, enquired of a person whether he could be subjected, criminally, if he removed the slaves out of the State, and intimated to another, after a suit was brought, that if he could get the slaves in his possession, the remainderman should never receive any bene- fit from them, it was held a proper case for a writ of sequestration. ArpEAL from an order made by French, Judge, at the Fall Term, 18C0, of tlie Court of Equity of Bladen count}'. The cause having been set for hearing, was heard below upon the bill, answer and proofs, tilctl b}- both parties, and it was ordered that the sequestration, which had theretofore is- sued, sliould be dissolved, from which order, the plaintiff ap- pealed to this Court. The facts of the case, upon which the decision is mainly founded, are suffibiently stated in the opinion of the Court. Zeitch, for the plaintiff. FowIg^ and C. O. Wriyht, for the defendant. Manly, J. Any doubt as to the merits of this case, as it was presented by the bill and answer alone, has been entire- ly dissipated by the proofs subsequently taken. The case is a strong one, for tlte interposition of a court of equity to pro- tect the minor, who is entitled in j-emainder. It seems that complaiYiant is a son by a former liusband of Mary Bradle}^, wife of the defendant ; tluit defendant has separated himself from his wife, and has another woman liv- ing with him ; that he has sold all tlie property, acquired by his marriage, except the slaves in question, and has no pro- perty besides ; that he consulted with II. H. Kobinson some- time before the suit, wlietlier he (defendant) would incur any criminal responsibility, if lie sohl them, and that he has inti- mated since the suit was instituted against him, in indirect, but iutelligible terms, that if he could again get possession of IN THE SUPREME COURT. Elliott V. Pool. them, he would put them beyond the reach of the claimant. These leading facts, now developed in the case, convince us, that the danger to the property, in the Imnds of the de- fendant, would be imminent, and that it is highly expedient and necessary, the person in remainder should be protected by the writs heretofore granted in the cause. The testimony from one witness (Robinson) is, alone, con- clusive of the case. From his testimony, it appears the de- fendant deliberately meditated a conversion of the slaves out and out, to his own use, and was making the plan turn in his mind, upon the point, whether it involved any criminal re- sponsibility. A person who could entertain such thoughts^ requires, in the opinion of this Court, other restraints than, those of a moral nature. This is especially so, when such person is found under de- moralizing and necessitous circumstances. Therefore, the decree of the Court below, dissolving the sequestration in the cause, should be reversed, and a decree, in conformity with this opinion, to continue the sequestration. Pee Cukiam. Decree accordingly. AARON ELLIOTT AND OTHERS against JOSEPH H.. POOL AND ANOTHER. Where ihe trustee ol an insolvent debtor, under a deed of trust which left out certain creditors, bought property at his own trust sale at less than its vulue, but without any actual fraud, in a suit by the unsecured creditors to compel a resale of the property for their benefit, it was held that such trus- tee was entitled to have honafide debts due him from the trustor satisfied out of the increased price obtained by a resale of the property before the unsecured creditors could come in. This was a petition to rehear a decree of the Court passed at the December Term, 1856. The facts upon which that de- DECEMBER TERM, I860; 4a Elliott V. Pool. cree was based, are set out in 3d vol. Jones' Eq. 17, and they,, with the further facts upon which the decision at this term is founded, are suflSciently set forth in the following opinion of the Court. B. F. Moore ^ for the plaintiff. Foiole. for the defendant. Battle, J. When this cause was heard, and an account ordered at December Term, 185G, the question presented in the petition to rehear, was either not argued by the counsel, or if argued, was overlooked by the Court. It certainly was not decided, as appears from the opinion on file, and. reported in 3d Jones' Eq. 17. It is, therefore, a proper subject for con- sideration upon the petition to rehear the former decree. The question thus presented, is an important and interesting one, and we are gratified that, in the investigation of the princi- ples upon which it is to be decided, we have been materially aided by the able arguments which have been submitted to us by the counsel on both sides. In proceeding to state the pro- cess of reasoning by which we have been led to the conclusion to which we have come, it will aid us to advert to the facts upon which the question is raised. They ai-e briefly as follows: One Jesse L. Pool, being greatly in debt,. and, as it afterwards appeared, insolvent, on 30th day of January, 1841, executed a deed in trust to the defendant, Joseph II. Pool, conveying to him a large real and personal estate, consisting of land, slaves and other personal property, being in fact all he owned, in trust that he should, when he might deem proper, advertise and sell the same, either for cash or upon a credit, and apply the proceeds to the payment, in the first place, of certain debts recited in the deed, due and owing to the said trustee, or for which he was surety, and in the second place, to the payment of a debt due to one John Pool, and then, should tliere be a residue of property, after discharging these liabili- ties, it was to be conveyed by the trustee to the grantor, Jes- se L. Pool. In the year following, Jesse L. Pool died, and M IN THE SUPREME COURT. Elliott V. Pool. shortly thereafter, to Mdt, on the 1st and 3d days of Decem- ber, 1842, the defendant, Joseph H. Pool, after due advertise- ment, sold all the property conveyed to him in the deed of trust, and, by his agent, became the purchaser of a valuable tract of land, and several of the slaves. The whole amount of sales was sufficient to pay and discharge all the debts men- tioned in the first ckss, and a part of tlie debt due to John Pool, leaving a part of that debt unpaid. This appears from exhibits filed with the answer of Joseph II. Pool, which con- tain statements of the accounts of tlie sale, and the amounts of the several debts secured by the deed of trust. The de- fendant, Joseph II. Pool, being afterwards advised that he could not, legally, become a purchaser at his own sale, and that the heirs-at-law and personal representative of Jesse L. Pool could, at their discretion, have his purchases declared void, and call for a reconveyance, or a resale of the property, procured a friend to take out letters of administration on the estate of the said Jesse L. Pool, and then filed a bill in the court of ecj^uity against the heirs and administrator of the de- ceased, calling upon them to elect either to repay him the amount of his bids, and take a reconveyance of tlie property, or to permit him to have his purchases confirmed by a decree of the court. On this bill such proceedings were had, that a decree was made, confirming the purchases made by the trus- tee, and perpetually enjoining the heirs and administrator of the grantor in trust, respectively, from setting up a title to the property. Tlie present bill was filed by the plaintiffs, as cred- itors of Jesse L. Pool, not secured by the deed in trust, charg- ing fraud on the defendant, Josepli 11. Pool, and seeking to hold him accountable for the full value of the land and slaves, whicli he purchased at his own trust sale, and wliich value was alleged to be much greater than that at which the proper- ty was purchased. After an answer was filed to tlie original bill in 1848, the defendant, Joseph II. Pool, instituted suits at law against the administrator of Jesse L. Pool for certain debts which he alleged to be due him, and which were notin- ^cluded in the deed in trust In these suits, the defendant fDEGEMBER TERM, 1860. 4^ Elliott V. Pool. pleaded a want of assets, whieli was admitted by the plaintiff, and judgments quando were taken for the amounts claimed. After this, the defendant obtained leave to file a supplemen- tal answer, in wliich he claimed tliat if he should be held to be accountable to the plaintiffs for the increased value of the land and slaves, purchased by him, as has been before men- tioned, lie should be allowed, as credits, the amount of the debts due him from Jesse L. Pool, and for which he had ob- tained the judgments above referred to. The right of the plaintiffs to the account was establisli«d by the decree made at the hearing of the cau&e, and the question, whether the de- fendant, Joseph II, Pool, is entitled to the credits which he claims, either upon the ground of retainer, or as an equitable set-off, is the one now presented to us upon the petition to re- hear. The doctrine of equitable set-off, was established as one of the principles of the court of chancery prior to the enact- ment of any statute authorising sets-off in a court of law. — Judge Story, in delivering an opinion in the case of Greene v. Darling^ 5 Mason's Pep. 201, in the circuit court of the United States, held in Phode Island, made an elaborate re- view of all the English cases on the subject, from which he drew the conclusion " that courts of equity will set off distinct debts where there has been a mutual credit y upon the prin- ciples of natural justice, to avoid circuity of suits, following the doctrine of compensation of the civil law to a limited ex- tent. That law went further than ours, deeming the debts, 8110 jure, set off or extinguished ^:>rc> tanto j whereas, our law gives the party an election to- set-off, if he chooses to exercise it ; but if he does not, the debt is left in full force, to be re- covered in an ordinary suit." The learned Judge then pro- ceeds to say "since the statute of the set-off of mutual debts and credits, courts of equity have generally followed the course adopted in the construction of the statutes by courts of law, and have applied the doctrine to equitable debts ; they have rarely, if ever, broken in upon the decisions at law, unless some other equity intervened which justified them in granting relief IN THE SUPEEME COURT. Elliott V. Pool. beyond the rules of law, such as has been already alluded to. The American courts have generally adopted the same prin- ciples as far as the statutes of set-off of the respective States have enabled them to act." In North Carolina we have had a statute of set-oflt" ever since the year 1756, (see Rev. Code of 1820, ch. 57, sec. 7 ; Rev. Stat. ch. 31, sec. 80,) which is em- bodied in the Revised Code, ch. 31, sec. 77, as follows : " In cases where there shall be mutual debts subsisting between the plaintiff and defendant ; or where either part}'^ may sue or be sued as executor or administrator, and there are mutual debts, subsisting between the testator or intestate and either party, one debt may be set against the other, either by being plead- ed in bar, or given in evidence on the general issue, on notice given of the particular sum intended to be set-off; and on what account tlie same is due, notwithstanding such debts shall be of a different nature ; but if either debt arose by reason of a penalt}^, the sum intended to be set-off, shall be pleaded in bar, setting forth what is justly due on either side." It is manifest from the enactment that we allow sets-off to be made at law, where the debts are mutual, without regard to the en- quiry whether they be founded on mutual credit, that is, one contracted on the faith and credit of the other, and our court of equity will be found to have acted on the same principle with regard to equitable sets-off. See Iredell v. Zangston, 1 Dev. Eq. 392 ; Sellars v. Bryan^ 2 Dev. Eq. 352 ; Bunting v. Eiclcs, 2 Dev. and Bat. Eq. 130. In the case before us, it is contended b}' the counsel for the defendant, Joseph H. Pool, that by the application of this principle, he had a right to set-off the debts due him from the estate of Jesse L. Pool, against the claim preferred against him by the plaintiffs. The counsel insists that lie would have had a right to do so as against Jesse L. Pool himself, or against his heirs and personal representative, and, consequently, against the plaintiffs who, according to the opinion heretofore filed in the case, have " to work out their equity " through the representatives of the deceased debtor. The counsel for the plaintiffs argues in opposition to this alleged right of set-off, DECEMBER TERM, 1860. M Elliott V. Pool. contending that Joseph H. Pool was bound as trustee, by the express words of the deed under which he acted, to sell the property conveyed to him, and after satisfying the debts se- cured by the deed, to reconvey tlie residue to the grantor in trust ; that his purchase at his own sale did not divest the property, so purchased, out of his hands as trustee, and that consequently'^, he is still bound to convey or account for it or its value, to the plaintifls who stand in the place of the repre- sentatives of the deceased debtor. It would be difhcult to answer this argument, or to impair its strength, if the sale of all the property conveyed in the deed of trust had been unne- cessary, or if the sale had been conducted in an illegal man- ner, BO as to have infected the defendant, Joseph II. Pool's purchases with actual fraud; butsucli does not appear, upon the proofs, to have been the case. It seems from the account of the sales, and the statement of tlie amount of the debts se- cured by the deed in trust, which are filed as exhibits, that a sale of all the property was necessary, and the proofs do not satisfy us that there was any actual fraud in the manner in which it was conducted. The decree heretofore filed in the cause, does not put this defendant's liability to the plaintifi^s, on that ground, but upon the broad ground of policy, which forbids a trustee to purchase at his own sale. That policy has established " the rule that, however fair the transaction, the cestui que trust is at liberty to set aside the sale and take back the property. If a trustee were permitted to buy in an hori' est case, he might bu}^ in a case having that aj)j)ea)'ance, hut which, from the infirmity of human testimony, tniyht he gross- ly otherwise?'' Such is clearly the rule in the English courts of equity, and the reason upon wliich it is founded ; and we believe it will be found that our courts of equity have adopt- ed the same rule, and for the same reason. See Lewin on Trusts, 87 Law Lib. 39i (m. p. 460.) According to this rule, then, the purchase by a trustee, at his own sale, is not abso- lutely void, but only voidable at the election of the cestui qiie trust. The latter may, if he think that it is his interest to do 60, let the purchase stand and compel the trustee to pay the 48 IN THE SUPREME COUET. Elliott V. Pool. price, or he may have the sale set aside, and the property re- sold. The rule is manifestly well adapted to accomplish the purpose which it has in view ; which is to prohibit trustees from attempting to make a profit out of the property which they are entrusted to sell, for if they, by purchasing it, make a bad bargain, they may be held to it, but if a good one, it ma}'^ be taken from them. There cannot be a doubt, then, that if, in the present case, Jesse L. Pool, the grantor in the deed of trust, were alive, he could, in a court of equity, have the purchases of the land and slaves, made by the trustee, set aside and the property resold, and hold the trustee responsi- ble for the price obtained upon such resale. But could he re- cover from him the amount of the advanced price without be- ing liable to have any honafide debt which he owed the trus- tee set-off against his demand ? "We think not. The claim of each against the other, would be mutual, and in equity the real debt due from one to the other would be the excess of one of the claims over the other. 'When the cestui que trust came to seek the enforcement of an equity by the court, he would be^ met by the maxim " that he who seeks equity must do equi- ty." The original considerations upon which these debts are founded, are not set forth in the supplemental answer, but from the transcripts of the record of the judgments obtained thereon, it would seem that they were moneys paid by the trustee as surety for his cestui que trusty and if so, it would be a hard rule which would enable the cestui que trust to recov- er the full value of the property purchased by the trustee at his own sale, without repaying to him money which he had been compelled to pay as the surety of his cestui que trust. — In the case of Iredell v. Langston, above referred to, Hen- DEKSON, Chief Justice, said " I doubt whether a creditor can call the funds out of the hands of the trustee without paying all the debts of the cestui que trust to the trustee." He was not speaking, of course, of a creditor whose debt was secured by a deed in trust ; and if there be a doubt whether any oth- er creditor could call the funds out of the hands of the trus- DECEMBER TERM, 1860. 4^ Brown v. Haynes. tee, without paying the debts of the cestui que trust to hiiri^ surely the cestui que trust himself could not. If the proposition then be established that the defendant, Joseph 11. Pool, would have had a right to set-off his debts against the demand of Jesse L. Pool himself, we think it plain, tiiat the court of equity, acting in analogy to the express words of the statute, as to a set-otfat law, must have allowed the defendant's debts to have been set-off against the demand of the cestui que trust in a suit by his representatives. It has robata^ (construed as con- tended for,) goes beyond the allegata ! 4. The fourth exception is overruled. This applies to the four notes, amounting to $434:4.40, which are referred to above. The idea that a partner, without the express concur- rence of his copartner, can make a note of the firm paj^able to himself, and charge the firm with it, is too monstrous to be entertained for a moment! The only motive that can prompt one to manufacture secret evidence of this kind, must be that he prefers to keep the evidence in his pocket, rather than put it on the books, where it would be subject to the inspection of his copartner. In our case, the proof is, that the defend- ant did not have the means to enable him to advance such 56 m THE SUPEEME COUKT. Brown v. Haynes. large sums for the nse of the firm ; indeed, it would seem that he was barely able to support himself and his wife. 5. The fifth exception is overruled. The answer seeks to charge the firm with a note for $525, dated August the 8th, 1853, and sets forth " this note was given for a negro boy, Burton, the property of the firm, taken by tlie intestate." — This is one of the four notes embraced in tlie fourth excep- tion, and the defendant failing in his attempt to have the note allowed, seeks to set up a charge against the firm for the val- ue of the slave, on the ground, that the slave was purchased and paid for by the firm, and afterwards appropriated by tlie intestate to his individual use. If such was the case, the in- testate ought to have been required, when he took the slave, to give his note to the firm, or been charged with the amount on the books, and it was a strange notion, on the part of the defendant, that he could make it the foundation of a note by the firm to himself for the value of the slave. This circum- stance, together with the absence of any entry on the books, in respect to it, puts suspicion on the transaction. It is proved that the slave went into the possession of Brown, and was claimed by him as his individual property. For the purpose of showing that he was bought and paid for by the firm, the defendant relies on the testimony of his father, who says " I sold the firm a bo}^, Burton ; he was paid for out of the firm funds ; afterwards, Mr. Brown took the boy to his plantation, and told me he was to account for him to the firm. I don't recollect what I got for Burton, I sold them another negro at the same time ; I think it was between $700 and $800 that I got for both bo3's." ISTo explanation is given how this witness' happened to know the fact, that the price of this boy was " paid for out of the firm funds." Witness says, " I don't recollect when I sold him, nor do I recollect where Thos. Haynes lived at the time." It may be his son told him so ; it was in character with the fact that he should, thereupon, make a note payable to himself, for the full value of the boy, and put the name of the firm to it. But, however this may be, as it was the business of the defendant to keep the books, DECEMBER TERM, 1860. 57 Brown v. flaynes. and to have charged Brown with the value of the boy, if, in truth, lie had been the property of the firm; in the absence of any entry on the books, we cannot, upon loose testimony, like this, declare that the defendant has supported the charge ; and strongly incline to the opinion, that, as it was not a part of the business of the firm to trade in negroes, as no bill of sale is produced by the defendant, who ought to have taken one, and no enti-y was made on the books in respect to it, con- nected with the fact tliat the dei'endant manufactured the note above referred to, that the defendant bought the i)<>y as tin; agent of lirown, and nr>t as a member of the Jinn ; at all events, there is no sullicient pi'oof that the slave was ])aid for out of the funds of tlie firm. 6. The sixth exception is overruled. The answer seeks to charge the firm with a note of $900.79, dated the 15th of Feb- ruary, 1855, and sets forth, " This was given on the settlement of Ilenrj'^ W. Brown and Michael S. Bi-own's estates, one half of this sum belonged to this defendant, and the other half to M. L. Brown." This is also one of the four notes embraced in the fourth exception, and the defendant failing in his at- tempt to have the note allowed, seeks to set up a charge against the firm, for the amount, on the ground that the firm had received the commissions due on settlement of the estates of Henry and Michael Brown. If sucli was the fact, ihe books of the firm ought to show it, but there is no entry on the books, and no pi'oof of the allciration, and the firm does not seem to have been in any way connected with these two es- tates, except by the strange notion of the defendant that he could make it the foundation of a note by the firm to himself, as he did in respect to the slave. Burton. 7. The seventh exception is overruled. It appears by the proofs that the defendant had been acting as a clerk in a store for a year or two before he married, and entered into business with his father-in-law ; he had no funds when he left the store, and was actually in debt to hisemployer some seventy dollars. So, he was not able to make advances for the firm, and does not alledge, in his answer, tliat he did so. The evidence of 68 m THE SUPREME COURT. Brown v. Haynes. his father, on which this exception is based, is another instance where the probata reaches beyond the allegata. W. IT. Ilajnes deposes, " I let him, (mv son,) have money at different times; the largest amount I recollect of letting hira have at any one time, was $400." In answer to a question, on cross-examina- tion, " Did you make a gift of the money to your son which you say you let him have, if not, did you lend it to your son or to the firm, and was it ever paid back to you "? The wit- ness says, "Not tlie whole of it; $-100 was borrowed by the firm to purchase hides with, and one half of it has been paid back by the firm, the balance of the mone}^ was a gift." This witness lived some twenty miles distant, in another county, and had no opportunity of knowing the business of the firm, except what M'as communicated to him by his son. So, the most charitable construction of his testimon}^ is, that his son told hiin that the money was borrowed by the firm. The books furnish no evidence of the fact that this $400 went to tile use of the firm, and, in the absence of that proof, this evi- dence is not sufficient to support the charge against the firm. 8, The eighth exception is overruled. This is another item embraced by one of those " four unfortunate notes." It is enough to say that the note of Rymer and others, for $600, is on its face, payable to M. L. Brown, individually, and there is no evidence that it ever did become the property of the firm. In passing on all of the exceptions, we have been governed by a well established rule in the law applicable to copartners, i. e. where a partner, whose duty it is to keep the books, seeks to make a charge in his own favor, which is not supported b}'^ a proper entry on the books, he must account for that fact, and can only support the charge by clear proof; for every presumption is made against him, inasmuch as between part- ners, their books have the verity of a record. If the defend- ant, by the application of this rule, has lost any one claim, which is a just one, it is his misfortune, and the result of his own neglect in not making the proper entry. The matter was not helped by his attempt to manufacture evidence in order to DECEMBER TERM, 1860. 59 Fleming v. Murph. supply the omission, and he was certain!}' ill advised in ui'g- ing charges upon insufficient proof. There will be a reference, in order to show the balance af- ter bringing into the account the sum of $2021.49, which was omitted, and the report will be in all things confirmed. Per Curiam, Decree accordingly. JOHN G. FLEMING, Exr., against JEFFRY ilURPH. Where, in a suit for an account, plaintiff obtained leave to examine defendant upon oath, before the master, and lie was interrogated as to the items of plaintiff's account, it was held that defendant's answers were evidence for himself, only so far as they were responsive to the questions, and that he could not, in this way, prove his charges against plaintiff. Where the plaintiff, in a suit, failed to file a replication to the answer, and tlie parties proceeded to take proofs in the cause, this was held a waiver by the defendant of a replication, and the Court allowed an amendment under the 17th section of the 33rd chap, of the Rev. Code. Cavse removed from the Court of Equity of Rowan county. The bill is filed against the defendant as a partner of the plaintiff's intestate in a saw-mill, and prays for an account and discovery of the matters pertaining to the copartnership. Upon the coming in of the answer, the cause was referred to the master to state an account, and leave was given to exam- ine the defendant upon oath. Upon his examination before the master, he testified tiiat plaintift''s account was correct, with the exception of two items; he then proceeded to state that the phiintiif's intestate was indebted to him for work done on his farm, and also on his mill, for which sums, he alleged the intestate had failed to give him credit on the books ; these, he proceeded to prove in detail. ^ IN THE SUPEEME COUKT. Fleming v. Murph. Plaintiff objected to the defendant's proving his account by his own oath, tor the reason that it was more than two j^ears old, and to his proving more than sixty dollars of it, if it were not two years old. But the master permitted him to prove his whole account. For this, tlie plaintiff excepted to the report. The cause being set for hearing upon the bill, answer, proofs, report of the master and exceptions filed, was trans- mitted to this Court. Fleming and Bar^jer^ for the plaintiff. Boyden^ for the defendant. Battlp:, J. There is one question embraced in the plain- tiff's exception to the master's report, which, if sustained, will render it necessary to have the account retaken. It is, that though the plaintiff examined the defendant, under an order of the Court, obtained for that purpose, his answers are not evidence for himself, except where they are directly respon- sive to the interrogatories put to him. It is cleai'ly settled that an answer, to which a replication has been filed, is only evi- dence for the defendant, in the particulars in which it is re- sponsive to the allegations of the bill, and that all other mat- ters of defense therein set up, must be proved by the defend- ant ; 2 Stor. Eq. sec. 1528 and 1529. Neither Judge Stoey, nor any other elementary writer, whose work we liave exam- ined, states, particularly, what effect is to be given to the an- swers made by defendant, when examined upon interroga- tories, but in the case of Chaffin v. Chajjin^ 2 Dev. and Bat. Eq. 263, KuFFiN, C. J., whose knowledge of equity practice was extensive and accurate, said with respect to the examin- ation of a defendant upon the stating of an account before the master, that " it has been thus made evidence for him, so far as it is responsive to tiie interrogatory, in the same man- ner, and upon the same principle, that the defendant's answer is evidence for him." " In suits for accounts," (he continued) " it is impossible tlie pleadings can put every matter pre- cisely in issue, and, therefore, wlien the parties go before the master, the plaintifi's may help out their bill by special inter- DECEMBER TERM, 1860. 61 Fleming v. Murph. rogatories to the other party. Bnt then, tlie interrogatories must be looked at in the light of being particular charges, supplemental to those more general one's of the bill ; and so the responses are, in this serse, to be transferred to the an- swer, and made evidence in the cause, though subject to con- tradiction." It appears then, that the answers, made by a defendant, to interrogatories upon his examination before the master, are evidence for him, upon the same principle, and to the same extent only, as is his answer to the bill. It follows, that if he be examined as to the items of the plaintirt" 's ac- count, his reply will be evidence for him, ui)on the ground, that as to them, the plaintiff has made him a witness in the cause, and the sauie rule would apply as to any other mat- ters, about which the plaintiff might think proper to interro- gate him ; but he cannot be allowed to become a witness for himself to prove charges, which he nuiy have made against the plaintiff', and as to which, no interrogatories have been put to him. Such charges he may prove to the extent of sixtj' dollars, if he be prepared to do so, under the book debt law; and ali above that amount, he must prove, if ho can, by independent testimony. In the present case, however, the counsel, for the defendant, contends that the answer to the bill, must be taken as true, because there was no replication tiled. This would be so, if the parties in the Court below had not proceeded to take proofs, as if a replication had been filed. The transcript shows that the cause was set for hearing upon bill, answer, proofs, report of the master and exceptions filed, and then, by consent, was transferred to the Supreme Court. When proofs have been taken, we consider the case as if a replication had been filed, and we allow an amendment to that effect here, as we are authorised to do by the 17th sec- tion of the 33rd chapter of the Revised Code ; see Jones v. /*oston, 2 Jones' Eq. 184. The cause must be referred again to the master to state an account between the parties, upon the principle herein de- clared. Pek Curiam, Decree accordingly. 62 IN THE SUPKEME COUKT. Williamson v. Williams. AMELIA WILLIAMSON AND OTHERS agaijist H. B. WILLIAMS. A guardian is entitled to commissions on payments made for goods bought of a firm, of which he was a member ; but not on charges for board while his ward lived in his family. Where a guardian waited six months after the principal in a note, held by him as guardian, died insolvent before he sued the surety, who also be- came insolvent before suit was brought, such surety, though much indebt- ed, being, up to one month before his failure, in good credit, and failed suddenly, the guardian having opportunity all the time of knowing the true condition of the obligors, it was held that by his laches, he made himself responsible for the loss of the debt. Cause removed from the Court of Equity of Mecklenburg county. The defendant having been held liable to account by a ])ve- vious declaration of this Court, it was referred to A. C Wil- liamson, Esq., clerk and master in equity of Mecklenburg county, to state the account between the defendant and his wards. At this term, the commissioner filed reports, setting forth, separately, the defendant's indebtedness to his wards, to which both plaintiff and defendant excepted. The plaintiff except- ed, because the commissioner allowed 5 per cent, commis- sions on individual vouchers, (naming them by their numbers,) being accounts for goods and money furnished to complain- ant, Amelia, by the firm of H. B. & L. S. Williams, of which he was a member. ■3. The plaintiff excepted to the allowance of commissions on the sums, mentioned in said report, charged by the defend- ant against his ward, Amelia, for her board in her guardian's family. The defendant excepted to the commissioners report, be- cause that he was charged with a debt, due by bond, from John E. Penman and W. W. Elms to the defendant, as guar- dian, for principal and interest, about $1192. The commis- sioner reports the testimony, which proves the facts to be, in sub- stance, that the bond was given for the hires, for the year 1855, of slaves, belonging to the defendant's wards, which DECEMBER TERM, 1860. 6^ Williamson v. Williams. bond, fell due on the first of Jannaij, 1854. Penman having made a deed of trust of all his property in the latter part of 1854, died, intestate, in May, 1855, and at July Term of Mecklenburg County Court of that year, administration was taken on his estate. In November following, suit was brouo>ht on the bond against the said administrator and the surety, returnable to the January Term, 1856, of the said Court. At April Term, 1856, the pleas of fully administered, were found in fiivor of the administrator, and a judgment was taken against Elms for the debt ; an execution was issued thereon, and "nulla bona" returned by the sheriff of Mecklenburg' Elms, in the mean time, having also failed. In Novembet,' 1854, Penman made a deed of trust of all his property for the payment of his debts. This property consisted of two houses and lots in Charlotte, and a large number of interests in gold mines of uncertain value, and at the time of his death, Avas utterly insolvent. Elms, the surety, from January, 1854, to October, 1855, was in the possession of a large amount of pro- perty; in the latter month, (October) judgnients were taken against him to the amount of $167,714 ; of which judgments, the amount of 5^46.568 were taken by the bank of' Charlotte, of which the defendant Avas the president. Elms' credit was good until shortly before the rendition of these judgments, though it was generally known that he was xary lai-gely in- debted. After these judgments, he was generally known to be insolvent. Penman, Elms, and the defendant, all three, re- sided in the town of Charlotte. One witness stated, that in the winter of 1854, or early in the spring of 1855, he was pro- tested, as the endorser of Elms' paper, in the Bank of the State, and he refused to endorse for him any further. It ap- peared that each of the banks knew that Elms was doing bu- siness in the other, but neither knew of the amount of his liabilities to the other. On these facts, the commissioner thought the guardian was guilty of negligence, and so charged him with the amount of the debt. 64 IN THE SUPREME COURT. Williamson v. Williams. Thompson and Fowle, tor the plan tiff. Wilson^ tbr the Guardian. Lowrie^ fur one of the wards, made defendant. Battle, J. This cause, now comes before ns for further directions, upon the exceptions taken by both parties to the master's report. The complainants except totiie commissions allowed the defendant, Williams, as guardian, upon the dis- bursements for bills paid for his wards to mercantile firms, of wiiich he was a partner. We see no reason for this excep- tion. The guardian was as much bound to make payment to the partnership, of wliich he was a member, for goods pur- chased for his wards, as he would have been to any other partnership or person. The exception is over-ruled. But the next, which is to the allowance of a commission on the sntn, retained by him, for the board of his ward with himself, is allowed. We suppose that an executor or admin- istrator, cannot claim a commission on a sum retained in })ayment of his own debt, upon the ground that a retainer cannot be considered a disbursement, within the meaning of the statute, which gives commissions. So, we think a guar- dian cannot consider that as a disbursement, with reference to commissions, which consists merel}^ in keeping in his own pocket, money due from his ward to himself. The exception of the defendant, Williams, is, that the mas- ter has refused to credit him with the amount of a bond and the interest thereon, payable to him, as guardian, by John E. Penman and W. W. Elms. The bond was given for the hire of negroes during the year 1853, and became due on the first day of January, ISoi. It was for the sum of $1089, with a credit of $107.50, endorsed as paid on 18th August, 1855. The defendant alleges that the bond was lost without any negligence on his part, but the master reports to the contrary, and the exception brings the question before us for review. Upon an examination of the testimony, and applying it to the law as established in relation to the responsibility of guar- dians, we are led to the conclusion that the master's report is DECEMBER TERM, 1860. 65 Williamson v. Williams. correct. In the Revised Code, chapter 54, section 23, it is made the doty of the guardian to lend out the surplus profits of his wards' estate upon bonds with sufKcient security, but it is expressly required of him " that when the debtor or his sureties arc likely to become insolvent, the guardian shall use all lawful means to enforce the payment thereof, on pain of being liable for the same." The guardian, then, was acting within tiic line of his duty in permitting the bond to remain uncollected when it fell due, as both the principal and his gurety were then (as he had every reason to believe) entirely solvent. Such, and no more, is the effect of the decision in the case of Goodson v. Goodson, 6 Ire. Eq. 23S, to which we were referred by the defendant's counsel. But when the prin- cipal obligor failed, by making an assignment, in trust, for the payment of his debts, in the latter part of the year 1854, it was the duty of the guardian to take immediate steps for the collection of the debt or have it better secured. It will not do to tell us that it is not proved, that he knew of the assign- ment. He lived in the same town with the principal debtor, knew that he had but little property except in gold mines, in which he was a speculator, and of the value of which, nobody could tell. He ought then to have kept himself informed of the pecuniary condition of that debtor, and it was negligence in him not to have done so, for if he had, he might have saved the debt. After the insolvency of the principal, he was not justified in relying solely upon the surety for so large a sum, no matter what may have been the apparent wealth and ac- tual credit of that surety. That such has been the construc- tion of our statute in relation to the duty of the guardian in Buch cases, appears, as we think, from the cases of Boyeit v. Rurst, 1 Jones' Eq. 1G7, and NeUon v. Hall, 5 Jones' Eq. 32. In the latter case, indeed, the plaintiff", who was an executor, and who was directed by the will of his testator, to keep the money invested in good bonds, was not held responsible ; but it was, partly, because the sum was very small, only $50, and partly, because the princii)al became insolvent only a few months before the failure of his surety. Here, the debt was 5 IN THE SUPREME COURT. Mitchell V. Ward. large, and the principal debtor made his assignment more than twelve months, and died several months, before the fail- ure of the surety and before the guardian made the least ef- fort to collect the debt. In the other cases, cited bj the de- fendant's counsel, the executors or administrators were not held responsible for the loss of certain debts, but it was be- cause they showed much more diligence in attempting to col- lect them than can be pretended for this defendant ; see De- herry v. Ivey, 2 Jones' Eq. 370, and Davis v. Marcum, 4 , Jones' Eq. 189. The exception is over-ruled, and the master's report, after being reformed in the manner made necessary by our sus- taining one of the plaintiff's exceptions, will be confirmed. Per Curiam, Decree accordingly. HENRY MITCHELL AND OTHERS against WILLIAM WARD AND ANOTHER. Where a slierifF left his county for something over a month, on necessary business, with an intention of returning by a given time, it not appearing tliat he was insolvent, it was held that the fact of a deputy's having applied a portion of the taxes of a given year to a judgment against him (the sher- iff) for the taxes of a preceding year, without being instructed so to do, by the sheriff, was not a sufficient ground for the sureties of that year to have an injunction to restrain the sheriff from paying the taxes of that year, oik-' erwise than as the law directs. Appeal from an interlocutory order of the Court of Equity of Martin county. The plaintiffs alledge that they became the sureties of the defendant, W. W. Ward, on liis sheriff's bond, at October term, 1859, of Martin County Court ; that since then the said "Ward had conveyed all his property for the payment of his DECEMBER TERM, 1860. 67 Mitchell V. Ward. creditors, and has become insolvent, leaving no indemnity for them, and that he is a defaulter to a large amount; that the said Ward had left the State, and as plaintiffs believe, did not intend to return ; that previously to going off, he placed the tax lists of the county of Martin for the year, 1860, in the hands of the other defendant, William J, Hardison, one of his deputies, and that the said deputy, under the directions of the said Ward, was collecting tlie said taxes of 1860, and ap- plying the money to his, (Ward's) private debts, and in par- ticular, that he had paid $500 of the money thus collected, to one D. W. Bagley, the county trustee, on a judgment obtain- ed against him, (Ward,) at a previous term of the Court for taxes due of a former year. The prayer is that the}-^ " may be restrained by an order and injunction of this Honorable Court, from applying the money or any part thereof, received for taxes due the present year, to any other purpose, use or benefit, than as the law directs ;" and that they may be in like manner restrained as to any of the said taxes which they may hereafter collect. The defendants both answered. Ward denies that he left the State with a view to a permanent removal. He says that having a very distressing and dangerons disease in his eyes, he left the State on the 12th of April, 1860, for the purpose of obtaining medical aid in the city of jSTew Tork; that he pub- licly made known his intention of going, and his purpose in going, and also, let it be knov.-n that he would return before July court of that count}^, but that he did in fact return on 21st of May. He admits that he made a deed of trust to se- cure divers of his creditors, but denies that he is Insolvent.— He says that having private claims in the hands of the defen- dant, Hardison, a constable, to the amount of more than a thousand dollars, and also, having placed in his hands tax lists for previous years, on the eve ot his departure, he placed this list for 1860, also in his hands. He says that he owed .D. W. Bagley $500, a balance of a judgment, and that he gave Har- dison directions to pay this balance for him, but he did not direct him to pay the amount out of the tax money of 1860, nor did he 68 IN THE SUPKEME COUKT. Mitchell V. Ward. direct him to pay it out of any particular funds in his hands. He admits that Hardison told him that he paid it out of the taxes of 1860, but says it was not necessary for him to do so. Hardison gives the same account of this payment, but says it was not necessary that he should have used this particular money, as he could easily have collected from other sources enough to have met the claim. On the coming in of the answers, the Court ordered the in- junction to be dissolved as to Hardison, but to be continued as to Ward, to the hearing. From this order, Ward appealed to this Court. No counsel appeared for the plaintiff in this Court. Hodman and Stubbs, for the defendants. Manly, J. We are not aware of any principle of equity by which the continuance of the injunction can be sustained. The bill alledges that the defendant. Ward, slieriff of Mar- tin county, upon whose bond plaintiffs are sureties, had be- come insolvent, and left the county not to return ; that his tax lists were placed in the hands of a deputy, the other defend- ant, who was collecting and misapplying the moneys. The answers deny the insolvency and the permanent removal from the county, but admits that the deputy paid a judgment which he had general instructions, from his pribcipal, to pay, with monej'^s not applicable to it. The answers both state the judg- ment was for taxes due the previous year, and the deputy had lists of taxes for both that, and the then current year, to col- lect ; and the misapplication in question was without authori- ty from the sheriff. Upon the coming in of the answers, the injunction was dis- solved as to the deputy, but continued as to the sheriff until the hearing. Upon this state of the pleadings, the question is, whether the sheriff will be kept under an injunction not to misapply fmnds, which are in his hands viriute officii^ upon an admis- DECEMBER TERM, 1860. 69 Mitchell v.. Ward. fiion of a misapplication, in one instance, by a deputy, under the circumstances stated. It seems to us, an injunction in such case, cannot be sus- tained except upon a principle which will justify a resort to a court of equity in all cases of public officers, to enjoin a fulfil- ment of their duties; and thus it will be in the power of the sureties, through that court, to add to the penalties prescrib- ed by the legislative power, for misprison in office, the penal- ty of contempt of court. We know of no instance in which such an equity has been recognised by the courts- The sheriff is bound to the performance of his duties under the obligation of an oath, and by other severe pains and pen- alties, and also by a strict accountability to others at short in- tervals. For moneys in his hands, withheld from the proper owner or office, he is subject to summary judgments with pen- alties. For neglecting, or refusing to perform any duty he is not only subject, generally, to a pecuniary penalty, but is fur- tliermore liable to be indicted as for a misdemeanor, and upon conviction deprived of office, as well as punished according to the common law ; Rev. Code, ch. 99, sec. 122 ; ch. 29, sec. 5 ; ch. 34, sec. 119; ch. 105, sec. 11. These are the safe-guards which the law has provided for the public, and, in ordinary cases, where no grounds are laid for a receiver and sequestration, they must suffice for the sure- ties. The order made below, continuing the injunction as to the sheriff, until the hearing, and which was appealed from, should be reversed ; and to this end, the opinion will be certified. Per Cdkiam, Order belew reversed. 70 IN THE SUPREME COURT. Blacknall v. Parish. RICHARD BLACKNALL against WILLIAMSON PARISH. Where a paper-writing was signed and sealed by the owner of land, with blanks as to the name of the bargainee and left with an agent, ivho was authorised, bj' parol, to fill up the blanks with the name of the purchaser and the price, it was held that, though such an instrument could not ope- rate as a deed, yet, it was a contract for the sale of land, signed, for the person to be charged therewith, by his lawfully authorised agent, and could be specifically enforced. A memorandum or note of a contract may be signed by one in the name of his principal, so as to comply with the requisitions of the statute of frauds, without being thereunto authoi'ised in writing. Cause removed from the Court of Equity of Orange county. This was a bill filed for the specific performance of a con- tract, by which the defendant bound himself to convey to the plaintiff a tract of land, described by its metes and bounds, and lying in Orange county. The allegations in the bill (which are sustained by the evidence filed) are, that the de- fendant, being about to remove from the county of Orange, where he lived, to the western part of the State, authorised one Harrison Parker to sell, for him, the land in question, and to enable him to do so, he prepared a deed, describing the premises, and purporting to convey the same in fee, but leav- ing therein blanks as to the name of the bargainee and the price, with instructions, when he might make sale of the land, to fill up the blanks in the deed, and deliver it to the pur- chaser ; that afterwards, Parker made a sale to the plaintifi', at a reasonable price, and, accordingly, filled up the deed in the requisite particulars, with the name of the plaintitf and with the price ; both supposing the instrument was thus made good as a deed ; that Blacknall gave his bond for the money to the defendant's agent, who used the same in the purchase of a slave for the defendant, and it was, subsequently, paid to defendant's assignee. The prayer of the bill is for a specific performance of the contract, evidenced by the imperfect deed, and to stay, by an injunction, the proceedings of an action of ejectment, which DECEMBER TERM, 1860. 11 Blacknall v. Parish. the defendant had brought against the plaintiff, and which was then pending in the Superior Court of Orange county. The defendant answered, denying the authority of Parker to sell to Blacknall, and alleging that he had special objec- tions to plaintiff's having the land, which are stated ; and that the deed in question, was prepared for the purpose of consummating a sale to one Hopkins, with whom he was in treaty when he left the county, and tiiat his agent had no au- thority to deliver it to any one else. He relied on the statute of frauds as a bar to the plaintiff's equity. On the coming in of the answers, the injunction, which had issued in vacation, was dissolved, and the bill continued over as an original bill. Proofs were taken, M'hich sustained the plaintiff's allegations and disproved those of the defendant. The cause being set for hearing, was transmitted to this Court by consent. Norwood^ for the plaintiff. Ch'aham^ for the defendant. Battle, J. Upon examination of the testimony taken in this cause, we are entirely satisfied that the land, mentioned in the pleadings, was contracted to be sold to the plaintiff by an authorised agent of the defendant ; that the authority, un- der which the agent acted, was by parol, and that the contract was entered into by the agent's filling up certain blanks in an instrument, which the defendant had signed and sealed, and left with the agent to be, by him, made complete by filling up such blanks and delivering it as the deed of the defendant to the person who should become the purchaser. We are further satisfied, that what was intended to be a sale, was made fairl)', and for a price, which, at the time, was not inadequate, and fnrthei', that tiie price was, subsequently, re- ceived by the defendant. It has been properly admitted by the plaintiff, that the in- strument, which was delivered to him by the agent of the de- fendant, as a deed for the land in question, could not operate T2 m THE SUPREME COURT. Blacknall v. Parish. as such, because, it was not complete when it was signed and sealed by tlie defendant. In the case of Davenport v. Sleight^ 1 Dev. and Ijat. licp. 381, and again in Gvahani v. llolt^ 3 Ire. Rep. 300, it was held that an instrument, signed and seal- ed in blank, and handed to an agent, only verbally authoris- ed to till up the blank, and deliver it, was not the bond of the principal, and that after declarations of the principal, ap- proving of the delivery by the agent, made in the absence of the instrument, and M'ithout any act in relation to it, would not amount to an adoption and ratilication of the delivery. The case before us is one of a deed for land, instead of a bond for the payment of money, but the principle is the same. The instrument must bo complete before it can be delivered by an agent, acting under a mere parol authority, as the act and deed of his principal. The plaintiff, not being able to set up a legal title under the instrument in question, insists, nevertheless, that it is evi- dence of a contract, the specific performance of which, he has a right to have enforced in a court of equity. The defendant objects to this, and relies, in support of his objection, upon the statute of frauds, which declares " that all contracts to sell or convey any lands, Arc, shall be void and of no effect, un- less such contract, &c., or some memorandum or note thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person, by him, thereunto lawful- ly authorised, &c. ;" Revised Code, chap. 50, sec. 11. The question then, is ; firsts whetlier the contract, for the sale of the land, was put in writing ; and seccmdly^ was it signed b}^ the party to be charged therewith, or by any person, by him, thereto lawfully authorised. Wo think that there can be no doubt that the instrument, which, for the reasons above stated, could not operate as a deed, may be regarded as a contract put in writing. It is in truth a written contract more than ordina- rily complete, both in form and substance, and the only ques- tion, admitting of any sort of doubt, is, whether it has been signed by the defendant, or by any legally authorised agent. We are of opinion that it cannot be considered as a contract DECEMBER TERM, 1860. 75 Hughes V. Blackwell. with the plaintiff, signed by the defendant himself, indepen- dently of an}'- act of his agent, because, when the defendant put his name and seal to it, no such contract had been made. But we think that, in legal effect, it was signed for him, and in his name, by his properly constituted agent. The failure of the agent to make the instrument operate as the deed of his principal, did not prevent him from causing it to operate as the simple contract of his principal ; for nothing is more common than for an agent to fill up blanks in a promissory note signed by his principal, and no body has ever doubted that the principal was bound by it. That the authority' of the agent, in all such cases, may, under the statute of frauds, be by parol, is M'ell settled ; 1 Parsons on Cont. 42 ; 2 Kent's Com. 612 ; Coles v. Trecothic^ 9 Ves. Jun., 250. The plaintiff is entitled to a decree for a specific perform- ance, and also to recover back all the costs which he has been compelled to pay in the action of ejectment at law, and also the costs which he has had to pay upon the dissolution of the injunction in the Court of Equity below ; to ascertain which an account may be ordered. Per Cukiam, Decree accordingly. ISAAC W. HUGHES against R. W. BLACKWELL AND OTHERS. Where a plaintiff in his bill makes direct charges, and calls upon the defend- ant by special interrogatories to make discoveries as to those charges, th))har Mills and John D. Abrams, and the said R. M. J>lackwell, to have the said debts paid and satisfied b}' and through the means of the said mortgage, and pending the proceedings thereon, the bill in this case was filed by the plaintiffs to set aside the mortgage deeds upon seve- ral grounds, the one of which that has come under the con- sideration of this Court, more particularly, is, that from the length of time elapsing between the day the said notes be- became due, and the time of bringing the bill to foreclose, the prcsntnption of payment, satisfaction or abandonment arose. The plaintiffs anticipating that the defendants would set up the payment of a part of the principal or interest with- in the ten years, in order to repel the presumjition otherwise arising upon the effiux of that period, among divers other spe- cial interr(^gatories, asks the defendants as follows: "Did John J^lackwell pay any money for interest on the said seve- ral notes and accounts. If so, when? How much? Who was present? Where was the payment made? How made? Were they endorsed as credits? If so, in whose hand-writ- DECEMBER TEEM, 1860. 75 Hughes V. Blackwell. ing? B}' whose authority and in whose presence?" To these interrogatories, the defendants, R. M. Bhickwcll, Mills and Abrams, answer as follows : " And the said defendants, Ro- bert M. Blackwell, Zophar Mills and John D. Abrams, fur- ther answering the said interrogatories as to the jjajment of interest on the said several notes and accounts, say : Subse- quently to the receiving of the said mortgage deeds they had large dealings with said John Blackwell and John M. Oliver, consisting of sales of merchandise in the city of New York, belonging to the said John Blackwell and said Oliver, and half 3'early, on the first days of July and January in each year, these defendants rendered accounts current, in which were regularh^ charged the interest on said sevei-al notes and accounts, and said interest was thus regularly paid up to the 31st day of December, 1849. And they further answer, that the said interest, so paid, was not regulaily endorsed as credit on said notes and account, but, according to their best recol- lection, endorsements were made on said notes, showing that the interest had been paid previous to a ti-ansfer of them to James M. Blackwell, as trustee, &c. ; but said notes not now being in their possession, or accessible by these defendants, they cannot answer positivel}^ as to that matter; nor do they remember in whose hand-writing said endorsements are, but they believe they were made by one of these defendants, (pro- bably by R. M. Blackwell,) or by tlieir authority." On the production of the notes in evidence, the following endorsement aj)peai-s on that for $6000, to wit: "Received the interest on the within note up to 20th of September, 1854. R. M. Blackwell «fe Co." And on that for $3500, the following, to wir : "Cr. the within note by seven hundred and thirty-five dol- lars, received through John Blackwell ct Co., being three years' interest on within note up to July 1st, 1848, this 20th April, 1848. li. M. P,lackwi.;ll." The main question was, whether the facts disclosed in the answer being thus specifically called out by interrogatories, 76 IN THE SUPREME COURT. Hughes V. Blackwell. did not become evideuce in the cause, notwitstanding the plaintiffs replication. J. W. Bryan and Haughton^ for the plaintiffs. Fowle, Green^ McEae and K G. Hayivood^ for the defend- ants. Battlk, J. The debts alledged to be due from tlie defend- ant, Joiin Blackwell, to the defendants, R. M. Blackwell, Mills and Abrams, for tlie security of which, the mortgages, which the plaintiffs seek to set aside, were given, are clearly proved to be fair and hona fide debts, founded upon sufficient and valuable considerations. The plaintiffs virtually admit the truth of this, but they alledge that the debts have been paid and the mortgages satisfied and abandoned. In support of their allegations, they rely, mainly, upon the clearly estab- lished fact, that after the mortgages in question were execu- ted, John Blackwell, the mortgagor, remained in possession of the mortgaged premises for more than ten years, and, as the plaintiffs state, without the payment of any part of the principal or interest of the debts to the mortgagees, or either of them, and without the acknowledgement of the existence of the debts within that time. The plaintiffs insist, therefore, upon the presumption of law, that the debts have been paid, and, consequently, that the mortgages themselves have been satisfied and abandoned. If all these allegations be true, the legal consequence contended for by the plaintiffs, is clearly ^tablished bj' the authorities cited by their counsel. See, among others, the cases of Lyerly v. Wheele7\ 3 Ired. Eq. 599, and Roberts v. Welch, 8 Ired. Eq. 287. But the defendants deny the statement that no part of the interest, due on these debts, has been j^aici, and, on the conti-arj', aver that it was regularly paid eveiy year, until the year, 1848. They state the manner in which the pajnnents were made, and produce tlie bonds mentioned in the pleadings, of $6000 and $3500, with an endorsement on each in the hand-writing of R. M. Blackwell, of a certain amount of interest paid thereon. Tlie DECEMBER TERM, 1860. 17 Hughes V. Blackwell. account for $1943.34, which is one of the debts mentioned in, and secured by, one of tlie mortgage deeds is also produced ; upon which there is no endorsement of the pa^yment of inter- est, but the defendants aver positively that the interest was paid on that also, as well as on the bonds, up to the time men- tioned above. If these allegations of the defendants be true, then the same authorities to which we have already referred, show that the presumption for which the plaintiffs contend is rebutted. The question then arises : are they sufficiently proved, so that the Court can declare them to be true ? The defendants contend that they are fully and sufficiently proved by their direct and positive answer to special interrogatories put to them by the plaintiffs upon those very points ; and that the plaintiffs have not shown any thing to repel the force of the evidence thus furnished by the answer. In support of this position, the defendants rely upon 2 Stor. Eq., sec. 1528 ; 2 Fonb. Eq. B. 6 ch. 2, sec. 3, note g ; Pemher v. Mathers^ 1 Bro. Ch. Cases 52, and Chaffin v. Chaffin, 2 Dev. and Bat. Eq. 255. The plaintiffs deny the application of the rule to the present case, because, thc^^ say, that the allegation of the de- fendants with regard to the payment of interest on the debts, was denied by the replication, put in to the answer ; that such allegation was a matter of defense set up by the defendants which they were bound to prove b}^ testimony, and that their answer, being thus denied by the replication, was not evidence for them. For this, is cited Lyerly v. Wheeler^ 3 Ired. Eq. 170 and 599, and it is also supported by Gillis v. Martin^ 2 Dev. Eq. 470. The plaintiff's position would have been com- pletely sustained if they had not made statements in their bill with regard to the payment of interest on the debts, and called upon the defendants by special interrogatories to an- swer them. They thereby made the defendants witnesses as to that fact, and the answer was thus made evidence for the defendants, as well as against them. This is shown by the case ci Lylerly v. Wheeler, cited and relied upon by the plaintiffs, themselves. In that case, at page 601, the Court say "An answer after replication is not evidence for the defendant, ex- 78 m THE SUPEEME COURT. Joyner v. Conyers. cept as it is made so by discoveries called for in the bill, and which are responsive to direct charges or special interrogato- ries." The other authorities which have been already refer- red to as being relied upon by the defendants, are to the same effect. Had the plaintiffs made no charges in their bill about the non-payment of interest, and asked no questions upon the subject, but simply stated the time when the bonds were giv- en and the mortgages executed, and then relied upon the lapse of time, as affording a presumptionof the payment of the debts, and a satisfaction and abandonment of the mortgages, the de- fendants would have been compelled to allege such payment in their answer as a fact, going to repel the presumption, and and then, upon a replication being put in, their answer would not have been evidence for them, and they must have failed in their defense, unless they could have produced proofs inde- pendent of their answer. These observations do not apply to the debt and mortgage for $3500, because the bond was pay- able two years after its date, in 1845, which brought it within the ten years before the bill for foreclosure, mentioned in the pleadings, was filed. As the only object of the bill was to set aside the mortgages, and as no account is prayed from the defendant Justice, the trustee, it has failed of its purpose, and must be dismissed with costs. Per Curiam, Bill dismissed. WILLIAM H. JOYNER, Adm'r., AND OTHERS against THOMAS H. C0NY3RS, AdmV, AND OTHERS. Where an executrix procured an order of court to sell certain slaves, in which she was willed a life estate, upon a suggestion that such sale was necessary for the payment of the debts of her testator, and in a short time after the sale she took conveyances from the purchasers, for the same slaves, without ever having been out of possession, it being also made to appear that there were no debts of the estate unpaid at the time of the orders to sell, it was held DECEMBER TERM, 1860. 79 Joyner v. Conyers. that the executrix took nothing by her purchase, and should be declared a trustee for the remaindermen. Damages assessed against a railroad company, on the condemnation of land to the use of the company, belong to the tenant for life and remainder- man, in proportion to the period for which each suffers the incumbrance. Cause removed from the Court of Equity of Franklin county. Tiiomas Y. Ricliards, who died in 1831, by his will, devis- ed and bequeathed as follows : " I lend to my sister, Polly Richards, the tract of land whereon I now live, and six ne- groes, named Sam, Jerry, Amy, Ilinton, Lucy and Lavinth, togetlier with my stock of every description, during her life- time, and after her death, I give to my nephew, John W. Womath, live hundred dollars, to be raised out of the estate, and the balance of which estate, I will and bequeath to the bodily heirs of my live sisters, that is, Frances Duke, (who is now dead) Martha Bowers, Rebecca IlefHin, Nancy Black- nail and Sally Conyers, to be equally divided among said heirs, with this exception, that I give and bequeath to my nephews, Thomas Bowers and Thomas Conyers, one horse apiece, M'orth seventy-five dollars, more than tiie rest of said heirs, forever." Polly Richai-ds was appointed the sole ex- ecutrix in the said will, and she qualified and took upon her- self the burden of executing the trusts therein. By a former suit, in equity, between the plaintift', W. H, Joyner, adminis- trator de bonis non^ of the estate of Thomas Y. Richards, and the other persons who are parties to this suit, a decree was passed declaring that all the children of the five sisters of the testator, after tlie death of Polly Richards, and after deduct- ing a legacy of $500 to John Yr^omath, were entitled to have the said property equally divided among them '■''jyer capita^'' with the exception of the two horses to Thomas H. Conyers and Thomas Bowers. The said Polly Ricliards entered upon the land on the death of her brother, the testator, and took charge of the slaves and other property. The perishable p/operty was sold by her for payment of debts, and afterwards, under a special order of the 80 m THE SUPEEME COUKT. Joyner v. Conyers. County Court, at March Term, 1832, of Franklin County, on a suggestion that a further sale of property was neces- sary to pay debts, a girl, by the name of Lucy, (named in said order) was sold to one Archibald Yarbrough for $134, and afterwards, another special order of the Court was ob- tained at March Term, 1834, upon a like snggestion for the gale of another slave, by the name of Peggy, which slave was sold accordingly to Sarah Conyers, for $130. Both of tiiese negroes remained with the executrix, and possession of them was never demanded of her, nor taken b}' the purchasers, but each of them, shortly after these sales, formally executed titles to her, the said Polly Richards. Since tiien, she claim- ed the said slaves, as her own up to her death, which took place in the year 1855. The plaintiffs, who are the remaindermen, allege that nei- ther of these sales of Lucy or Peggy, was demanded by the condition of the estate of Thomas Richards, for that the pro- perty first sold, by her, was sufficient to pay all the debts of the estate, and they charge that such sales were mere devices, concerted with the said Aichibald Yarbrough and Sarah Conyers, whereby it was agreed that they should respectively bid off the negroes offered for sale, and should each convey the same back to the said Polly Richards, by which devices ehe attempted to acquire a full estate in the said female slaves, in which, before, she had only a life-interest. The bill further alleges, that the sura of $150 was recovered for damages to the land, in question, from the Raleigh and Gas- ton Railroad company, the track of said road being located up- on a part of the land devised to the said Polly for life, as above Btated, and that she received and used the whole amount of *aid damages, and the plaintiffs insist that they are entitled to a share of that sum, in proportion to the amount of damage done to their estate in remainder. The bill sets forth, that the said Polly Richards cut down and sold timber to the Raleigh and Gaston Railroad compa- ny, which was not merely taken off in the necessary course DECEMBER TERM, 1860. 81 Joyner v. Conyers. of working the land, bnt that the timher was cut for the ex- press purpose of being sold; and amounted to waste. The prayer of tiie bill is, tliat the said slaves, Luc)^ and Peggj, and their increase, may be decreed to be delivered up to the plaintilf, W. II. Joyner, the administrator de honis noil of TJiomas Y. Yarbrough, that the same, with the hires of the said slaves, since the death of Polly Richards, may be divided among the plaintiffs, according to the provisons of the will, and for that purpose, that a sale of the said slaves shall be ordered, and an account of the hires. The bill further ])ra3's jfor a proportionate share of the land-damages and a comjiensation for damage and waste done to their estate in remainder. The answers being by persons in their representative cha- racters, do not affect the questions involved. At December Term, 1859, this Court ordered an account of the estate of Thomas Y. Richards, in the hands of his ex- ecutrix, Polly Richards, to be taken by the clerk of this Court, and at the present term, Mr. Freeman reported " tiiat on the 21st of March, 1832, when the girl, Lucy, was sold, the executrix had assets more than sufficient to pay the debts of her testator, together with all the expenses attending the same, and also, that on the Sth of September, 1834, when the girl, Peggy, was sold, siic had more than sufficient to pay the debts of her testator." There was replication to the answer and proof taken, and tlie cause was set down for hearing on the bill, answer, exhi- bits, and former orders, and sent to this Court, ./. J. Davis and IF. F. Green, for the plaintiffs. Eaton, for the defendants. Manly, J. "When this cause was under the consideration of the Court at December Term, 1859, the sale by the execu- trix, Polly Richards, of the girl slaves, Lucy and Peggy, and the buying them back again, in a short time afterwaftls, was of so suspicious a character, that an account was ordered of 6 82 IN THE SUPREME COURT. Joyner v. Conyers. the assets of the estate, that we might see whether the sale was necessary to pay debts. The report of the clerk, at this term, negatives the supposition that it could have been for the purpose of raising assets to pay debts. The assets, in hand, wei'e already'- abundantly sufficient for that purpose. It could have been, therefore, only for the purpose of chang- ing the title. As the executrix was to have a life-estate in these girls, with an interest in remainder limited over, she had a motive for desiring to change the estate which she held. No form of a sale, without necessity, nnder the influence of such a motive, conld effect her object; the estate remained the same. The facts of the case, and especially the significant one dis- closed by the report of the clerk, constrain us to hold the sale of both the slaves, Lucy and Peggy, inoperative and void. They, and their offspring, must be accounted for and surren- dered to the administrator de honis non of Thomas Y. Rich- ards, to be accounted for, by him, with the persons entitled in remainder. There must, also, be an account of the hii'es of the slaves since the death of Polly Richards. AVith respect to the damages recovered by Polly Richards, the tenant for life of the land, from the Raleigh and Gaston Railroad company, we are of opinion the plaintiffs are also entitled to an account. By the condemnation of the land, under the provisions of the charter of the road, the company acquired an easement, in the same, for 99 years. The $150 assessed as damages, were not assessed, we take it, for the in- jury done alone to tlie life-estate, but to the estate in remain- der also. The persons, therefore, in remainder, are entitled to a part of this fund, viz., such an amount of the same as will be proportional to the period of time for which ihey suffer the incumbrance. This, we mean, is the general rule appli- cable to cases of this sort. There may be special cases in which other elements will properly enter into the calculation; as, for ^stance : The special location of the road might affect, materially, the calculation of relative damage. If it ran through DECEMBER TERM, 1860. Clark V. Lawrence. the yard of the tenant for life, the rule would not do the tenant full justice, while, if it went through a remote woodland, it would do more justice. It is referred to the clerk to enquire and report to what part of this sum of $150, the persons in remainder are entitled. It is also alleged, that there was a waste of the land by the tenant for life, by cutting timber, not needed for the estate, but which was cut for market. The clerk may make enquiry into this matter also and report results. Per Curiam. Decree accordingly. HENRY S. CLARK against DAVID LAWRENCE, Ti-ustee. Whenever it can be clearly proved that a place of sepulture is so situated that the burial of the dead there, will endanger life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs, a court of equity will grant injunctive relief Where a bill was filed, praying to have a nuisance abated, and for an injunc- tion to restrain the defendant from erecting it in future, and the act com- plained of was of the character of a nuisance, but the testimony was not sufficient to satisfy the Court that it amounted to a nuisance in the particu- lar case, the Court directed an issue to be tried in the superior court, to de- termine the fact. Causk removed from the Court of Equity of Pitt county. The bill is filed to obtain an injunction to restrain the de- fendant, who is the trustee of the Baptist congregation in the town of (xrecnville, from permitting the church yard to be used as a cemetery. The lot in question, adjoins the lot upon ■\vhicli the plaintiff's dwelling house is situated, and was purchased b}' the Baptist ■congregation about the year 1827, the plaintiff's lot being at the time lyoccupied and unimproved— there being no house 81^ IJSr THE SUPREME COURT. Clark V. Lawrence. upon it until the year 1845. At the time the plaintiff pur- chased his lotj which was in the year 1850, tiiere were only two graves on the lot in question, and these were in the part most remote from his dwelling. In December, 1857, there were two burials of dead bodies on this lot, about three feet from the boundary line of the plaintifl:''s lot, and about thirty-five feet from one well, and seventy-two from another, from which he supplied himself and family with water. These dead bodies were deposited in wooden cofiins, and buried to a depth of three or four feet, and in one case the grave was lined at the bottom and up the sides with brick and cemented. The soil was of a mixture of clay and sand, and the ground sloped from the graves towards the plaintiff's wells, which, together with his dwelling house were situated in a northerly direction from the grave yard. — The bill alledged that this situation exposed himself and fami- ly to the efSuvia arising from decaying bodies, and which the south winds that generally prevail in summci", will bring di- rectly into his house, by which the health of plaintiff's family and the value of his lot will be irreparably injured. The bill further alleges that the quality of the water in plaintiff's wells, has been so impaired by their close proximity to these graves, as to render them unfit for use. This fact is denied b}- the an- swer. There was evidence to show that the water in the plaintiff's wells had formerly been good, but that it is now very bad. There was much other testimony, which, in the view taken by the Court of this case, it is not deemed necessary to set out. The cause being set down for liearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent. Hodman^ Shav) and J. TL. Bryan, for the plaintiff. Donnell, for the defendant. Battle, J. The jurisdiction of the court of equity to re- strain by an injunction, the erection or continuance of a nuis- 9 DECEMBER TERM, 1860. Clark v.. Lawrenca ance, eitlier public or private, which is likely to produce irre- parable mischief, is well established. It is equally well set- tled that the destruction of, or injury to the health of the in- habitants of a city or town, or of an individual and his fami- ly, is deemed a mischief of an irreparable character. In the case of a city or town, where the apprehended injury is clear- ly proved, the court will not hesitate to grant the injunction, even against the erection or continuance of a, water gristmill' though such mills are generally deemed of public benefit,' and the building of them has been encouraged and protect- ed by our statute law. See Attorney General v. Hunter, 1. Dev. Eq. 12 ; Attorney General v. Blount, 4 Hawks' 384. In the^case of a private nuisance, caused by a mill pond, the court will interfere indeed, but with more caution and he'sita- tion, both because the public benefit arising from the mill is opposed to the private interest of an individual, and because, where the land of the individual is overflowed, as in most ca- ses it will be, and the damages assessed by a jury therefor, exceed twenty dollars, the party may, at law, by repeated ac- tions, compel an abatement of the nuisance ; Fason v. Per- Uns, 2 Dev. Eq. 38 ; Barnes v. Calhoun, 2 Ired. Eq. 199.— See also, Sjjencer v. London and Birmingham R. E Co 8 Simons, 193. ' The same principle which would excite into activity there- straining power of the court, where the health of the com- munity, or of an individual member of it, is in danger of be- ing destroyed or impaired by a mill pond, will be equally ready to interpose its protection, when a similar danger is threatened from the establishment of a cemetery in a ctty or town, or very near the dwelling house of a private person.— This, we think, was recognised in the case of Ellison v. The Commissioners of Washington, 5 Jones' Eq. 71, thongh the decision in that case, on account of its peculiar circumstan- ces, was averse to the application for the injunction. In ca- ses of this kind, the plaintiff will not have to encounter the difficulty that a place for the burial of the dead, within the limits of a city or town, or near the residence of a private IN THE SUFEEME COUKT. Clark V. Lawrence. person in the countiy, is considered a matter of public weal. On the contrary', the public sentiment is already, or is becom- ing to be in favor of more secluded spots, where we, like the Patriarch of old, " may bury our dead out of our sight." — Whenever, then, it can be clearly proved that a place of sep- ulture is so situated, that the burial of the dead there, will en- danger life or health, either by corrupting the surrounding at- mosphere, or the water of wells or springs, the court will grant its injunctive relief upon the grouud that the act will be a nuisance of a kind likely to produce irreparable mischief, and one which cannot be adequately redressed by an action at law. In the present case, the evidence upon which the cause has been brought before us, for a hearing, does not so clearly satisfy us of the fact of a nuisance, either existing or appre- hended, as will justify us in granting an injunction without further enquiry. Under such circumstances, the usual course is to require the party to establish liis allegations of a nuisance by an action of law ; Simpscrii v. Justice, S Ired. Eq. 115, and the cases there cited. That course would be most appropri- ate, and would be adopted by us, if, as was said in the Attor- ney General v. Hunter, uhi supra, " the right infringed were of a doubtful character, as the right of view over another's ground." But, in a case like the present, where the thing complained of is certainly of the character of a nuisance, and the only doubt is, whether tlie testimony proves that it is so, in the particular case, we think that we can accomplish the same purpose in a manner more convenient to the parties, and quite as satisfactory to ourselves, by directing an issue to be tried in the Superior Court of law for Pitt county, whether the burial of the dead, in the church lot mentioned in the plead- ings, has produced,- or, if continued, is likely to produce sick- ness in the plaintiff's family, or to impair their comfort, either by corrupting the air or the water in his wells. Let an order be drawn accordingly. Pee Curiam, Decree accordingly. DECEMBER TERM, 1860. 87 Eountree v. McKay. JONATHAN D. ROUNTREE against WILLIAM McL. McKAY, Trustee, AND OTHERS. Where a, bill was filed, by a judgment creditor, against a trustor and his trus- tee, to have satisfaction of his judgment out of the resulting interest of the trustor, alleging that the debtor had not a legal title to any property, what- soever, and that the interest, sought to be subjected, was one, which only could be reached in a court of equity, it was held not to be necessary to state that the plaintiff had taken out s,fi. fa. on his judgment, and that the same was returned nulla bona. Where a bill was filed by a judgment creditor, to subject the resulting inter- est of the trustor in personalty, and it appeared that other judgment cred- itors, as well as plaintiff, had levied y?. fas. on the trustor's interest in the land conveyed in the deed of trust, it was held that such other judgment creditors were necessary parties to the bill. Where an objection, for the want of parties, was taken ore temis, for the first time, on the argnment of the demurrer in this Court, which was deemed valid, the Court refused, nevertheless, to dismiss the bill, but remanded it without costs to the Court below, that it might be amended as to parties. This was an appeal from a decree of the Court of Equity of Wilson county, over-ruling a demurrer. The plaintiff, Jonathan Rountree, recovered against John Waddill, jr., and Thomas Waddill, a judgment in this Court, at its December Term, 1859, for $7587, with interest and costs. The plaintiff alleges, in his bill, that defendants have no legal title to any property whatever, out of which their judgment could be satisfied, but that they have an equitable interest in a very large property, which they had conveyed to the defendants, McKay and Fuller, as trustees, to secure otlier creditors ; that said property consists of land and per- sonal estate ; that the deed of trust has been standing ever since, February, 1858, during which tinxe the trustors, the Messrs. Waddill, have had the possession and use of the pro- property, and by such use, have paid off a considerable por- tion, at least one half, of the debts secured, and that if it had not been for the plaintiff's judgment, they do not believe that there would have been any sale of this property, but that since the rendition of his said judgment, the trustees have m THE SUPREME COURT. Rountree v. McKay. proceeded to advertise a sale of all the property conve3'ed to them. The bill alleges further, that a M'rit oi fieri faoias on the plaintiff's jiuignient has been levied on the trustors' in- terest in the real estate conveyed, and that several other judg- ment creditors liave also levied executions on this resulting interest in the real estate, and he does not believe it will sell for enough to satisfy the plainritf's judgment. The prayer is, that the plaintiff's judgment may be satis- fied out of the resulting interest of the trustor in the personal estate, and to that end, that the defendants may set forth the several debts, mentioned in the deed of trust, which have been satisfied, and the names and amounts of those not satis- lied, also the notes and accounts conveyed to them in the said deed of trust, and a detailed statement of all the assets now on hand. Tlie prayer is further, that the trustees may be de- creed at once to make sale of the property and pay off" the debs secured, and that any balance that may be in their hands, may be applied to the pa3'ment of the plaintiti''s judgment. The defendants demurred, for the cause : that the bill does not set forth that the plaintiff" had taken out o, fieri facias and had the same returned by the sheriff mdla hona. On the ar- gument here, the defendants' counsel assigned, ore temis, a further ground of demurrer, that the creditors mentioned in the bill, as having had their executions levied on the trustor's interest in the real property, conveyed in trust, were not made parties to the bill. The Court below over-ruled the demurrer and ordered the defendants to answer, from which ruling, the defendants ap- pealed. St/rong and J. 11. Bryan^ for the plaintiff. Neill McKay and Fowle^ for the defendants. Battle, J. The particular ground on which the demurrer is based, to wit, that the plaintiff' has not set forth, in his bill, that he has issued an execution against the defendants to his judgment at law, and had a return by the sheriff' of nulla DECEMBER TERM, 1860. Ronntree v. McKay. hona^ cannot be sustained. The bill alleges, expressly, that these defendants had not the legal title to any property what- ever, and the only interest which they owned, which conld be made liable to the satisfaction of the plaintift''s debt, was one, which conld be reached onl}^ in a court of equity. This is sufRcient, without the allegation of the fact, for the want of which, the defendants have demurred, as is clearly shown by the case of Tahh cfc Co. v. Williams., 4 Jones' Eq. 352. If the objection, insisted upon in the demurrer, were the only one which could be taken to the bill, M-e should, of course, over-rule it, and at once i-equire the defendants to answer. But their counsel have insisted here, for the first time, by a demurrer ore tc?ius, u})on a defect in the bill for the want of parties, in that the creditors, who, the bill states, had obtain- ed judgments against the defendants, J. and T. Waddill, and caused executions thereon to be levied on their resulting in- terest in the real estate conveyed to the other defendants, as trustees, are necessary parties, in taking the account prayed for in the bill. These creditors, we think, are necessary par- ties, because they are interested in having the creditors, se- cured by the deed of trust, paid out of the proceeds of the personal estate, so as to leave a larger surplus of the real es- tate, or its proceeds, for the satisfaction of their executions, while it may be to the interest of the plaintiff to have the trust-creditors paid out of the real estate, in order to leave a larger surplus of personal property to satisfy his debt, and the defendants are all interested in having the conflicting claims of the plaintiff, and the other judgment-creditors adjusted in one suit. Tlie demurrer ore teiiufi for the want of parties, must, then, be sustained ; but the effect will not be to have the bill dis- missed, but to have it remanded, without costs, in order that the plaintiff may amend his bill, by making the necessary parties ; see Caldioell v. Blacl'wood^ 1 Jones' Eq. 274. An order, to this effect, may be drawn accordingly. Per Curiam, Cause remanded. IN THE SUPREME COURT. Hunt V. Frazier. JAMES HUNT AND WIFE AND OTHERS afjainst CHARLES FRAZIER AND OTHERS. Courts of equity do not assume jurisdiction to reform deeds unless the trans- action be based on a valuable or meritorious consideration. Where A had loaned B, his brother, a sum of money, and taken a convey- ance of a tract of land, and some slaves as security for the repayment, and the two brothers came to an agreement that A should convey the property to D on certain trusts, to let B's wife and children live upon the land and enjoy it for the liffe of the mother, and then to be sold for the payment of A's debts, and the overplus to be paid to her children, it was held that the deed of trust was founded on a valuable consideration, and as such the court's power to reform its defects, could be properly exercised. Cause removed from the Court of Equit}" of Granville county. The bill is filed to obtain a decree for reforming a certain deed, from one William Hunt to Fortius Moore, which deed is in the following words : "This indenture, made and entered into this 27th day of November, 1S38, between William Hunt, of the county of Granville, and State of North Carolina, of the one part, and Fortius Moore of the county of Ferson, and State aforesaid, of the other part, witnessoth, that for and in consideration of the sum of one thousand dollars to him secured to be paid, the said William Hunt, doth hereby bargain and sell to the said Fortius Moore, a certain parcel or tract of land lying in the county of Granville, and State aforesaid, and on the wa- ters of Grassy creek ; bounded as follows : (setting out the boundaries,) containing two hundred and twenty-four acres, more or less. Also, the following negroes, to wit, Margaret, otherwise called Feggy, about the age of thirty-six or seven, and two children, Rody of the age of six or seven, and Charles, of the age of five, the title of the aforesaid land and negroes, I, the said William Hunt, doth hereby warrant and defend to the said Fortius Moore, his heirs and assigns forever, in trust for the following purposes to wit, that the said Fortius Moore is to manage said land and negroes in the best manner that DECEMBER TERM, 1860. U Hunt V. Frazier. he cortlon of the estate not given away in specific legacies, although such portion may be lost or wasted by the executor, or consumed in the lyayment of dehts, con- cludes by saying the case of Sayer v. iSayei\ does not support the former decision. "The truth is, when the case was before us heretofore, the facts were strangely misconceived." . In W/iite V. Green, 1 Ired. Eq. 45, the same priuci]>le came up for application ; the priiiciple is correctly defined; Sayer V. Sayer and White v. Beaty^ are cited, and the Court sa}^ "it is nearly to be inferred from the will itself, that it disposes, or professes to dispose of, all the property the testator had ; but the answers remove all doubt; they state that the testator left nothing, and had nothing applicable to the payment of this legacy, but such as he had given specilically." Whether that is not another instance where the Court, after correctly stating the principle, depart from it in making the applica- tion, by introducing the words ^Heft nothioig^ and had noth- ing applicahle to the ijayment of this legacy^'' may be ques- tioned ; for taking the principle, as defined in that case, and in White v. Beaty and Sayer v. Sayer, it is obviously necessary, in order to make it applicable, tliat the testator should give awa}^ the whole of his estate in specific legacies, for other- wise, the natural inference is, that he M^as mistaken as to the amount of his debts, vviiich is, by no means, an unusual thing, and there is no necessity for presuming that he intended to charge the specific legacies with the payment of the pecunia- ry legacies, in order to avoid the inference "that he intended to mock the legatee." So, in my opinion, the principle does not apply to our case. 2. The words "to be paid by my executors out of my es- tate," added to the legacy of $500, cannot, in my opinion, be al- lowed the effect of making this case an exception ; because they 106 IN THE SUPREME COURT. Biddle v. Carraway. are not sufficiently expiessive'of an intention to charge the lega- cy of $500 on the specific legacies. Instead of giving to them the effect of making a charge, I think they are rather to be treated as expletive, or words of surplusage. A testator gives his negro man, "Jacob to A, to be delivered to him by my executor ;" these words are expletive, and amount to no more than would be implied; and he gives $500 to B, "to be paid by my executor out of my estate;" these words are ex- pletive, for, as a matter of course, if paid at all, it will be paid out of the estate. Should it, contrary to all expectation, turn out that the balance of the estate is all exhausted in the pay- ment of debts, so as only to leave "Jacob" on hand, it seems to me a strange result that the ne^ ro given to A, must be sold in order to pay B, the $500 ! At the most, it would seem that B could only expect A to divide the loss with him, and yet, if the words amount to a charge, B must be paid the whole $500, although A will thereby, get nothing at all. To justify such a result, surely the intention to create a charge, ought to be clearly expressed. Bray v. Lamb, 2 Dev. Eq. 372, is relied on to support the position that these words create a charge. The words there, were, "I give Nancy Bi-ay five hundred dollars, to be raised and paid out of my estate." The case was attended with some peculiar circumstances, which are referred to in support of the conclusion, but the main stress was put on the word "ra^WZ" out of my estate, which word was supposed to be peculiarly appropriate to create a charge ; and, it is remarka- ble that the words "to be paid" out of my estate are treated as amounting to nothing, and are not alluded to in the opin- ion ; so, that which the builders then rejected, as useless, is now to be made the corner stone ! In the earlier cases cited by Powell on Devises, when land was not liable for the payment of simple contract creditors, the courts seized on almost any words to create a charge in favor of such creditors. "I direct my debts to be paid" out of my estate; or, "I wish all of my just debts to be paid," were held sufficient to create a charge on laud in favor of DECEMBER TERM, 1860. 107 Hadley v. Rountree. • creditors ; but, since the law has been changed, such words are treated as mere surphisage, and no meaning is attached to them, and as far as my researches have gone, such an effect never was given to words of this kind in order to create a charge in favor of general pecuniarj'^ legatees, at the expense of spe- cific legatees, and in our case, in respect to the otlier pecuni- ary legacies to the widow, as she is a specific legatee of a large amount of property, she, as such, will be obliged to contribute to pay her own pecuniary legacies ! ! Can it be supposed in the absence of plain words that such was the in- tention of the testator? Per Curiam, Decree according to the opinion of the Court. THOMAS HADLEY acjainsi WILLIE D. ROUNTREE. Where dealings between ji father-in-law and his son-in-law, wherein the lat- ter had been the other's agent, were closed in a hurried manner, and a noto given by the father-in-law at the importunate solicitation of the son-in-law, on calculations made by him, under a promise that the whole settlement should be open to subsequent examination, and the answer to specific alle- gations of errors was unfair and evasive, it was held that an injunction to restrain a judgment at law on such note, should be continued to the hear- ing, and that the judgment should stand as security for whatever might be ascertained to be due. Appeal from an interlocutory order of the Court of Equity of Wilson county. The plaintiff", Hadley, and the defendant, Rountree, enter- ed into a written agreement on the 16th of December, 1856, wherein it was stipulated tliat the said Iladley was to put the said Rountree into possession of his mills and farm, on the Ist of the next ensuing January, which, the latter was to hold until the 1st of Januarj^, 1859 ; that Iladley was to pay for 108 IN THE SUPREME COUET. Hadley v. Rountree. I* all hires of hands, buildings and purchases for the use of the premises; that Rountree was to give his personal attention to the business, and was to receive, at the end of each year, one thousand dollars as his wages, and that any advances of money, wliich he might make, were to be deducted out of the proceeds of tlie farm, mills, &c., and the business to be close- ed, at tiie end of eacli year, by note. At the close of the year 1857, Rountree presented his account, and Hadley gave him a note for $14,815.91, on which suit was brought, at law, and a judgment recovered. The bill is brought to enjoin the col- lection of this judgment and to have an account taken be- tween the parties, alleging fraud and imposition in the con- duct of the defendant in obtaining the note from him, and many false charges and suppressions of credits in the account on which tlie note was founded. The plaintifi' alleges that he is an old man, and that his business iiad become much con- fused, and having much confidence in the defendant, who is his son-in-law, he was induced, for tlie purpose of relieving himself, to enter into the contract above stated. He says, to- wards the close of the year 1857, the defendant became ur- gent for him, plaintiff, to settle with him and to give him a note for the amount due; that to get rid of these importuni- ties, and relying on the word of the defendant, who promised that the whole account should be re-examined by some com- petent person, and any errors, that might appear, should be corrected, he was induced to sign the note aforesaid ; that all the calculations were made by tlie defendant, and that the plaintiif did not, at all canvass them, nor any of the items of the account; that all the vouchers, receipts, &c., on which this account was alleged to be based, were detained by the defendant, and that he had refused to surrender them to the plaintiff. Among other specifications of the falseness of this account, it is alleged that the defendant had failed to give him credit for seven bales of cotton, of the crop of 1856, which were on hand when the defendant took charge of the busi- ness, and that no notice is taken of this cotton in any part of the account. DECEMBER TERM, 1860. 109 Hadley v. Rountrec. To tlie allegation, as to the cotton, the defendant answers as follows : "This defendant has no recollection of the seven bales of cotton having been committed to liis hands, and does not believe it to be true ; bnt of this, the defendant is certain, if it ever came to his hands, the complainant received the pro- ceeds. There would appear no item of it in the account of 1857, since the transactions, under the contract, for each year, were to be kept distinct." To the charge that the defendant had withheld the vouch- ers, the defendant answers, and admits that he kept them, but says, "of this, the plaintiff cannot complain, since they are of no service to him whatever — consisting of receipts for money paid to tliird persons — sheriff's receipts for money paid on executions against him, etc., tfec. There is no evidence of debt, whatever, held by this defendant against the complain- ant among these vouchers, and they are, and always have been open to the inspection of the complainant." The conflict between the last recited passage of the answer and several items of charge in the account filed by the de- fendant as an exhibit, is pointed out in the opinion of the Court. On the coming in of the answer, the Court below ordered the injunction, which had issued in the case, to be dissolved, and the plaintiff appealed to this Court. A. M. Zcnvis, for the plaintiff. Dortch and Strong, for the defendant. Pearson, C. J. By force of the agreement, executed 16th of Decemher, 1856, the defendant was bound, at the close of the year 1857, to render an account. From the answer and the account filed as an exhibit, we are satisfied that, so far from rendering a full and ftiir account, as he Mas bound to do, the defendant induced the plaintiff to execute the note, mentioned in the pleadings, upon the foot- ing of calculations by himself, upon loose statements and de- tached papers, without time for examination ; so that, in fact, 110 IN THE SUPREME COURT. Hadley v. Rountree. there was no account rendered, and nothing done by the par> ties, considering the relation in which they stood, which can be allowed the elFect of a settlement. The answer is unfair and evasive in many respects ; for in- stance : to the charge, that when the defendant took posses- sion of the farm and mills, there were on hand, among other tilings, seven bales of cotton, which the defendant had failed to account for ; the response is : " This defendant has no re- collection of the seven bales of cotton having come into his hands, and does not believe it to be true ; but of this, the de- fendant is certain, if it (the seven bales of cotton) ever came to his hands, the complainant received the proceeds. There would appear no item of it in the account for 1857, since the transactions, under the contract, for each year were to be kept distinct." The lirst attempt is made to evade this charge, by treating the seven bales of cotton as of no more importance than a stack of fodder, about which the defendant could not be ex- pected to have any distinct recollection ! ! The second is, by a suggestion, that the seven bales of cotton, being of the crop of 1856, did not form an item in the account of 1857, as the transactions of each year, by the contract, were to be kept distinct." If this cotton did not make an item in the account for the year 1857, it certainly would not in the account for the year 1858 ! ! But supposing this cotton to have been on hand on the 1st of January, 1857, and in regard to a fact of that importance, an agent, who is bound to render an account, is not at liberty to leave the matter in doubt, then, it did pro- perly form an item of account for the first year, as much as the lumber and other articles on hand when the defendant took charge of the business, and the loose and general state- ments of the answer, in regard to it, shows the sort of " set- tlement" made on the 1st of January, 1858, when the plain- tiff was induced to execute his note. Again ; the bill charges that the defendant kept possession of all the vouchers, receipts, &c., on the footing of which, the calculations were made and the note executed. The answer DECEMBER TERM, 1860. Ill Eborn v. Waldo. admits this, and by way of explanation, say, " the plaintiff cannot complain, since they are of no service to him what- ever — consisting of receipts for money paid to third persons — sheriff's receipts for money paid on execntions against him, &c., &c. There is 7io evidence of debt, whateve?', held hi/ the de- fendant against the complainant among the said vouchei's,''^ and yet, in the account filed with the answer, as an exhibit, is this item : " Note due 1st January, 1857, with interest to let January, 1858, $1718.33, which is thus charged to the plain- tiff, but is held by the defendant. Again ; although the note is executed 1st January^ 1858, as for a balance, $14,815.91, then due, in the account, set out for the purpose of showing tliat balance, there are several charges in Januainj and Feb- ruary^ 1858, e. g. cash paid Moses Rountree \^th January^ 1858, $958.14 ; cash paid Rountree & Co., 4th February, ;'1858, $370.21. It is unnecessary to make further specifications. " The judgment, at law, ought only to be allowed to stand as a se- curity for whatever may be found to be due to the defendant, upon taking an account between the parties, on the footing of principal and agent ;" Franklin v. Ridenhour^ 5 Jones' P]q. 422. There is error in the decretal order dissolving the injunc- tion. It ought to be continued to the hearing. Per Curiam, Decretal order reversed. WILLIAM C. EBORN, Adrrir., against JOSEPH WALDO AND AN- OTHER. There'jis no ground for going into a court of equity to recover back damages, assessed at law, in behalf of a defendant to an action of replevin, upon the ground, that the plaintiiThas the title, and has brought another action of 112 m THE SUPREME COURT. Eborn v. Waldo. replevin, but cannot recover back those damages in that or any other ac- tion at law. Except to stay waste or prevent some irreparable injury, the writ of injunc- tion is only issued as ancillary to some primary equity, which the bill seeks to enforce. Cause removed from the Court of Equity of Martin county. The plaintiff, in this suit, is the administrator of one Abner Williams, and the bill alleges, that the intestate, Williams, being much impaired in mind by an immoderate use of spi- rits, was induced by the defendant, Waldo, to make him a power of attorney to sell a negro slave, named Jack, belong- ing to said Williams, and afterwards, a few days before the death of Williams, the defendant, Waldo, sold the negro to one Morrisett, the other defendant in this suit. The plaintiff, Eborn, as the administrator of Williams, brought an action of replevin against Waldo and Morrisett, to recover back the glave, and under that writ, the slave was put into his hands by the sheriff. The plaintiff was nonsuited in that action of replevin, upon a technical point, and a jury being empannel- led, assessed defendants' damages, for the detention of the slave, during the action, at $316, and execution issued for the amount. It is stated, in the bill, that Waldo is totally in- Bolvent. The plaintiff brought another action of replevin, for the slave, against the same parties, which was pending at the fil- ing of this bill. The prayer of the bill is, that the plaintiff be allowed to pay the money into court and await the decision of the action at law, now pending, and for an injunction to restrain the col- lection of the execution during that time. Upon defendant's filing his answer, the injunction was or- dered to be continued to the hearing, and the cause being set for hearing upon bill and answer, was transferred to this Court by consent. Donnell, Winston, Jr., and Warren, for the plaintift'. Rodman, for the defendants. DECEMBEH TERM, 1860. 113 Eborn v. Waldo. Manly; -J. If we suppose in the second action of replevin, which the bill alleges is now pending, the plaintiff establish- ed his right to the slave in question, and, by consequence, es- tablished the ])osition, that the results of the first action were not in accordance with the rightsof the parties, still, the bill is without equity. The court of equity does not interfere to prevent the enforc- ing of a recovery, at law, for errors of both law and fact, much less will it interfere to prevent tlie operation of what may be i-e- garded as a hard feature in the law. The assessment of damages, after the nonsuit, on the trial of the first action of replevin, was in strict accordance with the course of the Court, under the law regulating that action. No error is even alleged, and the probability that a second action may result differently, is not ground for arresting the execution of the first. It is not an.anomah'^ without parallel, that property upon one trial, is established to be in a party, and upon a second, found to be in the other. ISuch inconsistency results from the infirmity of hum^i tribunals, and is, for the most part, caus- ed by the blunder or laches of the losing party on the trial of the first. A court of equity is, surely, not expected to pro- tect parties from the consequences of their blunders and neg- ligences at law. There were open to the plaintift', in this case, three modes of redress : an action of trover^ of detinue, and of replevin, lie chose the latter, which is subject to the incident, that if he lose the suit by verdict or notisuit, where he is put into possession of the property under the writ, damages shall be assessed against him for the detention. The recovery com- plained of, therefore, arose from his preference of a form of action, and failure in it from any cause. Whosover adopts it, is supposed to foresee its perils, and, relying upon the impreg- nable nature and easy proof of his title, to be willing to en- counter the hazards. It may be remarked, in this connection, that our opinion, as to the want of equity in the bill, is not at all dependant upon the enquiry, whether the damages recov- ered in the first action may, or may not be recovered back in 8 114 m THE STJPKEME COUET. Eborn v. Waldo. the second, should the plaintiff succeed. For, if it be conce- ded that they may be, there is no allegation of the insolvency of Morrisett, whereby the judgment, at law, would be of no avail. This brings us to another ground of objection to the bill, viz., that no relief is sought by it, which can constitute a cor- pus for the Court's jurisdiction.'" It is hardly necessary for us to refer to the many cases, in which we have found it necessary to declare, recently, that a bill for an injunction, merely, without asking other relief, cannot be maintained, except in cases of waste and irrepara- ble injury. In all other cases, injunction is ancillary j^j»rO(2C<§aid by Hepburn to the assignees of Smith. In the month of April, 1854, James Hepburn sold his in- terest in these mining lands to AVilliam H. Winder, of the city of Philadelphia, and subsequently, to wit, on 20th of April, 1854:, Mrs. Penelope Smith and Miss Mary Ann Smith, the devisees of the said Richard Smith, sold their interest, to wit, one half of the said land to the said William H. Winder, and he took a deed in fee, for the same. Winder and others, obtained a charter from the Governor of the State in 1854^5, for an incorporated company, called the Ilerron Mining Com- pany, and the lands and mines were worked afterwards by that- company. The bill alledges that previously to the sale to Winder, the plaintiff proposed to Mrs. Smith and her daughter, to take their share of the lands and mines accord- ing to the provisions of the covenant, and offered them a full price for them, but they refused to let them have them ; that he has made offers to Winder, and to the Herron Mining Company to pay them what they gave for the premises, and take the whole propertj'-, but they have refused to comply with this request. The bill was filed on 24th of September, 1857, and insists tliat the plaintiff is entitled, according to the terms of the con- tract of 1843, to have his election to take the whole of the lands, &c., purchased from the Smiths by Winder, and sold to the corporation at the price the latter gave for them ; and he now elects, and prays the Court to decree him a conveyance of the premises by the said Herron Mining Company ; also, an account from the executors of R. Smith, of his share of the rents and profits derived from the property by him in his life-time, and an account of tlie same from Mrs. Smith and her daughter, while they had and used them ; also, from Winder and the Herron Mining Company, since they have come into possession. DECEMBER TERM, 1860. 127 Weisman v. Smith. The answers of the several defendants were filed, but it is not necessary to notice more of their contents, than that they insist on the statute of limitations in bar of the accounts ask- ed for, ail the time pleading three years before the filing of the plaintiff's bill. Also, Mrs. Smith and her daughter say that at the time of the sale to Hepburn, it was expressly agreed that the mill and mill-site should remain the property of Smith exclusively, and should be excepted from the con- veyance by him to Weisman, and Hepburn, and that by the agreement of all parties, an instrument of writing was drawn up to that eft'ect, which the plaintiff" promised to sign, but that he suddenly left the city of Raleigh and returned to Philadelphia, and that another portion of four acres was to be exempted for a church. Graham and G. ^V. Haywood^ for the plaintiff". Mason and B. F. Moore, for defendant Winder. Miller, for the Smiths. Pearson, C. J. 1. The plaintiff' is not entitled to a speci- fic performance of that part of the agreement executed by him and Richard Smith, on 21st of January, 1843, in which it is stipulated that if either party should wish to sell, he shall give the other " the refusal," or what was aptly called, on the the argument, " the right of pre-emption." We are inclined to the opinion, that a court of equity would not have interfered to compel a specific performance between the original imrties. Such stipulations are against public po- licy, and operate in restraint of alienation ; for which reason, they are not favorites, cither in courts of law or courts of equity. At law, an understanding of this nature is not treat- ed as a grant of an easement or privilege, or as a condition, so as to be attached to the land, in res])ect to which it is made, but merely as a collateral personal covenant, for a breach of which, the party may be entitled to an action for damages ; Blount V. Ilarvey, 6 Jones' Rep. 186 ; Keppel v. Bailey, 2 Mylne and Keene, 577, where it is said, " incidents of a nov- 128 m THE SUPREME COURT. Weisraan v. Smith. el kind cannot be attached to property at the fancy or caprice of any owner," because "it is clearly inconvenient to the sci- ence of the law, that such a latitude should be given ;" " great detriment would arise, and much confusion of riglits, if par- ties were allowed to invent new modes of holding and enjoy- ing real property, and to impress on their lands a peculiar character, which would follow them into all hands, however remote." Considerations of this kind apply as forcibly in equity as at law ; consequently, the Court should not treat such agree- ments as creating a trust, binding the parties and privies to a specific performance, but should leave the party aggrieved by breach thereof, to -his remedy at law. If one takes land in fee simple, and covenants not to alien, a court of equity will not interfere by injunction to prevent him from doing so, but will leave the party to his remedy at law. This is clear. The covenant under consideration is, in effect, a modified agree- ment not to alien, and falls under tlie like reason. We are also inclined to the opinion, that the effect of the sale by Weisman to Hepburn, with the concurrence of Smith, of one half of his intei'est in the lands, and of the deed exe- cuted by Smith to Weisman and Hepburn, vesting in them, as tenants in common, the legal right to one undivided moie- ty of the lands, made such a change in the relation of the par- ties, as to annul and supercede the stipulation which had been made between Weisman and Smith, in respect to the right of pre-emption. It was based on the footing of the copartner- ship, and was an emanation of the idea entertained bjMhe parties of a " grand monopoly " in respect to the mines, which suggested that if one of the parties should ever wish •' to withdraw from the said concern," it was highly probable that the other party would desire to become the owner of the whole, and the stipulation was made to enable him to possess himself of the monopoly. The firm, which was known under the name and style of "Smith and Weisman," was dissolved by the transactions above referred to, and it is fair to infer that the idea of a monopoly was abandoned and passed away DECEMBER TERM, 1860. 129 WeisraaD v. Smith. when the firm ceased to exist ; for no allusion is made to this stipulation in Smitli's deed, and Hepburn is not required to become a party to it, although he acquired one-fourth of the land as a tenant, in common. All mutuality was in this way destroyed, and the fiillilment of the stipulation, was, in fact, rendered impracticable. Was Weisman, owning one-fourth, entitled to a pre-emption right in rcsi^ect to the whole of Smith's lialf ? Or only to one-half of that half? Did Weis- man communicate to Hepburn an interest in tlie pre-emp- tion, so as to give him the right as to one-fourth, both in respect to Smith and Weisman ? Was Smith bound to f)ffer the refusal to Weisman alone ? Or to Weisman and Hepburn jointly? Or to them severally, eacli one-fourth? And,j9e7' i-onti'd^ had Smith a pre-emption right as against Weisman alone, or Weisman and Hepburn jointly ? Or the two sever- ally ? The parties have not enabled the Court to answer these (|uestions. The absence of any provision for tliis new state of things raises a presumption that the stipulation in question was treated and considered by all parties as being defunct. We are of opinion, that upon the death of Mr, Smith, the stipulation did not follow the land and bind his devisees in respect to it, so as to entitle the plaintiff to enforce it against them or their assignees. It could only have this effect by giving to it the character of a trust. AVe can conceive of no ground to clothe it with this character. On the contrary, the considerations above suggested, tend to show that the Court would not allow it to be so treated, except as between the ori- ginal parties, even if an intention to make it a trust, had been expressed by tiie terms of the agreement. The clause, whereby the parties "bind themselves, their heirs, executors, administrators and assigns, to the strict ob- servance of this article," has no further effect than the same words added to a bond for the payment of money. It may be that the plaintiff can maintain an action at law against the personal representatives of Smith or his real representatives — that is, his devisees, for breach of this covenant, but there is no ground on which he can treat a purchaser as holding in trust 9 130 m THE SUPREME COUET. Weisman v. Smith. for him ; because no trust was created in his favor by the ori- ginal agreement. 2. The plaintiff is entitled to a declaration in the decree, that he owns one-fourth of the legal and equitable estate in all the lands set out in the deed executed by Smith to Weis- man and Hepburn, 1st of Februarj^, 1850, free from an in- cumbrance or lien, by reason of the mortgage executed by himself and Hepburn to Smith, and to a further declaration that the mortgage debt has been satisfied, and to a decree for a reconveyance. This equity was yielded by the defendants on the argument, except as to four acres of land which, it is alleged are given to the church, and four acres on which the mill is situated. In respect to which they allege a cross equi- ty to have a specific performance of an agreement to convey the same to Smith, executed by Weisman and Hepburn. — Whether the defendants will be able to establish the cross equity, or whether it can be met by the plaintiff on the ground that it was obtained without consideration, and by the undue exercise of the influence which Smith held over them by rea- son of his being a creditor, and having them in his power, or will, at all events, be allowed oul}'^ to the extent of giving a lien on the mill as a security for the amount expended by Smith in the erection of the mill, are questions into which we will not now enter, because they are not presented in a prop- er manner by the pleadings. Where the defendant has an ^quit}'^, he must set it up by a cross bill. This is a well set- tled rule of the court. The decree, however, in this case will be so framed as to be without prejudice to this equity of the defendants, so as to enable them, if so advised, to seek to have it set up by an original bill, when the matter can be ful- ly presented without being attended by the complication and confusion that a cross bill filed in this case would necessarily have produced, considering the very voluminous pleadings and exhibits relevant to the several equities which the plain- tiff seeks to enforce. 3. The plaintiff's right to an account against the personal representatives of Smith, is barred by the statute of limita- DECEMBER TEKM, 1860. 131 Weisman v. Smith. tions. It is true, tliat as between copartners and tenants in common, the statute of limitations does not run, until, as Hen- DEKSON, C. J. expresses it in Wagsktff v. Smith, 2 Dev. Eq, 264, " there is a cesser of the privity or connection from which the accountability arises." In that case, and in Northcott v. (Jasper, 6 Ired. Eq. 303, the relation of the parties was not changed, but in our case, on the death of Smith, there was a change in the relation of the parties. Smith, of course, could no longer be a copartner, or a tenant in common, and, conse- quently, an action accrued for or against his personal repre- sentatives to have an account of the profits received, which action is barred by the statute; for, although his wife and daughter acquired his estate, as devisees, the estate passed to them as assignees, and the relation, which had previously ex- isted between him and the plaintiff, was of course at an end. So, the right of action in respect to the profits accrued at that time; for there was "a cesser of his privity or connection as tenant in common," a new relation then commenced between him and the devisees, and the case is the same as if one ten- ant in common sells. That is, a cesser of his relation as tenant in common ; and a cause of action then accrues to all of the tenants in resyiect to the arrearages of profits, and a new rela- tion begiiis between the other tenants and the purchaser. The bill was filed oii 24th, Sept. 1857. Mrs. Smith and Miss Mary sold to Winder 20th of A2wil, 1854, at which time there was a cesser of the connection with the plaintifi" as ten- ant in common. So, the plaintifi^'s right to an account against them is barred, except from the 24th of Sept. 1854. For all profits or moneys received for, or on account of, or out of the the lands, after tliat date, he is entitled to an account as against Mrs. Smith and Miss Mary, and the defendant Winder, and the Herron Mining Company. How far the fact that the de- velopements of lead ore cropped out in so many places, and the quantity of wood was so great as to leave ample room for all the tenants in common to come and take their share, distinguishes that species of profits from the receipt of rent, either in money or produce paid by the lessees of the several 132 m THE SUPREME COURT. Moore v. Moore. houses, and cleared pieces of ground in the many tracts of land, is a question which inay be presented by exception to the account. Per Cukiam, Decree accordingly. DAVID MOORE AND OTHERS againsl DANIEL MOORE, Executor. In determining whether a limitation of property does, or does not amount to a perpetuity, regard is had to possible, not actual events, and the fact, that the gift might have included objects too remote, is fatal. Cause removed from the Court of Equity of Caldwell county. Jesse Moore died in the said county, leaving a last will and testament, in which, after making various specific devises and bequests, the testator proceeds: "Item 7. My will is, that all the rest of my property, of every description, and my money, be kept by my executor, wliomsoever I may appoint ; it shall be kept as a fund. Should any of my children, or grandchildren, come to suffering, in any other way, save by idleness, drunkenness, or any thing of the kind, so as to be- come an object of charity, I want the said executor to give a part of this to such child or grandchild." The bill is filed by the next of kin of the testator, and prays for a distribution of this fund amongst them, upon the ground, that the bequest is an attempt to create a perpetuity, and, there- fore, A^oid. The cause being set for hearing upon bill, answer and ex- hibit, was tranferred to this Court by consent. Mitchell, for the plaintiffs. No counsel for the defendant. DECEMBER TERM, 1860. 133 ^Moore v. Moore. Battle, J. Upon the best consideration, which we have been able to give to this case, we are clearly satisfied, that the bequest, contained in the 7th clause of the testator's will cannot be sustained. It is an attempt to create a fund and keep It in existence, for a purpose, which may not be finally accomplished for a period longer than that which the rale agamst perpetuities, will allow. Whether the administration ot this fund by the executor, as "treasurer," is to be deemed a power or trust in him, the necessary effect of it will be, that the fund will be tied up and kept from commerce during the entire lives of the testator's children and grandchildren, which It IS manifest may be, and probably will be, much longer than a lite, or lives in being at the testator's death, and twenty-one years atterwards. TJiis makes the bequest void, althought it might iiappen that all the grandchildren would die within twenty-one years after the death of all the testator's children lu a case of this kind, i^ is well known to be "an invariable principle in applying the rule, under consideration, that re- gard IS had to possible, not actual events, and the fact, that the gift might have included objects too remote, is tatal to its validity irrespectively of tlie event." In the present case, it IS plain that the gift of the fund mlgJd be needed by the ob- jects of the testator's bounty, for some time after the time al- lowed by tlie rule against perpetuities, that is, after twenty- one years, from the death of the last survivor of the testator's children ; see 1 Jarman on Wills, 227, et seq., where the sub- ject IS tully discussed and explained ; see also 2 Rop. on Leo- 298, et seq. °' In deciding against the validity of the bequests, upon the ground, that it violates the settled rule on the subject of per- petuties, we do not intend to give, or intimate an opinion, whether the objects of the Intended chairity are sufiiciently dcfamte, or the manner in which they are to be ascertained, IS pointed out witli sufficient precision. The plaintiftk are entitled to a decree, according to the prayer of the bill. '' Pee Cueiam, Decree for the plaintifls. 134: m THE SUPEEME COUKT. Knight V. Knio^ht. W. H. KNIGHT, Mc'r against F. H. KNIGHT AND WIFE AND OTHERS. Where a testator gave property, real and personal specifically, and then de- vised and bequeathed all the " balance of his estate" to certain parties in general terms, and after making his ^Yi}l, the testator acquired property, re- al and personal, it was held that this after-acquired property fell into the re- siduum bequeathed generally, and that upon a deficiency of funds provided for the payment of debts, the after-acquired personalty was first liable. Personalty in the hands of an executor or administrator, whether bequeath- ed specifically or otherwise, is first liable to the payment of debts, unless specifically exempted, and the real estate belonging to the deceased, wheth- er descended or devised, is not liable until the former is exhausted.' Cause removed from the Court of Equity or Edgecombe county. The plaintiff in this suit, is the executor of the last will and testament of Jesse C. Knight, and the bill is filed to ob- tain from the Court a* construction of the said will. In the ninth clause of the will, the testator bequeaths and devises as follows : " Item ninth. All the balance of my estate and effects, with all money or monies due, I wish to be disposed of according to items third, fourth, fifth and sixth, except such perishable effects as he shall deem best to sell, which he shall sell on a credit of six months with interest ; and after paying all my debts and expenses of administration, the balance of the proceeds shall be distributed by the several items." By the third item of the will, the te&tatcr gave to* W. H. Knight certain lands and personal property on certain condi- tions and limitations. By item fourth^ he gave property, real and personal, to Sally Knight, on certain limitations. By item fifth, he gave property to W. II. Knight for the sole and separate use of Martha A. Lawrence, wife of A. B. Lawrence. By item 6th, he devised and bequeathed property to Susan, wife of A. B. Nobles. After the making of the will, the testator acquired several DECEMBER TERM, 1860. 135 Knight V. Knight. tracts of land, and also a considerable amount of personal propert}'. The plaintiff shows from an account filed, that the notes and proceeds of the perishable property will be insufficient to pa}^ the debts of the testator, leaving after these are exhausted, debts to the amount of $11,315.54, to meet which deficiency, some of the legacies will have to abate. It is for the purpose of obtaining tlie direction of the Court as to which of the le- gacies shall abate, that this bill is filed. The cause being set for hearing upon the bill and answer, was sent to this Court by consent. Bridgers and Rodman for the plaintiff. No counsel appeared for the plaintiff in this Court. Manly, J. Upon a consideration of the contents of the will of Jesse C. Knight, we are of opinion in the first place, that the property acquired subsequently to the making of the will, falls into the residuum spoken of in "the ninth clause. Ac- cording to the provisions of the statute of 1844 concerning wills, embodied in the Rev. Code, ch. 119, sec. 6, a will in reference to the real and personal estate comprised in it, speaks and takes effect as if it had been immediately executed be- fore the death of the testator, unless a contrary intention ap- pear from the will. As nothing appears to rebut this legal construction, its eflect, in the case before us, is to throw the after-acquired lands as well as personalty into the residuum. In the second place, we are of opinion that tliQ jm'sonalti/ of the residuum is the fund primarily liable to the payment of debts. It is in all respects a true residuary fund not spe- cifically bequeathed, but disposed of in general terms to a class of legatees. It appears from a summary statement of the executor, that the aggregate amount of unpaid demands against the estate, is $11,315.54. We take it for granted the residue of personalty will not be eafiicient to satisfy this amount, and have considered the will 136 m THE SUPEEME COURT. Whitfield V. Gates. with reference to the fund next liable, and conclude in the third place, that the legacies of personalty must abate. These legacies all appear to be specific, and they must, therefore, abate rateably. Since the statute of 1S46, Eev. Code, ch. 46, sec. 44, the personalty in the hands of an executor or administrator, wheth- er it be bequeathed specifically or otherwise, is first liable to the payment of debts, unless s])ecifically exempted ; and the real estate belonging to the deceased, no matter in what con- dition it is found, whether descended or devised, is not liable until the former is exhausted ; Graham v. Little, 5 Ired. Eq. 407. By operation of the wills act of 1S46, the lands acquired by Jesse C. Knight subsequently to the making of his will, pass under the residuary clause. Tiie distinction in this respect, between real and personal property, theretofore existing, is thus abolished ; and both pass alike under a bequest of the residue. What would have been the effect of this without our act of 1844, prescribing the order in which real and per- sonal property shall stand in their liabilit}' to pay debts, it is unnecessary to enquire. By that act, personalty is put in the front, and we accordingly hold that the specific legacies of personalty must abate. Pee Cukiam, Decree accordingly. R. M. WHITFIELD AND WIFE AND OTHERS against JAMES H. GATES. Where there is no allegation of fraud, imposition, oppression, or mistake, the Gourt will not set up a parol agreement, and declare an absolute deed to be a mere security for money advanced. Where a valuable consideration has been paid by the person, to whom an absolute deed for slaves is made, the allegation of a parol trust in favor of DECEMBER TERM, 1860. 137 AVhitfield v. Gates. a third party, forms no exception to the rule in) courts of equity, in re- spect to declaring such a deed a rucre security for money loaned. Although a plaintiff may fail as to the principal equity he seeks to establish, he may fall back on a secondary equity, provided it is not inconsistent with the principal equity, and the allegations, in the bill, are sufficient to raise it. (The cases of SJielton v. Shelton, 5 Jones' Eq. 202, and Riggs v. Swann, ante, 118, commented on and distinguished from this case.) Cause removed from the Court of Equity of Person county. The bill is filed by 11. M. Whitlield and his wife, Susan, and his children, alleging that the said R. M. Whitfield was improvident, and being desirous to provide for his wife and children, the said other plaintifis, he made a conveyance, da- ted March, 1840, of seven slaves, (naming them) being all the slaves he owned, for the consideration, expressed in said con- veyance, of $750, that said conveyance was made upon the express understanding and agreement, that the defendant was to hold the slaves for the bciieiit ol'. and in si)ccial trust and confidence for, tlie wife and children of the said R. M. Whit- field, and that they were to have the. privilege of redeeming the same at any time, by paying him whatever amount he might advance of the $750 with interest; that the defendant paid, at the time, $380, in casli, and gave up a note he held on the said R. M. AVIiitfield for $70, making in all $400, and executed a bond for $350, tlie balance of the $750 ; that some some short time thereafter, in the absence of the plaintiff, R. M. Whitfield, the defendant prevailed on his wife, the plain- tiff, Susan, to give him up the bond for $350. alleging as a reason for her so doing, tlie imi)rovidence of her husband ; that he being a relation and a professed friend, she had entire confidence that he would deal fairly with the plaintiffs, in respect to the said bond ; tliat the said slaves were worth at least $1300 at the time ; and that the said amount of $400, was all that defendant has ever paid towards said slaves ; that the de- fendant did not take possession of the slaves at first, but a short time after the contract he came for them, and under a pre- tence, set up by him, that it was necessary, to keep off cred- itors, for him to take possession of the property, and believ- 13S IN THE SUPKEME COURT. Whitfield V. Gates. ing in the sincerity of his purposes, the plaintiffs consented for him to take the slaves into his possession, except one, which remained in the possession of the plaintiffs ; that af- terwards, he sent them all back to plaintiffs, who kept pos- session of them for six or seven years ; that some eight or ten years ago, under the like delusive promises and assurances, he again got possession of the slaves, except the same one, which had formerly remained with them ; that by the same kind of delusive statements and professions of kindness and affection, he lulled the suspicions of the plaintiffs, and did, from time to time, put them off when they called upon him to redeliver the slaves to them, and otherwise perform the trust he had undertaken in behalf of the wife and children ; that about a year before the filing of the bill, the defendant had the said conveyance registered, and has since then set up claim to the absolute right to the slaves. The bill, among other interro- gatories, calls on the defendant to answer, as to the said bond, for $350, whether the same has ever been paid to plaintiffs, or either of them, or to any one else ? and if so, when ? and where ? and to whom ? The prayer is, that the defendant may be declared a trus- tee in behalf of the wife and children, and that an account may be taken of the amounts paid and of the hires of the said slaves, and for general relief. To this bill, the defendant demurred. There was a joinder in demurrer, and the cause set down for argument, and sent to this Court. Reade and Fowls ^ for the plaintiffs. Graham^ for the defendant. Peaesok, C. J. The principal equity, which the bill seeks to enforce, is the ordinary case of converting a deed, absolute on its face, into a security for money, by parol proof of an agreement to that effect. There is no allegation of fraud, imposition, oppression or mistake, which is necessary, in order to bring the case within DECEMBER TERM, 1860. 139 Whitfield V. Gates. the application of that doctrine, as has been decided over and over again by this Court. On the argument it was insisted, that this case differs from the ordinary one, for here the bargainee, upon repayment of the money, was not to reconvey to the bargainor, but was to convey to his imfe and children, in whose favor a trust was declared, and Shelton v. Shelton, 5 Jones' Eq. 292 ; Biggs v. JSwcmn, ante 118, were relied on. The position, that this is the case of parol evidence to establish a declaration of trust as distinguished from a condition, is not tenable, and the cases cited, have no application. The defendant paid a part of the purchase-money and secured the balance by note. This^rm- ed a use for him, and when the legal estate passed, the two united so as to give him the estate, both legal and equitable, and by the force and effect of the deed, he became the owner, to all intents and purposes. The purpose of the parol evidence is to show an agreement, by which his estate was to close, and he was to hold in trust for the wife and children of the bar- gainor on repayment of the purchase-money ; which is neither more nor less than a condition, by which his princi- pal estate is to be defeated : in other words, a deed, absolute on its face, and vesting in the bargainee an absolute estate, is to be converted into a security for money, and upon his estate being defeated, he is directed to convey to the wife and chil- dren of the bargainor, instead of the bargainor himself, which is a distinction without a difference, for, in either case, an abso- lute estate is defeated by parol evidence. In Shelton v. iSheltmi, a grand-mother ^^«/(Z the inirchase-money , and instead of tak- ing the title herself, directed the title to be made to A, and by parol, made a declaration of the trust in favor of her grand- cliildren. By force and effect of the deed, A acquired only the legal estate, and a trust would have resulted to the grand- mother, by reason of her having paid the price, so the effect of the parol declaration was simply to direct the trtist from herself and give it to the grand-children. In Biggs v. Swann, a father had mortgaged two slaves. The mortgagee agrees to take one of the slaves, absolutely, 140 IN THE SUPREME COURT. Whitfield V. Gates. in satisfaction of the debt, and reconvey the other. The fa- ther directs the title to be made to A, and by parol, makes a declaration of the trust, to wit, A is to hold in trust until the hire pays off a debt due him, and then, in trust for two of the children of the mortgagor, A had paid nothing for the slave, and but for the declaration, would have held the legal title, in trust, for the father. So, the effect of the declaration was simply to divest the trust from himself and give it to the two children, after a debt was paid. In these cases, the person to whom the deed was made, ne- ver had the use or equitable estate, and t]ie effect of the deed was simply to pass to him the legal title. But in our case, the defendant, by force of the deed, acquired absolutely, both the legal and equitable estate, and the attempt is, by parol evidence, to defeat his estate. " N'ote the diversity." Although tlie plaintiffs have failed to establish their prin- cipal equity, there is a secondary equity disclosed by the bill. It is alleged that the defendant induced the wife of the plain- tiff" to give up to him the note for $35u, which he had given to secure the balance of the purcliase-raoney, without paying any thing for it, and under the delusive assurance, that it was best for her do so, because of the improvidence of the hus- band. So, the defendant holds the note thus fraudulently procured to be surrendered to him, and has never paid the amount due thereon. The demurrer admits these allegations and the fraud charged. It follows that it cannot be sustain- ed in respect to this note, and being bad as to part of the bill, it is bad as to all, according to a well-settled rule of this Court. It is also well settled, that altliougli a plaintiff may fail as to the principal equity, which he seeks to establish, he may fall back on a secondary equity, provided it is not inconsist- ent with the principal equity, and the allegations, in the bill, are sufficient to raise it. It is certainly not inconsistent with the main purpose of the bill for the plaintiffs, failing in that, to insist that the defendant should, at the least, jjay the full price, which he agreed to give, and not avail himself of a fraud in procuring the surrender of the note, which he had DECEMBER TERM, 1860. 141 Jackson v. Rbera. executed, as security, for a part of it, aud the allegations are made with sufficient certainty. Per Curiam, Demurrer over-ruled. J. H. JACKSON AND WIFE AND OTHERS against E. H. EHEM, Jr., Admr AND OTHERS. Where a man and woman live toq^ether as man and wife, and are so reputed in the neighborhood, up to the death of one of the parties, and have chil- dren whicla they treat as legitimate, a court will not declare against the marriage except upon the most overwhelming proof that there was no mar- riage. Cause removed from the Court of Equity of Lenoir count3\ This was a petition for a distributive share, and it sets out that Edward Rhem, late of the county of Craven, died intes- tate in the year 1855, and left a large personal estate, which went into the hands of the defendant, E. 11, Rhem, Jr., as his administrator ; that Edward Rhem left no children, but left surviving him a brother and a large number of nephews and nieces, children of deceased brothers and sisters, among which latter class are the feme plaintiffs in this suit, who are the children of Melchor Rhem, a deceased brother of the testator, Edward Rliem ; and that representing their deceased father, they are entitled to a distributive share of the estate of the said Edward Rhem, deceased. The defendants, in their answers, deny that the feme plain- tiffs are entitled to represent their deceased father in the dis- tribution of the said estate, being, as the answers allege, ille- gitimate children. Testimony was taken on both sides, from which, it is apparent that Melchor Rhem and the mother of the feme plaintiffs lived together for twenty years as man and wife, and were reputed as such in the neighborhood, but there was no evidence that they had been actually married. 142 IN THE SUPREME COURT. Jackson v. Rhem. A copy of a marriage bond, certified by the clerk of the coun- ty court of Lenoir, was produced, which bond, recited that Melchor Rhem had obtained license to marry Alice Davis, the mother of the feme plaintiflPs. Several witnesses testified, that they had heard Melchor Rhem say, on several occasions, both before and after the deatli of his reputed wife, that he had never married her. The cause being set for hearing upon bill, answer, exhibits and proofs, was sent to this Court by consent, and after ar- gument here, the Court directed issues to be tried in the Su- perior Court of Lenoir : 1st. Were the said Melchor Rhem and Alice Davis ever lawfully married. 2ndly. Were the plaintiff's, or either of them, born in law- ful wedlock ? These issues were submitted to a jury, who found both in- favor of the plaintiff's. Which finding, was certified to this Court, and at this term, the defendant's counsel moved the Court to dismiss the plaintiffs' bill, notwithstanding the ver- dict, or to order another trial of the issues, on the ground? that the verdict is against the weight of evidence. Stevenson^ for the plaintiffs. C'^' cent, upon tliis legac}' is due th6 State, which sum, the defendant has failed to pay over upon demand. The answer admits the material facts averred in the bill, and states the amount of the legacy in question, to be $632.84, upon which the tax amounted to $18.98. This sum defend- ant paid into the clerk's office on the 20th of October, 1860, more than six months after the bill w'as filed. The defendant alleges that, by the terms of the statute upon Revenue, he was not bound to retain and pay over the tax until the final settlement of the estate, which final settlement had been de- layed by the pendency of a suit against him, as administrator. The 8th section of the 99th chapter of tlie Revised Code, upon the construction of which, the case is made to turn, is in the following M^ords, viz : " The executor or administrator of every sucli deceased person, on his settlement of the estate, shall retain out of the legacy, or distributive share, of every such legatee or next of kin, the tax properly chargable thereon ; and in case he may have sold any real estate, and there shall be any surplus in DECEMBER TERM, 1860. 145 Attorney General v. Allen. his hands, not needed to pay debts and charges, he shall re- tain tlie proper tax of each person entitled to such surplus ; which taxes, he shall pay to the clerk of the court of pleas and quarters sessions of the county wherein the will was proved, or administration granted." The cause being set for hearing upon bill and answer, was sent to this Court by consent. Henry C. Jones^ for the plaintiff. J. N. Washingto?i, for the defendant. Peaeson, C. J. 1. Tlie motion to dismiss for want of a prosecution bond, made in this Court, is not allowed. Such matters should be attended to in the preliminary stage of a suit. After a case is in this Court and the party is ready to have it heard, a motion to dismiss for want of a prosecution bond, is " behind time." 2. The objection, which is faintly made by the answer, that an illegitimate son is not " a stranger in blood," was proper- ly abandoned on the argument. 3. The point made on the construction of the statute, Rev. Code, chap. 99, sec. 8, is against the defendant. " On his settle- ment of the estate" taken in connection with the words, " shall retain out of the legacy or distributive share of everj^ such leg- atee or next of kin," does not refer to a final settlement of the estate, but to liis settlement, so far as the legatee or distribu- tee is concerned, out of whose legacy or share, the tax is to be retained. When an administrator, as in this instance, pays over a legacy and retains out of it the amount of the tax, for what purpose should he keep it in hand until there can be a "final settlement" of the estate ? Ctd ho7io, except to tempt him to apply the amount (which would otherwise be idle in his pocket) to his own use ? 4. It appears by the exhibit filed, that the defendant paid the amount of the tax to the county court clerk on the 20th of October, 18G0, but the bill was filed March 1860. So, the defendant is again "behind time;" for taking the matter as 10 146 m THE SUPREME COURT. Johnston v. Chesson. ground against a further prosecution of the suit, in order to be a bar, it should have been accompanied by the payment of all cost up to that date. The plaintiff will have a decree for the amount of the tax (to be satisfied by the money in the clerk's office) and for his costs, which really seems to be the point in the case. We will take occasion to say tliat the payment of taxes is a duty, which every good citizen ought to attend to. If he is remiss in regard to it, he has no right to object to a "bill of cost." The State is not, and ought not to be required to be at the expense of having an agent to make a demand in each and every case. Every good citizen, should be prompt to pay his taxes. Per Curiam, Decree accordingly. JOHN C. JOHNSTON against JOHN B. CHESSON, Jr., AND OTHERS. Under the statute of distributions in this State, Rev. Code, chap. 64, sections 1 and 2, representation is not admitted among collateral kindred after brother's and sister's children, and, consequently, uncles and aunts of an intestate, take to the exclusion of the children of a deceased uncle. Cause removed from the Court of Equity of "Washington county. The bill is filed by the administrator of Otis W. ChessOn, and prays the instruction of the Court as to his dut}' in the administration of the estate. He sets out, that his intestate left him surviving, an uncle, one Nathaniel C. Chesson, an aunt, Sarah Chesson, who has since married one Swain, and a cousin, John B. Chesson, junior, son of a deceased uncle. The defendants, in this suit, are the uncles and aunts, and the said John B. Cliessou, jr., wlio claims an equal share with his uncle and aunt in the estate of the intestate. Tlie .1 DECEMBER TERM, 1860. 147 Johnston v. Chesson. cause being set for hearing upon bill and answer, was trans- ferred to this Court by consent. //. A. GUliani^ for the plaintiff. Wi7iston^ Jr.^ for the defendants. Battle, J. The bill is filed for the sole purpose of obtain^ ing the decision of the Court upon the question, whether in the distribution of the personal estate of an intestate, the son of a deceased uncle can, by right of representation, claim an equal share with an uncle and aunt, who are the nearest of kin to the intestate. This question is settled by the express words of our act of distributions, which says, that in the case of an intestacy, " if there be neither widow nor children, nor any legal representative of children, the estate shall be distri* buted equally to every of the next of kin of the intestate, who are in equal degree, and to those who legally represent them," with a proviso, " that in the distribution of the estate, there shall be admitted among collateral kindred, no repre- sentative after brothers' and sisters' children ;" see Rev. Code, chap. 64, sections 1 and 2. There was a similar provision in the English statute of distributions of the 22d Charles II, and it has always been held thatamong the unclesand aunts and other more distant kindred of an intestate, there could be no right of representation allowed ; 2 Williams on Executors, 930. In the rules of the descent of real estate, the right of repre- sentation is indefinite, as well among collateral as lineal kin- dred ; see Rev. Code, chap. 38, sec. 1, rule 3. This has al- ways been the law, both in England and in this State, (see Clement v. Cauhle, 2 Jones' Eq. 82 ; Ilaynes v. Johnston, 5 Jones' Eq. 124,) and in consequence of it, the real estate of an intestate will often devolve, in part, upon a person, who cannot take any portion of his personal estate. The law, up- on the subject, has been so long and so firmly established, that it is unnccessar}'^ for us to attempt an explanation of the reasons upon which it was originally founded. Per Curiam, Decree accordingly. 148 IN THE SUPKEME COUET. Mason v. Sadler. ANDREW S. MASON AND ANOTHER against DEMPSEY B. SAD- LER, Administrator. Where a testator bequeathed as follows : " I lend to my wife, during her life, all my negroes (three in number) for the purpose of raising and educating my two sons," which was but a reasonable share of her husband's estate, and gave in the same will, in appropriate terms, to his wife, as guardian to his two sons, the remainder of his estate, it was held that the former clause conferred upon her, for life, a beneficial interest in said property, with a recommendation in behalf of the two sons. Cause removed from the Court of Equity of Hyde county, Osborne Foy Mason, by liis will, dated 14:tli of January, 1841, bequeathed as follows : " First, I lend to my wife, Pol- ly, during her life, all my negroes, to wit : Charles, Clarisa, and Bets}' Ann, and their increase, for the purpose of raising and educating my two sons, (Andrew) Shanklin and Ausbond, * "■ * and for her year's provision, one hundred and twen- ty dollars." " I give and bequeath to my two sons, Shanklin and Ausbond, at the death of my wife, Polly, all my ne- groes, viz : Charles, Clarissa, and Betsy Ann, and their in- crease," with contingent limitations over. " All my perishable estate, except such that I have allotted to my widow, I wish to be sold on a credit of six months, and at the expiration of two years, after proving the will, I wish my executor to pay over to my widow, as guardian of my two sons, all the funds on hand for the purpose of raising and educat- ing my sons, and for the purpose of her providing them a dwelling and land to live upon." By a codicil, he devises as follows : " The land I lately purchased of Joseph Swindell, I have lent to my wife her life- time, and at her death, I give and bequeath the same to my two sons, Shanklin and Ausbond." The bill asserts an equity in behalf of the two sons, Andrew Shanklin and Osborne, (called in the will Ausbond,) as arising to them from the first clause of the above will and seeks to have the widow declar- ed a trustee for their benefit, in respect to the slaves therein mentioned. Mrs. Mason, the mother, lived on the land, men- DECEMBER TERM, 1860. 149 Mason v. Sadler. tioned in the codicil, from 1841 to the year 184-7, and in that year, was married to one Richard Sadler. Before this mar- riage, one of the slaves, mentioned in the will of Foy Mason, to wit, Clarisa, was sold by the administrator with the will annexed of her husband, for the payment of debts, and Mrs. Mason became the purchaser at four hundred dollars ; of this sum, she paid out of the money arising to her from her hus- band's will, for lier year's allowance, $120, and some further amount out of the money arising from the hire of Charles. The unpaid balance of this note was discharged by Sadler, the second husband. While residing on the land, left her by her husband, the plaintiffs, who were small, lived with her, and did some light work, and afterwards, when she married, they went with her to the dwelling of her second husband and spent some year or two in that family, sometimes working in the crop. Tliey afterwards lived at other places in the neigh- borhood and worked. Sadler, the second husband, took all the slaves into his possession, and kept them during the life- time of his wife ; after her death, which occurred in 1850, he delivered Charles and Betsy Ann to the guardian of the plaintiflfs, but as to the woman, Clarisa, and her children, he retained them, insisting that, by the purchase of his wife and the payments made by her and himself, the absolute proper- ty in these slaves vested in him. The plaintiffs were not sent to school at all, and it appeared were, at times, badly clad, but this seemed to aiise more from the straightened circumstances of the mother, during her widowhood, than from neglect or indifference. It took all that could be made by the hire of Charles and Betsy Ann to support the family in the condi- tion mentioned. As to Clarisa, she soon had a family of small children, and added to the expense of the family. On the death of Richard Sadler, this suit was brought against his administrator for the recovery of Clarisa and her children, alleging that she had been pa:d for out of the hires of the said three slaves, which they said belonged to them; alleging also, that they had never received the benefit of the said property, either in maintenance or education or in any other way, and 150 m THE SUPKEME COUKT. Mason v. Sadler. praying an account of the hires of the slaves while in the possession of the said Richard Sadler, and of the woman, Cla- risa, and her increase, since his death. The answer of the administrator of Richard Sadler, insists that the beneficial use of the slaves belonged, b.y a proper construction of the will, to Mrs. Mason, and as such, the right to the two slaves, Charles and Betsy Ann, for his wife's life, vested in him, and as to Clarisa, she was his by his wife's purchase. The proofs taken in the cause, establish the facts of the case, as stated. The cause was set down to be heard on bill, answer and proofs, and sent to this Court. Donnell and Carter^ for the plaintiffs. No counsel appeared for the defendant in this Court. Manly, J. The question presented by the pleadings is, whether the language used by the testator, Foy Mason, in the first clause of his will, creates a trust, in his wife, of Charles, Clarisa and Betsy, for the sons, Andrew and Osborne. It seems that Clarisa was sold by the administrator to pay debts — bought by the widow and paid for, partly, by funds arising from the hires of the other slaves, and the object of the bill is to follow the fund and to hold the property in which it was invested as security pro tanio. Thus, the equity of the bill rests upon the principle, that the slaves loaned to the wife, for life, was a trust, solely for the benefit of the children during that term. Indeed, that is the leading allegation of the bill. This, we think, is a mis- construction of the will. Considering the clause, in connec- tion with the other bequests of the will, we are of opinion the wife, under the bequest, took an absolute legal estate, and that the words, "for the purpose of raising and educating mj two sons." have not the effect to qualify that estate. Our in- terpretation is, that the words mean to give a reason for the DECEMBEE TEEM, 1860. 151 Mason v. Sadler. gift, and in that way, to suggest and recommend a duty that was incumbent on her. This construction is strengthened by reference to the terms of the provision, made in another part of the will, for the sons. It is there directed that certain property be sold, and after two years from the probate of the will, be paid over to his widow, as guardian to his sons, for the purpose of raising and educating them, &c. The language used, in these clauses, is" so different, that we cannot suppose the testator meant the same thing. The inference is, that as the latter bequest was certainly intended for the benefit of the sons, the former was intended for that of the wife, with an admonition, as she had the means afibrded her, to take care of the children. It will be found, upon examination of the will, that if the widow takes no beneficial interest in the bequest of the slaves aforesaid, that a very inadequate provision is made for her. This is contrary to the general tenor of the instrument, and to the dispositions" towards the wife manifested in it. It would be calculated to provoke a dissent, inevitably, and the conse- quent disturbance of his arrangements, which he could not have desired or contemplated. The facts of the case show, that with all the assistance given in the will, it was a hard strug- gle for her to keep the property together and maintain her- self and family in the humblest manner. But a small portion — about $80 of the income, from slaves, was devoted to the purchase of Clarisa, the balance having been paid by the ap- plication of her year's provision to that object, and by moneys furnished by her second husband, the defendant's intestate. The term, for which the property is given, it seems to us, is significant of the purpose of the testator. A loan, for life, is appropriate and usual in cases of gift for the donee's own use, but it is of rare resort, where it is intended the donee shall hold for the benefit of others. It is not such language as would naturally be adopted for eflPecting a purpose of that kind. There is no warrant, therefore, either in the language of the bequest, or the intention of the testator, as gathered from 152 IN THE SUPREME COURT. White V. Hooper. the entire instrument, for severing the beneficial interest from the legal estate. The language, in which the bequest is cloth- ed, is simply demonstrative, and amounts, at most, only to an injunction, on the legatee, to enjoy the property given, in a particular manner. This case is distingushed from that of Little v. Bennett, 5 Jones' Eq. 156. There, the entire estate of the testator was given to the wife to raise and educate the children, and to dispose of among them as she might think proper. This was held to confer a beneficial interest on both, which might be enforced in a court of equity. But it was placed expressly upon the ground, that it could not be intended for herself alone, because there would then be nothing for the children ; nor could it be intended for the children alone, because, in that case, the mother would be left destitute, and, therefore, it was intended to be given to both. In the case before us, distinct provision is made for each, and we are of opinion the words annexed to the bequest for the wife, do not confer up- on the children rights that will be enforced by the Court. Per Curiam, Bill dismissed. EDWARD WHITE AND WIFE AND OTHERS against JOSEPH HOOPER, ADM'R AND OTHERS. A bill will not lie at the instance of the beirs, against the administrator of one who had executed a bond to make title, to enjoin the latter from making a deed to the obligee, upon the ground that he had not paid the purchase-mo- ney, but fraudulently pretended to have had done so, and to nullify the con- tract. It would be the duty of the administrator, if the money, in such a case, was not collected, to enforce the payment, and he would be liable if he failed to do so. The remedy of the heirs-at-law, in a case where the obligee had not paid the purchase-money on a bond to make title, would be to file a bill against such obligee to compel a specific performance. DECEMBER TERM, 1860. 15( White V. Hooper. Cause removed from the Court of Equity of Rockingham county. The bill is filed by the heirs-at-law of James D. Taylor, and sets forth that in the year 1834, their ancestor made a bond to convey a tract of land, (describing it.) to Anderson Crowder, whenever the purchase-money for the same should be paid ; that the said purchase-money has never been paid ; that the said Anderson Avas very poor, and was always unable to pay the sum agreed in said bond to be paid ; that their an- cestor died in 1839, and the said Anderson in ; that no administration was taken on the estate of the said James D. Taylor until the defendant took out letters at August Term, 1856, of Guilford County Court, for the express purpose, as plaintiffs believed, of making a deed to the heirs of the said Crowder, on the assumption that the purciiasc-money was paid to the said Taylor in his life-time, and they say by way of anticipation, that the defendants, the children of the said Crowder, are setting up certain mutilated bonds from which the names of the obligor has been cut, which they pretend were given for the said land and paid, and taken up by their ancestor in his life-time ; but that the same are feigned, and gotten up for the occasion. The prayer is that the adminis- trator. Hooper, may be enjoined from making title to the premises, and that the said simulated papers may be surren- dered for cancellation. The defendants answered very fully, but as the merits of the equit}^ as disclosed in the bill, ai'e alone treated of by the Court, a further notice of the pleadings is not necessary. Moreliead and Gorrell^ for the plaintiffs. Foiole, for the defendants. Manly, J. This is a bill filed by the heirs-at-law of James D. Taylor, against the administrator and heirs-at-law of An- derson Crowder, to enjoin the administrator from making a title to the latter, upon the allegation that their ancestor did not pay for it. The bill admits that Taylor executed a bond 154 IN THE SUPREME COURT. White V. Hooper. for a title, but alleges that the evidences of payment have been fraudulently procured or fabricated. The prayer is, that a conveyance of the land ma}'- be perpetually prevented by an injunction ; or, if already made, that the deed may be re- called and cancelled, and that the evidences of payment may be impounded. We think the plaintiffs have mistaken their equity. Their ancestor having entered into the bond, the administrator, un- der the provisions of the Rev. Code, ch. 46, sec. 37, is bound to carrj' it into execution according to its conditions. If the money has been paid, the administrator's sole duty is to make the title ; if it has not been paid, his dutj'' is to collect, and, thereupon, to make title. So, that in either case, he is charg- ed with the specific execution of this testator's obligation, Tlie equit}' of the heirs-at-law of Taylor, according to the allegations of their bill, and upon the supposition that the purchase-money was never paid, would be to call for a speci- fic performance themselves, and not to nullify the contract al- together; or, in calling the administrator to an account they would have a right to regard the failure to collect this debt, or the making title without requiring its payment, as a cul- pable negligence or waste in respect to liis assets, and make him account for the same. The above view of the case is taken upon the allegations of the bill alone, disconnected from the answers and proofs. It is due to the latter to say that they do not leave the merits of the bill unaffected. The complainants are not entitled to the relief they seek, and the bill must be dismissed with costs. Per Curiam, Bill dismissed. DECEMBER TERM, 1860. 15; Sanderlia v. Robinson. WILLIAM C. SxVNDERLIN AND WIFE against WILLIAM ROBINSON AND OTHERS. Where a woman and her intended luisband, upon the eve of marriage were in- duced by her brothers to sign a marriage contract, by Avhich her property was to be conveyed to trustees in such manner as to deprive her not only of the right to dispose of the rents and profits thereof during coverture, but also of the right to dispose of the property itself, both during the coverture and afterwards, if she survived, and gave the ultimate remaindei- over after her death without issue, she being at the time advanced in life, it was held that such a contract, unless proved by the clearest testimony to have been fully understood and freely assented to by the intended wife must be declared fraudulent as to her, and inoperative as against the husband, except so far as it can be presumed that he freely assented to it. (The case o^Scott v. Duncan, 1 Dev. Eq. Rep. 403, cited and approved.) Cause removed from the Court of E(j[nity of New Hanover county. The complainants in this suit being abont to be married, the brothers of Mrs. Sanderlin, then Margaret Robinson, in- duced them to sign a deed of marriage settlement conveying to trustees certain property, land and slaves, which was own- ed by Margaret Robinson, absolutely. This deed is in the following words : " State of North Carolina, Xew Hanover County. "This indenture, made this the 1st day of July, in the year of our Lord one thousand seven hundred and fifty-eight, be- tween Margaret Robinson of the State and county aforesaid, of the first part, and William Sanderlin of the State and county aforesaid of the second part, and AVilliam Robinson and John A. Corbitt of the State and count}- aforesaid of the third part, witnesseth, that whereas a marriage is about to be solemnized between the said Margaret Robinson and Wil- liam Sanderlin, and it is agreed by and between the said Mar- garet Robinson and William Sanderlin, that if the said mar- riage should take eftect, then, notwithstanding the said mar- riage, he the said William Sanderlin, his heirs, executors, ad- ministrators or assigns, shall not intermeddle with, or have 156 IN THE SUPREME COURT. SanderliD v. Robinson. any right, title or interest in law or equity, in or to any part of the estate, real, )3ersonal or perishable, now belonging to Margaret Robinson. Now, this indenture witncsseth, that for the making the said agreement good and effectual in law, and for the keeping and preserving the several estates above men- tioned, to and for the separate use of her the said Margaret Ro- binson, during her life, and should she die without issue, then the said estate to return to her present heirs, before the mar- riage, and so that the same shall not be in the i)ower or dispo- sal of the said William Sanderlin, or liable to the payment of his debts and incnmbi-ances, he the said William Sanderlin doth for himself, his executors and administrators, covenant, promise and agree, that all the profits or increase tliat here- after shall be made of the same shall be ordered, disposed and employed by tiie said William Robinson and J. A. Cor- bitt, trustees, for such uses and interests and purposes, and in such manner and form as the said trustees ma}^ think proper, and it shall also be lawful for the said trustees at any time, from and after the said marriage shall take effect, to com- mence any action or suit in law or equity against any person or persons for recovering to the said Margaret Robinson, the said trustees doth promise and agree for themselves, their heirs and assigns, to do and execute all and ever}^ such further actor acts for the better settling, receiving the moneys, goods and estates of the said Margaret Robinson, declared for her sepa- rate use and benefit, provided also, and it is concluded and agreed by and between all the said parties to these presents, that the said trustees shall be indemnified and saved harmless out of the said separate estate of the said Margaret Robinson, from all manner of costs, charges, datnagcs or any trouble which they nuiy sustain or incur for recovering any part of the estate of the said Margaret Robinson, or any other ac- count whatever relating to the said separate estate." This deed is signed and sealed by all the parties thereto, and in the presence of two attesting witnesses; and it was read over to the parties a few minutes before the ceremony, Sanderlin remarking at the time that he did not understand it, DECEMBER TEUM, 1860. 157 Sanderlin v. Robinson. but would sign it, as he was not man^infr ff administration, over simple con- ti'act creditors, is not now the question ; but sinjply, was he in advance for the estate, by having paid off debts of the es- tate? If so, he was entitled to reimburse himself by making an aj)propriarion of the ntjte in controversy ; at all events, that fact is sutHcient to repel the equity of the next of kin, or the plaintiffs wlio claim to be substituted in their stead, to follow the fund in the hands of the defendant, Sherrod. The cross bill was brought to a hearing with the original bill, and relieves the Court tVom any embarrassment, r.s to the manner in which the decree should be modeled, so as to mete out justice to all of the parties. Friley Moore was the sure- ty of the administrator to the note on wliich the defendant, Slierrod, entei'ed the credit. So, he has had the full benefit of it, and so fai- from having an equitj^ to hold the defendant, Sherrod, responsible, the latter has a plain equity against him to recover so mucli of the $113.06, as is recovered of him by the other ))laintiffs in the original case, for in effect, he w'ill have paid {hat amount on a note to which the said Friley Moore was surety, vvhicli being in his exoneration, falls under the well settled doctrine of subrogation. Per Cukiam, Decree accordingly. DECEMBER TEEM, 1S60. 171. Clements v. Mitchell. L. L. CLEMENTS a^cdnst HENRY MITCHELL AND OTHERS. Where one was a partner in a linn in 1855 and in 1857, bnl alleged that for 185G he was not a partner, and that his withdrawal was evidenced by a deed which was lost, and ittnrned out that the deed had been destroyed by himself, and he answered delusively about it, and it appeared that he had acquiesced iiv certain acts of his partner, treating him as a partner, it was declared by the Court (hat he was to be considered as a partner for the year 1856, also. It was held by the Court that the destruction of the deed which it was admit- ted explained defendant's connection with the firm, and that too, after ho knew that it would be necessary to make such explanation, aflorded a strong presumption that such deed committed him as a partner. Cause removed fiom the Coni't of Equity of Martin county. In January, 1851, Joseph Waldo and L. L. Clcn)cnts, the pUiintiff, entered into a copartncrslii[) as merchants, in the town of Hamilton, niider the name and style of " Waldo &, Clem- onts,"and did liiisiness dui'ing theyears of 1855, 1850, and until March, 1857, when the copartnership was dissolved, and all the ertects of the firm wei'e transferred to the plaintiff, Clements, to collect and pn}- debts, and adjust the balance between them. During the year 1855, the defendant, Waldo, was in co- paitnei'ship witli the defendant, Henry Mitchell, in I'unning a steam saw mill, and in shijjping andsellinglumbci-. Dui'ing this year, the latter firm had considerable dealings with the firm of V/aldo & Clements, and bought goods to a considerable amount, which was paid and settled. During the year, 1856, the plaintiff alleges that the said firm of Waldo & Mitchell dealt still more largely, to wit, to the amount of , and again in 1857. Waldo became insolvent, and in Ajiril, 1857, as- signed, by deed, all his intei-est in the said mill, and all other partnership property, debts, c*ce., to the defendant, Mitchell, lo enable liim to pay the debts of the concern. The i)laintifi" alleges that he has tVe(j[ueutly called on the defendant, Jylitchell to pay to him the saitl debt due to the firm of Waldo S: Clem- ents, wliich lie has refused to do. The i)rayer of the bill is tor an account and settlement of the balance between these two firms. 172 IN THE SUPREME COURT. Clements v. Mitchell. Mitchell, in his answer, says that in January, 1856, he rent- ed his interest in the steam saw mill to one William Parr for one year, witli the knowledge and consent of Waldo; that a part of this arrangement was, that the lumber on hand should be sold to pay the former debts of the copartnership of Wal- do & Mitchell, and that, therefore, for the year 1856, he was not a partner with Waldo or any one else in the said milling business; that this contract was expressed in writing, and de- posited with one Daniels, who informed him that it is lost or destroyed. Waldo, in his answer, says that it is true tliat Mitchell did agree in writing to let Parr take his place in the business of conducting the mill and lumber business, and whether the le- gal effect of the instrument was to release Mitchell from lia- bility for the debts of the concern, he is not informed ; but, he says, " notwithstanding the said agreement, he was of opin- ion that the partnership of Waldo and Mitchell existed dur- ing the year • 1856 ; that he therefore continued to sign the name of the firm, and Parr gave orders on the firm of Waldo & Clements in the name of Waldo & Mitchell ; that advances were made by Waldo & Clements during that year on such orders and goods sold, which were charged to Waldo & Mitch- ell ; arid that he, Waldo, as a partner of the firm, signed a stated account admitting a balance due as set forth in the plain- tiff's bill. It appears from the evidence filed, that during the year 1856, Mitchell was aware of the manner in which the entries were made in the books of Waldo & Clements, and though he objected to it, yet, he afterwards acquiesced in it. It ap- pears, also in evidence, that Mitchell, himself, in the year 1857, destroyed the deed in question, and that he remarked to Parr, when he did so, that it was of no further use, and might as well be torn up. Also, that Mitchell was a man of financial means, and that Parr had been acting as engineer in the mill, and was without such means. Reference was made to the clerk and master, who stated the account, charging Mitchell with the debts of the firm for DECEMBER TEUM, 1860. 173 Clements v. Mitchell. 1856, to which he excepted, and the cause was heard in this Court on that exception. JS. F. Moore and Donnelly for the plaintiff. Winston, Jr. and Hodman, for the defendants. Pearson, C. J. The exception of the defendant, Mitchell, now heard, is based upon tlie allegation that he was not a partner of Waldo, during the year 1856. This allegation is not proved, and, consequently, the exception must be over- ruled. Mitchell admits his copartnership with Waldo in 1855, and also, in 1857, but alleges there was a discontinuance of the copartnership for the year 1856, by the substitution of Parr in his stead for that year, which he insists resulted by the force and effect of a certain instrument of writing or deed executed by Parr and himself, with the knowledge and con- currence of Waldo. This deed was destroyed by Mitchell in 1857, and he re- marked to Parr, at the time, "that it was of no further use, and might as well be torn up." No cop3' of it was preserved, and the testimony in respect to it is so conflicting, and of such a character, as to render it impossible for the Court to declare what were its contents. We are fully satisfied, how- ever, of this fact, that although the nature of the deed may have been such as to have the legal effect to bring Parr in and make him liable, it did not have the effect to put Mitch- ell out of the firm, and relieve him from liability — the origin- al purpose of the arrangement being to make Parr more stir- ring in his superintendence of the mills, by having his wages depending, in part, on the profits. Without entering into a particular examination of the evi- dence, one or two general remarks will be sufficient to show the correctness of this conclusion : The want of fairness in the answer of Mitchell, by which he attempts to make the impression that the deed liad been "lost or destroyed" without any agency on his part, when it 174 IN THE SUPREME COURT. Clements v. Mitchell. is proved that lie had, but a few months before, actnallv de- stroyed it liiiiiself, raises a presumption aijainst him, under which he must be content to labor. "Waldo had failed at the time when Mitchell tore up the paper; so, he must have been aware that it was very important for him to be able to relieve himself from liability, as a member of the lirm, and if the deed had been of the character which he now pretends it was, he would, most assuredly, have preserved it. The fact, that he tore up the deed, saying "it was of no further use," is entitled to more weight than the recollection of a half a dozen witnesses as to the contents of a paper in which they had no particular interest, and which, it is not alleged con- tained any direct words releasing Mitchell, and substituting Parr as a member of the firm. Parr was only a workman, and had no means ; Mitchell was a man of substance. If the deed was of the character now imputed to it, can it be seriousl}'^ insisted, that Waldo would not have objected to the arrangement by which a solvent pai't- ner was to be withdrawn, and a man of straw put it his place? Besides, the firm of Waldo & Mitchell, in the year 1S55, had been doing a very heavy business ; would this alleged change have taken place by which the firm of "Waldo (S: Mitchell" was dissolved without a settlement or some more definite pro- vision for paying oft' the debts and dividing the ])rofits, than a mere understanding that the lumber on hand was to be ap- plied to the discharge of debts due for the past year, unac- companied by any statement of the amount of debts, or the quantity of lumber? Waldo, during the year 1S5G, made entries on the books of " Waldo and Clements," charging large sums to "Waldo and Mitchell," according to the course of dealing of 1855. These entries were seen by Mitchell from time to time, and although at first he made some objections, he finally acquiesced, and allowed the dealing and entries in the books of " Waldo and Clements" to stand, and be continued to be made against " Waldo and Mitchell," without the slightest notice taken of *' poor Mr. Parr !" who is now, by dexterous shuftliug, to be DECEMBER TERM, 1860. If5 Henry v. Elliott. turned up as the partner of Waldo, and Clements is to lose his money, on the suggestion, tliat the charges ought to liave been entered against "Waldo and Parr"!!! a iirm which never figured "in book or bill," and of which no man had ever heard, until after the failure of AValdo, wlicn Mitchell attenii)ts to trump up Parr as the partner of Waldo, althou'di prior to that event, he had, himself, been content to hold the honor. Per Cukiam, Exception over-ruled. PEYTON S. HENRY, Adm'r., agaiwd WILLIAM II. ELLIOTT, AdmW. Where one, who had only a life-estate in land, made a deed for a fee simple, and the deed contained a warranty in fee, and the vendee, knowing of the defect in the title, gave his notes for the purchase-money, upon which judgments were obtained, it was held that a court of equity \vouId not in- terfere by injunctive process to restrain the collection of any part of these judgments, but would leave the vendee to his action on the warranty, it appearing that the warrantor was solvent. Cause removed from the Court of Equity of Bertie county. Jordan D. Elliott, the defendant's intestate was seized of an estate by the curtesy in a certain tract of land, the re- mainder of which was in his two children, Richard II. and Sarah Elliott. Jordan D. Elliott being so seized, made a deed to Richard R. Ilcnry, the plaintiff's intestate, purporting to convey the fee simple estate in the land in question, and war- ranting the title for himself, his heirs, executors, tfcc. Rich- ard R. Henry, the vendee, at the same time gave three notes for the purchase-money, amounting to five hundred and fiftv dollars. The bill admits that Richard R. Henry, at the time of the purchase, was aware of the fact, that the vendor, Elli- ott, had (.idy an estate by the curtesy in the land in ques- tion, but avers that said Elliott, at the time of the sale, pro- 176 IN THE SUPEEME COTJET. Henry v. Elliott. raised to procure a deed for the remainder from his children. This allegation was denied by the answer. The vendee, Hen- ry, applied to the childi-en of Jordan D. Elliott to convey him the title to the remainder, which they refused to do. After such refusal to convey, the defendant, "William H. Elli- ott, as administrator of Jordan D. Elliott, who had died in the meantime, presented the notes in question and demanded payment, one of which was paid by Eichard E. Henry, but he refused to pay the others, whereupon suit was brought upon them, against him, and rivived after his death against the present plaintiff, and judgment obtained in the Superior Court of Bertie county, and execution issued thereon. This bill is filed against William H. Elliott, the administrator of Jordan D. Elliott, and seeks to obtain an injunction to restrain the collection of the judgment on these two notes, on the ground of a part failure of consideration. The bill admits that at the time these notes were given, Eichard E. Henry relied on the covenant of wari-anty, in the deed, to secure him from loss. And there was no allegation that the estate of Jordan D. Elliott was not sufficient to pay all damages wliich might have been sustained by reason of the breach of the covenant of warranty. Upon the coming in of the answer, the injunction, which had been granted in this cause, was continued to the hearing, and the cause being set down for hearing, was transferred to this Court by consent. Winston, Jr., for the plaintiff. Gafrett, for the defendant. Battle, J. The plaintiff, admitting in his bill that his in- testate, when he purchased the land in question, knew that the defendant's intestate had but a life-estate as tenant by the curtesy in it, puts his claim to relief, in this Court, upon the alleged ground, that the vendor promised to procure from his two children, who were the owners of the remainder in fee in the land, deeds to the vendee for such remainder. This allegation is not admitted by the answers, and there is no proof in support of it, so that the defendant contends that the DECEMBER TERM, 1860. ITT Henry v. Elliott. bill must be dismissed for the defect in the proof of a rnateri- al allegation. But the plaintiflf insists tiiat, as there was a partial failure of the consideration, he cannot, in equity and good conscience, be required to pay the full price of tlie land. Supposing that there was no objection to his recovery, because of the vari- ance between his allegata et pvohata^ there is a decisive- ob- jection to liis claim, it is, that he admits that Ivis intestate, when he purchased the land, relied upon the vendor's war- ranty as a security for the amount paid, until the alleged ver- bal agreement of the vendor, to perfect the title, should be complied with ; and tliere is no pretense that the intestate's estate is not full}' sufficient to answer all the damages, which he can recover in an action on the covenant of warrant}'. He had then a full remedy at law ; and lie has it still, unless by his own act of purchasing the outstanding title, he lias dej)riv- ed himself of it. The cases of flauser v. Mann^ 1 Mnrj)]i. 411, and Richanhon v. Wllliains^?> Jones' Eq. 116, cited and I'elied ui)on by the plaintiff's counsel, were decided mainly upon the ground, that the defendants, who were non-i'csidents of this State, and had no j)roperty hero, out of which a recov- ery, at law, could be made effective, ougi)t to be enjoined, in equity, from the recovery of a debt oi- damages, which could not be recovered back, at law, except by means of a suit in. another State. The ])rinciple of such cases is, that our court of equity will give redress where, otiierwise, the i>i^irty seek- ing it, would be driven into the courts of another State, for the purpose of obtaining it. The other case, oi' Jonrs v. I^d- wardfi, 4 Jones' Eq. 257, was simply an oi'der for continuing an injunction until the hearing, on account of the evasiveness of the defendant's answer. Neither case affords any supi)ort for the argun)ent, that the court of equity ought to interfere in behalf of a person, who has a plain and adequate remedy, at law, in anr courts ; particularly, wlien he had that remedy in contemplation, and relied n\Hm it, when he entered inta the engagement, out of which the controversy arises. Pek Cukiam, Bill dismissed with costs. CASES IN EQUITY, A1;,';ImJ) and D;j;.R.\iiXF,D 1 >; TiiK SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. JUNE ITERM. 18G1. AMELIA SMITH agai7ist LELAND MARTIN AND ANOTHER.* "Where i-\a\( ^• yvevc cr 'iiveycd to a femo covert, by a deecl of gift, and tlie first clause cf tho conveyance pas?cd the legal estate toheiand the heirs of her body, it was held that a subsequent clause of the conveyaoc-e, restraining her hn-band froia all control over said slaves, was iiiconsislont with the first clauco and inoperative, and that the i-lavcs vested in the husband jMre mariii. Held further, liat in order to < rcatc a separate estate in a ferae covert, there must b;^ words siuTii;icut to raise a trust for her beaefit. Caust: ixiii-'vcd from tlio Court of Equity of "Wilkes county. One i^diert Martin, tlio lather of the plaintiff, Amelia Smith, \du> is a married woman, suinic by her next friend, conveyed to her a female slave, by the followinc: deed : *This case -ia- ilecided at the last terra of tlie Court and reported, but the Mss. got aecidcutally misplaced, and was, therefore, omitted. 1 180 IJSr THE SUPREME COURT. Smith V. Martin. " State of jSTorth Carolina, Wilkes county. "To all wliom it may concern, know ye that for and in consideration of the natural love and affection, and for other good consideration, hath given and delivered unto my daugh- ter, Amelia Smith, the wife of Samuel P. Smith, my negro girl, named Dinah, aged about twenty-one years, a slave, for life, which said negro girl, Dinah, I bind myself, my heirs, executors, administrators, to wan-ant and defend unto the said Amelia Smith and the lawful heirs of her body forever, which said negro, Dinah, witli her increase, if any, is not to be at the disposal of Samuel P. Smith in no manner whatever, but is to remain the inheritance of Amelia M. Smith and the heirs of her body forever. In witness whereof, I, the said Robert Martin, have hereunto set my hand and affixed my seal, the 13th day of March, A. D. 1835. (Signed,) R. JMartix, [scal.Y Test, R. C. Martin. The bill states that the defendant, Leland Martin, with full knowledge of the above recited deed, the same having been duly registered, purchased from the husband of the plaintiff, a certain slave, one of the increase of Dinah, the slave men- tioned in the deed to Mrs. Smith, and holds the same under color of a deed from her husband, Samuel P. Smith, and the object of the bill is to have the defendant declared a trustee for the plaintiff. The answer resists the recovery, upon the ground, that by force of this deed, the absolute legal estate in the slave, pass- ed to Mrs. Smith, and vested in her husband jure maritl, and, consequently, the conveyance to the defendant was valid. The cause was set for hearing upon bill, answer and exlubits, and was transferred to this Court by consent. Boyden, for the plaintiff. Barher, for the defendant. Maxly, J. The equity of the bill depends upon the con- struction of the deed of Robert Martin, dated 13th March, JU:N"E teem, 1861. 181 Smith V. Martin. 1835. The question is, whether that deed creates a trust, in equity, for the sei)arate use of the wife. After an attentive consideration of its contents, we think it does not. The deed conveys to the feme covert, the slave, in terms appro]")riate to a common law conveyance of the absolute le- gal estate. No word is used from which it can be inferred, that the property was to be held in trust for her ; but, on the contrary, it is signified in* the strongest and most direct terras, that she was to have the legal estate and the legal control. After thus disposing of it, the declaration is made that said property is not to be at the disposal of her husband, in any manner whatever, but is to remain the inheritance of tliesaid feme and the heirs of her body forever. The purpose to ex- clude the husband from a power of disposal is manifest, but this purpose is inconsistent with the previously expressed pur- pose, equally manifest, tliat she should have the absolute le- gal estate. As the husband's responsibility for his wife and children is great, the law invests him with rights in the wife's estate to aid him in meeting this responsibilit}'. and the courts will not divest him of them upon light grounds. It seems to us, a constructive trust allowed to have this effect, ought to be raised only in case some word is used to signify an intention to withdraw the property from the wo- man's absolute legal control and to establish a trust for her, to the exclusion of her husband. To give in terms appropri- ate and explicit, a legal estate to a married woman, without such word, and then to declare her husband shall not have the disposal of it, is to express inconsistent ideas. Which of thera was paramount in the mind of the donor, and, consequently, what was his intention, we do not certainly know. But the obvious inference, from the language used is, that he intend- ed his daughter should have the absolute legal estate and control without the traraels and expense of a trust ; and that his son-in-law should not disjiose of the same in any manner. The one is as manifest as the other, and these are inconsistent intentions which cannot stand together. In respect to vjills^ that arc construed with more leniency than deeds, we are not 182 IN THE SUPREME COURT. Smith V. Martin. aware of any case in -which a trust lias been lield to exist, unless words are used indicating a purpose to make a trust. However inartificial, or wanting in technicalities, some phrase was used, from which such an intention was gathered. In the cases in North Carolina, to which our attention has been directed, where constructive trusts for married women have been the subjects of consideration, words indicating a purpose to raise a trust, (such as, use, benefit or trust) have been uni- formly employed, with one exception, and the question has not been as to the existence of the purpose, but as to its efJect in excluding the husband from participation as a cedui qui trust. The exception referred to, is Ashecraft v. Little, 4 Dot. Eq. 236, where the omission of sucli words as mighi indicate a purpose to establibli a trust, was lost sight of or postponed to another defect, that was fatal to the equity of the bill. That case did not turn at all upon the point that is now before us. In the case of Margetts v. Bar ringer, 10 Eng. C^on. Chan. 158, which is relied on by complainants as authority, the words are " to the sole use^^ of the feme covert, which distin- guishes it from the case before us, and sh<»w,-i an intenti'tu to create a trust or use in the property, vlistinct from the legal estate. We are of opinion, therefore, tliat while it siifiicienlly ap- pears, the donor of the slave desired t'> exclude the husband from any right of property in the same, it docb not snflicieni- ly appear that he desired '»r intended (o acconqdisli ii I)y the only mode that could be eiTectiial \'ov tliai pui'pose. The wife took an absolute legal estate in the slave, Dinali, and her increase, and they were suljcct io the malriinoiiial rights of the husband. Pee Cur.iAM, i'ill di-;rai.^scd wilh costs. JUNE TERM, 1861. 183 Floyd V. Gilliam. SAMUEL FLOYD .AND OTn]-:RS arjaimt JOHX B. GILLIAM, AdmW AND ANOTHER. Wliei'o a bond was takcni from a trustee under an order of the Court of Equi- ty, payable lo the clerk and master, conditioned for the performance of the trust, it was held that the representative of the cesUd qui trust had no right to sue on such bond without the leave of the Court of Equity, and that where such imauthorised suit had been begun, the Court would enjoin it until an account of the trust could be taken. Cause removed from the Court of Equity of Bertie county. At the Fall Term, 1851, of the Court of Equity for Bertie, Samuel Floyd was apjiointed a trustee to perforui certain trusts declared by the said Court in behalf of one Charles P. Skiles, growing out of a deed theretofore made between said Skiles and James Allen, and he gave bond in the sum of $-1000, with the other plaintiffs in this cause as his sureties, payable to the clerk and master in equity of the said county, conditioned taithfully to perform the said trusts. Skiles died in the year 1851 ; pp to which time the trustee had acted in the said trust, hiring out negroes, receiving hires, collecting and disbursing funds, and taking care of the person of Skiles, who was quite inlirm. The defendant, Gilliam, having been appointed administrator of the estate of Skiles, without any order or leave from the Court of Equity of Bertie, brought suit on the said bond, and it was to enjoin the continuance of this suit that the bill in this case is filed. The plaintifl: sub- mits, and prays that an account of the trust may bo taken in this Court, and avers that he is fully able to pay whatever sum may be decreed against him, and he insists until he fails to pay and satisfy the decree of the Court, the defendants may be compelli'd to abstain from urging the suit which they have instituted in the Court of Law. There is in the answer no material denial of the facts as above stated, but the defendants say that Henry Skiles, a son of the said ccdui qui tiuat, is by the deed set out in the plead- 184 m THE SUPR]e]\IE COUKT. Floyd i\ Gilliam. ings, interested in the fund therein created, and insists that he should have been made a party to this suit. The cause M'as heard on bill and answer. ISo counsel appeared for the plaintiff in this Court. W'i7isto?i, C(?cr75 of the sale of the town property can be distinctly traced and identi- fied, and that by a fair construction of the said provision they are entitled to the legacies aforesiad. The cause was heard on the bill, answers and exhibits. Barhei\ for the plaintiff. Mitchell., for the defendant. Pearson, C. J. AViicn a testator sells the specific property given in a legacy, such legacy is adeemed, lor the property docs not belong to him at the time of his death. AVhen the will takes effect, thei-e is nothing for it to operate on, and, of course, the legacy must fail. Tliis is the general rule. But it is unusual for a father to adeem, in this manner, lega- cies given to cliildren and exclude them from his contempla- ted bouniy, when there has been no change of circumstances ; and for tliis reason, the Court is slow to adopt the conclusion that there is an ademption, and will seek, anxiously, for some mode of explanation. In this case, the testator, after making provision for his se- cond wife, and his children by her, gives to his childi'en by a former marriage " the proceeds of the sale of his town prop- erty, or so much thereof, as is herein specified,'' viz : $2(J0 to Joel Alfred, &c., in all $905. It will be remarked there is no power given to his executrix to sell the town property, but he 188 IN" THE SUPREME COURT. Nooe V. Vfinnoy. gives the proceeds of the sale of the property without reference to whether the sale is to be made by himself or by his execu- trix. So, if at the time the will was executed, he had con- tracted to sell the property, or had in contemplation a purpose to make sale of it himself, these would be apt Avords to give the expected " proceeds of the sale " — supposing the will to speak as of the time of its execution. But this will being ex- ecuted in 1856, comes within the operation of the statute (act of 1844,) "Every will shall be construed with reference to the real and persotuil estate comprised therein, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall ap- pear by the will:" Rev. Code, ch. 119, sec 6. As the 2^ ''oceeds of the sale of the property is given, it fol- lows that if such a part thereof as is specified, can be traced out and identified, at the time of the death of the testator, the legacy will take effect, and there will be no ademption, or, only a partial one. The distinction between a gift of the propert}'' itself, and a gift of the vahie of the property, or the proceeds of the sale of property, is well settled, P'uhford V. Hunter^ 3 Bro., ch. c. 410; 1 Roper on Leg- acies 246, where it is said " the last class of cases to be no- ticed as not falling within the general rule of ademptions, is where the terms of the bequest are so comprehensive as to in- clude, within their compass, the fund specifically bequeathed, although it has undergone considerable alteration." He il- lustrates the exception by supposing the value of cei'tain notes and cash in the hands of I>, to be given to C, and afterwards the testator changes the notes and cash, by an investment in- to exchequer bills, bonds or mortgages, which arc placed in the hands of B, the exchequer bills, bonds or mortgages will pass, because thev answer the specification of the fund in the will. In our case, comprehensive words of description are used, and at the date of the deed to the plaintiff' Nooe, " the pro- ceeds of the sale" were in the haiuls of the testator as a se- curity, for which he held the note of the said Nooe, the tes- JUNE TEEM, 1861. 189 Nooe V. Vannoy. tator at tlie same time received the proceeds of the sale in money, and if he afterwards invested it, and took as security tiie notes of other persons, it was not an ademption, because the coTpui<^ or thing itself, was not changed, and a second or third collection and reinvestment on other securities, would not change it. It was suggested on the argument, that the concluding words of the clause of the will under consideration, viz: " all which legacies are to be chargeable on my town property aforesaid, and no other," qualify the words used in the beginning of the clause, and make the several sums demonstrative pecuniary legacies charged on the town j^roperty, and no other, instead of a legacy of the '• proceeds of the sale " or so much thereof as is specified in tlie several sums given. These two sets of words do show a confusion of ideas, and create difficulty in the consti'uction, but we are satisfied that there is a (j'lft of the proceeds of the sale of the property, or the parts thereof severally specified. We are led to this con- clusion, because such is the first and prominent expression, and the concluding words are merelj^ incidental, and are ad- ded, not for the purpose of changing the gift, but to prevent it from being extended to any other part of the testator's es- tate. We adopt this conclusion tiie more readily, because it excludes the effect of an ademption of a legacy to chihlren^ which is unnatural, unless there has been a change of circum- stances, or some other ])i'ovision or substitution in place of the bounty which M'as originally intended for them. An examination of the inventory filed by the plaintiffs, Kooe and A^annoy, M'ho are the administrators de bonis non^ shows that these notes taken, by the testator, came into their hands; one for Sg'^K) dated Xov. 2oth, 1857, one for $50 da- ted 27th Oct. 1857, and one for $100, dated the 14th October, 1857. The dates and other circumstances tend to show that these notes were taken as securities for parts of the proceeds of sale received by the testator at the date of the deed to Nooe, i. c. 3d Oct. 1857, and to fix their identity. AVhat oth- er notes were on hand, at the death of the testator, and went 190 m THE SUPREME COURT. Jones V. Geioclc. into the l)an(ls of the cxocntrix, does not a]»pear, the inveolo- ry filed by her )iot being ciniong the exliibirs. These circumstances, in the opinion of the Coni-t, lay a suf- licient foundation for a reference to the master to em] aire whether the proceeds of the sale of the town property, or any part thereof, can bo traced out and identified ni the time of the death of the testator. In aid of the enquiry, he may ex- amine the plaintiffs. Nooe and Yannoy, on oath, and require the i)roduction of books and papers. The cause will stand for further directions. Plk Cltjam, Decree accordingly. SALLTE JONES arjulnd CHARLES GEROCK AND OTHERS. The personal esta'e, -whicl; is in this Sta;e of one residing i-? anothei- State, in respect to both debts and legacies, must be administered by one quali- fied ;o ict unde: the orders and control of our cou"'s and according to our laws, but in regard to tlie payment of legacies and distributive sljares, our courts, from comity, adopt the laws of the domii-il. A decree for a distributive share in another State, was held not to be a bar to a recovery of a distributive share of property lying in this State. The widow of one domiciled in another State, who died intestate, seized and possessed of lands in tliis State, is entitled to her dower in such lands. Where one, residino: in another State, made a will, which was not satisPactory to his widow, wlio duly entered hei- dissent on its being offered for pro- bate in that Sti>te, and also entered her dissent, when it was offered for probate in this State, it was held that she is cntiilcd to dower anu a distri- butive share of property lying in this State. It was further held^ that a decree for dower in another State, would be con- sidered as .onfmed to the lands situate in such other State, and as not cm- bracing lands situated in this Slate. Cause removed tVom the Court of Equity of Jones county. The bill is filed by the widow of Edward Starkey Jones of Alabama, who had lands and personal property in the coun- JUNE TERM, 1861. 191 Jones V. Gerock. ties of Jones and Onslow, in tliis State. The bill sets out that the decc'lent, E. S. Jones, nuulo a will in tlie State of Alaba- ma, which was dnly admitted to probate in Dallas county, in that State, but from which she dissented at the time of its be- ing ottered for probate according to the laM's of that State. Af. terwards, the said will was duly admitted to probate in the County Court of Onslow, in this State, where a large part of his personal and real estate was situated, and at that term, she also dissented from the will of her said husband. The bill is filed against the legatees under the will of E. S. Jones, and against his heirs and next of kin, also against his execu- tors and against the representatives of liichard Jones, a de- ceased son, who died in the life-time of the testator, and it prays for dower in the lands lying in this StaTe, an(l also for an accouni imd a distributive share of the personalty in this State. The defendants answered severally, but did not deny any of the allegations of fact, stated iu the bill. Tliey, however, objected t" the plaintiff's recovery of dower, as well as her share of the })ersoualty, because the act'-f Ast-emlily, Uevised Code, chai". 118, pcc. 1, requires that slu' must "signify her dissent to her husband's will before the Cuunty C->urt of the county wlierci'i she resides," and that a.-; she did not reside in auy county in iNorih Carolirui, she culd in>t make sucJi dis- sent ;it :ill, and, therefore, could not have J\erdi>uer ov distri- butive sluire. The defendants also objected, and thowcd tliat the plain- tift'hadj'led a bill f'>i", and obtained n decree for u distribu- tive shaio of her liusband",? persunai estate ii' die Si.-itc; of Al- abama, and that she is baned b} ^:ucli -'iciC' •• -jr. i setting np claim to any further bhare of Jiis ['crsonal properly In this State. It was alpo objected by tlie defendants, and the f;iei was shown to this Court, that the plaintiil' had illed a bill and ob- tained a decree for her dower in her JiUcbamlV kiwU in the State of Alabama, and Jiad had the same laid oil' to her, and 192 m THE SUPREME COURT. Jones V. Gerock. they allecred such decree and assignment of dower in bar of her application in this Court. The parties, by their counsel, tiled a written agreement, that all errors of form are waived, and the case put upon its merits, and the cause was sent to this Court by consent. JImtghton, for the plaintiff. McRae and J. ^Y. Bryan, for the defendants. Peakson, C, J. The rules of pleading and the orderly mode of proceeding and making entries in a cause, are in- tended, not merely for the convenience of tiie parties, so that they may not be taken by surprise, but also for the conven- ience of the Court, so as to prevent confusion and tiie embar- rassment, which is apt to occur, whenever the regular course of things is departed from. In this case, the objection to the bill, on the ground of its being multifarious, and because it improperly prays for a division of the slaves and other speci- fic personal property, instead of an account and settlement of the personal estate, and the difiiculties growing out of the vague entries in the transcript, so that the Court cannot see whether the case is set for hearing on bill and answers^ (taking the answers to be admitted,) or on bill, answers, rep- Ikation and exhibits, and is left to inference from the man- ner in which the cause was treated on the argument, that the latter is the manner in which it was intended to be brought to a hearing, may all be met, so far as the parties to this cause are concerned, by the general statement that " all errors of form are waived, and the case is to be put upon its merits," but still this does not answer the purpose of avoiding the dan- ger of confusion, and of relieving the Court from embarrass- ment in deciding a case where the claim to a distributive share of the personal estate and a claim to dower out of the real estate, are blended together, although the subjects are governed by different principles of law, and the parties are different. We think, it right to call the attention of the gen- tlemen of the bar to this matter, so that it may not be drawn JUNE TEEM, 1861. 193 Jones V. Gerock. into precedent and a like indulgence be again asked for. In- deed, it was with much hesitation that we concluded to pro- ceed with this case, according to the construction we put on the entries made in " the transcript." 1. T\\Q personal estate, which was in this State at the death of the testator, both in respect to the payment of debts, and the payment of legacies and distributive shares, must be ad- ministered by e.xecutors who are qualified by, and act under, the orders and control of the courts of this State, according to the law of this State, but in regard to the payment of legacies and distributive shares, from comity, our courts adopt the law of the (Joniicil, which, in this instance, is the State of Alaba- ma. The doctrine, on this subject, is disposed of by the case of Alvanei/ v. Powell, 2 Jones' Eq. 51, and the discussion is 80 full, as not to call for any further elaboration of the ques- tion. It is set out in the pleadings and admitted, that by the law of that State, a widow, who is not satisfactorily provided for by the will of her husband, may enter her dissent, and will, thereupon, be entitled to a distributive share, as in case of intestac}^ and the plaintiff has duly entered her dissent according to the requirement of the law, consequently, there can be no reason why she shall not receive such distributive share of the personal estate in this State, and to that end, tliere will be a decree for an account, &c. It is alleged by the answers, that the plaintiff has obtained a decree for her distributive share in the State of Alabama, and is, therefore, barred of any further claim of a distribu- tive share of the pro})erty in this State, as she has already been fully satisfied. But we do not understand the decree in the Couit of Alabama as embracing any of the ])crsonal es- tate, other than that which was in that State. Indeed, it can- not be supposed to embrace the personal estate in tliis State, for, as we have seen, that must be administered under the or- ders and by the authority of our courts, and the Court in Al- abama had no control over, or concern with it. So, the de- cree there, in respect to the property there, is not a bar to her right to have a like decree here, in respect to property here. 194 m THE supre:me court. Jones V. G^twJk. 2. In roppect to real estate, situate in this State, we do not, from coniitj', /l"])t tlie law of the iloniicil, l-at :i|'[ily our own laws as to tiie njode '^f descent, transfer, dev(-luti(»n and all other Marlicuhirs. Jjy the common law, a widow was enti- tled to dower in all the lands and tonementsof wliicli her hus- band was seized, rU any time duvhifj coverture^ of ;in estate of inheritance which she might, I-3' possibility, have issue capa- ble of inlici'iting. iJ^' the act of 17S4, the right of dower was restricted to sucli lands and tenements as the husband died seised and possessed of. There can be "o »piestictn that the widow of one domiciled in another State, is entitled to dower in the lands and tenements situate in tliis State, of which he was seijced aiid possessed at the time of his death. When the husband leaves a last will and testament, there is a i>ro vision in the act of ITS-i, under which the widow may enter her dissent and claim dower, and in respect to tliis pro- vision, the argument stands tlius : If tho statute is to be construed literally^ ai'd applies only to the widows of persons resident in tins State, bj- f »rce of the words, "I'lay signify her dissent thx-reto before the (,'ounty Court of tile Counts whctxin i-he resides, in opci\ court, wlicn the will is proj-ounded, or witliin six months after the ])robate there* 'f," it foUows, as the provision docs not a}>i>l.\ to her case, tb.nt she is entitled to dower mider the ger^oral pi-ovi- sion, without a dissoit, in all the land::' aiid tenemoitsof >A']iich her husband \.-as seized and possessed at the time of lu's (Lath ; for the will doe-s not tahe effect nn.til after his tleath, and so lie dies seized am! jiossessed, notwithstanding, any devise or dispi.'bition >\hich he nia_\ niakc of such lands ami tenements by hi \/ill. If the st.itute is to receive a Uhc/'at eonstructio)', (and this, wc Eupjiogi.', is the true one,) so as to make it \\\qvm that tho Vv'idow is to pignify her ed out by parol proof of what was said before, at the time, or after the written contract was executed; Murdock v. Anderson^ 4 Jones' Eq. 77 ; Allen v. CJmTnhers, 4 Ired. Eq. 125. Whether the plaintiff is entitled to a specific performance, according to the contract, as the defendant in his answer says the lifie ought to run, is a question not presented by the plead- ings. In order to raise it, the plaintiff must aver that he is willing, and has oftered to accept a deed for the land accord- ing to the line, as the defendant says he understood it was to be run, and that lie, the plaintiff, has offered to perform his part of the contract as it was understood to be by the defend- ant ; and to release and acquit him of all furthei' claim. The bill is dismissed with costs, but without prejudice. Pee Cueiam, Bill dismissed. JOSEPH WHITE AND OTHERS aqaimt WILLIAJkl S. BUTCHER AND OTHERS. The maxim, that Equity will not enforce the specific performance of an agree- ment, upon which an action will not lie, at Law, for damages, never meant more than that the contract must be such as the law would have recognis- ed, if sued on in proper time and under proper circumstances. One who has executed a bond to make title to land, has no right to insist, in a suit for a specific pei'forniauce, that the defendant had abandoned his right to relief, while he still holds the bonds given for the purchase-money, and has never made an ofler to surrender them to his vendee. Cai'se removed from the Court of Equity of Surry county. The bill was filed for the specific performance of a contract, in writing, executed by the defendant, Butcher, in the year 1851, in which the defendant binds himself in a penalty, and 232 IN THE SUPEEME COUET. White V. Butcher. after reciting that three several bonds had been executed by the plaintiff as the price of the land, therein described, which fell due at three several dates, it is provided as follows : "Now, if the said Joseph White shall pav off the said bonds as they fall due ; then, when the last of the said pa^^inents shall be paid, the said William S. Butcher shall personally, or by his agent, or attorney, execute to the said Joseph White, his heirs or assigns, a good and sufficient title-deed in fee sim- ple." The bill was filed in the fall of 1857, and alleged the payment of one of the said bonds, and that the defendant, Batcher, had conveyed the land to the defendant, Holderlield, and that he, Holdei-field, had covenanted to convey tiie same to the defendant, Pilson, both of whom had notice of the i>lain- tiffs' equitable claim. The bill alleges that shortly before bringing the suit, he tendered the purchase-mone}', agreed to be paid, with interest thereon, to the defendant, IIolderfiekK who was the attorney, in fact, of Butcher, but that he not on- ly refused to accept the same, but hurried a messenger to the State of Missouri, where Butcher lived, and procured from him a deed for the premises to himself (Ilolderfield.) The defendants, Ilolderfield and Pilson, answered, alleging that the plaintiff had only paid a part of the first bond, and had then left the Slate insolvent, and had abandoned all idea of insisting, on his purchase, and that thougli he subsequently returned, he still had no idea of insisting on the fulfillment of this contract, until he was urged to do so by another person, who enabled him to raise the money which was tendered. The other material allegations of the bill, are admitted by the answers. The bill was taken pro confesso as to Butcher. There was I'eplication and comissions and proofs were taken, and the cause being set down for hearing, was sent to this Court. Barher and AlithclJ., for the plaintiffs. Boy den, for the defendants. Battle, J. It is admitted bv the counsel for the defend- JUNE TERM, 1861. 233 White V. Rutcher. ants, that the plaintiff, Joseph White, had, at one time, the right to the spcciiic performance of the contract, mentioned in the pleadings, but he contends that such right cannot now bfe enforced, for two reasons: First. Becanse no action, at law, torecover damages would now lie upon it ; and - Secondly. Because the right to enforce the contract in Equity, had been so acted uj)on by the plaintifi' as to justify the defendants in treating it as abandoned. 1. The lirst ground of objection is clearly untenable. It is true, there is a maxim, that Equity will not enforce the specific performance of an agreement, upon whicli an action will not lie at Law for damages ; and, anciently, it was the practice to send the party to Law, there to establish the validity of the con- tract, before he was allowed to proceed in Equity. That prac- tice has fallen into disuse, and the maxim never meant more than that the contract must be such as the law would have recognised, if sued uj)on in proper time and under proper cir- cumstances. If the rule were, that Equity would not enter- tain a suit for the specific performance of an agreement, ex- cept where, at the same instant, a suit might be sustained for a breach of it at Law for damages, there would be no gi'ound for the existence of another well-known maxim : that, time is not of tlie essence of a contract in Equity. Upon the efficacy of this maxim, it often happens that a i)arty by a neglect of a strict compliance with his stipulations in a covenant, or other contract, with regard to time, loses his right to sue at Law, while he may yet have a remedy by a suit for a specific exe- cution in Equity ; Wallcer v. Allen., 5 Jones, 58 ; Falls v. Carpenter^ 1 Dev. and Bat. Eq. 237. Time may, indeed, be made an essential part of a contract, even in the view of a court of equity, and in that case, that court will require its observance as rigidly as a court of law. The counsel for the defendants, contends that the present contract is one of that kind, and, in support of his jx^sition, he refers to the language of the bond for title: "Now, therefore, if the said Josci)h Wiiite shall pay off the said bonds as they fall due, then, when 234 m THE SUPREME COURT. White V. Butcher. the last of the said payments shall be made, the said W. S. Butcher shall personally, or by agent, or attorney, execute to the said Joseph White, a good and sufficient title-deed in fee simple." The purchase-money, for the land, was made paya- ble in three instalments, secured by three several bonds, and the counsel contends that the punctual payment of each, as it fell due, and, certainly, the payment of all, when the last fell due, was intended as an essential requisite to his obligation to make title. We cannot discover any sucii meaning in this, any more than may be found in any other contract for the purchase of land, where the vendor stipulates to make title when the price shall have been paid. There is no clause that the contract shall be void if the purchase-money be not punc- tually paid, and if there were, it would have been waived by the conduct of the vendor in recognising the existence of the contract, and offering to perform it after the last bond fell due. 2. The second ground of objection, that the contract of pur- chase was abandoned by the plaintiff, or that at least, that his conduct in neglecting, for so long a time to fulfill it, taken iu connection with his leaving the State and his insolvency, jus- tified the defendants in treating it as abandoned. It is mani- fest, from the testimony of Mr. Dobson, that the plaintiff never intended to abandon the purchase, and although he acted in such a manner as would have justified the defend- ants' in taking the proper steps to enforce either its prompt execution or its abandoment, yet, no such steps weie taken, and the plaintiffs claim to equitable relief still remains. The bonds which the plaintiff gave to secure the purchase-money, were never surrendered, nor offered to be sun-endered to him, and the defendants had no right, while retaining them, to consider and treat the contract as being at an end. Their omission to adopt that course, is fatal to tlieir defense ; see I^alls V. Ga/'j)enter, uhi supra, and /Sur/(/ v. Stoive, 5 Jones' Equity, 126. There must be a decree that the defendant, Ilolderfield, who obtained the title from the defendant, Butcher, after notice of the plaintiffs' claim, must make title upon the payment of JUNE TERM, 1861. 235 McWilliams v. Falcon. tlie pnrchase-money, with interest, after deducting the rents ; as to which, there must be an account, if the parties desire it. Pkk Curiam, Decree according!}'. FREDERICK N. McWILLIAMS Krr acjainsi J. N. FALCON AND OTHERS. Where money is given by will, as a portiuii to a child, or to one to whom the the testator stood in loco parentis, or for whose support it was intended to make a provision, or where the legacy is demonstrative, and the fund is productive, it was held that the legatee is entitled to interest from the death of the testator. Cause removed from the Court of Equity of Halifax county. The bill in this case, was tiled by the executor to the will of Dudley Clanton, setting fortli that the said testator be- queathed his real estate to be sold for the payment of his debts, and that if that were not sulhcient for that purpose, his ])cr- sonal estate should be sold, and he directed that he sliould sell so much of liis other personal estate as would with tlie surj)lus remaining after the payment of his debts, be sufficient to raise, in money, $5000, to be hehl by the executor as a fund for the benclit of the defendant, Frances, the wife of J. N. Falcon, for her sole and separate use. lie provided in the said will that tlie executor sht)uld pay the interest annually to the said Frances during her life, and if she should become discovert, and should need any portion of the principal for her comfort, tlien to pay to her so much thereof as might be requisite for that purpose ; and after her death, to pay what might remain to certain legatees in said will named. The executor in his bill states that he had to sell all the laud for the payment of the debts, and that he then sold a part of the slaves for tiie payment of the remainder of the debts, and for the purpose 23G IN THE SUPREME COURT. Mc Williams v. Falcon. of raising the fund in question ; tb.at owing to difficulties rais- ed as to his right to the possession of the assets, and having to resort to the assertion of liis right by suits iu court, the set- tling of tlie estate was postponed for sevei-al years from the death of the testator, to wit, about seven years ; and the only question presented by the pleadings, is whether Mrs. Falcon is entitled to have interest counted on her legacy, and paid to her for this space of time. The bill calls on the persons next in interest to interplead, and to have the question settled by a decree of this Court, so as to protect him. Answers were filed by some of the defendants, and a de- iTiuri-er filed as to Falcon and wife, and the cause removed to this Court. I>. F. Moore, for the plaintifi'. Dams and Batcheloi\ for tlie defendants. Pearson, C. J. The general rule, according to the English authorities, is to allow a pecuniary legatee interest after the expiration of one year. Tliere are, however, many exceptions. Among others, where the money is given as a portion to a cliild, or one to M'hom tlie testator stood in loco parentis ', or for whose support it was intended to make provision. In such cases, interest is allowed from the death of the testator ; be- cause the object, i. e. to furnish means for subsistence does not admit of dchiy, and the legatee sliould not be left to starve. So, when tlie legacy is demonstrative, and the fund is productive ; for instance, notes bearing interest, or bank Btock paying dividends, or negroes yielding hires; for the amount of the accumulated interest, or dividends, or hires, certainly docs not belong to the executor ; nor has the lega- tee to whom the corpus, (that is the notes, bank stock, or ne- groes) is given, any right to it; nor should it go to increase the residuary fund, or be treated as undisposed of, and divi- ded among the next of kin. Evidently, there is no principle upon which either of these parties can claim a right to be JUNE TERM, 1861. 237 McWilliftms v. Falcon. benefited by the delay in settling np the estate, and the rule is to consider the executor as having acted as a trustee, and to hold the accumulation for the nse of the party to whose prejudice the delay operated; under the maxim "Equity considers that done M-liich ought to have been done," and M-ill put the party in the same situation as if it had been done ; Beas^ehj v. Knox^ 5 Jones' Eq. 1 ; Turnage v. Turnage^ 7 Ired. Eq. I'll. In such cases, as interest is allowed on the footing of an accumulation of the fund, and not on the ground tliat the executor is guilty of laches in withholding nioney that he ought to have paid, the calculation is made from the death of tlie testator, and not from the qualiticatijden and 2Iitchell^ for the defendant. Manly, J. The parties to this suit were partners in buy- ing and selling slaves from 181-7 to 1855, and the bill is filed for an account and settlement of the partnership dealings. The objection brought forward in the answer to the account asked for, is, that there has already been an account stated between the parties, and a settlement in pursuance of it. The courts are averse to unravelling accounts that have once been settled between parties competent to deal with with each other, and hence, it is a fixed rule not to do so, where the accounts have been com;)lete — freely assented to and nuide the basis of a settlement (except in the case of bills surcharging and falsifying). As evidence of the required conclusiveness of a settlement to bar an account, it is usual in the plea to aver a surrender of vouchers. Between the par- 240 m THE SUPREME COURT. Attorney General v Pierce. ties before lis, there has been no change of the custody of papers — no cancelhition of books — nor release — nor re- ceipt in full, and, upon the wliole, we are not satisfied, upon an examination of the testimony, that any account has ever been stated and conclusively agreed upon by the parties. There has been an occasional calculation of interest and sum- ming up of results as they appeared upon the books of the partnership and a division of profit balances ; but inasmuch as there has been no Jl)ial account at any time stated between them, our inference is, that none of the transactions referred to, were considered conclusive, even as to tlie matters em- braced, but mere stages in their books to guide them in par- * tial settlements. We find the parties rectifying the settle- ment of April, 1S57, (the one insisted upon as conclusive) and we find them again accounting together in April, 1858, and dividing the balance. In the present state of the case, we do not enter into the matters of controversy between the parties; we hold, simply, that what appears to us in this case, that is, the striking of balances, from time to time, upon the partner- ship books, to aid in making a partial division of effects, is not such an accounting together as will bar a bill for a full ac- count of partnership transactions. Per Curiam, Decree for an account. ATTORNEY GENERAL against WILLIAM H. PIERCE, Executor. A legacy in remainder to collateral kindredj is liable to the tax imposed by the act of 1846, chap. 72, and the proper mode of suing for such tax is by a bill in equity, in the nature of an information, in the name of the Attor- ney General. Cause removed from the Court of Equity of Craven county. This is a bill, in the nature of an information, alleging that Stephen Pierce died in the county of Craven in 1849, having JUNE TERM, 1861. 241 Attorney Genc;ral v. Pierce. bequeathed considerable estate, consisting of lands, slaves, money and choses in action, to bis brothers, subject to a life- interest therein to his mother ; that the amount in value of said estate is $20,000 ; that the deiendant is nominated in the said will as executor, and as such, responsible for the tax im- posed thereon by the revenue law of the State. The prayer is, that the said executor be decreed to pay the said tax. The answer of the defendant admits the material facts, set out in the information, but contends that the legacies, set out in the bill, being interests in remainder, arc not liable to the tax imposed by the statute law of the State ; but, at any rate, if so liable, the tax does not attach upon the r,aid interests, until after they come to the legatees in possession. lie also objects, that by the act of 1858, the bill should have been filed in the name of the State. The cause was set for hearing on bill and answer, and trans- mitted. ■Henry C. Jones^ for the plaintiff. Green, for the defendant. Battle, J. This is an information, in the name of the At- torney General, filed for the purpose of recovering from the defendant, as the executor of Stephen J. Pierce, the tax on legacies to collateral kindred, imposed by the act of 1846, chapter 72. The defendant, in his answer, sets up two objec- tions to the claim, one of which goes to its merits, and the other, only to the form of the remedy. 1st. The first objection is, that the tax, specified in the act referred to, does not attach to the legacy in question, because it is the bequest of a remainder, after a life-estate given to the mother of the testator ; or if it do attach to the legacy, it is not to be paid until the property comes into possession upon the death of the tenant for life. The objection, in either form of it, is untenable. The words of the act are sufticiently exten- sive to embrace such a legacy, and the manner in which the executor is directed to account for and i)ay over, the tax by 242 IN THE SUPREME COURT. Hill V. Williams. the 4th section, shows that it is due immediately. The be- quest of a remainder in slaves, or the specified articles, will, of course, be of less value than the M'hole interest in such slaves or other cliattels, but it will have some immediate value, and that can be ascertained in the mode pointed out by the act of IS-IS, chap. 81, for assessing the value of slaves and other specific personal estate given by will to collateral kindred. The 2nd objection, is to the form of the suit, the defendant insisting the bill ought to have been Hied in the name of the State, as is expressly required by the act of 1858, ch. 25, sec. 80. The answer is, that the 114th section of the latter act, excepts from its operation taxes due under the provisions of any former law, and the case of the /State v. Brim, 4 Jones' Eq. 300, shows that under such law, an information, in the name of the Attorney General, is the most approved form of proceeding. The plaintiff is entitled to a decree for an account, and to have the amount of taxes, to which the State is entitled, as- certained and paid in the manner prescribed by law. Per Curiam, Decree accordingly. WHITMEL J. HILL, Adm'r against JOSEPH J. WILLIAMS. An answer, when directly responsive to the allegations of the bill, or to an interrogatory put in the bill, or on a special examination, is to be taken as true, unless it be proved not to be true by the oath of two witnesses, or of one witness with corroborating circumstances equal to the force of another witness, or by some other kind of evidence which is entitled to the weight » of two witnesses on oath. Where one, on the footing of a friend, neighbor and relative, undertook to manage the moneyed affairs of an old lady, without any stipulation as to compensation, and without intending to make any charge, it was held that he was not entitled, after her death to claim a remuneration for his services. JUNE TERM, 1861. . 248 Hill V. Williams. and that his being held to a strict account by her administrator, did not vary the case. Where an agent withheld the notes of his principal from her administrator, which notes were of long standing, and large amounts of interest had accumula- ted, and being warned by the admmistrator that he would be held liable for in- terest on the accumulation unless he surrendered the notes, or had them renewed, it was held that he should be made liable so to account from the date of the filing of the bill. Cause removed from the Court of Equity of Halifax county. The bill was filed by the plaintifl", as administrator of Mrs. Temperance Dawson, asking for an account and settlement of defendant's agency in managing her ])lantaf"ion and pecuniary matters. It appeared from the pleadings and proofs, that Mrs. Dawson had added to her estate a large property that had for- merly belonged to her son, which she purchased at a sale of his property under a deed of trust ; that the whole of her estate con- sisted of a large and valuable plantation and about sixty slaves ; that her son, the former owner of a part of it, afier the sale of it to his mother, remained with her, and controlled and man- aged the plantation business and money matters until his death, in 1S46, when the defendant, who was a neighbor and relation, on the footing of a friend, undertook the management of her affairs. It is alleged that the defendant, as the agent of Mrs. Dawson, from the time of the death of her son, up to the lime of her own death, in 1857, received the proceeds of the crops made on her farm ; also, the proceeds of the sale of several slaves and other moneys, and invested the same, or a large part thereof, in the notes of divers persons, to whom he loaned the money, and agreed, as to such part as was not in- vested that he would pay interest thereon, and this bill is filed for a discovery of these amounts, and for an account and set- tlement. Tlie plaintiff alleges that just after the death of Mre. Dawson, there were in the defendant's hands notes of several years standing, on which interest had accumulated to a large amount, and that he called the attention of the defend- ant to tlie fact that this interest was an unproductive fund, and desired the defendant to hand over these notes to him, 5 244 . m THE SUPREME COURT. Hill V. Williams. that he might administer them in the due course of law; but that the defendant refused to do so, saying that he would have the notes renewed. He insists that the defendant shall pay inter- est on this fund from the date of such notification up to the time of the decree. The plaintiff also alleges that he demand- ed a full settlement of the agency, which was refused by the defendant, unless the plaintiff would agree to go into such settlement without time to examine his counter claims, and on other terms which were unreasonable and inadmissable. ■ The answer of the defendant sets forth that on the 21st of October, 1847, he had a settlement with Mrs. Dawson of ail the charges which she had against him, and on that occasion she fell in his debt in the sum of $40.32, for which she gave her note, and he proffers to exhibit the said note. The de- fendant denies that he agreed to take any part of Mrs. Daw- son's money and pay interest, but says he always made known to her he would not hold, keep, or use her funds on these terms, but would loan out the same whenever he had a safe opportunity of so doing. The defendant further answering, says that he furnished the said Temperance, at different times, a list of her notes in his possession, in order to enable her to give in the amount of interest for which she was taxable un- der the revenue laws of the State, one of which he says was furnished shortlj'^ before her death ; that these papers had come to the possession of the plaintiff, and he prays that he ma}'- be compelled to produce the same. The defendant states the balance in his hands, and proposes to pay over the same to the plaintiff. He says he has been at great trouble and expense in the management of the business undertaken by him, and . he thinks he is entitled to compensation. There was replication to the answer, and b}"" consent of par- ties, it was referred to Messrs. E.. H. Smith and W. R. Smith, as commissioners, to state the account between the parties, and it was ordered that each party have leave to examine the other on oath on written interrogatories, and that the defend- ant file in the office of the clerk and master, all papers in his possession relating to the business affairs of T. W. Dawson. JUNE TERM, 1861. 245 Hill V. Williams. The commissioners reported a balance against the defendant of $3,200,32. The commissioners set out with a charge against the defendant founded on a paper which is referred to as (1) which is as follows : PAPER (1.) " Mrs. T. W. Dawson has deposited in my hands, for safe keeping the proceeds of her crops for several years, with di- rections not to loan it out, but I have concluded it would be best to violate her orders, and within the last fourteen months I have loaned out four thousand four hundred and fifty-eight dollars, which 1 suppose she should give in as a part of her taxable property. • Jos. J. Williams. July ISth, 1853." This is the basis of the first item in the account stated, which is "1853, July 18th. Dr. the defendant to $4,458." The second item is interest on the same to 16th of April, 18G0, $1811.43. The next item is dated June 15th, 1854, and is for $1000 with interest on the same to 16th April, 1860, and is based upon the following PAPER MARKED (2.) " Add one thousand dollars to your list of money given in last year loaned out. June, 1854. Jos. Williams." The defendant excepts to these items, and says that the ac- count ought not to begin in 1853, but in July, 1854, and that the 3d item ought not to bear date of June, 1854, but of June, 1855 ; and he produces the following papers marked 3 and 4, to sub- stantiate that exception : PAI^EK (3.) " I hold in my care, for Mi-s. T. W. Dawson, the following notes of hand : one note drawn by K. Taylor, for $200, with interest from 8th day of Oct. 1851, $ 200.00 Do. S. Ward, Bryant Bennett, B. Williams, for $1,412.25, 1.412.25 Int. from 12th June, 1852, Do. Jiryant Bennett, for $759.09. Int. from 10th Sept. 1853, 759.09 246 IN THE SUPREME COURT. HiJl V. Williams. Do. Jordan & Howell note, $281.41. Lit. from 14th Oct. 1853, 281.41 Miles Davis and J. Upton note, $1000. Int. from 20th Oct. 1853, 1000.00 A. & H. Harriss, Norfolk, $515.11. Int. from 2d July, 1853, 515.11 $4,458.77 4.458.77 6 207.52.62 , Jos. J. Williams. PAPER (4.) " State of North Carolina, Halifax county. I, Joseph H. Whitaker, clerk of the Court of Pleas and Quarter Sessions, for said county, do hereby certify that on examining the records in my office, I lind that Mrs. Temper- ance W. Dawson listed in the year 1854, two hundred and sixty-eight dollars ($268) in annual interest, and in 1855, she listed- three hundred and twenty dollars ($320,) and in 1856, she listed four hundred and fifty-eight dollars, ($458.) Given under my hand this 11th day of April, 1860," (Signed by the clerk.) The defendant also files letters from A. & H. Harris, dated in Sept. 1854, acknowledging a balance of upwards of $500. From all which, he insists that the error complained of, is ap- parent. The only other exception raising a question, was one by the plaintiff, objecting to the allowance of commissions to the de- fendant, and refusing to charge interest upon the interest ac- cumulated in his hands, aud which defendant was warned would be insisted on, unless the notes were handed over to the administrator, or by himself renewed. These exceptions were set down for argument, and heard at this term. B. F. Moore, for the plaintiff. Badger, Barnes and Conigla/nd, for tiie plaintiff. JUNE TERM, 1861. M"! Hill V. Williams. Pearson, C. J. The lirst exception of the defendant is al- lowed. The commissioners did not duly appreciate the tech- nical force which is given to an answer when directly respon- sive to the allegations of the bill, or to an interrogatory put in the bill, or on special examination. Such answer is to be taken as true unless it be proven not to be true by the oaths of two witnesses, or of one witness with corroborating circum- stances, amounting to the force of another witness; or by some other kind of evidence which is entitled to the weight of two witnesses on oath. In this case there was no witness, and the plaintiff, to dis- prove the auswer, relied on the evidence furnished by papers marked (1) and (2.) As an explanation of this seeming con- ti-adiction, the defendant makes the allegation of a mistake in both of these papers in respect to the dates, and avers that the proper date of the paper marked (1) should be " 1854," instead of 1853, and that of the paper marked (2) "1855" instead of 1854, aud to show this mistake, he produces papers marked (3 and (4.) By an inspection of the papers marked (1) and (3) it is manifest that the one was made from or with a direct reference to the other, aud taking into consideration the fact that papers (1) and (2) do not purport to have been made for the purpose of being t/ie hasis of a cJiargc as be- tween Mrs. Dawson and her agent, the defendant, but simply for the purpose of furnishing her the amount to be listed by her as taxable interest, in which view, it was not necessary for the paper to have a date, (as it was to be acted on at the time,) aud, of consequence, but little attention would be giv- en to the accuracy of the date, we accept this explanation as entirely satisfactory, and reject the conclusion of the commis- sioners, because it involves the inference not only that Mrs, Dawson wilfully neglected to list her taxable interest at the proper time, but that in 1854, having the papers (1) and (2) before her, she knowingly took a false oath in listing the amount called for by paper (1,) and omitted the additional amount called for by paper (2,) and the further inference that the defendant has sworn falsely in his answer, and also, has 248 IN THE SUPREME COURT. Hill V. Williams. been guilty of manufactnring evidence, to wit, the paper marked (3) under circumstances equivalent to perjury. We will here remark that the recital in paper (1) that Mrs. Daw- son had directed the defendant not to loan out her Tnoiisy, is made obviously for the purpose of furnishing her with an ex- cuse for not having listed any taxable interest in the year 1853, and when we find her in 1854 listing her taxable inter- est on the basis of that paper, the fact that it was made out in 1854, is manifest without calling in aid the weight to which the answer is entitled. The paper marked (3) is the proper basis of charge in stat- ing the account, and that furnishes the respective dates from which interest should be calculated, and disposes of the 6th exception on the part of the plaintifi". The second exception of the defendant is overruled, and the first exception of the plaintifi" is allowed. The de- fendant having undertaken to transact the money matters of Mrs. Dawson, on the footing of being a neighbor and a re- lation, and without making any stipulation or intention of making a charge for it, has no right, after her death, to claim remuneration. It may be, if he had apprised her of his in- tention to charge for his services, she would not have employ- ed him ; but it is sufiicieut to say, as he undertook to do it gratuitously, there is no principle upon which a promise by her to pay for his services can bo implied. It may be that he expected she would make a will and give him a legacy. If 60, his disappointment is no more than what all persons hav- ing expectations of the land are liable to. Nor can we yield our assent to the position that although he did not intend to make a charge, still, as her administrator requires him to give an account of liis agency, he, on that footing, becomes enti- tled to compensation. We do not see how this follows. It is to be presumed that he was, at all times, while she lived, ready and willing, if called on by her, to come to a settle- ment, and make out a statement showing how matters stood between them, and he was under a similar obligation to do so when called upon by her personal representative, upon whom JUNE TERM, 1861. 249 Hill V. Williams. the law imposed the duty of requiring a settlement. This case is distinguishable from that supposed by the defendant's counsel on the argument ; a guardian strikes a rough balance without charging commissions, and proposes to close the mat- ter on that footing ; if it is declined, and he is required to go into a settlement, produce regular vouchers, and acquit him- self of any neglect in failing to collect debts and matters of that kind, whereby he is chargeable although he has made no gain, he may well, then, insist upon an allowance of com- missions ; because he is by law expressly entitled to charge commissions ; but there is no statute by which the defendant is entitled to commissions, and in the absence of a contract to that effect, he was not so entitled, and, therefore, could not, like the guardian, propose to waive his right to commissions, provided he was not held to a strict accountability. The second exception of the plaintiff is withdrawn. The third exception is allowed. As there was a large amount of unproductive interest due upon the notes he held, belonging to the plaintiffs intestate, it was his duty upon be- ing warned to pay over the notes, or have them renewed, to have done so, and the loss of interest upon this interest, inci- dent to his neglect and refusal, should fall on him by striking the balance at the time the bill was filed. The 4th exception is overruled, and also the 5th for the same reason : The answer being responsive, is evidence for the defendant, and supports the claims covered by these ex- ceptions. There will bo a reference to have the account stated accord- ing to this opinion. Per Curiam, Decree for an account. CASES IN EQUITY ARGUED AND DETERMINED l^f THE SUPREME COURT OF NORTH CAROLINA, AT MORGAJNTTOlSr. AUGUST TERM, 1861. TATHAM V. WILSON. Where a husband and wife brought suit in a court of equity for the distribu- tion of a fund limited to them and others by deed, as joint owners, and after an interlocutory decree for an account, but before the account was taken, the husband died, it was held that the wife, surviving, was entitled to the fund. This cause was removed from Macon county. After the hearing of the cause at a former term of the Court, and a decree for an account against the defendants, who had the fund in their possession, it was referred to Mr. Dodge, the clei'k of this Court, to report the names of the children of Rachel Wilson, and the amount of the several'shares to which each was entitled. The clerk reported at large, and there was no exception taken to his report, except one, filed by W. L. Love, tlie ad- IN THE SUPREME COUET. 25i Tatham v. Wilson. ministrator of William Tatham. lu tlie report, the clerk states that William Tatham intermarried with Isabella, one of the children of Tlachel Wilson, and joined with his wife and others in hrin Injunction. John W. Sessoms. ) " This cause being called, tiie complainant moved for a con- tinuance, for cause shown ; pending which, the defendant moved to dissov-e the injunction. Ordered by the Court, that the cause be continued till the next term. Appeal by the defendant." No counsel appeared for the plaintiff in this Court. Wiiidon, Jr.^ for the defendant. Manly, J. The record does not state, with distinctness, the ground of appeal in this case, and we are not quite sure that it is properly apprehended. It is set fortli that, on the call- ing of the case, the complainant moved a continuance for cause shown, and pending this motion, the defendant moved to dissolve the injunction. The Court continued the cause, and the defendant appealed. If the matter of complaint be that a motion to dissolve an injunction must be heard at the first term when it is made, xve do not think it is sustained by any rule of law or of prac- tice. Such questions, like all others, arising either ujjon the tinal heai'iug, or in earlier stages of cases, are subject to be continued by the Judge for any cause which he may consid- er, in the exercise of a sound, legal discretion, to be sufficient. If the complaint be that there sliould have been an affida- vit filed, setting forth the cause for continuance, we think it equally untenable. The Rev. Code, chap. 31, sec. 57. pi. 13, Applies exclusively to actions at law, as is manifest from the language of the clause and from the subject-matter of the whole chapter. We are not, indeed, aware of any restriction upon the power of a Judge sitting as a court of equity, to contiaue a cause before him in any stage, or pending any rao- 258 IN THE SUPREME COUET. McKay v. McNeill. tion in it, when he may deem it expedient for the purposes of justice. It is a power snbjoct, only, to his sonnd discretion. We have not called to our aid the statute of 1861, 2nd extra gession, chap. 10, sec. 4 ; for the reason, that it is not neces- sary to derive the power, exercised in this case, from any other source than the general discretionary powers of a court of equity ; and for the additional reason, that it seems to be- uncertain whether the law of 1861, was in force at the time of the making of the order of continuance in question. The appeal should be dismissed with costs against the ap-' pellant, and the same certified to the court of equity for "Washington county, to the end, that the said Coiirt may pro- ceed in the cause. Per Cdeiam, Appeal dismissed. ARCHIBALD McKAY and othei^ arjainsi DANIEL McNEILL and other's. Where it appeared tliat the title to land, sought to be sold foi- partition, was subject to be divested out of the petitioners, by the terms of an executory devise, which extended to it, it was 7(eW that the Court could not order a sale of the premises. Where a bill is filed to have land sold for partition, but no actual partition i* asked in the alternative, and no general relief prayed for, the Court will not order such actual partition, though the parties might seem to be entitled to it, if the bill had been framed otherwise. Appeal from the Court of Equity of Robeson county. The bill was filed by the plaintiffs, as the heirs-at-law of JSTeill Mci^eill, deceased, for a sale of a certain tract of land, which came to them, as they allege, after the failure of cerr tain limitations in the will of said Neill McNeill. They set forth, in the bill, that as to the land, in question, it was de- vised in said will as follows : " My plantation^ my woman^ Bet, JUNE TEEM, 1862. 259 McKay v. McNeill. stock of all kinds, farming utensils, household and kitchen furniture, books, cart, chair, and whatever I may possess, not otherwise disposed of, to be ray son, David's, his natural life- time, and my single daughters, remaining on tlie plantation, should they live longer, to be his heirs and the heirs of each other in the plantation, whilst single, and should my son, Daniel, have a male heir, he shall be heir to my plantation after the death of my single daughters." The plaintiflfs allege that David is now dead, and that the three daugh- ters, Catharine, Jane and Elizabeth, were single at the time of the death of the testator, and resided on the plantation in question with their brother, David, but that they all three married and removed from the plantation ; and these, with their husbands, are made defendants to this bill. The plain- tiffs allege that Daniel is still alive, and is married, and has been so for several years, but that no child, either male or female, lias been born to him. Daniel McNeill answered and opposed the sale of the land, on the ground, that during his life, no sale of the premises could take place, as no absolute title accrues to the children of ISTeill McNeill, until the removal of the contingency of his having a male child born to him. Elizabeth and Catha- rine, two of the daughters, mentioned in the will, of the testator, as being single and resident on the land, but who are now married, with their husbands, demurred to the bill. The cause was set for argument on the bill and demurrer, and the Court ordered the demurrer to be over-ruled, from which the defendants appealed to this Court. JLeiich, for the plaintiffs. Shepherd and W. McL. McKay ^ for the defendants. Battlk. J. Tlie will, which we are called upon to construe, is certainly inartificially drawn, and some of its terms are some- what obscure, but we think that enough appears to show that the construction, contended for by the plaintiffs, is correct. The land, in controversy, was given to the testator's son, Da- 360 IN THE SUPREME COURT. McKay v. McNeill. vid, for life, and the daughters, who were living on the pre- mises at the testator's death, were to have it for life also, pro- vided they remained single and survived JDavid. But they married and left the premises ; so this life-estate was defeated by the condition annexed. The only other devise of the land is to the male heirs of the testator's son, Daniel, which, as Dan- iel has, as yet, no son, remains an executory one. The conse- quence is, tliat as the life- estates given, have terminated bj'' the death of David and the marriage of the danglitcrs, the land belongs to the heirs-at-law of tlie testator, subject to the executory devise in favor of the heirs-at-law of Daniel Mc- Neill. Such being the case, the Court cannot order a sale, because it cannot defeat the executory devise and convey a good title in fee simple to the purchaser. Watson v. Watso7iy 3 Jones' Eq. 400. That, however, does not deprive the plaintiffs of the right to have a partition of the land, and if the bill contained eith- er a specific prayer in the alternative, for that purpose, or even a prayer for relief generally, we should not hesitate to order a partition among the parties specifically, but in the ab- sence of any such prayer, we would not be justified in order- ing what the parties have not asked, and what, so far as we know, they do not want. We must, therefore, sustain the demurrer and dismiss the bill, but it is without prejudice to the right of the plaintiffs to file a bill for a partition of the land according to their in- terest in the same. Per Curiam, Bill dismissed. JUNE TERM, 1862. 261 Eason v. Cheiiy. MARY EASON, Achnimsin •rix, against JOSEPH B. CHERRY, and others. Where one of a coparlnenship, by any means, gets a fund belonging to the firm, be is not at liberty to appropriate it to his own exclusive benefit, but must share it with his copartners. Cause removed from tlic Court of Equity, of Bertie. Joseph B. Cherry, William 11. Tayloe and Alfred Eason, entered into a copartnership for the purchase of a large quan- tity of cypress timl)cr, (standing,) with the purpose of jointly working it into shingles, and of shipping and selling the same, for which they gave their jointnotcs to the proprietor, one Roscoe, for the sum of $5000. Afterwards, instead of work- ing the timber, they sold it for an advance of $800, for which the partner. Cherry, i-eceived the money. In the purchase and use of said timber, each of the said i)artners was to pay one third of the expenses, and receive one third of the profits. Cherry agreed, on receiving the money, on the re-sale of the timber, to pay Koscoe, the original purchase money, but he has failed to do so, and is now insolvent. After receiving the mone}^ on the re-sale, he advanced of it to Eason, the sum of $2601 for which he took his notes, payable to himself, (Cher- ry,) and on which suit has been brought, and judgment taken, and it is to enjoin the collection of this judgment, that this bill was filed by Eason's administratrix, he being now dead. The ground of this application is, that the original debt is still due to Roscoe, and suit has been brought thereon, and judgment and execution will be obtained against the three, Cher- ry, Tayloe and Eason's estate ; that Cherry is insolvent, and judgment and execution will be taken against him for more than the amount Of his share of the property ; that Eason's estate (he being now dead) is good for his part of the debt to Roscoe, and Tayloe is good for his half of it, but if Cherry is permitted to enforce the judgment he has obtained on account of the ad- vancements to him, he will lose the benefits of these advance- ments, on account of the insolvency of Cherry. The prayer is therefore to restrain Cherry from pressing an execution at law on this judgment against Eason's estate. 262 IN THE SUPREME COURT. Eason v. Cherry. Tliere is no controversy as to Cherry, but Tayloe answers and insists that in as much as Eason has received so much of the joint copartnership funds, and he (Tayloe) has received nothing, and in as mucli as he is able, and will liave to pay lialf of the original purchase money to Eoscoe, he is entitled to share in one half of tlie advancements made by Cherr}'^ to Eason, and that as to that much of Cherry's judgment against Eason's administratrix, siie should be decreed to pay it to Tayloe. The cause was set for hearing on bill and answers, and up- on a motion to dissolve the injunction and sent to this Court by consent. Garrett and Barries, for the plaintiff. Winston^ Jr., for the defendant. Battle, J. There can be no doubt that the plaintiff is en- titled to relief against the defendant, Cherry ; but we think it is equally clear, that the defendant, Tayloe, is entitled to share in the relief. The plaintiff's intestate, and the defend- ants being partners in the purchase and sale of a lot of tim- ber, mentioned in the pleadings, whatever part of the part- nership funds came to the hands of either of the members, be- fore a final settlement of the concern, belonged equally to all. This is so obvious a principle of the law of partnership that it scarcely needs tlie aid of an adjudicated case for its recog- nition, but if it did, that of Allison v. Davidson, 2 Dev. Eq. 79, is one directly in point. It was tliere held, among other things, tiiat where of four partners, one died insolvent, large- ly indebted to the partnership, and two others, without the consent of the fourth, received their shares from the executor of the deceased, tlie sums so received, remained, as between the survivors, joint stock. So, in the present case. Cherry being insolvent, largely indebted to the partnership, the sum received from him by the plaintiff''s intestate, ig, as between her and the defendant, Tayloe, joint stock, to which they are equally entitled. An analagous principle prevails among JUNE TERM, 1862. 26? Bennett v. Merritt. co-snreties, so that when one of them, hy any means, gets a fund belonging to the principal, he is not at liberty to appro- priate it to his own exclusive benefit, bnt must share it with his co-surety. This has been decided in many cases, among whicli are Bcmics v. Pearson, G Ire. Eq. 4S2, and Leanj v. Cheshire, 3 Jones' Eq. 170. Pek Curiam, A decree may bo drawn in^ accordance with this opinion. JANE BENNETT agnimt JACOB MERRITT and others. "Where the agent of a trustee received money, arising from the sale of trust property, made by collusion with him, it was held not to be a defense to a bill against such agent to follow the funds in his hands, that he had paid the money over on liabilities which he had incurred for the trustee. Where trust property is wrongfully sold by a trustee, by collusion with an- other, who did not, however, receive any part of tlie price for which the property sold, it was hehl that the principle of following the trust fund, in its converted state, does not apply to such other person. Cause removed from the Court of Equity of Wayne county. Thomas Bennett, of the county of Sampson, died about the year 1857, leaving a widow, the present phiintitf, Jane, and one daughter, Virginia, his distribntees, and the defendant, James R. Parker, administered on his estate. Afterwards, in August, 1857, Virginia, the daughter, died, leaving her mo- ther, the said Jane, her sole distributee. J. R. Parker also administered on her estate. The said Parker took possession of the personal estate of both, consisting of slaves, household furniture, stock of hor.'^es, »fec., carriage, growing crop, provi- sions on baud, notes, ecause the sale of the land, devised to him, was a revocation of the de- vise. The fact that the testator did not see proper to make a deed to Fisher and others, but chose to retain the title as se- curity for the payment of the note, does not, in any way, alter the case in respect to this question of revocation ; for the plain reason, that in the one case as well as in the other, he had ceased to be the owner of the land which was the subject of the devise. It is a familiar principle of equity^ acted upoc every day, 282 IN THE SUPREME COURT. Chambers v. Kerns. — „» — i. e.j by a contract to sell land, the purchaser becomes the owner and the vendor holds the title in trust for him on pay- ment of the purchase-money ; so that any appreciation of the value is the gain of the purchaser, ^d any depreciation (by burning of the buildings, &c.) is his loss. In other words, the effect of a contract of sale is to make the vendee the owner of the land, the title being retained by. the vendor as a secu- rity for the purchase-money. These are well-settled principles of law, and if by their ap- plication the intention of the testator is disappointed, the Coni-t can say it is not the fault of the law, but the neglect of the testator in not adding a codicil to set out his intention, made necessay by the alteration, in the condition of his estate, caused b}^ his act of selling the tract of land devised to John B. Kerns ; see Gillis v. Harris^ decided at this term, (ante 267). Whether the purchasers of land in a bill for the specific performance on payment of their note, must call for a con- veyance from the heirs-at-law of the devisor, or from the de- visee, is a question not now presented ; it is certain that the title, no matter whether it has descended to the heirs-at-law, or passed under the will to the devisee, is held merely as a security for the payment of the purchase-money, and that the ownership and beneficial estate vested in the purchasers by force of the contract of sale, and the legal title is held in trust for?them on payment of the purchase-money. The exception, in respect to the charge of interest, is allow- ed so far as there is a charge of interest for cash on hand. An executor is not expected or allowed to invest cash on hand so as to make interest, and is not chargeable for interest, un- less it be proved that he has made interest. Of course, he is chargeable with interest on the sale notes from the time they fell due, as he is presumed to have collected it on all such notes as were not promptly paid. Per Cueiam, The account will be reformed accordingly. JUNE TEEM, 1862. 283 Ray V. Scott. BENTON RAT, Adm\., and others agaimi EDWARD M. SCOTT and others. A suit in equity seeking to set aside a deed, because of incapacity on the part of the bargainor, and fraud and imposition on the part of the bargainee, is not for the same matter as one alleging that a deed was intended to be on- ly a contract to convey on payment of the purchase-money, and was erro- neously worded, because of the ignorance, mistake or fraud of the drafts- man, and a plea alleging the matter of the former suit in bar of the second, was over-ruled. Cause removed from the Court of EqnityTof OrangeTconnty. The bill alleges that Moses Leathers agreed with the de- fendant, Scott, that he would sell him the tract of land, in question, lying on Eno river, at the price of $2000, whenever the purchase-money for the same was paid to him, and that such purchase-money was to be paid within thirty days there- after, and that the parties proceeded, as he supposed, to re- duce this contract to writing, and that a writing was then and there prepared by the defendant, Edward M. Scott, which he supposed was an instrument embracing the terms of their con- tract as above set out, but that in fact and in truth, the instru- ment was an absolute conveyance of his land to the said Scott in fee simple : that this departure was by the mistake, ignor- ance or fraud of such draftsman ; that the instrument in ques- tion is not formal in its terms, and was well calculated to mis- lead Leathers, wlio was himself ignorant and unacquainted with the business of conveyancing ; that Scott paid him no money then, nor has he since paid him any ; that the said Scott was well known to him to be at the time utterly insolv- ent, and that he never would have thought of selling him his only tract and homestead without some security for the pur- diase-money. The bill further alleges, that the said Scott has conveyed the land, in question, to the defendant, Webb, as a trustee, to secure tlie debts of the other defendants, Sims and the McCawns, and that they, had notice of Leathers' equita- ble claim ; that the said trustee has sued him in an action of ejectment and tlireatens to turn him out of possession. The 284 IN THE SUPKEME (!50URT. Ray V. Scott. prayer is, that the deed, in question, may be reformed, and that it may stand, as it was intended to be, a bond to sell and convey the land, in question, to the said Scott on the payment of the purchase-money, and that 'the defendants may be en- joined from proceeding, at law, ^o oust him of his possession, and for general relief. ■ This suit was originally instituted in the name of Moses Leathers, but his death having been suggested, Benton Ray, > his administrator, and the children and heirs-atjaw of the said Moses, by their next friend, the said Benton Ray, were made parties plaintiff. The defendants pleaded in bar that the plaintiff's intestate. Leathers had, before the commence- ment of this suit, brought suit in the court of equity, alleging that Scott and Sims, being both very desirous of getting his land, came to his house, and finding him in a debauch of sev- eral days duration, when he was totally unfit to make a con- tract, persuaded him to sign a paper, the contents of which, he was too drunk and stupified to know and understand, but which turned out to be a deed in fee simple to Scott for his land for $2000, which it was expressed in the said instrument, the said Scott was thereafter, to pay ; that the land was after- wards conveyed by Scott, in trust, for the benefit of Sims and the McCawns, and that the whole transaction was in pursu- ance of a fraudulent combination between Scott, Sims and John and William McCawn, the prayer of which former bill, is slated to be for a declaration that such deed is void for the fraud, and that it be surrendered for cancellation. The plea avers the identity of the parties and of the cause of action, and concludes in bar of the said suit. The cause was set for argument on the bill and plea of de- fendants. Graham, for the plaintiffs. Phillips, for the defendants. Peakson, C. J. The only question presented is this : tak- ing the matters alleged in the plea to be true, is the equity JUXE TEEM, 1862. 285 Ray V. Scott. which the plaintiff seeks to set up by their bill now filed, the same as the equity which the intestate attempted to set up in the first bill, and which was adjudged against hijn : in other words, does tiiis bill seek to enforce the very cqult'j M'hich has been adjudged and decided by the decree in the first suit. Upon this argument the Court is confined to the matters alleged in the bill and the matters set out in the plea, and for this reason, very great particularit}'- is required in framing the plea. Without deciding whether this plea is informal in this, that it does not set out, in so many words, the bill in the first case, and does not set out the decree in that case, but simply states the substance and efi'ect and material parts of the bill and decree, we put our decision on the ground that the equi- ties are not the same, and that the equity of the bill, now be- fore us, was not adjudged by the former decree. The equity, which the bill seeks to set up is, that the intes- tate of the plaintifis, having made a contract to sell his land to the defendant, Scott, the intention was to reduce the con- tract of sale to writing, and in drafting the writing, either by the mistake or the ignorance or the fraudulent design of the draftsman, who was the defendant, Scott, the paper was so worded as to be a conveyance of the land instead of a con- tract to convey on the ))ayment of the purchase-money. Tiie equity of the first bill was, that the plaintiffs' intestate never intended, either to convey, or to contract to convey, his land, and tiiat he was induced to sign and execute the paper, at a time when, from the eflTects of drinking, he was incapa- ble of making a contract, and so the deed was obtained from him by fraud, and was void by reason of his incapacity. These equities are wholly distinct and different : The first bill would have made the deed void and of no effect, against all persons, either as a contract to convey, or as a conveyance of the estate, or any part of it. This bill seeks to make the deed void as a conveyance, but establishes it as a contract to convey upon the payment of the purchase-money. Let the plea be over-ruled and the d^endants be required to answer. Per Curiam, - Plea over-ruled. 3 286 I^ THE SUPREME COURT. Quickel v. Henderson. CAIPHAS QUICKEL and another against C. C. HENDERSON and others. A bond to inflemnify the surety of A against all notes, bonds, &c., signed arid entered into for B, extends to notes, bonds, &c., signed and entered into for B & Co. This cause was removed from the Court of Equity of Lin- coln county. The testator of the plaintiffs, Jacob Killian, was the credit- or of Barrett & Co., by a note signed by Barrett & Co., as principals, and J. A. Ramsour as surety, upon wliich suit was brought, judgment obtained, and execution issued against each of the partnera and against the surety, and returned nul- la hona, and it was admitted that these parties were, and still are insolvent. After this note was given, to wit, in 1857, the plaintiff, Ramsour, for Iiis indemnity against the liabilities he had incurred for E. S. Barrett, took a penal bond in the sum of $20,000, with the other defendants, Briggs, Hoyle and Henderson, as sureties, payable to him, the said Jacob A. Ramsour, and conditioned as follows : " Whereas, the said Jacob A. Ramsour hath heretofore bound himself by bills, bonds and notes, for the payment of various sums of money, as the security of Elisha S. Barrett, now, therefore, if the above bounden, E. S. Barrett, shall well and truly pay off/ and discharge each and ever}^ of the said bills, bonds and notes, in and by which the said Jacob A. Ramsour is bound, as aforesaid, for the said E. S. Barrett, on or before the day of 185 , or shall on or before the da}^ aforesaid, in any- wise discharge and save harmless the said Jacob A. Ramsour from any and all liabilities, debts, contracts or charges, for or on account of all said bills, bonds, and notes, then, the above obligation to be void, otherwise to remain in full force." Signed by E. S. Barrett, B. F. Briggs, C. C. Henderson and L. A. Hoyle, with their seals affixed, and delivered to the said Ramsour. The plaintiffs called on these obligors to indemnify Ram- sour, the obligee, by paying tnis note to the executor of Ja- cob Killian, but this was refused, on the ground, that as J. A. JUNE TERM, 186^. 287 Quickel v. Henderson. Rarasour is insolvent and cannot pay anj^ thing, therefore, he cannot be damnified, and again, for that the indemnity ex- tends only to liabilities incurred by E, S. Barrett, and not such had been incurred for E. S. Barrett & Co. The de- fendants demurred, and the cause being set down for argu- ment on the demurrer, was sent to this Court. jFoiole, for the plaintiffs. No counsel for the defendants in this Court Manly, J. Two grounds are relied upon to sustain the demurrer in this case. ' 1. That there has been no breach of the conditions of the bond by actual or probable loss on the bond of the complain- ant, Ramsour, and 2. That the bond is for the indemnity of Ramsour as surety of E. S. Barrett, and does not extend to cases in which Ram- sour is surety of Barrett & Co. The first of these grounds seems to be disposed of by the case of Ferrer v. Barrett^ 4 Jones' Eq. 455, which was a bill similar, in all respects, to the one before us, where the same ground of demurrer was taken, and after full consideration over-i'uled. We content ourselves by a reference to the rea- soning in that case. The second ground is also untenable. There is nothing in the language of the bond to re-strict the indemnity to obliga- tions in which Barrett is sole principal, and we can perceive no reason for such restriction. The individuality of co-partners is preserved and is not merged as in incorporated societies.— Each is responsible, severally, for the debts of the company, and it is not less the debt of Barrett, nor is Ramsour less the sure- ty, because others, beside Barrett, are responsible upon it as principals. The demurrer is over-ruled with costs, and the usual certi- ficate should be sent to the Court of Equity of Lincoln Coun- ty. Per Curiam^ Demurrer over-ruled* 288 m THE SUPEEME COURT. Bowers v. Strudwick. W. G. BOWERS and wife, against EDMUND STRUDWICK cend others-. A mortgagee having agreed with the wife of the mortgagor, that wpon a part of his debt being satisfied, he would assign for her benefit, his interest m the debt, and the property mortgaged ; and in pursuance thereof, having assigned the same to a third person, held that the assignee was entitled to enforce against the wife's legatees, an agreement, by which, at the time she was soliciting him to aid her in securing the benefits, she engaged that jipon her death, her interest in the property mortgaged, should besubjected to pay the debts due to such assignee by the mortgagor. Cause removed from the Court 6f Equity of Orange county. The pleadings and evidence in this case, showed that John Witherspoon was indebted to Charles J. Shannon, in a sum^ which, in 1853, amounted to about $5,500, and, that to se- cure it, he had, in 1837, given a mortgage upon sundry slaves. In 1853, he was also indebted to Edmund Strudwick, in the sum of about $5,000, which had accumulated during a period of twenty-five years. In 1853, Mr. Shannon was induced, from friendship,, to Mrs, Su&fin Witherspoon, (wife of John Witherspoon,) to consent that if the principal of his debt, (about $2^750,) were paid or secured, he would assign his interest in the mortgaged prop- erty for her benefit. At this time, the slaves were worth about $4,500. Mrs. Witherspoon, thereupon, persuaded Ed- mund Strudwick to secure said debt, engaging, that if he would do so, she would provide, that after her death, the slaves- should be applied to the payment of the debts due to him, a& above stated. Henry KL Witherspoon was to join Strudwick in this arrangement, becoming jointly bound, and sharing m the benefits ; but afterwards, for a reasonable consideration, he assigned his interest therein, to Strudwick. Thereupon, Mr. Shannon, the principal of his debt having been secured, through the intervention of Strudwick, gave a bond to- the lat- ter, (Henry K. Witherspoon being connected with the trans- action, as above set forth,) providing for the transfer to him of the debt and mortgaged property, upon ih.Q payment of what JUNE TEKM, 1862. 289 Bowers r. Strudwick. had been secured. This payment was afterwards made ; about $1,100 of it coming from the means of Strudwick. Owing to some differences between Mrs. Witherspoon and Strudwi-ek, the whole matter was left to the award of John W. Norwood, Esq., who, as a preliminary, ordered Shannon to convey the slaves to Strudwick, and reserved the other points for further consideration. The conveyance was made, but, before the arbitrator had settl-ed the matter, Mrs. With- erspoon died, (early in 1854,) having survived her husband but a short time. Thereupon the arbitration came to an end. Mi's. Witherspoon made a will, under which her daughter Mary, wife of the plaintiff, William G. Bowers, received an interest in her estate; and Strudwick, qualified as Adminis- trator, with the will anuexed, at August Term, 1854, of Or- ange County Court. In June 1854, John K. Witherspoon, who was'duly author- ized to do so, by all the nej:t of kin, and legatees of Mrs. Witherspoon, excepting the plaintiff, Mary, made a set- tlement with Strudwick, whereby, in consideration that he re- leased iiis debts against John Witherspoon, deceased, all the slaves except Vii-gii were transferred to said Strudwick. Vir- gil was, by that arrangement, reserved for .the use of the com- plainant, Mary, who was, at that time, some twenty-three jears of age, but was absent in Philadelphia. She intermar- ried with Iktwers in the latter part of 1857. The bill which was filed t>o Spring Term, 1858, of the Court of Equity, for Orange County, prayed that Strudwick should be declared a trustee of Mr. Shannon's interest in the proper- ty mortgaged, so far as it had not been exhausted in paying Mr. Shannon's principal money, for the benefit of Mrs. Witli- erspoon's estate ; that the slaves should be sold, and if there were anything left, after satisfying the original debt due Mr. Shannon, it should be paid to W. Gr. Bowers, as Administra tor, of John Witherspoon, deceased, and for other relief. The cause was set for hearing, at Spring Term, 1861, of Or ange Superior Court, and ordered to be transmitted to the Supreme Court 990 m THE SUPKEME COUKT. Bowers v. Strudvvick. Graham for the complainants. Phillips for the defendant, Striidwick. Peaeson, C. J. By the accumulation of interest, the mort- gage-debt exceeded the value of the slaves ; so it is assum- ed on both sides that Doctor Witberspoon's equity of re- demption being of no value, was abandoned, and may be put out of the consideration. The equity of the plaintiff is put on the ground, that the claim of Doctor Strudwick to hold the negroes as a security for the debts due to him by Doctor Witherspoon, according to the understanding and agreement made between him and . Mrs. Witherspoon, should not be allowed, because it would disappoint the expectations of Mr. Shannon, whose sole ob- ject in agreeing to transfer the mortgaged negroes on pay- ment of the principal of his debt, and to forgive the accumu- lated interest, was to benefit Mrs. Witherspoon exclusively, and so the claim, made by Dr. Strudwick, if allowed, would be a fraud on Mr. Shannon. The doctrine that a court of equity will not enforce the per- formance of an agreement made in fraud of a third person, is a familiar one, but it is based upon a very refined principle — difficult of application to the ordinary transactions of life, and is put upon the ground of preventing j9m^^■ye and actual fraud. Our opinion is against the plaintiffs. Mr. Shannon, upon the facts of the case, was not the mere dispenser of a charity. lie had a prudent regard to his own interest; and the amount of it is this : he was willing, in order to avoid the necessity of enforcing his rights as mortgagee, and the embarrassments to which he \yould have been subjected in taking, the negroes outi of the possession of Dr. Witherspoon and of Mrs. Witherspoon, owing to the peculiar relations of respect, «fec,, existing be- tween them, to forgive the accumulated interest on his debt and to transfer and assign his right and title under the mort- gagCj provided the principal of his debt was paid or" security for prompt payment was given : with the understanding that any of the mortgaged negroes, that could be retained by this JUNE TERM, 1862. 291 Bovvers v. Strudwick. arrangement, should be held for the benefit of Mrs. Wither- spoon. The question is : as Mrs. Witherspoon, in order to comply with the condition which Mr. Shannon annexed to his boun- ty, to. wit : the immediate payment or security for the prompt payment of the principal of his debt, was under the necessity of coming to an understanding with Doctor Strudwick, that if he would enable her to perform the condition, im- posed by Mr. Shannon, and would allow her the full use of the property during her life, he should, after her death, hold the negroes as a security for the debts due to him by Doctor Witherspoon, does the doctrine of preventing a fraud apply to the case and forbid the Court from allowing the agree- ment made between Dr. Strudwick and Mrs. Witherspoon from being acted on and carried into effect by Dr. Strudwick, who has acquired the legal title ? We are of opinion that the doctrine, that equity will not enforce an agreement in fraud of a third person, does not ap- ply to the case. Mr. Shannon was generous in agreeing to forgive the accu- mulated interest, but by stipulating that the principal of his debt must be paid, or its prompt payment be secured, he gave up the right to be considered in the light of a mere dispenser of a bount_y, because he imposed a condition, and, of course, expected that Mrs. Witherspoon would be under the neces- sity of making some agreement, or arrangement, in respect to the property, to enable her to compl}^ with the condition. — Doctor Strudwick, in the exercise of a spirit of generosity, equal to that of Mr. Shannon, aided Mrs. Witherspoon, and enabled her to comply with tlie condition. What ground is there to support the allegation, that when Doctor Strudwick, as a condition to the aid whicii he was about to render, stip- ulated that after the full enjojniient of the property by Mrs. Witherspoon during her life, it should then stand as a securi- ty for hh debts due by Dr. Witherspoon, he perpetrated a fraud upon Mr. Shannon, and on that account, should not be allowed to have the benefit of the arranfferaent made between t t 292 IN" THE SUPREME COURT. Bowers, v. Strudwick. him and Mrs. Witherspoon ? We can see none, either in law, equity or morals. Mr. Shannon made no stipulation in be- half of the children of Mrs. Witherspoon. His object was, after securing, without farther embai-rassment, the payment of the principal of his debt, to secure to Mrs. Witherspoon the full enjoyment of such of the mortgaged negroes as could be saved, after a compliance with liis terms. These were complied with, and his obligation to transfer all of his right and title under the mortgage deed on the payment of tlie res- idue of his principal money, was absolute, and without any declaration of trust in favor of the children of Mrs. Wither- spoon, or any other stipulation with a view of restricting Mrs. Witherspoon from the privilege of making an agreement ne- cessar}^ to enable her to comply with his terms. A paynjent of a part of a debt is not a satisfaction of the whole, as between the creditor and debtor, bnt when a third person comes in and assumes the pa3mient of a part, in satisfaction of the whole, the case is materially altered, and there is then no reason on which the creditor can object to an agreement, which the debtor was under the necessity of making, in order to enable him to pay the part required. So, in the view we take of the case. Doctor Strndwick has not been guilty of any ■positive or actual fraud, so as to enti- tle the plaintiflPs to take the ground that a court of equity ought not to allow him to insist on the arrangement, by which the negroes, after the full enjoyment of Mrs. Witherspoon, during her life-time, were to be held by him as a security for his debts ; but we are satisfied that Dr, Strudwick, so far from having perpetrated a fraud, either on Mr. Shannon or the children of Mrs. Witherspoon, has acted the part of a friend, and by making himself liable to Mr. Shannon for the princi- pal of the debt, and thereby secui-ing to Mrs. Witherspoon the full enjoyment of the negroes, embraced by the mortgage, has entitled himself to an equal share of credit in acting as the friend of Dr. Witherspoon and Mrs. Witherspoon *and the family. Indeed, the equity, which the bill seeks to set up under cover of the bounty of Mr. Shannon to Mrs. Wither- JUIJ^E TEEM, 1862. 293 Bowers v. Strndwick. spoon, is based on tlie idea that his intention was to restrict her full enjoj'ment in this : Mrs. Witherspoon was not to be at libert}' to dispose of the negroes, as seemed riirht to her, according to her convictions of justice and moral duty, but she was obliged to forego all such obligations and allow the negroes to devolve on her distributees, under the statute of distributions, unless she saw proper to make a will and give them to her children in proportions differing from the man- ner in which they would have been entitled under the stat- ute. This ussumption of the right, on the part of Mr. Shan- non, to control tiie free agency of Mrs. Witherspoon in dis- posing of the negroes, is inconsistent with the idea of making her the absolute owner, and is contradicted by the face of his bond. The effect of the bond of Mr. Shannon, dated 27th Decem- ber, 1S47, to Doctor Strudwick, (H. K. Witherspoon having released his right under the bond, may be put out of^he case) was to give Dr. Strudwick a right to an absolute conveyance, by Shannon, of all his right and title to the negroes under the mortgage, on the payment of $1500. Strudwick, under this bond, had a right to call for an absolute conveyance of Shan- non's title without au}' declaration of trust, either in favor of of Mrs. Witherspoon or of her children. So, the deed execu- ted by Shannon, in pursuance of the award of Mr. Norwood, was simply a performance of the obligation imposed on Mi'. Shanndn by his bond — the sum of $1500 having been paid to him. Thus, the legal title passed to Dr. Strudwick, subject only to the parol trusts, admitted by his answer, as growing out of the understanding between him and Mrs. Witherspoon ; that is, to allow Mrs. Witherspoon to have the full use of the negroes during her life, and then in trust as a security to Dr. Strud- wick for the debts due him by Dr. Witherspoon, leaving a resulting trust in favor of Mrs. Witherspoon after the pay- ment of the debts due to Doctor Strudwick. By her will, Mrs. Witherspoon disposes of her interest 294 . IN THE SUPREME COURT. Bowers v. Strudwick. among her children, giving a part to Mrs. Bowers, one of the plaintiffs. In June, ISS^l, after the death of Mrs. Witherspoon, all of her children, except the plaintiff, Mrs. Bowers, made a fnll settlement with Doctor Strudwick of all matters growing out of this and other transactions, as appears by a deed executed by the parties of that date, by which Doctor Strudwick re- leases all of his debts, of every kind, and takes the negroes, not before disposed of, except Virgil, as his absolute property. Mrs. Bowers was not a party to this arrangement, and the question is, has her claim, under the bequest by her mother's will, to set up the resultino; trust after the satisfaction of the debts due to Dr. Strudwick, been waived, or released, or sur- rendered in any manner. It is said this result lias been effected b}^ her acceptance of the negro, Virgil, and by several letters of her's to Mr. Nor- wood, which are exhibited. Without discussing the questions, made in respect to her men- tal capacity, it is only necessary to say, that it does not ap- pear that in accepting Virgil, or while writing the letters she had a full knowledge of her rights, and there is no evidBnce that she ever did, or said any thing with an intent to confirm the settlement made by heri)rothers and sisters Math Doctor Strudwick, and there is nothing to show that she did not re- ceive Virgil, supposing him to be a part of her legacy under her mother's will. The plaintiffs have an equity to redeem the negroes and to set up the resulting trust after the pay- ment of the debts due by Dr. Witherspoon to the defendant, Dr. Strudwick, and, to this end, are entitled to an account, on the footing, that Virgil is to be considered part of the proper- ty, liable, in the first instance, to the payment of the debt of Dr. Strudwick. So, they will take an order for an account, or will submit to have the bill dismissed, as they may be ad- vised. *. Pek Curiam, Decree accordingly. JUj^E term, 1862. 295 Sealey v. Brumble. MOORE T. SEALEY against GILBERT BRUMBLE and JOEL BRITT. Where land, which was sold to A under a mistaken description, was after- wards conveyed by the same owner to B by a proper deed, for a Taluable consideration, without notice to B of the mistake, it wa,s held that a bill to reform the former deed and correct the error, would not lie against either A or B ; but it appearing that A had got paid for part of the same land twice, he was not allowed to recover costs on the dismissal of the bill. Cause removed from the Coni-t of Equity of Robeson County. N W E S One Isham Cox, conveyed to defendant, Gilbert Urumble, the tract, described in die plat annexed, A, B, C, D, also, an- other tract adjoining Gilbert Brumble, who sold and conveyed to one Ward a part of the first mentioned titct purporting to be 100 acres, by metes and bounds, as follows : " First survey con- taining 100 acres, begining at a pine, in a meadow, about SCO yards south of Long Branch, (A), running south 29 degrees, east 179 poles, to a stake, two sweet bays and two water oaks in the edge of the ten mile swamp, (B). Then north to the 296 IN THE SUPREME COURT. Sealey v. Brumble. iiill of the lo7ig b)'a7ich, (E) ', then the various courses of the hill of the long branch, to the upper line, (F), thence to the beginning, containing one hundred acres, be tlie same more or less. The plaintift's allege that the call of the second line, B, E, is a mistake in the draftsman, and should have been : JV. 61 JS. to the Mil of the lo7ig hranch^ which would have carried it to (G). The proofs show that in the original deed from Cox to Brumble, such was the course, and that by that course the hill of long branch was passed at (G) ; that by running from B to G, 100 acres would be embraced, but that by going to E only about 50 would be the amount ; that Brumble had, for many years, recognized B, G, as the line, and the area B, G, E, had been claimed by Ward, and tliose. claiming under him down to the plaintiff, Seale}^ whose deeds all followed the one above described. Brumble sold all the lands contain- ed in his deeds from Cox, embracing the whole area, A, B, C, D, to the defendant, Joel Britt, not at all noticing the part he had conveyed to Ward. The deed from Brumble to Wai'd, omits the words of in- heritance, necessar}' to convey a fee simple, which the plain- tiff also says, was a mistake, and pra3'S to have that rectified. The plaintiff alleges that he came in, for a valuable consid- eration, under Ward by a lin'6 of conveyances, describing the land .in the same mistaken terms as are embraced in the deed to Ward. The prayer is that the mistake be corrected by the insertion of tiie proper course from the second corner, also, that the deed may be corrected as to the words of inheritance, and for general relief. Brumble denies that the mistake exi^s as to the course of tiie second line, but as to the omission of the word, heirs, he admits the mistakef and avers his willingness at all times, to have corrected it, Britt insists in his answer, that he was a purchaser of both these tracts of land at a full price witliout notice, and there is no proof filed, that he did have notice of the equity of plain- tiff. JUNE TERM, 1862. 297 Sealey v. Brumble. The cause was heard on bill, answers, proofs and exhibits. Leitch and M. B. Smith for the plaintiff. Shepherd for the defendant. Pearson, C. J. Britt is a purchaser for valuable consider- ation without notice of the alleged mistake. He paid the j)rice and took a deed for the whole tract, of 200 acres, accor- ding to the original boundaries, with a warranty as. to the whole tract ; so it is hard on him to be obliged to give up the part actually covered by thedeed under which plaintiii' claims, and fall back on the warrant}'. In respK3Ct to the part which the plaintitf alleges ought to be included because of a mis- take, he may well take the benefit of the maxim, "when the equities are equal the law must prevail." The bill must there- fore be dismissed as to him. Brumble, b}'' his answer, makes an issue on the allegation of a mistake, in respect to the boundary. But as the title has passed out of him, and vested in Britt, we are relieved from the necessity of deciding this issue, because, in reference to the title, any correction or deed, which he might be required now to make, would be inoperative and of no eifect, and the bill is not framed with a view to any ulterior remedy for breach of warranty. There is no allegation that the deed un- der which plaintiff claims contains a warranty, and of course no secondary relief in aid of a resort to an action at law on a warranty, if one had been made, can be decreed. The bill must, therefore, be dismissed, as to this defendant, also, so far as it relates to the mistake alleged in respect to the boundary. The mistake by reason of the omission of words of inherit- ance being admitted,, the plaintiff is of course entitled to a decree against the defendant, Brumble, to have the deed cor- rected, and as he admits the mistake, anifl avers a willingness at all times to have corrected it, the plaintiff would have been required to pay the costs according to the course of this Court, but the conduct of the defendant, Brumble, in selling and receiving pay for the same land twice, which he certainly 298 m THE SUPKEME COURT. Attorney General v. Osborn. did, as to the part of the land not drawn, in question, b}' the alleged mistake, and his avoiding the question in reference to the mistake, as to the boundary,- by the transfer of the title to his co-defendant, takes from him all right to claim costs. As the decree dismisses the bill so far as the defendant, Britt, is concerned, and, also, as to the defendant, Brurable) except as to the mistake in respect to the words of inheritance the objection taken, on the hearing, on the ground of multi- fariousness is avoided. Indeed, after the expense and delay of preparing a case for hearing has been incurred and taken place, the court would not. be inclined to put the case off on a ground which does not affect the merits of the controversy. The bill will be dismissed as to Britt, with costs, and will be dismissed as to Bramble, so far as it relates to the alleged mistake in respect to boundary, without costs ; and there will be a decree without costs against the defendant, Brumble, for the execution of a deed with words proper to pass a fee sim- ple estate, so as to correct the mistake in that particular. • Pee Cdkiam, • Decree accordingly. THE ATTORNEY GENERAL against CALEB OSBORN et at Where a grant of 3000 acres of land was made as a bounty under the act of 1788, in respect to a particular seat for iron- works, it was helcUhat such grant was appendant to the seat, and exhausted the bounty intended to be given by the statute; so that one who afterwards became owner of the seat, and re- built the works there' after the former work? had gone down, and were abandoned, had no right to another bounty, in respect of such seat, and that a second grant for bounty in such a case was void. Whether the requirements of the statute of 1788, Rev. Statutes, Ch. 75, in re- gard to making the entry — its return to the county court, the order of sur- vey and the appointment and report of a jury should be strictly complied JUNE TEEM, 1862. 299 Attorney General v. Osborn. with as a condition precedent to the issuing of a grant, or whether such matters are merely directory, and do not affect the vahdity of the grant. — Qiiere. Whether a grant, which includes withiu-its boundaries, a large scope of coun- try, say an area of ten miles by seven, but which in its face, purports to be for 3000 acres of vacant land, the; excess being included in older patents is void. — Quere. Cause removed from the Court of Equity of Ashe County. This is an information filed in the name of the Attorney General, to vacate and set aside, a grant of 3000 acres of land. The grant was taken out under the provisions of an act of the General Assemby, passed in the year 1788, entitled, ."An Act, concerning iron and gold mines." See Rev. Statutes, ch. 75. The information alleges various grounds upon which it is sought, to set aside this grant : 1st. That the entry taker, failed to transmit a copy of the entry to the next term of the county court, after it was made. 2nd. That a subsequent county court ordered a warrant of survey, without sutiicient proof that the requisite amount of iron had been made at defeudeut's iron-works. 3rd. That the record made of this transaction, in the county court, is altogether irregular, defective and void. 4th. A paper which is relied on as being the report of the jury, is in evidence, and it shows that it was signed by two or three names, not contained in the order appointing the ju- ry, and then the said report is ordered to be confirmed. Va- rious other irregularities, in the entries of the County Court, are set forth in the information, but in the view taken by the Court, they need not be stated here. 5th. That the surveyor appointed to make the survey did not make any actual survey, but made out a plat, arbitrarily, withd'ut doing so. 6th. That the whole proceeding, embracing the plat of sur- vey and the grant, is delusive and fraudulent ; that they em- brace, in their exterior boundaries, at least 45,000 acres of land, and profess to take only such land as had not been granted by older grants, which is set down at 3000 acres, whereas, the 300 m THE SUPREME COURT. Attorney General v. Osborn. information alleges, and the proof shows, that tliere was, in the grant, at least, eight thousand acres of unappropriated land — and that much of this was of prime quality and fit for cultivation. The plaintiff avers that the survey is at least ten miles long and seven miles wide, and the defendants well knew of this large quantity of vacant land within their grant, and well knew the excellent quality of much of the land, and purposely devised this scheme to defraud the State out of its public land and revenue. 7th. The information alleges, and the proofs establish that many years ago, a man by the name of John Cox, owned a forge for the manufacture of iron at the same place where the defendants have their forge, (Elk Creek forge,) by virtue of which, the}' made an entry and obtained a grant for 3000 acres of land (not included in the defendants boundaries) un- der the act of 178S, for the use of tlie said iron works, and that the said grant is still in force. The defendants, in their answer, insist that Cox's forge, at Elk creek, went down many years ago, and was entirely aban- doned for any purpose of making iron, and that they have not received any of such bounty from him, and are in no wise privy to him in respect to such bounty, and that they have the same right to be encouraged in their enterprise as if they had located their iron works at a different spot from that on which they are established. They deny all combination and fraud. The cause was set down for hearing on the information, an- swer, proofs and exhibits, and sent to this Court. Elaborate surveys were made, by order of this Court, of all the country embraced within the lines of the grant, showing the various tracts heretofore granted, and the amount of va- cant land, which were used on the hearing. JBadger, JVeal, Crurrvpler and W. P. Caldwell^ for plaintiff. B. F. Moore, Boyden, Mitchell and Foiole, for defendants. Pearson, C. J. It is not necessary, for the purpose of dis- JUNE TERM, 1862. 301 Attorney General v. Osborn. posing of this case, to decide whether, in reference to grants of this description, all of the requirements of the statute, in regard to the manner of making the entry — its return to the county court — the order for a survey, and the appointment and report of a jur3', should be strictly complied with as a condition precedent on which the validity of the grant is made to depend, according to the law, as settled in reference to the sale of land for taxes, or whether such matters are only direo- io7'y, so that a grant issued by the proper authorities for land, which is the subject of grant, is to be held valid, and cannot be declared void, and of no effect, notwithstanding the require- ments of the statutes have not been observed according to the law, as settled in respect to grants issued under the acts in reference to ordinary entries and grants of vacant land. 2. Nor is it necessary to decide whether a grant, which in- cludes within its boundaries a large scope of country, say ten miles by seven miles square, 45,000 acres, but which, on its face pui'ports to be a giant of 3000 acres of vacant land, the excess, included in the boundaries, being covered by older patents, is in law void, for the want of power in the Governor to issue such a grant. We will take occasion to i-emark, how- ever, without reference to the question of power, that its ex- ercise leaves open a wide door for the admission of fraud and, certainly, calls for extreme vigilance on the part of the public authorities. 3. Nor is it necessary to decide whether the defendants were guilty of actual fraud in obtaining a grant for some 5000 acres more than they claimed to be entitled to. It may be, under the circumstances, that owing to the large scope of country covered by the survey, and the infinite number of tracts of land held by older grants, embraced wholly, or in part, by the lines of tiie survey, they did not know, positively, the fact of this large excess, and were intent only on includ- ing, at the least, enough vacant land to fill their complement of 3000 acres, iind it is certain the case does not fall under the decision. Attorney General v. Carver^ 12 Ire. 230 ; for there, every thing on tlie face of the suuvey and plat was 4 303 IJ^ THE SUPREME COURT. Attorney General v. Osborn. right, and there was no ground to admit of any doubt or ques- tion of its correctness, so far as the papers showed, and the fraud was made palpable b_y the fact afterwards disclosed^ that the natural boundaries called for, extended tlie lines two miles instead of 200 poles, on the settled rule, that course and distance are controlled b}' a call for natural objects as the boundary. This fact, of itself, convicted both the surveyor and the grantee of a fraud, and there could be no mistake about it. But here, the surve^^ and plat show that a large extent of country was included; tlie surveyor says 33,000 acres of older patented land is embraced, which being deducted, leaves 8000 acres the subject of the gi'ant ; so it, does not appear, palpably, that the defendants were awai'e of the lai-ge excess of vacant land, and we should require strong proof to lead us to the con- clusion that either the count}- surveyor, Calloway^ or his dep- uty, McMillan^ knew of the fraud, if any such existed on the part of the defendants, and prostituted themselves in the dis- charge of the duties of their othce, in order to aid tlie defend*- ants in defrauding the State out of an indefinite number of acres of land not iit for cultivation, and wliich was subject to entry at five cents per acre ; not exceeding, at any estimate, the amount of $300 as the sum, out of which, in this view of the case, the State has been defrauded by the corruption, not only of the defendants, but of the county surveyor and his deputy — both sworn olficers. 4, For we put our decision on the ground, that the grant was issued against law ; that is, without the authority of the law, and in a case tliat did not come within tlie operation of the statute of 1788, " to encourage the building of iron-works." The statute recites " Whereas, it appears to the General As- sembly that several ]:)laceii, in tliis State, are advantageously situated for the building of iron-works," "Be it enacted tliat three thousand acres of vacant land, not fit for cultivation, tnost convenient to the different seats, is hereby granted for every set of iron-works, as a bounty from this State, to any person or persons, who will build and carry on the same, to be under the following rules and regulations." JUNE TERM, 1862, 303 Attorney General v. Osborn. It is alleged in the information, and proved bj the evidence, that o)ie Cox had, many years ago, bnilt and carried on iron- works at this " identical seat," and had, by reason thereof, applied for and obtained a bounty of 3000 acres of vacant land. The question is : was this bounty land of 3000 acres append- ant to the seat of the iron-ivorhs^ or was the intention to give a bount}' of 3000 acres of land to every person, who would, upon that seat, from time to time, build and carry on iron- works? Upon the former construction, M'hen the iron-works should be built and carried on at the particular seat, the boun- ty of three thousand acres of land, most convenient to the seat, was to be given, and although the bounty land was not annexed to the srat, so titat the seat could not be conveyed without passing the bounty land, or the bonnty laud could not be conveyed, wholh' or in parcels, without also conveying the seat of the ii-on-works, still the bounty was exhausted, and could not be claimed in behalf of any other, person who should purchase or otherwise acquire the ownership of the seat, after the bounty land had been severed from it. Upon the latter construction, every person who by purchase, de- scent, or otherwise, might at any time, acquire title to the seat, would be entitled to a bounty' of 3000 acres of land ; so that all that was necessary to do, in order to acquire a title to another bounty of 3000 acres of land was, for the man, who had obtained the bounty, to let the works go down, and sell off the 3000 acres of land, which had been received as a boun- ty, and then rebuild and carry on the works long enough to make 5000 lbs. of iron, and thereupon entitle himself to an- other bounty of 3000 acres of vacant land, not fit for cultiva- tion, " most convenient to the scat;" then let him sell to a stranger the seat for the iron-woi-ks after he has ceased carr}'- ing on the works, and let the purchaser of the seat rebuild and make 5000 lbs. of iron, and he gets another bounty of 3000 acres of land, most corircnient to the seat ^ and so ad in-finitam, tin til all of the vacant land in the county is absorbed by these euccessivc bounty grants ! This latter oonetruction cannot be adopted, and wo hold, 304 IN THE SUPREME COURT. Chambera ». Reid. according to the true constrnction of the statute, the grant of the bounty of 3000 acres of land to Cox, in respect and as ap- pendant to this particular seat, on which he had built and carried on iron-works, exhausted the bounty intended to be given by the statute, and no one, who afterwards became the owner of the seat, had any right to claim another bounty of another 3000 acres of land. It follows that the grant in ques- tion was issued against law, and is, therefore, void. Pek Curiam, Decree accordingly. JOHN CHAMBERS, d al, against WILLIAM REID and othei-s. Where a bequest was made, to the children of a brother and sister of the testator, to which is added, "that is. on the supposition, that my brother is dead ; but if he is alive at the time of ray death, then, he is to receive one- half of ray estate," it was /jeW, that no question a? to whether the estate was to be divided, according to heads or stocks could arise, for that the brother took one-half of the estate, and his children nothing. Cause removed frona the Court of Equity of Mecklenburg county. David Chambers died, in the year 1858, having made and published his last will and testament, in which after several dispositions of his property in various clauses, be bequeaths as follows: Item 7th. It is my will, that, after all the foregoing items of my will are fully carried out, that the balance of ray estate be disposed of, as follows: to be equally divided be- twetn the children of my brother John Chambers, and the chihii-en of my deceased sister, JSTancy Woodward, each to share equally in all respects; that is on the supposition, that my 1)1 other be dead, but if he is alive at the time of my death, then he is to receive one-half of my estate, himself." It Mined out that, at the testator's death, his brother, John '' JUNE TERM, 18^2. v 305 Chambers v. Ried. Chamberfi, was living, but in a distant State, and had not been heard from by iiis brother for man}' years. He, John, had at tlie death of the testator, nine children, who are all parties plaintiffs, and tliej' claim to share equally, each with the chil- dren of Mrs. Woodward, after deducting one-half of the estate for their f&tiier, John Chambers. The children of Mrs. Woodward, of whom there are five, and the executor of the will, are made parties defendants, and insist that these children are entitled to have oue-lialf of this residuary interest divided among them, conceding tliat John Chambers is entitled to the other half. The cause was set down for hearing on bill, answer and exhibits, and sent to this court, Fowle for plaintiftl Wilson and Boydai for defeiidant. Battlk, J. We have no hesitation in saying that the con- struction of the will in question, contended for by the defend- ants is correct. Had the latter part of the clause, which re- lates to the supposition of the death of the testator's brother, John, been omitted, then iiis nine children would have taken equall3'j?on the south, Simuions, Grady, & Co., on the west, had been sold by the said nnister, and bid off by one Archihald H. Coffield for liiraself and Turner E. Barnhill, as the last and highest bidder, at the price of $6,000, and the said Archibald H. Coffield had been accepted by the master, as the purchas- er thereof at the said sum, which sura, by the terms of the sale, was to be paid in sums, as follows : $3,000 on the 1st day of January 1862, with interest from the 1st day of January 1861, and $3,000 oq the 1st day of January 1863^ with intejr- JUNE TERM, 1862. 307 In the matter of Yates. est from the 1st day of January 1861, and each sum was to be secured by the bond of tlie purchaser, with good security. Whereupon, also, the decretal order for the sale of the premi- ses being read, and now the matter being again moved by the counsel for the petitioner, Coffield and Barnhill opposed the motion, and they offered to file affidavits establishing the fact, that, before the sale, no information was given to them, or either of them, as to tiie true state of the title of the peti- tioner to the land aforesaid ; and they, also, opposed the mo- tion, on the ground that the purchasers Ijad no actual notice of this motion ; the court doth confirm the sale to the said Arch- ibald li. Coffield, and thereupon, on the prayer of the counsel for the petitioner, tlie court doth order that notice of this pro- ceeding be served on Coffield and Barnhill by the Sheriff of this county, requiring them to appear- at the next term of this court, and complete their purchase, as aforesaid, according to the terms of the said sale, or then show cause to the contrary. And in the event that they do not, or that said Coffield does not complete the said purchase, or siiow to the court, cause to the contrary, the said master forthwith re-sell the said premi. ses, and that all the costs, charges and incidental expenses, at- tending the said sale and occasioned by the default of the said Coffield and Barnhill, together with any loss or deficiency in the price and interest arising by a second sale, be ascertained by the master, and tlie same be paid into the office of this court, by the said Coffield and Ba.mhill, for the benefit of the petitioners." From this order Coffield and Barnhill prayed an appeal to the Supreme Court, which was allowed. B. F. Moore for the petitioners. Winston, Jr., for Coffield and Barnhill. * Pearson, C. J. When the case was here before, (ante 212,) we pointed out the " orderly mode of proceeding," where the agency of a court of equity is resorted to in order to sell land. On the coming in of the master's report, if the court is sat- 308 IN THE SUPREME COURT. In the matter of Yates. isfied that the interest of the petitioner, for whoni the court is acting, has been attended to, the first order is to confirm the sale. The eftect of which, is, to accept the bid of the purcha- ser, which is necessary, in order to "bind the bargain," so far as the petitioner is concerned. The purchaser is not a party to this order. He is not, then, before the court, and, of course his rights are not, in any way, prejudiced by the order of con- firmation. Wiiereupon the court being informed by the master, that the purchaser declines to comply with the terms of the sale, a rule is taken on him to show cause ; which may be returned instanter if the purchaser is present. The object of the rule is to bring the purchaser before the court, and upon its return, Ijotli parties are then heard, and the court adopts one of the three orders set out in our former opinion. His Plonor erred in making any further order, until the re- turn of the rule ; and, indeed the order which is made assumes that the purchaser will not be able to show any good cause, and proceeds to direct what shall be done in that event. We presume his Honor was misled by the orders made in the case of Harding v. Yarhrough, which the reporter ap- pends as a note to this case. In that case, the purchaser made no difficult}', because of a defect in the title, or any irregula- rity in the mode of conducting. the sale, or otherwise. The sole difiiculty grew out of an inability to give the security. — So in Harding v. Harding^ 18, Eng. Ch. Kep. 514, from which the order in Harding v. Yarhrougli was taken, there had been a reference, as to the title, (which is always done in England, on account of the very complicated condition of titles in that country,) and the only object was to compel the purchaser to comply with the tei-ms of sale. In our case the purchaser had a right to be heard in reference to his objec- tions to the manner of making the sale, or to the title, or any other ground of ol)jection, and the object of the ''ule was to give him a day in court, and an opportunity of being heard. So the entry in Harding v. Yarhrough, had no application. This opinion will be certified that further proceedings may JUNE TERM, 1862. 309 Allen V. Pearce. be taken in the court below; the orders in that conrt being reversed, except so much as confirms the sale, and directs a rule on the purchaser to show cause at the next term. Pek Curiam, Order below reversed. JAMES P. ALLEN agai7ist JOHN PEARCE and others. Where the obligee, in a bond far title, paid a material portion of the pur- chase-money down, and gave a note for the residue, and entered into pos- session and continued it up to the time of a suit in ejectment by the obli- gor, it was held to be a strong case for the court of equity to interfere by injunction, to prevent the obligee from being turned out, under the execu- tion, in the suit at law. Where, to a bill for an injunction, the defendant answers lightly and evasive- ly to material allegations, the injunction will not be dissolved. Where new matter is introduced in an answer, in avoidance of the plaintiir's equity, it will not be considered on a motion to dissolve. Appeal from an interlocutor}^ order of the Court of P]quity of Wake county, ordering the dissolution of an injunction, Bailey, J., presiding. The defendant, Jolm Pearce, on the 15th of June, 1857, entered into a penal bond payable to the plaintiff, James P. Allen, which was conditioned that ''if the said J. P. Allen shall fully comply with the contract, in the above premises, and pay to the said John Pearce the remainder of the pur- chase-money, with interest and necessary costs of these trans- actions, which is $175 10, seventy dollars of which is this day paid in cash, and the receipt whereof is hereby acknowl- edged, and tiie remainder is $107 10, with interest from the 7th, then the said John Pearce is to make him a good and law- ful title to the above lands." The plaintiff immediately went into possession of the premises,and has occupied them ever since. Before this suit was brought, Pearce falling into pecu- 310 IN THE SUPREME COURT. Allen V. Pearce. niar}' difficulties, conveyed the land in question to one Geo. "W. Thompson, as trustee, for the payment of his debts, and on 29th day of September, 1861, he sold the same at public auc- tion to the defendant, Marcellus Pearce, and made him a deed in fee simple for the same. The plaintifl' alleges tiiat he at- tended at this sale by the trustee, and made objection there- to. Also tl)at the defendant, Marcellus, had full knowledge of the equitable claim of the plaintiff, and so had the said G. W. Thompson, when the deed of trust was made to liim. The plaintiff alleges that before this sale, and before this suit was brought, but after the money fell due, he tendered the purchase-money in full, and demanded a deed in fee sim- ple from the said Pearce, and the other defendants claiming under liim, whicli was refused. The plaintiff further shows, that the defendant, Marcellus Pearce, sued him in ejectment and obtained a judgment by default, and is threatening to turn him out of the posses- sion. The prayer is for an injunction (wliich issued) and for an account for the ascertainment of the balance of the pur- chase-money, and for a conveyance to him of the legal title on the payment tliereof, also for general relief. The defendants admit the bond to make title to plaintiff; they also admit that the payments, alleged, have been made ; the defendant, Pearce, admits also the tender, but denies that it was in full, or that it was made before the execution of the deed of trust. The manner of this denial is noticed in the opinion of this Court. The defendant, Marcellus Pearce, de- nies that the plaintiff forbade the sale by the trustee, but al- leges that he assented to the' sale and urged the running off of the land. On the coming in of the answer, thfe defendants' counsel moved for a dissolution of the injunction, which, on argument, his Honor granted, and it was ordered to be dissolved ; from which order, the plaintiff, by leave of the Court, appealed. Fowle, for the plaintiff. A. M. Lewis, for the defendants. Battle, J. The right of the plaintiff to call upon the de- JUNE TEKM, 1862. 311 Allen V. Pearce. fendant, John Pearce, for a specific execution of his contract, for the sale of the land in controversy, is clear, beyond all question. The contract foi" tiie sale is in writing, a part of the purchase-money was paid in cash, and a note given for the residue, and the plaintiff, thei'cupon, took, and still contin- ues in, possession. Tiie phiintiff alleges that before the exe- cution of the deed, in trust, by the said John Pearce to the defendant, Thompson, he tendered to Pearce the balance of the purchase-money, and demanded a conveyance, which was refused. And this defendant admitting the written contract of sale, and admitting also the tender, denies that it was in full, or was made before the execution of the deed in trust. The denial, however, is made so slightly and evasively as to have very little weig-ht. It is true, that the tender was made after the note became due, but it is idle to say, as the defend- ant, John Pearce, does, that the contract was abandoned, and the plaintiff's equity I'clinquished. Tliere cannot be the slightest pretense that this case is an exception to the maxim, that in equit}^ " time is not of the essence of the contract;" see Falls v. Carpenter^ 1 Dev. and Bat. Eq. 237, and the note to the 2nd edition. The defendant, John Pearce, had then, no right, upon his answer, to move for a dissolution of the injunction, and the oth- er defendants liave no greater i-ights than he has, as they do not deny that they purchased with notice of the plaintiff^'s claim. The allegation, faintly made by the defendant, Marcellus Pearce, that the i)laintiff' assented to the sale b}^ the defend- ant, Thom})son, as trustee, is an averment of new matter which may possibly avail him, if he can prove it on the hear- ing, but it cannot be considered', on this notice to dissolve the injunction, it being an established rule that the injunction must be continued, unless the equity, set forth in the plain- tiff' 's bill, be denied in the answer; Lindsay v. lUheridrje ^ 1 Dev, and Bat. Eq. 36. The order dissolving the injunction, must be reversed, and a certificate, to that effect, be sent to the Court below. Per Curiam, Decree accordingly. 312 IN THE SUPREME COURT. Bevis V. Landis. S. D. BEVIS, Executor, against AUGUSTIN LANDIS. A sherifif has a right to sell an}' property of the debtor, that is subject to the lien of his execution, and the fact that one has bought part of such property at private sale, bona fide, and paid the full value, and that enough of other property remained to satisfy the execution, and that the shenlF and pur- chaser had knowledge of this purchase, but were benefitted in the sale of this particular property, and made it from such motive, could raise no equi- ty against the sheriff or purchaser. Cause removed tVom the Court of Equit}' of Granville. The slave in question, a man named Anderson, was sold by tlie sheriff, Joseph H. Gooch, at public auction to the defend- ant, Landis, by virtue of an execution against one D. A. Pas- chall. The intestate of the plaintiff, had purchased Anderson at private sale, on the 12tli of September 1S57, and took a bill of sale for him from Paschall. The consideration expressed in this bill of sale is $1,000. The sheriff'^s sale took place af- ter the date of the bill of sale, but under an execution having a lien prior to the date thereof. At the sale, the agent of the plaintiff's testator attended, and exhibited his title, and forbade thesale, pointing out to the sheriff", divers otherslavesand other property in the hands of Paschall, out of which the execution could be satisfied ; the sheriff, nevertheless, proceeded to q,vj the sale, and the defendant, Landis, having become the last and highest bidder, the slave was cried oft' to him, and deliv- ered to him by the sheriff with his bill of sale. The bill charges that both, the sheriff' and Landis, the pur- chaser, knew of Morris' purchase, but were involved on ac- count of Paschall, and the sale of this slave, Anderson, was made to relieve them as to these liabilities. The bi*ll was filed by Morris, in his lifetime, and his death being suggested, his executor, the present plaintiff', was made a part}-. The prayer is, that Landis shall convey the legal title of Anderson, to the plaintiff", (then Morris,) and deliver possession, and account for the slave's services and profits, since he purchased him, and in default thereof, that Gooch may account, &c. The answer of the defendant alleges various matters in the way of expla- j;UNE TERM, 1862. 313 Bevis V. Landia. nation, which are not deemed nececsary to be set forth — it states, however, that executions of a test junior to this sale to Morris, came into the hands of the sherifi", and without selling Anderson under th« former lien, there was not enough prop- eaty to satisfy them all. The cause was set for liearing on the bill, answer, proofs and exhibits, and sent to this court. B. F. Moore for the plaintiff. No counsel appeared for the defendant in this court. Peakson, C. J. The bill is filed on the assumption that one, who purchases, at a fair price, a slave or other articles of a debtor, whose property is subject to the lien of an execu- tion, but who has other slaves and property, besides the one sold, sutficient to satisfy the execution, is entitled to the pro- tection of a court of equity, so that provided he gives notice to the sheriff of the fact of his being a purchaser of one of the slaves, and forbids the sheriff from selling that particular slave, and requires him to make the amount of the execution by selling some one of the other slaves, and the sheriff, never- theless, proceeds to sell the particular slave, equity will, in favor of the purchaser at private sale, convert the purchaser, at the execution sale, into a trustee, if he is fixed with notice of the facts, and require him to convey the slave to the pur- chaser at private sale. The bill is of " the first impression." No case or dictum was cited to support it, and we arc not able to see any princi- ple upon which such an equity can be based. It is true, the title of a debtor is not divested by the execu- tion. If he sells, the purchaser acquires the property subject to the lien of the execution. If that be removed his title is good, but if it be not removed, his title will be divested by a sale, under it, and neither a court of law or .equity can con- trol the power of the sheriff to make sale under the exe- cution. Indeed, such an interference would give rise to mucli inconvenience, and greatly embarrass officers in the discharge SU IN THE SUPREME COURT. Bevis V. Landis. of their duties. One man will sa}-, "I have bought this negro and forbid you from selling him, because the other property is sufficient, out of which you can make your money." A sec- ond says, " I have bought this negro an«t you must not sell him." So a third and a fourth ; and the sheriff may proper- ly reply, " the law has not made it my duty to take care of your rights, or to settle priorities between you ; I have pow- er to sell any one, or all of these negroes, in order to satisfy the execution ; it was your follj'- to buy property subject to my lien, without taking care to provide for the payment of the executions," This position of the sheriff is unanswerable. The courts could not interfere with the action of the sheriff under this general power given by the execution, even in be- half of a suret}'', whose property was sold, or wasabout to be sold, to pay the debt in the fii'st instance, although it was known to the sheriff that the principal had property, out of which the debt could be made ; see Eason v. Petway^ 1 Dev. and Bat. 44. It was necessary to pass an express statute for the protection of the surety against the capricious and wan- ton exercise of this power by sheriff's and other officers ; Rev. Code, ch. 31, sec. 124. It has not been deemed expedient by the Legislature to pass a statute for the protection of those who choose to buy property subject to the lien of an execution, and who fail to provide for its satisfaction. The onl}'- case cited on the argument, was Smith v. Mc- Leod, 3 Ire. Eq. 390, and the counsel of the plaintiff' contend- ed there was a direct analogy between the relation of a suret}'' and that of a purchaser, at a private sale, from a debtor, of property subject to tlie lien of an execution. We are not able to perceive the supposed analogy. In the case cited, the Court agree there is no ground on which to control the action of the sheriff and relieve the surety, on the ground of a privi- ty between him and the creditor, by reason of which, the creditor is bound to let the surety have the benefit of any se- curity or lien, which he has acquired as against the principal, and decide that the active interference of the creditor in with- drawing from the hands of the sheriff' an execution, under JUNE TERM, 1862. 315 Bevis V. Landi which a Hen had attached to the property of the principal, was a discharge of the liability of the surety by matter in pais. But where is the analog;y ? There is no privity of re- lation between the creditor, in the execution, and one who chooses to purchase a part of the property, which is subject to the lien of his execution. On the contrary, such a pur- chaser, at private sale, is a stranger, and, in "tact, an inter- meddling stranger, who had no business to buy any part of the debtor's property, without taking care to see that the pri- or lien was satisfied. If the purchaser atpiivate sale is not entitled to relief against the sheriff, or a purchaser under tlie execution sale, when the sale of the particular slave is made capriciously or wantoidy by the sheriff, when the debtor has other property, liable to execution, tlie case is mucii stronger against him when the sheriff having received other executions, junior to the i)rivate sale, thinks it to be his duty to sell the particidar negro, under the older execution, in order so to conduct the business as to satisfy as many of the executions, in his hands, as the property of the debtor can be made to reach. For the sheriff acts as the agent of all the creditors, who have execu- tions put into his hands, and his conduct tiien is not capri- cious or wanton, but in pursuance of a duty to tlie creditoj-s imposed on him by having the executions in liis hands. Kor is the case altered by the fact that the sheriff and the purciiaser at execution sale, had an interest on account of their liability, as tlie surety, or otherwise, of tlie debtor in the exe- cution. The sheriff had the power, under the older execu- tion, to sell tliis particnhir negro. It was his duty so to make the sales, as to cause the property of the debtor to go as far as possible towards discharging all the executions m\h hands, and neither his power or duty could be affected by the fact that he had a collateral interest which was subserved by the exercise of a power in the performance of his duty, and this can furnish no ground, on which a stranger, who chose to in- terf^ere, can base any rights to have relief in equity. The view we have taken of the case makes it unnecessary 316 m THE SUPREME COURT. Lloyd V. Whitley. to decide, whether tlie plaintiiF was a hona jide purchaser, or one who liad taken a bill of sale, absolute on its face, which was intended as a mere securit}', that fact not being expressed on the face of the bill sale, in order to avoid the necessity of giving notoriety to it by registration, so as to enable the debt- or to conceal, for a time, the fact of his insolvency. Per Curiam, Bill dismissed. HENRY S. LLOYD against JOHN B. WHITLEY. Where A sued B, on a contract about the getting of shingles, and a comprom- ise was made in writing, to the effect tliat B should confess judgment for $500, to be discharged within twelve mouths by the delivery of so many shingles at given prices, and a judgment was entered accordingly, it being admitted that the shingles were to be paid for when delivered, at the prices agreed on, it was held that the writing and the judgment were but an ob- ligation to pay a penal sura, and the court directed thatthejudgmentshould stand as a security for the damages actually sustained. Cause removed from the Court of Equity of Martin county. The plaintiff and defendant having had a controversy at law about the getting of shingles, the following covenant was entered into between them, viz ; "State of North Carolina, Edgecombe county : " Whereas, there is a suit pending in the Superior Court of law of said county, wherein Henry S. Lloyd is plaintiff, and John B. Whitley and Newsom Allsbrook are defendants, and the said parties are anxious to compromise the said suit ; now these articles witness, that the said ^ hitley, for and in con- sideration of the obligation hereinafter undertaken by the said Lloyd will, at the next term of the superior court of law of said county, to be held on 2nd Monday of this month, suffer the said Lloyd to enter a judgment against the said Whitley, for the sum of $500, and the costs of the suit, and will, within JUNE TEEM, 1862. twelve monH,s from the date of these presents, obtain and ™an,,.ac „.o „pon the lands „f the said Lloyd, siUtatod in the cottnty „ Marttn, 250,000 cvpt-oss shingles, (two feet, and tli' y inch slungles,) at the price of three dollars per thons-md or the tinrty inch shingles, and two dollars per tho, an 1 Tor the twenty fonr inch shingles. "lousand toi "And the said Lloyd, i„ consideration of the above obbVa- ttons does bind hnnself not to snc ont execution npon the ^id UnjsauWutley shall obtain and niannfactnre the shingles winch he has contracted to ,io, the said jndginent s a "be considered as satisfied, and an entry to that effec t L made upon the records of the said court." Sig i^d .„d ; Ll by the parties, 8th of March, 1856. Allsbro^k ZCT come insolvent was left ont. "iviu^ ne- In piirsance of this covenant and eompromise, Whitley on the 2nd Monday n March 1856, in the superior conrt o E^e coinbe, albwed the following entry to be made, viz T„d^ inent confessed by the defend-iMf T K wr -.i I V •' ^ costs of snlf V.i ! "«'«"!■>"', J- B. Whitley tor $500 and costs ot suit E.vecution in this case to be stayed for twelve u.o,iths,and it is agreed between the parties, 'hat te" I ment is o be discharged npon the perlbrinan e of the condl t.on set orth in the written agreement between them The plaintifl alleges that he faithfully endeavored to make the shmg es he agreed to make, but on account of the htgh water in the swamp pointed out to him by Lloyd and his ob sinate retusa to let him work in drier swamps wh ci he about 40,620 thirty ineh shingles, and 13,070 two feet shin<.les w^^cl. were accepted by one Ray, the agent of defendant Uovd The defendant took ont execution on this judgment returns ble to March term 1857, but directed the slieritt™ to Ike the money. After that term, he took ont an alias e.ecron and gave orders for its enforcement. The mL ZT ' junction insisting that the said jndg„: t is on 1 1 UaUr r.rLTn;tSr?or ;:;:: "^ ^-'' - — t> ppneu 101 an injunction in proper time, that 318 IN THE SUPKEME COUKT. Lloyd V. Whitley. that the defendant assured him that he did not intend to col- lect the money within two years, and that he meant to give him every opportunity to make the shingles in pursuance of the condition. The plaintiff alleges that besides the price of the shingles, he did twenty day's work with one hand, in boating shingles, for which he received no pay. The plaintiff also prays that the defendant shall pay him for the shingles he obtained and delivered to the defendant, and for payment for boating ; asks for an account for the purpose of ascertaining what is due to him and also what damages are due the defend- ant for his failure to perform the contract, which he is willing to pay, and for general relief. The defendant in his answer insists that this entry of $500 is not a penalty, but was agreed upon and entered as liqui- dated damages in case the contract should not be performed by Whitley. He denies that he made any promise, or other- wise, deluded the plaintiff as to the issuing of the execution, but he admits that he is bound to pay the prices agreed upon, for the shingles delivered, and as to that, he says that the plaintiff is largely indebted to him on other accounts, and pro- poses to set off the amount thus due, with such, his counter claims. The bill was filed at spring term 1858. "Was continued at fall term 1858. Was set for hearing on bill and answer at spring term 1859, and by consent, sent it to this court. Mo- tion below to dissolve the injunction. The transcript says, " sent by consent to the Supreme Court." Winston, Jr., for the plaintiff. B. F. Moore, for the defendant. Peakson, C. J. The jurisdiction of the Court of Equity to prevent the enforcement of penalties on payment of the dam- ages sustained by reason of a breach of the condition, was so obviously necessary to the ends of justice, that, in most cases, relief is now given at law, by statutes, which require the plaintiff to suggest breaches, and provides for the ascertain- JUNE TERM, 1862. 319 Lloyd V. Whitley. mentofthe damages, whereupon judgment is to be entered for the penalty, but the execution, which may issue thereon, is to be satisfied by the payment of the damages assessed, to- gether with the costs. The plaintiff insists, that by a proper construction of the judgment, and the covenant referred to, the sum of $500 is a pen- alty to be discharged upon the performance of the condition set forth in the covenant, to wit: that the plaintiff shall, in twelve months make for the defendant 250,000 shingles two feet and thirty inch shingles at the price of $2 per thousand, for the two feet, $3 per thousand for the thirty inch shingles, alleges a part performance of the condition, and submits to pay the damages sustained by the defendant, by reason of his failure, in respect to the number of the shingles which he has failed to make, and prays that the defendant may be en- joined from enforcing the collection of the $500. The defendant insists that the $500 is not a penalty, but liquidated damages and claims the right (the plaintiff having failed to discharge the judgment in the manner by which he was allowed to do it, under the covenant) to enforce its col- lection, subject to a credit for the shingles got by the plaintiff, which the defendant admits he is bound to pay for at the agreed prices, and on his part claims a deduction for certain credits. The question is one of construction, and it seems to us a ve- ry plain one. The judgment, on its face, is to be discharged upon the ferformancG of the condition set forth in the written agreement between them. That is, the judgment is to be void, provided the plaintiff makes for the defendant 250,000 shin- gles at the prices agreed on. So it is neither more nor less than a penalty, by which to enforce the performance of an agreement, on the part of the plaintiff, to make for the de- fendant a certain number of shingles at certain prices for the several descriptions. Had the $500, for which the judgment is entered, been liquidated damages, that is, an amount which it was agreed the plaintiff owed the defendant, but which he was williug to allow the plaintiff to pay in shingles, it 320 m THE SUPEEME COUET. Lloyd V. Whitley. would have been set out in the covenant and judgment, that the $500 was to be paid in shingles, to be got on the defend- ant's land, for which the plaintiff" was to be allowed certain prices per thousand. This is not the language used, and it is per- fectly certain that the shingles were to be ^x«'^ for by the defendant, and were not to be accepted by him in payment of the judgment. Indeed, the defendant admits by his answer, that he " is bound to pay the plaintiff forthe shingles got, at the agreed prices." The fact of his being bound to pay for the shingles got, is wholly inconsistent with the suggestion, that the plaintiff was indebted to him to the amount of $500 ; for if so, of course the shingles ought to be applied in payment of the debt, whereas, from the face of the judgment and of the covenant, and by the admission of the defendant, he was to pay for the shingles, and they were not to go in payment of the judgment; in other words, the judgment was to be held in terrorem, in order to force the plaintiff to make for the defendant 250,000 shingles, for which, when made, the defendant was to pay the plaintiff the prices agreed on. The mode of argument Tediictio ad dbsurdum, will demon- strate, by figures, that the $500 was not a debt to be paid by 250,000 shingles, of the two descriptions, at the prices fixed on: 250,000 at $2 per thousand, is $500 250,000 at $3 per thousand, is 750 125,000 at $2 per thousand, is $250 125,000 at $3 per thousand, is 375 625 166,000 at $3 per thousand, is 500 So the matter cannot be worked out by figures, unless all the shingles are of one description, that is, two feet, leaving no room for a single thirty inch shingle. We are satisfied that the $500 was a penalty, and the judg- ment was taken as a security for the making of an agreed num- ber of shingles at the prices agreed on for the several descrip- tions. The plaintiff having failed to perform the conditions, be- came liable, at law, for the penalty, but is entitled in equity JUNE TEflM, 1862. 321 Lloyd V. Whitley. to be relieved of the penalty by making satisfaction for the damages, which the defendant has sustained, by reason of the breach of the condition. There will be a decree acccordingly, and a reference to as- certain the amount of damages, allowing the plaintiff for the number of shingles got, and for his labor in " boating the shingles," if that allegation is proved, and allowing the de- fendant for the payments alleged to have been made to the hands of the plaintiff for the work done by them upon, and in respect to the shingles, but no item of charge or discharge, which did not grow out of, and concern the making of the shingles, will be taken into the account. The motion to dissolve the injunction, on the ground, that it was improvidently granted, not having been appealed from within the time prescribed by the statute, is not allowed, for the case is now before us on the final hearing, being set for hearing on the " bill and answer" in the Court below, and removed to this Court for hearing, no disposition having been made of the motion to dissolve the injunction, the reasoning of the Court in Smith v. McLeod, 3 Ire. Eq. 400, applies with full force ; for, although that case had reference to the piovi- eions of the Revised Statutes, and this depends upon the Rev. Code, yet, here is the fact, we decree for the plaintiff " on the equity, confessed by the answer," and make the injunction perpetual, except as to the damages. So, of course, the mo- tion to dissolve, on the ground, that the injunction was im- providently granted, in the first instance, is out of time. This view makes it unnecessary to express an opinion on the point as to whether the fiat, made by the Judge below on the averments of the bill, was not a matter of discretion, and, of course, not the subject of review. Pee Cusiam, Reference ordered. 322 IN THE SUPKEME COTJET. Joyner v. J oyner. JOYNER agains JOYNER. There are circumstances, under which the striking of his -wife with a horse- whip, or switch, by a husband, and inflicting bruises, would not be the ground of a divorce. Where, therefore, such voilence was made the ground of an application for a divorce, it was held to be necessary, that the bill, or petition, should set forth particularly and specially, what she did and said immediately prior to, and during such use of force. This is an appeal from an interlocutory order of Judge Os- borne, in the Court of Equity of JS'orthamton county, allow- ing to the pititioner for a divorce, ?iX\m.ony pendente lite. The petioner states that she was the widow of one David Futrell, and interniarried with the defendant in !N"ovember, 1860; that she had a reasonable prospect of happiness from the marriage, herself well bred, and O'f a respectable family, and her husband not less than a fair match for her; that in this she was greatly disappointed ; that her husband manifested great coarseness and brutality, "and even inflicted the most severe corporal punishment. This he did on two different occasions, once with a horse-whip, and once with a switch, leaving sev- eral bruises on her person." " He used towards her, abusive and insulting language, accused ber of carrying away articles of property from his premises, to her daughter by a former husband ; refused to let said child live with her ; has frequent- ly, at night, after she had retired, driven her from bed, saying tliat it was not hers, and that she should not sleep upon it. — He has also forbade her sitting down to his table in company with his family," and that " by such like acts of violence and indignit}^ has forced her to leave his house, and that she is now residing with lier friends and relatives, having no means of suppoi-t for herself, and an infant son^ born within the four past weeks." These facts, the ground of this her complaint, have existed at least six months prior to the filing of this bill. "Your petitioner, during the whole time of her intermarriage with the defendant, saith that she has been a dutiful, faithful and affectionate wife, and desired so to continue during life, but the outrages upon her person and rights, have made it ber JUNE TERM, 1862. 325 Joyner v. Joyner. desire, as well as duty, to seek a perpetual separation from his bed, his board, and from the bonds of matrimony." The bill prays accordingly and for alimony. At the term to which the process was returnable, the plain- tiff's counsel moved for alimony 2}^'>^dente lite, when the fol- lowing order was made : "This cause coming on to be heard, it is ordered upon hearing of the cause, and upon affidavits, as to the estate of the defendant, that the clerk and master give notice to the defendant, to pay into the office of the clerk and master for Northamtou county, the sum of $350, as alimony, for the subsistance for the said plaintiff and her child, until the next term of the court, and that the payment of the above sum be made on, or before, the 15th day of December 1861." From this order, the defendant prayed an appeal to the Supreme Court, which was granted. Barnes for the plaintiff. W. N. E. Smith for the defendant. Peakson, C. J. The Legislature has deemed it expedient to enlarge the grounds, upon which divorces may be obtained ; but as a check or restraint on applications for divorces, and to guard against abuses, it is provided, that the cause or ground on which the divorce is asked for, shall be set forth in the pe^ tition "particularly and specially." It is settled by the decis- ions of tliis Court, tliat this provision of the statute must be strictly observed, and the cause, or causes for which the di- vorce is prayed, must be sot forth so, "particularly and speci- ally," as to enable the court to see on the face of the petition, that if the facts alleged are true, the divorce ought to be gran- ted : Everton v. Everton, 5 Jones' 202. The correctness of this construction is demonstrated by the fact, that, u])on ap- peals from an order, allowing alimony pending tlie suit, like the present, this Court is confined expressly to an examination of the cause or causes of divorce, as set out on the face of the petition, and can look at nothing else, in making up the de- cision : Rev. Code, chap. 40, sec. 15. 324 IN THE SUPKEME COUKT. Joyner v. Joyner. Bj tlie rules of pleading in actions at the common law, ev- ery allegation of fact, must be accompanied by an allegation of "time and place." This rule was adopted in order to in- sure pi-oper certainty in pleading, but a variance in the alle- gata Find 2yrohata, that is a failure to prove the precise time and place, as alleged in the pleading, was held not to be fatal, unless time or place entered into the essence and made a ma- terial part of the fact relied on, in the pleading. There is nothing on the face of this petition to show us that time was material, or a part of the essence of the alleged cause of divorce; that is, that the blows were inflicted at a time when the wife was in a state of pregnancy, with an intent to cause a miscarriage, and put her life in danger, and there is nothing to show us that the place was a part of the essence of the cause of divorce, that is, that the blows were inflicted in sipuhlic place, with an intent to disgrace her and make her life insupportable, so we are inclined to the opinion that it was not absolutely necessary to state the time and place, or if stated, that a variance in the proof, in respect to time and place, would not be held fatal. But we are of opinion that it was necessary to state the cer- cumstances, under which the blow with the horse-whip, and the blows with the switch were given ; for instance, what was the conduct of the petitioner; what had she done, or said, to induce such violence on the part of the husband ? We are informed by the petitioner that she was a woman, "well-bred, and of respectable family, and that her husband was not less than a fair match for her." There is no allegation that he was drunk, nor was there any imputation of unfaithfulness on either side, (which is the most common ingredient of ap- plications for divorce,) so there was an obvious necessity for some explanation, and the cause of divorce could not be set forth, "particularly and specially," without stating the circum- stances which gave rise to the alleged grievances. It was said on the argument, that the fact, that a husband, on one occasion, "struck his wife with a horse-whip, and on another occasion, with a switch, leaving several bruises on her • JUNE TEEM, 1862. 325 Joyner v. Joyner. person," is, of itself , a sufficient cause of divorce, and conse- quently the circumstances which attended the infliction of these injuries, are immaterial, and need not be set forth. This presents the question in the case: The wife must be subject to the husband. Every man must govern his household, and if by reason of an unruly tem- per, or an unbridled tongue, the wife persistently treats her husband with disrespect, and he submits to it, he not only loses all sense of self-respect, but loses the respect of the other members of his family, without which, he cannot expect to govern them, and forfeits the respect of his neighbors. Such have been the incidents of the marriage relation from the be- ginning of the human race. Unto the woman itissaid, "Thy desire shall be to thy husband, and he shall rule over thee," Genesis, chap. 3, v. 16. It follows that the law gives the hus- band power to use such a degree of force as is necessary' to make the wife behave herself and know her place. Why is it, that by the principles of the common law, if a wife slan- ders or assaults and beats a neighbor, the husband is made to pay for it? Or if the wife commits a criminal offense, less than felony, in the presence of her husband, she is not held responsible? AVhy is it, that the wife cannot make a will disposing of her land ? and cannot sell her land without a privy examination, "separate and apart from her hus- band," in order to see that she did so voluntarily, and with- out compulsion on the part of her husband ? It is for the reason that the law gives this power to the husband over the person of the M'ife, and has adopted proper safe-guards to pre- vent an abuse of it. We will not pursue the discussion further. It is not an agreeable subject, and we are not inclined, unnecessarilj^ to draw upon ourselves the charge of a want of proper respect for the weaker sex. It is sufficient for our purpose to state that there ma}^ be circumstances, which will mitigate, excuse, and 60 far justify the husband in striking the wife " with a horse-whip on one occasion and with a switch on another, leaving several bruises on the person," so as not to give her a 326 IN THE SUPREME COURT. Joyner v. Joyner. right to abandon him and claim to be divorced. For instance: suppose a husband comes home and his wife abuses him in the strongest terms — calls him a scoundrel, and repeatedly expresses a wish that he was dead and in torment! and being thus provoked in the furor hrevis^ he strikes her with the horse-whip, which he happens to have in his hands, but is af- terwards willing to apologise, and expresses regret for having struck her : or suppose a man and his wife get into a discus- sion and have a difference of opinion as to a matter of fact, she becomes furious and gives way to her temper, so far as to tell him he lies, and upon being admonished not to repeat the word, nevertheless does so, and the husband taking up a switch, tells her, if she repeat it again, he will strike her, and after tliis notice, she again repeats the insulting words, and he thereupon strikes her several blows ; these are cases, in which, in our opinion, the circumstances attending the act, and giv- ing rise to it, so far justify the conduct of the husband, as to take from the wife any ground of divorce for that cause, and authorise the Court to dismiss her petition, with the admoni- tion, " if you will amend your manners, you may expect bet- ter treatment ;" see Shelford on Divorce. So that there are circumstances, under which a husband may strike his wife with a horse-whip, or may strike her several times with a switch, so hard as to leave marks on her person, and these acts do not furnish sufficient ground for a divorce. It follows that when such acts are alleged as the causes for a divorce, it is necessary in order to comply with the provisions of the stat- ute, to state the circumstances attending the acts, and which gave rise to them. It was suggested that the averment at the conclusion of the petition, which is made after the averment, "that the facts which are made the ground of this complaint, have existed at least, six months prior to the filing of this bill;" " your peti- tioner daring the whole time of her intermarriage with de- fendant, saith that she has been a dutiful, faithful and affec- tionate wife, and desired so to continue during life, but the outrages upon her person, and rights, have made it her desire JUNE TERM, 1862. 327 Herndon v. Pratt. as well as duty, to seek a perpetual separation from him, "is sufficient to supply the defect in not setting out, "particularly and specially," the circumstances under which the blows were inflicted on her person. We do not think a general averment of this kind, uncon- nected as it is, with the allegations of fact, can be allowed to have the effect of the particular and special statement, which the statute requires. It is not traversable, and we cannot say, as a conclusion of law, what may, in her opinion, be such conduct, as is consistent with the character of a dutiful, faith- ful and affectionate wife. It is unnecessary to notice the oth- er n)atters of complaint, set out iu tii-e petition, because they are admitted not to be, of themselves, sutHcient, and are put in as makeweights or pr opts of the main causes, which we have ful- ly adverted to. Nor is it necessary to notice the objection, because of the fact, that the bill had not been exhibited to a Judge, and his fiat for process obtained. There is error ; the decretal order will be reversed, and this opinion will be certified, to the end that the court of equi- ty below may proceed. ■ Per Curiam, Decretal order reversed. MATURIN HERNDON and others against WM. N. PRATT and others. An administrator durante minoritate is liable for a devastavit to the executor, who qualifies after coming of age, anS if such executor abstain for ten years from bringing suit, liis cause of action is presumed to have been satisfied, released or abandoned. So that persons having a contingent interest in remainder, which is injured by such devastavit, must look to the executor and not to the administrator durante minoritate, or the sureties on his ad- minislration bond. No suit, in equity, can be brought to follow slaves, limited in contingent r«- 328 IN THE SUPREME COURT. Herndou v. Pratt. mainder, in the hands of one claiming a present defeasible interest, after the slaves have died ; they having died in the life-time of the first taker. Where slaves, limited in remainder on a contingency, were sold under an ex- ecution against one claiming a present, absolute interest, it was held that the purchaser under such execution, who took possession and held them for more than three years got a title by the statute of limitations. Where the statute of limitations is a bar to a trustee, it is also a bar to the cestui qui trust, for whom he holds the title. Cause removed from the Court of Equity of Orange county. Joseph Dickson, of the county of Orange, died in the year 1834, having made his last will and testament; among the be- quests, in which will, is the following : "I give and bequeath to my respected friends, Hugh Waddell, Robert W. Dicksonj and Priestly H. Mangum, attornies at law, and to the surviv- ors of them, the executors and administrators of the survivor, in trust, one negro woman, named Coelia, one negro woman, Milly, one negro boy, named Harry, one boy, named Jack- son, one negro fellow, named Davie, one negro boy, named Prince, the land and premises where I now live, with all my stock, &c., to be applied to tiie maintenance and support of my daughter, Julia Neville Dickson, and my grandson, Ro- bert William Dickson, until he an-ives at mature age, in such manner and in such way as they, in their discretion, may deem most suitable to their circumstances, and it is my will and desire, that on the death of my daughter, Julia IST. Dickson, the said trustee, or survivor of them, or the executors or ad- ministrators of the survivor of them, do give all my estate, hereb}^ given to them, in trust, for the maintenance and sup- port of my said daugliter, Julia N". Dickson, to my grandson, Robert Wm. Dickson, hereinbefore mentioned." And by a codicil to said will, he bequeathed as follows : " If Robert Wm. Dickson should die before my daughter, Julia IST. Dickson, then the property, I willed him, to go to my daughter, Mary M. Herndon, and at her death, to be equally divided between her children and Mary Ann Dickson and Caroline Dickson, now the wife of Joseph B. Marcom." Hugh Waddell, P. H. Mangum, and the said Robert Wm. Dickson, were appointed JUNE TERM, 1862. 329 Herndon v. Pratt. executors as well as trustees to this will, of whom, the last mentioned, was under age at the time of the death of the tes- tator, and the other two, Messrs. Waddell and Manguin, re- nounced the office of executor, formally, and refused entirely to act as trustee ; whereupon, at May Term, 1834, of Orange County Court, the said Julia N. Dickson was appointed ad- ministratix, with the will annexed, during the minority of Ro- bert W. Dickson ; but at February Term, 1836, of that coun- ty court, the latter having become of age, came into court and qualified as executor, under the will. The said Julia N. Dickson on being appointed, instead of giving a bond, con- ditioned to discharge the office of administratrix c?wi testamen- to annexo durante oninoritate, gave a bond as administratrix generally, and a printed form, applicable to the latter office, was filled up by the clerk, through a mistake, and executed by her with the defendants, William IST. Pratt and Anderson Clements, as her sureties, in the penal sum of $6000. The said Pratt and Clements, at the time of becoming Such sureties, took a deed of trust from Julia Dickson, embracing most of the slaves, bequeathed as above, for their indemnity. The said Julia took possession of the land, negroes and other property, amounting, in value, to $3000. Shortly afterwards, she mar- ried one Samuel Merritt, a very dissolute and wasteful man, and although he entered into marriage articles not to sell any of the property of his wife, without her consent and that ofR. W". Dickson, he and she together sold and wasted most of the per- sonal estate ; several of the slaves and the land were levied on by executions against Merritt, and sold to divers persons, among which, a slave, by the name of Madison or Bob, was, in 1836, sold to the defendant, David George, who took the slave into possession and has held him adversely ever since. Two other slaves, Coelia and her child, Jim, and another slave, were sold about the same time, under an execution in like manner issuing against the said Samuel Merritt, and bought by the defendant, John Hayes, who took the sheriff's title to the same, and has held the possession ever since. Two other slaves, named Harry and Prince, were sold by Robert W". 330 IN THE SUPREME COURT. Herndon v. Pratt. Dickson, the executor, after he qualified, to the defendant, William N". Pratt, who took the same into his posession and held them for several years, but both these slaves died in the life-time of the said Robert W. Dickson. The bill is filed by the administrator of Mary M. Herndon and her children, and the administrator of Robert W, Dick- son, and the administrator de bonis non of Joseph Dickson and Mary Ann Dickson and Caroline Dickson, alleging that Robert William Dickson died in the year 1853, leaving the said Julia IST. Dickson (now Merritt) surviving, and that by the said codicil, they are entitled to the whole of the said pro- perty, with its increase and profits, reserving to the said Julia N. Dickson a subsistence out of the same. They allege that Robert W. Dickson was a weak, drunken, stupid person, en- tirely incapable of managing property, and that he was a mere instrument in the hands of Merritt and his wife and William N. Pratt ; that Pratt encouraged these prodigal habits and dissipated courses in young Dickson, by furnishing him with ardent spirits, and he combined with the others to squander the property while it was in the hands of the administratiix Cfum. tes. an. and encouraged and stimulated Robert, the ex- ecutor, to do the same after he qualified ; that in fact, Robert W. Dickson never interferred with the property after he qual- ified, but permitted the said JuKa and her husband, Merritt, with the concurrence of the two sm-eties, Pratt and Clements, to go on and sell and waste the property as they had been doing. The bill alleges that Hays and George were cognizant of all these doings, and that they purchased the slaves, above stated, with full notice of plaintifis' equity. — They allege that the processes, under which these sales took place, were merely pretended, in order to enable these pur- chasers to get the property in this way. They show that all the said property has gone out of the hands of the said Julia N. Merritt, and that her husband has left her, and both are insolvent : that Robert W. Dickson died without any of the estate in his hands, and utterly insolvent. The prayer is to subject Pratt and Clements, the sureties of Julia N. JUNE TEEM, 1862. 331 Herndon v. Pratt. Dickson, as if the bond had been taken as it was intended ; and to make them liable for all the property wasted by Mer- ritt and his wife ; also to follow the slaves, Harry and Prince, in the hands of Pratt, and the slave, Madison or Bob, in the hands of David George, and Coelia and Jim and Coelia's in- crease since the sale, in the hands of Hays. Also, that an account may be taken under the direction of this court, of the whole of the trust fund, with the rents, hires and interest accrued, and that the same may be placed in the hands of a trustee, or in the hands of plaintiffs, on giving bond to support Julia N. Merritt, during her life, and for general relief. The answers of the defendants, deny all fraud and combin- ation, and insist upon the statute of presumption of satisfac- tion, and Hays and George plead and insist upon the statute of limitations. The cause was set for hearing on bill, and amended bill, and answers, and proofs, and exhibits, and sent to this Court by consent, Graham and Norwood for the plaintiff. J. H. Bryan and Winston^ Sr.. for the defendants. Peakson, C. J. 1st. The perishable property and the negro which was sold by the administratrix, with the will annexed, durante niinoritate : The bill seeks to charge Pratt and Clements, who were the sureties of the administratrix, on the ground, that the bond which they executed, was, by mistake of the clerk, drawn in a way so as to be inoperative, but in equit}'', they are held lia- ble to the same extent as they would have been liable at law, on the bond, had it been properly filled up, and the adminis- tratrix, ds Ijonis non cwn testamento^ of the testator, charges the sureties of the administratrix, with a devastavit, and asks for an account of her administration. Admit under the authorit}'^ of Armstead v. £oseman^ 1 Ired. Eq. 117, the liability of Pratt and Clements to the same ex- 332 IN THE SUPREME COURT. Herndon v. Pratt. tent as if the bond had been properly filled up, the administra- tor de honi» non^ of the testator, meets with this difficulty: In 1836, Robert Dickson, one of the executors, attained his age of twenty-one, and qualified. This cause of action in equity, to hold the sureties of the administratrix, to an account for any devastavits during his minority, then accrued to him. — He lived until 1853, seventeen years, during all of which time it was his duty, and interest to assert this equity. Pratt and Clements were aware of their liabilities, as is proven by the fact of the deed of trust, which they took for their indemnity and yet they permit the slaves included in the trust, to be otherwise disposed of. These facts taken in connection with the article of agreement, executed between Merritt and his wife, and Robert Dickson, the executor and trustee, of Joseph Dickson, seem sufficient to prove, as an open matter of fact, that the cause of action or equity of the executor, against the administratrix, cum. tes. durante miiioritate,, was satisfied. But suppose the proof should fall short, as an open question of fact, a presumption is raised by the statute law, after the lapse of ten years, that this equity, or cause of action in equity, has been satisfied, released or abandoned. The reply made on the part of the plaintifis, is not tenable, either as a matter of law, or by the proofs on the question of fact. The testator appointed Robert Dickson one of his exe- cutors; on arriving at age, he was entitled; and did qualify, as executor of his grandfather's will. There was no ground on which the county court could have refused to permit him to qualify. lie was a drunken, trifling young man, but there is no proof tending to show that he was an idiot ; in fact there is no allegation to that efi'ect, in the bill; and his being a. weak-minded, imbicile young man, addicted to drink, did not authorise the county court to refuse to permit hira to qualify, or at all events, does not authorise this Court to treat his ap- pointment as a nullity^ and on that ground, to grant relief, as if the estate of Joseph Dickson, had been without a represen- tative, or person. capable of suing in its behalf, from 1836 up to the death of Robert Dickson, in 1853. JUNE TEP.M, 1802.' 333 Herndon v. Pratt. 2iul. The two negoes sold b}' the execntor, Kobert Dickson to the defendant, Pnitt : The eqnitv is pnt npon tlie ground of following- the trust fund in the liands of a purchaser with notice. Admit the equity, and waive any reference to the difference between a sale by an executor, and a sale by a trustee, it basso happen- ed that in point of fact, this part of the trtistfund, has become extinct by the act of God, both of the negroes* liaving died in the life time of Kobert Dickson. So the contingent limitation over, did not vest at his death, because tbe subject-matter of the bequest was not, at that time, in esse. So tliis equity must fail ; there being no allegation or proof that the death of these slaves, was caused, or in any way hastened by the fact of their having been sold, and put into the possession of Pratt, by the executor. On the contrary, the proof is, that Pratt treated them as his own property, and took very good care of them. The claim of the plaintiffs to the profits and hires of the two negroes sold to Pratt, accrued while the negroes lived, cannot be supported. The negroes belonged to Robert Dickson, ab- solutely, subject to a limitation over, after his death, to the plaintiffs; so Pratt had a good title during the life of Robert Dickson, and consequently, was entitled to the profits and hires accruing before his title was defeated by the happening of the contingency on which the negroes were limited over ; which limitation over as we have seen, was prevented by the deaths of the negroes, before the happening of the contingen- cy, and so the limitation over failed to take effect by the ex- tinction of the subject of the bequest. 3. The negroes sold under an execution against Merritt and purchased b}'' Hays and George : This sale was made in 1836, since which time. Hays and George have been in the adverse possession of the negroes purchased b}^ them respectively. Under the statute of limi- tations, this adverse possession gave them the title, not onl^' against Robert Dickson, but, also, against the persons entitled to the limitation over, for whom he held the title as trustee. The princi])le, that when the statute of limitatiops is a bar to 334 IN THE SUPREME COURT. Herndon v. Pratt. the trustee, it is also a bar to the cestui qui trust tor whom he holds the title, and whose right it is his dnt}- to protect, is settled ; Wellhorn v. Finley, 7 Jones, 228. In delivering the opinion in that case, the principle was considered so plain that it was deemed unnecessarj' to cite anthorities, and the Conrt was content to leave the question on the manifest 7'ea- son of the thing. For statutes of limitation and statutes giv- ing title by adverse possession, would be of little or no effect, if their operation did not extend to cestuis qui trust as well as trustees who hold the title for tiiem, and whose duty it is to protect their rights. If by reason of neglect on the part of the trustees, cestuis qui trust lose the trust fund, their remedy is against the trustees, and if they are irresponsible, it is the misfortune of the cestuis qui trusty growing out of the want of forethought on the part of the maker of the trust, under whom they claim. The question, liowever, having been discussed at the bar, we will now refer to Lewin on Trusts, 24 Law Lib. 306, and the cases there cited, which will warrant the con- clusion that the doctrine is settled. On the whole, we have arrived at the conclusion, that the persons entitled under the limitation over, have no remedy, except against the executor and trustee, Robert Dickson, who is dead — insolvent, and against whose representative no re- lief is prayed, and they must ascribe their disappointment, in losing the benefit which they expected to have realised, un- der the limitation, to the fact, that the two respectable and competent gentlemen, who were named by the testator as ex- ecutors and trustees, in connection with his grandson, Robert Dikson, refused to qualify as executors or act as trustees, in consequence of which, Robert Dickson, on arriving at age, became the only executor and trustee and proved to be in- competent and faithless. The allegation of fraud and collusion on the part of Hays ;and George, with the executor and trustee, Robert Dickson, •which is made in order to prevent the application of that stat- ute, in respect to the plaintiffs' claiming as cestuis qui trust iimder the limitation over, is not supported by the proofs. Per Curiam, Bill dismissed with costs. JUNE TEEM, 18(52. 335 Rhyne v. Hoffman. COTESWORTH H. RHYNE and another against JONAS HOFFMAN Administrator and others. A child is, in law, legilimate, if boni within matrimony, though born a week or a day after marriage. A child begotten while the parties were man and wife, but not born until six months after the husband had obtained a divorce from the bonds of mat- rimony on account of the wife's adultery, will be taivon to be legitimate, unless it be proved, by irresistable evidence, that the husband was impo- tent or did not have sexual intercourse with his wife. Cause removed from the Coui-t of Equity of Gaston comity. About Fcbriuiry, 1834, the defendants' intestate, Simon Rhyne, married a woman, by the name of Nancy Lay, and about si.x months after this marriage, she liad a child, the pre- sent pUiintiff, Coteswortli II. Rliyne. After the marriage, she went home with her husband and remained with him for about three months, when he drove her ofi' and she returned to her former phice of abode, about a mile distant from the home of her husband. The said Simon filed a petition for a divorce in the Superior Court of Lincoln, at the Spring Term, 1835. At Spring Term, 1836, of that court, he obtained a decree for a divorce tVom the bonds of matrimony, (on account of adultery) but in less than niue months after this decree, the said Nancy was delivered of another child, the plaintiff, Isaac T. Rhyne. The mother, during all this time, lived within a mile of tiie said Simon Rhyne, but under the influence and conti'ol of one Elisha Jones, to whom she had prostituted hei'self before her marriage with Mr. Rhjaie. The evidence of Elisha Jones, testifying, to his opinion that the plaintiffs were his riiildren, also the declarations of the mother, to the effect, that the plaintiffs were not the children of Simon Rhyne, were filed in the case, subject to exceptions. The cause was set down for heai-ing on the bill, answers, ex- hibits and proofs, and sent to this Court. I^owle, for the plaintiff'. No counsel for the defendant appeared in this Court. Battle, J. The right of the plaintifis to distributive shares in the estate of the intestate of the defendant, Jonas Hoffman, depeuds upon . their legitimacy. The (|uestion in relation tc 336 IN THE SUPREME COURT. Rhyne v. Hoffman. tlie plaintitT, Ooteswortli H. Rhyne, has been long settled. In 2 Com. Dig. 117, it is stated that a child is legitimate if born within matiiiiKiny, though born within a week or a day after the marriage. So, if tiie woman be big with child by A, and marry B, and then the child is born, it is the legiti- mate child of B; 1 Roll's Abr. 358; 2 Bac. Abr. Si. It is admitted in the pleadings, that this plaintiff was born within five or six months after the marriage of his mother with the intestate, which brings him within the rule established by these authorities. ' The claim of the other plaintiff stands upon a principle somewhat different. He was begotten while the parties were man and wife, but was not born until six months after the husband had obtained a divorce a mnoulo matrimonii on ac- count of adultery. Duruig the time, when the child was be- gotten, the husband and wife lived separately, but in the same neighborhood, near enough for the husband to visit her, and it is proved that, occasionally, he did go to the house where she was staying. There was, then, an opportunity for sexual intercourse between the parties, and from that the law presumes that, in fact, there was sexual intercourse between them. This plaintiff "must, therefore, be taken to be legiti- mate, unless it be proven, by irresistible evidence, that the husband was impotent or did not have any sexual intercourse with his wife ; but the former is not pretended, and the latter is a fact, which neither the wife, nor the declarations of the wife, is admissible to prove ; Hex v. Luffe., S East, 193. — Here, independent of the declarationsof the wife, which must be rejected as incompetent, there is no testimony sufficient to rebut the presumption of access. Such being the case, the proof that the plaintiff's mother lived in adultery with a man, who testified that he was the father of her children, makes no difference. As was said in the case of Morris v. Davies, 14 Eng. C. L. Rep. 275, " it matters not that the general camp, pioneers and ail, had tast- ed her sweet body, because the law fixes the child to be the child of the husband." It must be declared that the plaintifls arc the legitimate children of Simon Rhyne, deceased, and as such, are entitled to distributive shares of his estate. Pek Curiam, Decree accordingly. JUNE TEEM, 1862. 337 Fu trill V. Futrill. ELIJAH FUTRILL against LITTLEBERRY FUTRILL. Where one, having considerable influence over an old man, feeble in body and mind from a long course of intemperance, procured from the latter a deed for his land when he was without counsel, and in no condition to under- stand it, wherein was recited a largo debt, which had no existence, and about which the grantee answered vaguely and evasively, it was held that although no confidential relation was proved then to exist between the parties, yet, that such deed, on the score of fraud and imposition, should be held only as a security for sums actually due. Cause transmitted from the Court of Equity of Northampton. This cause was heard in this Court at December Term, 1859, on a motion to dissolve the injunction, and is reported in 5th Jones' Eq. 61. The main facts of the case are therein set forth as derived from the bill and answer, and wherever these are modified by the proofs on iile, it is clearly noted in the opin- ion of the Court ; so that it seems to the reporter unnecessary to re-state the case in this connection. Batchelor and Conigland, for the plaintiflp. Barnes^ for the defendant. Battle, J. This cause has now come on for a final hear- ing, and after a full consideration, we have arrived at the same conclusion with regard to the judgment obtained by the defendant on the bond mentioned in the pleadings, which we expressed when we decided to sustain the injunction, which had been obtained against that judgment. The decision was made at December Term, 1859, upon a motion, founded on the answer to the bill, for a dissolution, and is reported in 5tli Jones' Eq. 61. The judgment at law is allowed to stand as a security to the defendant for whatever may be found, upon taking an account between the parties, to be justly and fairly due from the plaintiff, as the consideration of the bond, on which the judgment was obtained. In taking such account, howevei*, the master will not allow the defendant a credit for any article, or articles, sold to the plaintiff, unless, under the circumstances, it was proper and necessary for the latter to have it or tnem. As for instance, the master will be at liberty to enquire, whether the defendant 338 m THE SUPKEME COUKT. Futrill V. Futrill. ought to have furnished tlie plaintiflf with spirituous liquors to the value of $404.25, during nine months of the year 1859 ; and if not, he will refuse a credit for whatever he may find to have been an excessive quantity of that article. Having disposed of the question, raised with respect to the judgment on the bond, we come now to the consideration of that which relates to the deed executed by the plaintiif to the defendant for his land, and all his other property, with the reservation of a life-estate, founded upon the expressed con- sideration of $2500, in a debt due from the former to the lat- ter, and a covenant by the latter to support the wife of the lormer, should she become his widow, and so long as she- should continue such. The first enquiry that is presented in this part of the case is, whether before, and at the time when the deed was executed, to wit, the 23rd day of March, 1857, the confidential relation of principal and agent existed be- tween the parties ? From an examination of the pleadings and proofs, we are satisfied that it did not. The bill alleges that the relation com- menced in the early part of the year 1857, without specifying the precise time, and the answer admits the allegation in the same terms. The proofs are equally indefinite as to the time, and from the whole, we conclude that the defendant became the general manager and agent of the plaintifip immediately after the execution of the deed, and no doubt in consequence of it. It follows that the force and efi'ect, which this Court may give to the deed, cannot be governed by the principle which we hold to be applicable to the judgment on the bond; and that if the deed can be impeached, it must be on the ground of fraud, circumvention or undue influence ; Deaton \. 'Monroe^ 4 Jones' Eq. 39. The allegations of the plaintiff, with respect to the execution of the deed, are, in substance, that the defendant being his kinsman and neighbor, and pro- fessing to be his friend, had acquired great influence over kim ; that he, the plaintiff, by a long and habitual course of intemperance, had become very much enfeebled, both in body and in mind, and that the defendant availing himself of his JUNE TERM, 1862. 33S Futrill V. Futrill. influence, procured from him the execution of the deed when he was in no condition to understand, and did not under- stand its contents, and under circumstances which precluded him from seeking and ohtaining tlie counsel and advice of a disinterested friend. The plaintiff, then, avers, expressly, that the consideration expressed of a debt of $2500, due from him to the defendant was false; for that he was then not in- debted to him at all, or at most, was indebted only for a very small store account. He also avers that the other part of the consideration, to wit, the maintainance of his wife, should she become his widow, was scarcely appreciable, for that slie was in very low healtli and was not expected to live, and, in fact, did not live but a few months. The property, conveyed, is alleged to have been of much greater value than the amount of the consideration set forth in the deed, supposing it to have been truly recited. These allegations are expressly denied by the defendant, who avers that the deed was drawn according to the wishes of the plaintiff, who executed it willingly, and with a full know- ledge of its contents, and wlio, though old and intemperate, had sufficient capacitj'- to understand and transact the busi- ness. As to the money part of the consideration, the defend- ant states that the plaintiff was "justly indebted to him in a large amount." The parties being thus at issue, with respect to the mental imbecility of the plaintiff', and the exercise of undue influence over him by the defendant, as well as to the consideration, mentioned in the deed, we have examined the proofs on file, which relate to those subjects. We shall not attempt to state, in detail, the result of our examination, but shall merely say that we are satisfied, that at the time when the deed bears date, and for some months before, the plaintiff liad capacity sufficient to enable him to understand and to transact ordina- ry business, but he was old and in feeble health, and his mind had been so much weakened by long continued and habitual intemperance, that he could be easily influenced to do any thing which a person, in whom he had confidence, desired ; 340 m THE SUPREME COURT. Futrill V. Futrill. that the defendant was his kinsman and neighbor, had been kind to him, and had acquired great influence over him, and that he, through the means of that iiiiluence, undnl}'' exercis- ed, procured the execution of the deed in question. Among the circumstances of suspicion against the defendant is, that of the recital of the pecuniary consideration of $2500, in a debt due from the plaintiff to him, which he does not attempt to explain in his answer, and of the existence of which, lie furnishes us no evidence. To the positive allegation of the plaintiff, that he at that time owed him nothing at all, or if any thing, only a very small store account, the defendant merely answers that the plaintiff was "justly indebted to him in a large amount," without explaining how the indebtedness arose, or how it was evidenced, whether by. bond, note or open account; and among all his proofs, we do not find any evi- dence of it. The vagueness of the answer as to tlie amount, and the absence of any explanation as to how it arose, prevent us from coming to any other conclusion than that tiiere was either no indebtedness at all, or a debt of a very trifling sum. We are not to be understood as holding that a consideration was necessary to sustain the deed, as between the parties, liad the conveyance been fairly obtained. The plaintiff" was, we think, capable of executing a conveyance of his property, and if, without any fraud, circumvention or undue influence, ])racticed upon, or exercised over him, he had made a volun- tary deed in favor of the defendant, we should have upheld it, and in doing so, we should have been sustained by the au- thority of adjudications, both in England and in this State; Hunter v, AtMns, 3 Myl. and Keen 113; Taylor v. Taylor^ 6 Ire. Eq. 26. But when we find that the defendant resorted to the expedient of pretending a debt, which had no exist- ence, for the purpose of obtaining a conveyance of all the plaintiff's property, subject to his life-estate therein, we are not at liberty to give it au}^ greater effect than to permit it to stand as a security for any sum which may have been really due to him from the plaintiff. There must be a decree for an account between the parties upon the principles herein ex- pressed. Per Cukiam, Account ordered, CASES IN EQUITY, ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. JUNE TERM, 1863. W. H. PARTIN and another against T. S. LUTERLOH and others That a note had been obtained by fraud in the factum, is a good defense at law, and cannot afterwards be brought forward for the pHrposes of an in- junction. It is no ground for a bill for an injunction, that the complainant was not a party to the suit at law, because that process had not been served on him. His proper remedy is to have the judgment set aside, on motion, in the Court granting it Cause transmitted from the Court of Equity of Cumberland county. This was a bill for an injunction, filed in the names of Wil- liam IL Partin and Norman G. McLeod against T. S. Luter- oh, Charles Luterloh, W. II. Lambert and Thomas Lambert. 1 34:2 LN" THE SUPEEME COUKT. Partin v. Luterloh. The object of the bill is to restrain tlie collection of a judg- ment and execution, which was obtained in the County Court of Cumberland, on a note for $416.52, dated June 16th, 1852, payable to T. Luterloh & Co., and endorsed to Charles Lut- erloh. Signed by W. H. & T. Lambert, and W. H. Partin, and :N". G. McLeod. W. II. Partin was engaged in the business of getting tur- pentine in the count^'^ of Johnson, where W. H. and Thomas Lambert were engaged in the same business as partners, and where the two latter resided. The bill alleges in behalf of Partin, that he had consigned spirits of turpentine to T. S. Luterloh, who owed him a balance on that account, and that Thomas Lambert being about to visit Fayetteville, where Luterloh resided, he requested him to settle with Luterloh, and bring him the money that was due him, and to enable him to do so, he signed his name on a blank piece of paper, in order that it might be filled up as a receipt for the money when it might be paid ; that Thomas Lambert pretending that Partin wished to get money to the amount of $200, from a bank in Fayetteville, applied to the plaintit}*, ]^. G. McLeod, to join in the note with Partin and the firm to which he belonged, and as an inducement for McLeod to sign the note, he offered to draw it for four hundred dollars, and out of the proceeds to pay a debt of $125, which Lambert's father owed McLeod, and with the understanding that the nore was to be thus filled up and offered for discount at a bank; he also sign- ed it in blank. The bill then states that McLeod proceeded with Thomas Lambert to Fayetteville, and the blank paper then having the names of W. II. and T. Lambert on it, was handed to T. S. Luterloii, who had ])roinised to assist them in getting the paper discounted, and he depai'ted for the purpose of going to tiie Bank on the business ; thar in a short time he retiwned and announced that lie had failed in piocuring tiie discount, on wliich, McLeod, in tlie pfesehce of T. S. Luter- loh, asked for the paper that had his name on it ; to whicli T. Lambert said, it did not matter, as the paper was, still in blank and could not hurt him ; that he ihen instructed T. JUNE TERM, 1863, 348 Partin v. Luterloh. Lambert to erase his name from the paper ; that without the consent of either Partin or McLeod,the note, in question, was tilled wp, payable to T. S. Luterloh. Partin further says, that he was not served with tiie writ in the suit, at law, and hatl no knowledge of its pendency against him, or of the existence of the judgment until after its rendition. It is further alleg- ed, that the endorsement was made to Charles Luterloh M'ith- ■ont consideration, but, to give jurisdiction to the county court of Cumberland. The prayer is for an injunction. T. S. Luterloh denies, in his answer, that he owed Partin any thing, or that there was any open account between him and this de- fendant, or the firm ; he admits that there Iiad been some dealings, but says that these had been closed before the transaction in question. lie states, that the true history of the transaction is this: Tliomas Lambert and plaintiff, N. G. McLeod, came to Fayctteville, and asked his assistance to have a note discounted in a bank at that place, and they pro- duced to him a paper, subscribed in blank by W. H. and T. Lambert, W, II. Partin and N. G. McLeod. It was stated by them, that tiiey wished to get $1000 from the bank, and out of that sum, a debt, which the firm of W. H & T. Lambert owed his firm, should be paid ; that he endeavored to procure the bank accommodation, but found it could not be obtained, and so informed the otlier party — thereupon, it was agreed by Thomas Lambert and jST. G. McLeod, tiiat the blank paper should be filled up for the debt due his firm, and this was done accordingly. Charles Luterloii answers, that the note was endorsed to him ho7ia fide for a debt due him b}' T. G. Luterloh c"fe Co. Graham^ foi* the plaintiffs. Gorr'/l, for the defendants. Battlk, J. We are unable to discover any equity in the transactions disclosed by the pleadings and ]>roof, tiiat enti- tles the plaintiffs to the injunctive relief which they seek. The allegation, that the plaintiff at law, Charles Luterloh, 344: IN THE SUPEEME COUKT. Partia v. Luterloh. took the endorsement of the note, in question, without consid- eration, and merely for the purpose of giving jurisdiction to the court of pleas and quarter sessions for Cumberland coun- ty,^ is positively denied in his answer, and, on the contrary, he avers that he took it hona fide and for a valuable considera- tion. His right to recover on it, at law, is fully sustained by the recent case of Mo Arthur v. McLeod,, 6 Jones, 476. The authority of Thomas Lambert to bind his partner by signing the note in the name of the firm, for a debt of the firm, is unquestionable. The pai'tners would be bound in such a case, even though the particular note was signed by one partner without the consent and against the wishes of the other; Wharton \. Woodbitrn^ 4:Dev. and Bat. 507; Dick- son V, Alexander, 7 Ired. 4. Had the note been obtained by fraud in the factum, that would have been a good defense, at law, and could not after* wards be brought forward for the purposes of an injunction in equity ; Tysor v. Luterloh, 4 Jones' Eq. 247. The objection to the validity of the judgment, as to Partin, urged by him, on the ground, that he was not a party to the suit at law, because no process had been served on him, is very clearly one to be used at law, and cannot be made avail- able in equity. The proper course to be pursued in such case, is to apply to the court in which the judgment was ren- dered, for the purpose of having it set aside on motion. When- ever that, or any other complete remedy can be given at law, a court of equity will not interfere ; Parker v. Jones, 5 Jones' Eq. 276, The injunction must be dissolved and the bill dis- missed. Per Curiam, Bill dismissed. JUNE TEJRM^ 1863. 845 Malloy V. Mallett. NEILL M ALLOT against CHARLES B. MALLETT and others. Upon d»e dissolution of a coiporation by the expiration of the time for which it was chartered, its debts become extinct. Under a provision in an act of incorporation, "that the private property of the hidividual stockholders shall be liable for the debts, contracts and lia- bjlitios of the corporation," it was held that the responsibility on the indi- indiial stockholders is a secondary one, and that when the debts against the corporation became extinct by the expiration of its charter, the liability of the individual stockholders became extinct also. (The cases o( Fox v. Ilorah, I Ired. Eq. 358, and Wititry v. Webb, 3 Dev. 27, oited and approved.) Cause sent froua the Court <5f Equity of Cumberland county. All the facts necessary to the understanding of this cause are stated in the opinion of the Court. Buxton, for the plaintiff. €. G. WrigJd and Bryan, for the defendants. Battle, J. Several interesting questions are presented by the pleadings, and have been discussed in the argument, but sn the view which we feel constrained to take of the case, it is only nccessai-y thr us to notice one of them. The bill was filed after tlie expiration of the charter of the company for whose debts, private property of the defendants, as individu- al stockholders, is sought to be made liable. It is a well settled principle of the common law, that upon the dissolution of a corporation, its debts become extinct. This principle was held, in the case oi Fox v. Ilorah, 1 Ired. Eq. 358, to be Jn fuH force in this State. Hence, when the " Phenix Com- pany" expired by the limitation of its charter on the Ist day of January, 1860, it ceased to owe any debts, because it no longer had any existence by which it could be a debtor. The question, then, is, could the private property of the persons, who were tlie individual stockholders of the company at the time of its dissolution, be made liable under the 10th section of the act of incorporation, for such of its debts as were then 34:6 m THE SUPREME COUET. Malloy V. Mallett. unpaid ? The j3roper answer to this qnestion depends upon another enquii'j ; tliat is, whether tlie responsibility imposed by the act upon the individual stockholders, is a primary or only a secondary liability. Tiie language of the charter, af- ter creating the corporation, with the usual powers and privi- leges, for the purpose of manufacturing wool and cotton goods, and after presci'ibing various I'egnlations ordinarily found in charters of the like kind, declai'es, in the 10th section, " that the private property of the individual stockholders shall be liable for all the debts, contracts and liabilities of the corpor- ation in proportion to the stock subscribed l>y each individu- al-." The responsibility thus imposed upon the individual stockholdei'S is, we think, manifestly a secondary one ; be- because it makes them liable for the debts of another person, to wit : the corporation. Such a liability was amply suffi- cient for the secui'ity of the creditors of the company, should they be diligent in enforcing it, during the existence of the corporation, while, to have made it greater, would, in a con- siderable degree, liave tended to defeat the purposes for which the company was created. The liability of the individual stockholders being thus a secondary one for the debts of the company, it follows that when the corpoi-atiou eMj>ired and its debts became thereby extinct, their liability became extinct also. As long as there were debis of the company to be paid, the stockholdei'S were bound to pay them, if necessary, out of theii" private means; but when the debts of the corpoi'atioa ceased to exist, as such, there remained nothing upon which to attach a responsibility on those who had been members of the defunct company. This view of the subject is sustained, as we think, b}' tlie analogy which it bears to the remedy, which is given by the act of 1806, (Rev: Code, chap. 50, sec. 7,) to creditors against the persons to whom debtors have made a fraudulent convey- ance of their property. The remedy given is a scire facias upon the judgment obtained by the creditor against his debt- or, against the person to whom the property of the debtor has been fraudently conveyed for the purpose of defeating the JUNE TERM, 1863. 347 Sims V. Smith. debt. In the ease of Wintry v, Webh^^ Dev^. Rep. 27, it was decided that the proceeding depended upon the original ac- tion of the creditor, and to sustain it. the judgment in that ac- tion must be in force. Hence, when it appeared in the case, that the defendant in the judgment in the original suit, was dead, and no person had administered upon his estate, it was held that tiie scire facias against the alleged iVaudulent gran- tee, could not be sustained. In that case, the secondary pro- ceeding depended upon the existence of a valid judgment, in the first, while in the case, now before us, the proceeding against the individual stockholders, depends upon the exist- ence of a debt of a corporation, of wliich they are members. The dormancy of the judgment in the one case, and the ex- tinction of tlie debt in the other, alike deprive the creditor of his remedy. The demurrer must be sustained, and the bill dismissed. Pkr Cukiam, Bill dismissed. BENJAMIN Y. SIMS, AdmW., against BENJAMIN SMITH and others. The word '* when,"' )ike the words "at" and "if" applied to a legacy of per- sonalty, makes the gift contingent ; but the snperaddition of the words, "equally to be divided," (when there are several legatees,) shows that the the words, lohen, Sec, were only nsed to designate the time when the en- joyment of the legacy was to commence, and would not prevent it from vesting. Causk removed from the Court of Equity of Franklin county. The bill was filed by the plaintifl-', Sims, as administrator of his late wife, Sally Ann (formerly) Smith, for partition of slaves bequeathed to her, with tlie other defendants, by the will of Joseph Smith, and the only question in the cause de- pends uporr the construction of the following clauses in said will : "I give to my son, Joseph Smith's children, now living. 348 IN THE SUPREME COURT. Sims V. Smith. that is, Benjamin Smith, and Adam Smith, the land whereon I now live, on the east side of Mill creek, to be equally divi- ded between them and their heirs forever," reserving a life- estate therein to Joseph Smith, their father. * * * " And I also give the following negroes to my son, Joseph K. M. Smith'sfive children, nowliving, viz: Sally Ann Smith, Martha Smith, Benj. Smith, Abner Smith and Jos. Moseby Smith, when the youngest arrives to lawful age, the following negroes and their increase, Harriet, &c., (twelve in number, naming them.) to be equally divided between them and their heirs forever, re- serving, as aforesaid, to my son, Joseph N. M. Smith, in the laud, including the mill and negroes, during his natural life." The bill alleges, that all the above grandchildren were living at the testator's death, and that Sally Ann Smith intermarried with the plaintiff, and died about seven years after the death of tlie testator, in the life-time of her father, and before Jo- seph Moseby Smith, who was the youngest child of the testa- tor, arrived at the age of twenty-one. The bill alleges, that on the death of Joseph 'N. M. Smith, his son, the defendant, Benjamin, became his representative, and took charge of the slaves, and held them for himself and the other children of Joseph ]Sr. M. Smith, exclusively of the plaintiff, as represen- tative of the said Sally Ann, his late wife, and that he denied the plaintiff 's right, upon the ground, that Joseph Moseby Smith, the youngest, was not of age when said Sally Ann died. This fact is admitted in the bill, but the plaintiff insists that the legacy was vested on the death of the testator, and that the age of the youngest was fixed for division between them, subject to the life-estate of their father. The prayer is for a partition of the slaves. The defendants demurred to the bill, and there being a joinder in demurrer, the cause was set down for argument and sent to this Court. jB. jF. Jloore, for the plaintiff. No counsel, for the defendants. ^ Battle, J. The only question presented for our consider- JUNE TERM, 1863. 349 Sims V. Smith. ation, depends upon tlie ])roper construction of the following clause of the will of Jopo|)h M. Smith : " I give the following negroes to m.y son, Jose))h N. M. Smith's five children, now living, viz : Sally Ann Smith, Martha Smith, Benjamin Smith, Abner Smith and Joseph Moseby Smith, when the youngest arrives to lawful age, the following negroes and their increase, to wit: Harriet," &c., " to be equally divided between them and their heirs forever, reserving, as aforesaid, to my son, Joseph N. M. Smith, in the land, including the mill and ne- groes, during his natural life." The testator, in a previous clause of his will, had given to his two gi-andsons, Benjamin and Abner Smith, a tract of land, equally to be divided be- tween them, reserving a life-estate therein to their father, Jo- seph N. M. Smith, Sally Ann Smith, after the death of the testator, married, but died before the youngest of the five children of Josejjh N. M.Smith arrived at full age, and the question is presented on the claim of her husband, as her ad- tninistrator, whether the legacy of the slaves is vested, or con- tingent. It is conceded that the word, " when," like the words "at" or " if," applied to a legacy of personalty', ordinarily, makes the gift contingent. Thus, if a negro were given to A, when he arrives at age, with nothing to explain or control the ex- pression, it would be the same as if the legacy were given to him " at" his arrival of age, or " if" he ari-ived at age, and should, consequently, be construed to be conditional upon his arrival at age. But when it appears from the context, or from the general scope of the will, that the testator intended to de- signate only the time'when the enjoyment of the legacy is to commence, there the legacy will be held to be vested. Among other expressions, to which this effect will be given, is that of " equally to be divided between them," where there are sev- eral legatees. The law, it is said, always leans in favor of holding legacies vested, rather than contingent, where tiie clauses, in which they are given, are ambiguous, and the in- tention doubtful; Stuart v. Bruar, SYhq. Jun'r., 529; /.it- well V, Bernard^ Ibid. .622. In most cases, this expression 350 IN THE SUPKEME COUET. Long V. Clay. of •' equally to be divided between them," will apply, as well to the time of enjoyment, as to the gift itself, and hence, in such cases, the legacy will be taken to be vested. In the case now before us, there is nothing to forbid the application of this rule, and the legacy of the slaves must be considered as hav- ing vested at the tleath of the testator, the division among the legatees not to take place until the arrival of the youngest at full age — the whole legacy having been subject to the life of their father; see Guythcr v. Taylor, 3 Ired. Eq. 329. Pee Curiam, The demurrer overruled and the cause remanded. STANFORD LONG against JOHN H. CLAY, Administrator. Where a bill was filed for ihe settlement of co-partnership dealingSj and there is a prayer for an injunction against a bond given on a partial settlement of the business between the partneis, but no injunction was issued, it was held that the obligor, in said bond, was not in contempt of the court of equity in refasing to submit to a judgment on the bond in a court of law. Appeal from an order of the Court of Equity of Pei'son, JudctE Osborne presiding. The facts of this case are fully set forth in the opinion of the Court. No council appeared for the plaintiff in this Court. Graham., for the defendant. Battle, J. John IT. Clay, administrator of William Long, brought debt on a bond for $1292 75, payable to his intes- tate against Stanford Long, as the obligor thereto. The suit was brought in the Superior Court of Law for Person county, and defendant appeared and pleaded payment and set olf. AVhile the suit was pending, the defendant filed a bill in the JUNE TERM, 1863. 351 Lon? V. Clav. Court of Equity for the same county, in which he alleged that he untl the plaintiti"'s intestate had, some time before, been enjj::aged as {)artners in the mannfactnre of tobacco ; that they di^olved the co-partnership by consent, and had a partial set- tlement, upon which lie gave the bond sued upon at law. He then alleged that there were many outstanding debts airainst the firm, of which he was not aware, when he gave the bond in question; that upon a settlement ot the accounts of the firm, very little, if any thing, would be drte the plain- tiff'; that he had no defense against the suit at law; and he prayed for an account of the partnerslup business and for an injunction against the suit until that account should be taken. The plaintitt; at law, filed an answer to the bill. It did not appear that any injunction had been issued. When the suit at law was called for trial, the plaintiff's counsel announced his readiness to proceed and, informing the Court of the penden- cy of the procedingin the court of equity, demanded that rhe de- fendant should submit to a judgment, tiireatening that if he did not, he, the counsel, would move for an attachment against hira in the court of equity. The defendant refused to comply with the demand; on the contrary, he applied for, and on cause shown, obtained a continuance of the suit. When the equity docket was taken up, the defendant in tlie suit in that court, filed an affidavit, in which he stated the proceedings above mention- ed, and moved for an attacliment against the ]>lainritt' in equity, for his refusal to submit to a judgment in the court of law. His Honor declined to make the order, but allowed an appeal fnMU his order of refusal to the Supreme Court. We approve the course adopted by his Honor. The plain- tiff, in equity, did not press his application for an injunction against the suit at law, and there was nothing to hinder the plaintiff from obtaining his judgment as soon as the course and practice of the court would allow him. Had the plain- tiff', in equity, applied for a fiat for an injunction, the Judge or Court, to whom the application was made, might well have refused to grant it, except upon the terms of submitting to a judgment in the suit at law. Tlie authorities, referred to by 352 IN THE SUPREME COURT. — 1^ Rouse V. Lee. the counsel for the defendant in equity, to wit: Adams' Eq. 194-195, and 2 Star. Eq. pages 174-175, do not embrace a case like the present. Upon another ground, we think the correctness of his Hon- or's couree, may be sustained. When the cause in the court of law was called for trial, no order in the court of equity had been obtained, or even applied for. The counsel only threat- ened what he intended to do, when the court of equity should sit for the despatch of business. The defendant at law could not, then, be guilty of a contempt of Court for not obeying an order which had no existence. The order, from which the appeal was taken, must be af- firmed, and this must be certified. Per Curiam, Doretal order affirmed. CALVIN ROUSE agaimt JOHN L. LEE and otims. Money arising by the sale of tiie wife's la^d by a deed execaited by the husband and wife lias none of the characteristics of real estate, and after the death of the wile, goes to the husband jure mariti. {Little V. McLendon, 5 Jones' Eq. 216, cited and approved.) Cause removed from the Court of Equity of Lenoii' county, A tract of laud having descended to Rebecca Lee, wife of the defendant, JhIiu L. Lee, from her father, it was agreed between them tliat they would make sale of the same, and as Lee was much in debt, and there was danger that the pro- ceeds of such sale might be taken for his debts, it was agreed by parol that the proceeds should be paid into the hands of a trustee for her benefit. Accordingly, the land was sold by a joint deed of Lee and his wife to "one Wiley Rouse, she being privily examined and said Wiley Rouse paid the purchase- money, $1900, to one Chris'opher L. Davis, who agreed to hold it for the benefit of the wife, but afterwards agreeing JUNE TERM, 1863. 353 Rouse V. Lee. to borrow tlie money for himself, he made his note for the res- idue not used by Mrs. Lee, to wit, $1400, to tlie plaintiff', who agreed that lie would hold the money on the like trust, but no written memorial was ever made of this trust. Mrs. Lee having died, the plaintifi' administered on her estate, and tiled this bill against J. L. Lee, and the children of Lee and his wife, who are the heirs-at-law of Mrs. Lee, alleging that Lee claims the fund as husband of his late wife, and that the other de- fendants, the children, claim it as having the impress of real- ty, and he calls upon the parties to interplead and have their rights settled by a decree of the Court of Equity, so that he may be indemnified in paying it to the one part}' or the other. The said John L. Lee and the children each answered the bill, claiming, as suggested above, and submitting that the Court should do what was right and equitable between them. The cause was set down for hearing on bill and answers, and sent to this Court. J. ^V. Bryan, for the plaintiff. G. Washingto7i, for the defendants. Manly, J. The question presented by the pleadings in this case, is, w'hether a fund in the hands of the complainant, as administrator of Rebecca Lee, should be paid to the hus- band as her legal representative, or (as it arose originally from the sale of real estate) to her children, as heirs-at-law. There, is no ground for holding that this fund retained any of the characteristics of real property. It was competent for the parties, by a proper settlement, to have impressed this character upon it, but they have not done so, and it must, therefore, be transmitted according to the rules which govern the distribution of chattel property. The agreement, by which the fund was subjected to a trust, seems to have had for its object the benefit of the wife alone, and, therefore, according to a well established principle of equity, upon her death, the fund passed to her husband. This was recently declared in this Court, in the case of Zitile v. 354 m THE SUPREME COURT. Frizzle v. Patrick. McLendon^ 5 Jones' Eq. 216, where the authorities will be found cited. The parties interested may have a reference to the clejk of this Court, to take an account of the fund and report tiie i-esi- due after deducting the costs of administration, (the costs of this bill included,) which residue should be paid to the hus- band. Per Curiam, Decree accordingly. WILLIAM FRIZZLE aud others against JOEL PATRICK. It is the <:eneral course of the court of equity, on applications to restrain pri- vate nuisances by an injunction, to order an issue at law to ascertain the fact of the existence of such nuisance before the Court will act. Where a party has no particular interest in an alleged nuisance from the pond- ing back of water, he cannot sustain a bill for an injunction, but must rely on the remedy hy information in the name of the Attorney General. This was an appeal from the Court of Equity of Pitt county. The plaintiffs, William Frizzle, Warren Frizzle, Charles Rogei'S and Jesse Hart, set forth in their bill, that tiie ])lain- tiffs, William and Jesse Frizzle, conveyed each a small ti-act of land to the defendant and one Lewis B. Pugh, to enable them to erect a mill on little Oontentnia Creek, and that they did so about the year 1850, and that, at the same time, the parties agreed, by parol, as a part of tlie equivalent for tliis agreement, the said Patrick and Pugh were to keep a flat in their mill-pond to transport produce for the neighborhood, and t(i pay them ; that the said grantees did erect a mill-dam, and by that means, ponded back the water so as to injure the plaintiffs, W. and y\ . Frizzle, in a very great degree by over- flowing iheir tillable land, and to injure all the plaintitfs and other neighbors, by causing jyi uncommon amount of sickness; that the said mill was, shortly before filing the bill, bui-ned JUNE TERM, 1863. 355 Frizzle v, Patrick. down, and that against tlieir earnest remonstrances, and in disregard of large pecuniar}- offers on their part, the defend- ant, Patrick, who liad purchased out Pugh, was preparing to rebuild the mill, and the}' appreliended tlie same injurious consequences to their health. The}' further allege, that the defendant totally disregarded his promise to put a flat in his mill-pond while the dam was np, and refused to make com- pensation to tlie Messi's. Frizzle for damage done to their lands by ponding back the water on them. The prayer is for an injunction to restrain the defendant from rebuilding his mill-dam and for general relief. The answer of the defendant, denies that any extraordinary amount of sickness was ])roduced by his mill-pond. lie ad- mits that a very fatal disease prevailed during a part of the time his pond was in exiistence, but he sa3'8 this was a dis- ease, called diptheria, and as he is advised by medical men, was, in no degree, ])rodnced or aggravated by standing wa- ter ; that it pi'cvailed as much in neighborhoods where there was no watercoui-se as in that of his mill-pond, and has, in no degree, abated since his mill has been burned and the water off. lie admits, that he said in conversin": about establishinir a mill, that he intended to keep a flat in his mill-pond, but he denies that he made any deliberate contract to that effect, or that this consideration entered, in a material degree, into their bargain, and that no one has ever desired such a flat, or called on him to put one in liis pond, and insists that, even if this was as alleged by plaintiffs, that they have an adequate remedy, at law, for the breach of this contract. He sets forth, speciiically, the deeds made to him by tiie plaintiffs, William and AVarren Frizzle, which, in the former parts thereof, are in the usual form, and then contain this clause, (in the deed from William,) " and 1, the said William R. Frizzle, in the bargain, have bai'gained and sold unto the said Lewis Pugh and Jiiel Patrick, the full and lawful privilege of ponding the water back npon my creek low ground, above the said Lewis Pugh and Joel Patrick's mill-seat, to a snflicient head of wa- ter to run the mill, or any machinery whatever, provided the 356 IN THE SUPREME COURT. Frizzle v. Patrick. water does not back upon an)' of my hi2:li or tenable lands; if so, we, the said Lewis i^iigli and Joel Patrick, do bind our- selves and assigns to the said William R. Frizzle, a fair price for all the high or tenable land the mill may cover," and the deed from Warren Frizzle, conveyed his tract of land, by a deed, containing the like provisions. He further alleges, in his answer, that before this bill was filed, he offered to leave it to men, mutually chosen by them, to say what, if any, dam- ages had been sustained by the plaintiff, William's high or tillable lands, and to pay whatever might be assessed by them, and that he refused to agree to these terms, or in any way to settle amicably this question of damages. He insists that, according to the written contract between them, if either of the Messrs. Frizzle has any claim of this kind, he has a full and adequate remedy at law. He admits that he is about to rebuild his mill, but says that neither of these parties has any equitable ground to prevent him from so doing ; that as to the Messrs. Frizzle, they are concluded by the terms of their deeds, from interfering through the court, and as to the other plaintiffs, they have no interest or ground of complaint what- ever. On the coming in of the answer, the defendant moved to dissolve the injunction, which his Honor refused, but order- ed it to be continued to the hearing, from which order the defendant appealed to this Court. Foiole and Phillips^ for the plain tifts. Donnell and J. W. jBryan, for the defendant. Pearson, C. J. Treating the bill as a proceeding for an injunction against a private nusiance, we are of opinion that the plaintiffs, William Frizzle and Warren Frizzle, are con- cluded by the deeds which they executed to Joel Patrick and Lewis Pngh, for the parcels of land on the north and south sides of the creek, for the express purpose of enabling them to erect a dam, and pond back the water in order to get a head of water sufficient to run a mill ; so they cannot be heard JUNE TERM, 1863. 357 Palls V. Dickey. to complain against their own deed. In regard to the flat, if there has been a breach of contract on the part of the defend- ants, the remedy at law is adequate, and certainly, a breach of contract, in that particular, is not a sufficient ground to in- duce a court of equity to interfere by its writ of injunction. In the case of a private nuisance, the rule in this Court is, that the fact of nuisance should be established by an action at law before an injunction will issue, with certain exceptions as in the ease of Clark v. Lawrenre, ante 83, where an issue was ordered on the fact of nuisai'.ceor no nuisance. This comes within the general rule, and wc can see no ground on which to make it an exception and direct an issue, imless the rule is to be disregarded altogether. They have been paid for the privilege of erecting a mill at the site set out in the proceeding, and are concluded in respect to a 'private nuis- ance. The other plaintiffs, Jesse Hart and Charles Rogers, show no particular interest in this matter, and must stand like any other citizens, who are objecting to the erec- rion of a public nuisance. In other words, they must file an information in the name of the Attorney General, setting forth their reasons for believing that the defendant, Patrick, 18 about to commit a public nuiscmce, and making that the ground for asking the interference of this Court by its writ of injunction. Decretal order of the Court below reversed and injunction dissolved. Viai CuKiAM, Decree accordingly. ROBERT PALLS against JAMES DICKEY. Where a plaintiff has a remedy al, law on a covenant of quiet enjoyment, and brings a bill in equity against the covenantor on account of his non-resi- iience in the State, it is necessary for him to aver also, that the defendant Us no property or effects in this State, out of which satisfaction could be bftd upon hij recovery at law. 2 358 m THE SUPREME COURT. Falls V. Dickey. Where such a suit is brought, and it appears that the plaintiflF, in obtaining his deed and covenant, practiced to get an unfair advantage of the defend- ant, the Court of Equity will not grant him relief, but will leave him to hie remedy at lav/. Cause removed from the Court of Equity of Cleaveland. The bill alleges, that the plaintiff purchased a tract of land l3ang in the county of Gaston, and took a deed in fee for two hundred acress, for which he gave his notes for $400 ; that said deed contained a covenant for quiet enjoyment of that estate ; that about eighty acres of the best of this land was covered by the dower of widow Mrs. Mary Falls, and that he had utterly failed to get possession of that much of the land he had purchased ; that the defendant is a citizen of the State of Arkansas. lie states that he has been sued, at law, on the bonds given for the purchase-money, and that judg- ment has been obtained against him in the county court of Gaston, and execution threatened to be issued against him for the amount. The prayer is for an injunction. The defendant, in his answer, saj^s, that being about to re- move to the State of Arkansas, he made a public vendue of the laud in question, and his other property ; that at the time this land was offered for sale, the cryer distinctly made known that it was sold subject to the dower of Mrs. Falls ; that the laud was bid off by the plaintiff, but that no deed was then execu- ted by him, but that he furnished him with the deed, which he, defendant, had taken when he bought the land, and desired him to have a deed prepared ; that in the deed, thus furnish ed, the dower was excepted ; that the j)laintiff was a relation of Mrs. Falls, and lived near to her, and well knew that she had a dower in the said tract of land ; that for fifteen years Mrs. Falls lived on this dower land, and was so living at the time of the sale ; that shortly after this auction, the plaintiff' came to where he lived, while he was loading his wagons to remove from the State, and when every thing was in confu- sion around him, and presented him for execution, a deed, which he, plaintiff, had prepared, and told him that it was all correct and drawn according to the deed furnished him at the JUNE TERM, 1863. 359 Falls V. Dickey. «ale as a guide ; that having confidence in plaintiff's integri- ty, and being thus in confusion, he executed the deed, in -question, which he now finds, to liis surprise, is an absolute conveyance of the whole estate in the land, without any ex- ception of Mrs. Falls' dower, and in this he was grossly de- ceived and defrauded by the plaintifi'. The defendant further says, that the plaintifi" had no occa- sion to go into a court of equity on account of his resi- dence in another State, for that at the time of filing this bill, defendant had property, in this State, to the amount, at least, of $5,000. There was evidence taken in the cause, the material part of which, is alluded to by the Court, and the cause was set down for hearing on the bill, answers, proofs and exhibit, and sent to this Court. 'No counsel for the plaintift\ Foiole^ for the defendant. Battle, J. We have no hesitation in denying to the plain- tifi" the relief which he seeks. It is clearly proved, that at the time he purchased the tract of land, mentioned in the plead- ings, he had full knowledge of the incumbrance of which he complains, and we very much suspect, that when he prepared the deed for an absolute conveyance, he intended, if he could get the bargainor to execute it, to take an unfair advantage of him. His remarks made at various times, to difi'erent per- sons, show that he thought he had got a bargain of the de- fendant, and that he was determined to make the most of it. If the covenants contained in his deed, can avail him at law, let him seek a remedy there. This Court will certainly not aid him in his intended sharp practice. But independently of his failure upon the merits of his case, the plaintiff' has not, by his own bill, shown himself entitled to relief in a court of equity. He has alleged, indeed, in his bill, that the defendant is a resident of the State of Arkansas, but he has altogether omitted to aver that he had no property 360 IN THE SUPREME COURT. Smith V. Morehead. or effects, in this State, out of which to make good the dam- ages, which might be recovered in a action on the coven- ant for quiet enjoyment. This omission, we deem fatal to his right to come into this Court for relief. See Green v. Gamp- deU, 2 Jones' Eq. 447 ; Richardson v. 'Willia7ns^ 3 Jones' Eq. 116. The bill must be dismissed with costs. Per Cdeiajvi, Bill dismissed. MARY ANN SMITH agamsi JAMES T. MOREHEAD. As a general rule, an objection to the jurisdiction of the court of equity may be taken on demurrer when the facts appear upon the record. Jmpotency in a husband does not render a marriage by him, void ah initio, but only voidable by sentence of separation, and until such sentence, it is deem- ed valid and subsisting. The domicil of the husband, draws to it the domicil of the wife ; therefore, ac- cording to the 14th Rule of the 3d section of the 32 chapter of the Revised Code, where both parties are residing in this State, a bill, by the wife, for a divorce, for the cause of impotency, must be brought in the county where the husband resides. Cause removed from the Court of Equity of Wake county. The facts are sufficiently stated in the opinion of the Court. Mom'c, for the plaintiff. Graham, for the defendant. Battle, J. The plaintiff in her bill, which was filed in the Court of Equity, for the county of Wake, alleged, that on the 30th day of April, 1861, the marriage ceremony was per- formed, in the city of Raleigh, between her and the defend- ant, James T. Morehead ; that she had been ever since her birth, and was still, a resident of the city of Raleigh, in the county of Wake, and the defendant was a resident of the JUNE TEEM 1863. 361 Smith V. Morehead. county of Gnilford ; that after coliabitiug with the defendant some two or three weeks, she found him to be, and she aver- red that he was, utterly and incurably impotent ; that in con- i^equence of such irapotency, the pretended marriage between her and the defendant was null and void ; and she prayevl that it might, by a decree of the Court, be declared null and void ; and further, that she might have a decree divorcing her from the bonds of matrimony. The defendant demurred to the bill, for the want of juris- diction in the court of equity for the county of Wake. The cause was set for hearing on the demurrer, and by consent was removed to the Supreme Court. Our opinion being in favor of the defendant, upon the ques- tion of jurisdiction, we have deemed it proper to state only the facts which are necessary to raise it. That, as a general rule, an objection to the jurisdiction of the court of equity may be taken on a demurrer, when the facts appear upon the record, is settled. Indeed, it is said by Mr. Adams, that want of jurisdiction is one of tiie most ordinary grounds of a demurrer in equity ; Adams' Eq. 333. The principle of the defense by demurrer is, that on the plaintiff's owil sliowing, his claim cannot be supported, and that, there- fore, it is needless for the defendant to answer the bill- If the plaintiff show that the Court cannot entertain jurisdiction of his cause, there seems to us as much reason for permitting the defendant to urge that objection, as to insist upon any other, which is disclosed by the facts stated in the bill. The plain- tiff's counsel does not deny this; but insists that when the want of jurisdiction arises from the fact, that the suit is brought in the wrong county, the objection can only be taken by a plea in abatement, under an express provision, to that effect, in the Revised Code, chapter 32, section 3, rule 14. The last clause of that rule does say, indeed, that if the suit be brought in any other county than is therein prescribed, it "may be abated on plea;" so it may, and so it must, if the fact, that the suit is in the wrong county do not appear on the record ; but if the objection appear in the bill itself, a plea is unne- 362 IN THE SUPREME COURT. Smith V. Morehead. cessaiy and a demurrer is proper to be used. It is well known that, in equity, the statute of limitations is generally used as a defense by a plea, but it is now held, that if by the plaintiff's own showing, his equity is barred by the statute of limitation, no plea is necessary ; see Whitfield v. Hill, 5 Jones' Eq. 321 ; Robinson v. Lewis, Bush. Eq. 58. We come now to the question, whether the suit was brought in the wrong county, and the solution of that depends upon the enquiry, whether a valid marriage was contracted bj^ the per- formance of the marriage ceremony between the plaintiff and defendant, and if it were, what effect did it have upon the domicil of the parties. The counsel for the plaintiff contends, that there was no marriage ; that by reason of the defend- ant's impotency, the performance of the marriage ceremony between the parties had no legal effect, and that, therefore, what passed between them was a mere nullity. This, we think, is a great mistake. Impotency is a good cause for a divorce a vinculo Tnatrimonii, but, it does not, like idiocy or lunacy in one or both parties, make the alleged marriage a nulli- ty ah initio. Mr. Blackstone, after stating that marriage is re- garded by the lawasa civil contract, and that to be valid, it must be between parties willing and able to contract and who do con- tract in proper forms and solemnities, says that, in general, all persons are able to contract themselves in marriage, unless they labor under some particular disabilities and incapacities- These disabilities are of two sorts ; first, such as are canon- ical and, therefore, sufficient, by the ecclesiastical laws, to avoid the marriage in the spiritual court ; but these, in our law, onlj- make the marriage voidable, and not i2}so facto void, until sentence of nullity bo obtained. Of this nature are precontract, consanguinit}' or relation by blood and affin- ity, or relation by marriage and some particular corporal in- firmities ;" 1 Bla. Com. 434. After some other remarks about the nature of these disabilities, the great commentator adds, " But such marriages not being void ab initio, but voidable only by sentence of separation, they are deemed valid to all civil purposes, unless such separation is actually made, during- JUNE TERM, 1863. 363 Smith V. Morehead. the life of the parties." See also Elliott v. Gurr, 2 Phil. Ec. Oases, 16 ; 1 Moore, 223 ; Noy 29 ; Cro. Car. 352 ; 1 Roper on H. and W, 333. Among these disabilities it is seen, that " some particular corporal infirmities" are mentioned. Thus, the impotency of the husband, at the time of the marriage, to consummate it, and still continuing, is a good ground lor an- nulling it; 2 Phil. Ec. Ca. 10. But until a sentence of di- vorce is obtained, the marriage is regarded as valid and sub- sisting. 31r. Shelf ord says expressly, that " canonical disa- bilities, such as consanguinity, affinity and certain corporal infirmities, only make the marriage voidable and not ipso facto void, until sentence of nullity be obtained, and for this, he cites 2 Phil. Ecc. Cases 19, 25." If this were not so, the triennial cohabitation required by the Ecclesiastical courts (and which we presume our courts would be bound to insist upon) before they will entertain a suit for a divorce on ac- count of impotency, would seem to be a strange requisition ; see Shelf, on Mar. and Div. 203, (33 Law Lib. 171.) The second kind of disabilities, mentioned b}'- Mr. Black- stone, are what he calls civil, that is, such as are enforced by the municipal laws. Among these are incapacities of a for- mer subsisting marriage, and that of a want of reason. These make the marriage absolutely null and void ab initio, and the pretended marriage may be so treated without any sen- tence pronounced by a court ; though in the case of a want of reason in one of the parties w'hen the marriage was contracted, the Court will entertain a suit for a nullity of the marriage. This was done in the case of Johnson v. Klncaid^ 2 Ired. Eq, 470, and Crumj) v. Morgan, 3 Ired. Eq. 91, re- ferred to by plaintiff's counsel. In the former of these cases, the pretended husband was an idiot, and in the latter, the wife was a lunatic at the time of the celebration of the mar- riage. In both cases, the alleged marriages were pronounced to have been nullities from the beginning, and the Court pro- nounced sentence, not of divorce, but of nullity. From what we have said, it is clear, that the performance of the marriage ceremony between the parties now before the Court made 364 m THE SUPREME COURT. Smith. V. Morehead. them, to all intents and purposes, man and wife, and they must so remain, until death or a divoi'ce shall separate them. This being so, the only remaining inquiry is, what effect the marriage had upon the domicil of the parties : Upon this question, we think the law is well settled; in the case of War- render v, Warrender ^ 9 Bligh. liep. 89, before the House of Lords, it was laid down in the strongest terms, that the domi- cil of the husband drew to it, in law, that of the wife. Tliat was the case of a suit for a divorce, and it was follow- ed by anotlier suit of the same kind, before the consistory court of London, in which Dr. Lushington held the same doc- trine, 2 Curtis' Rep. 35, (7 Eng. Ec. Rep. 139). It is unne- cessary to multiply authorities upon this point, for the gener- al rule seems to have been assumed to be, as we now state it, in the very case oi Sohnwald v. Slionwald^ 2 Jones' Eq. 367, relied upon by plaintiff's counsel to disprove it. In that case we decided, indeed, that upon the construction of the 7th section of 39th chapter of Revised Code, a wife residing in another State, could not be considered as a resident of this State, for the purpose of suing her husband for a divorce in our courts. The language of the act, upon which the con- struction was placed, is as follows : " ISTor shall any ])erson be entitled to sue, unless he or she shall have resided within the State three years immediately preceding the exhibition of the petition." It was, undoubtedly, competent for the Legisla- ture to enact that the actual residence of the wife, out of the State, should not be considered as a legal residence with hef husband, in the State, for the purpose of enabling her to sue him in the courts of this State. That was the intent of the Legislature in the act to which reference is made, and the ef- fect of the decision of Shonwald v. Shontoald, is to carry out that intent. In other respects, tlie rule remains unchanged, and where the parties reside in the State, the residence of the husband still remains the residence of the wife. It follows that as soon as the parties, in this case, were mar- ried, the plaintiff became, in law, a resident of the county of Guilford, and according to the 14th Rule of the 3rd section of JUNE TEEM, 1863. 365 Mordecai V. Boylan. the32d chapter of the Revised Code, her suit ought to have been instituted in the Court of Equity for tliat county. The demurrer to the bill, for the want of jurisdiction in the Court of Equity of \Yake county, is sustained, and the bill dismissed. Per Curiam, Bill dismissed. GEORGE W. MORDECAI against WILLIAM M. BOYLAN and others. Where a testator, having estates in tliis and two other States, appointed ati executor here and another residing in one of the other States, and provi- ded tliat they shonl'd not be required to give security, and it appeared that tlie money in the hands of the executor, in this State, was not sufficient to pay the pecuniary legacies, it was held to be the intention of the testator that such executor was not required to provtT ,the will abroad and collect, money in the other States to pay tiie legacies in full, and that he must pay the money in his hands to the legatees j)ro rata, and that the testator in- tended the executor abroad to administer the assets there. Where the legatees were children and grand-children of testator'^ wife, and the assets, out of which the pecuniary legacies were to be paid, were bear- ing interest, it was held that such legacies were entitled to draw interci-t from the testatoi's death. Orand-children and greai-grand-children cannot be included in the division of a residue directed to be made among children. The act of 1800, chapter 37, preventing the emancipation of slaves by will, applies to the case of a will made before its passage, where a testator diciumer- \>us, reside, some in this State, and others out of it. The ex- ecutor, in this State, will not have assets in his hands suffi- cient to satisfy all the pecuniary legacies, without collecting the amounts due from debtors residing abroad, and he desires the instruction of the Court — as to whether it is his duty to prove the M'ill, and take out letters testamentary in any other JUNE TERM, 1863. 367 Mordecai v. Boylan. than this State for the purpose of collecting the debts, which may be due from debtors residing there. ' Our opinion is, that he is not. The testator lias settled that question himself, by appointing an executor residing abroad ; for such executor must be supposed to have been nominated for the express purpose of attending to the collection of debts due there. And it aids this supposition, that we find the ex- ecutors excused from all responsibility for the acts, negligen- ces and omissions of each other. 2. The second inquiry is, whether, if the plaintifi cannot collect money enough to pay off all the pecuniary legacies, he must pay out what he hasj??/'c> rata among all the legatees, or may he select and pay whomsover he pleases. We cannot discover any thing in the will, which gives one legatee any preference over anotlier. All have equal claims upon the executor, and in case of a deficiency of assets, in his hands, he must scale the legatees j9rEJftD OPERATING IN TWO CAPACITIES. A deed combining the two characters of a deed ot trust to secure creditors, and a deed of settlement in trust for a wife and children, may operata and have efl'ect in both characters, provided it has been duly proved »nd registered. Johnston v. Malcom, 120. INDEX. 391 DEED— INCONSISTENT PROVISIONS OF. Where slaves were conveyed to a feme covert, by a deed of gift, and the first clause of the conveyance passed the legal estate to her and the heirs of her body, it was held that a subsequent clause of the conveyance, re- straining her husband from all control over said slaves, was inconsistent • with the first clause and inoperative, and that the slaves vested in tb« husband y«re mariti. Smith v. Martin, 179. DEED DECLARED A SECURITY. 1. Where there is no allegation of fraud, imposition, oppression, or mistake, the Court will not set up a parol agreement, and declare an absolute deed to be a mere security for money advanced. Whitfield v. Cates, 136. 2. Where a valuable consideration has been paid by the person, to whom an absolute deed for slaves is made, the allegation of a parol trust in favor of a third party, forms no exception to the rule in courts of equity, in respect to declaring such a deed a mere security for money loaned. Ihid. Vide OvER-KEACniNG CONTRACTS, 2. DEED— DESTRUCTION OF. Vide Partner — secret, 1, 2. DEPOSIT IN BANK. A deposit in a bank, is not to be considered as included among debts order- ed by the will to be collected and invested for the benefit of a legatee, especially before a demand and refusal, on the part of the bank, to pay. Adams v. Jones, 221. Vide Following money. DISSOLUTION OF COPARTNERSHIP, Vide Partner — secret. DISTRIBUTIVE SHARE. Vide Attachment, Decree for distributive share, &c. DISTRIBUTEES. Under the statute of distributions in this State, Rev. Code, chap. 64, sec- tions 1 and 2, repr-esentation is not admitted among collateral kindred after brother's and sister's childien, and, consequently, uncles and aunt* of an intestate, take to the exclusion of the children of a deceased uncle. Johnston V. Chesson, 146. DIVOR&E. Vide Alimont. DOWER. Vide Decree fob dower, &c. ELECTION. Where a te.stator had an estate in land limited over to the defendant on his 392 IKDEX, dying without issue, and he devised the said land to be worked for two years alter his death for the payment of his debts, and in his will he gave valuable legacies to the defendant, which she elected to take, it was held that though the testator died without issue, yet the provision for ths payment of the debts must be enforced. Norfleet v. SJade, 217. / EMANCIPATION. BY WILL. The act of 1860, chapter 37, preventing the emancipation of slaves by will, applies to the case of a will made before its passage, where the testator died subsequently thereto. Mordecai v. Boylan, 365. KMANOIPATED— REFUSING TO BE. Where a negro woman slave was willed to one for life, and then to be free, and such slave formally elected to remain a slave, it was Md that the stahis of such woman, after such election, was fixed as from the testa- tor's death, and that her offspring, born after that event, remained slaves, and that she and her offspring passed by a residuary clause of the will. CJarh v. Bell, 272. EXECUTORS IN DIFFERENT STATES. Where a testator, having estates in this and two other States, appointed an executor here and another residing in one of the other States, and provided that they should not be required to give security, and it appear- ed that the money in the hands of the executor, in this State, was not sufficient to pay the pecuniary legacies, it was held'to be the intention of the testator that such executor was not required to prove the will abroad and collect money in the other States to pay the legacies in full, and that he must pay the money in his hands to the legatees ^;ro rata, and that the testator intended the executor abroad to administer the assets in the other States. Mordecai v. Boylan, 365. EXAMINATION OF DEFENDANT ONi)ATH. Where, in a suit for an account, plaintiff obtained leave to examine defend- ant upon oath, before the master, and he was interrogated as to the items of plaintiff's account, it was held that defendant's answers were evidence for him, only so far as they were responsive to the ques- tions, and that he could not, in this way, prove his charges against plaintiff. Fleming v. Murph, 59. EXCEPTIONS TO A BILL. Vide Plkading, Practice, 3. EXECUTOR— BUYING TESTATOR'S PROPERTY. Where an executrix procured an order of court to sell certain slaves, in which she Avas willed a life estate, upon a suggestion that such sale was necessary for the payment of the debts of her testator, and in a short time after the sale she took conveyances from the purchasers, for the same slaves, without ever having been out of possession, it being also INDEX. 393 made to appear that there were no debts of the estate unpaid at the time of the orders to sell, it was held that the executrix took nothing by her purchase, and should be declared a trustee for the remaindermen. Joyn- er V. Conyers, 78. EVIDENCE. Vide- Examination of dekesdant on oath; Special intkurogatories. FEME COVERT. In order to create a separate estate in a feme covert, there must be wonk sufficient to raise a trust lor her beneflt Smith v. Martin, 179. Vide Deed — Inconsistent, &c. FOLLOWING MONEY. 1. Where an agent deposited money in bank as an ordinary deposit, stating at the time that it was the money ot his principal, but desired the officer to place the money to his credit on the books of the bank, alleging that he might have occasion to use it for the benefit of his principal, and ihe agent died shortly afterwards insolvent, it MiUs helcl tluit the principal was enti- tled to the fund, und might follow the same in a court of equity. WhUl<^/ V. Foy, .j4:. 2. Where one takes a note of the estate from an administrator, mala fide, a« for instance, in payment of the administiator's own debt, be cannot. hold the fund from the next of kin, or tliose who are encitled to be substituted in their place, unless the adnnuistrator was iu advance for the estate. — Latham v. Moore, 1G7. FORIEGN MISSIONS— BEQUEST TO. Vide Will — Construction of a, 15. FRAUD ON THIRD PERSONS. A mortgagee having agreed with the wife of the mortgagor, that upon a part of his debt being satisfied, he would assign for her benefit, his inter- est in the debt, and the property rportgaged ; and in pursuance )th§reof, having assigned the same to a third person, held that the assigue.e was entitled to enforce against the wife's legatee.*, an agreement, by which, at the time she was soliciting him to aid her iu securing the benefits, she engaged that upon her death, her interest in the property mortgaged, should be subjected to pay the debts due to such assignee by the inort- gator. Bowers v. Sirudwich, 288. FRAUD. Vide Following money, 2 ; Injunction, 2. FRAUD— STATUTE OF. A memorandum or note of a contract may bo signed by one in the nameoj his principal, so as to comply with the requisitions of the statute of frauds. 394 INDEX. without being thereunto authorised in writing. BlacknaU v. Pari$h,70. Vide Declaration or trust ; Spkcific performakck, 1. FRAUD IN THE FACTUM OF A DEED. Vide Jurisdiction, 3. FRAUD UPON MARRIAGE. 1. A conveyance, by a woman, after a marriage engagement, and upon fhe eve of its solemnization, is a fraud upon the rights of the intended husband and will not be upheld, unless it appear clearly and unequivocally, that th« liusband had full knowledge of the transaction and freely assented to it. — Johnson v. Peterson, 12. 2. Where a woman, being under an engagement to marry, made, a week be- fore the marriage, a voluntary secrSt conveyance of all her property, inclu- ding slaves, to the defendant, a man of a slender means, who, after tha marriage, took the slaves into his possession, and refused, on demand, to give tliem up, but claimed them as his own, under such conveyance, it wa« held that the husband was entitled to writs to restrain the defendant from removing the slaves out of the State, although no threat to do so was made to appear. Ihid. FRAUDULENT CONVEYANCE. Where a debtor conveyed all his property with an intent to defraud hia creditors, and then left the State, it was held that a creditor could not maintain a suit, in equity, to have his debt satisfied out of the property, under the statute, Rev. Code, chapter 7, section 20, his remedy being at Law. SrrMherman v, Allen, 17. FREEDOM— ELECTION TO DECLINE. Vide Emancipated — refusing to be. FUND FOR THE PAYMENT OF DEBTS. 1. Where a testator gave property, real and personal specifically, and then devised and bequeathed all the " balance of his estate" to certain parties in general terras, and after making his will, the testator acquired property, re- al and personal, it was held that this after-acquired property fell into tha residuum bequeathed generally, and that upon a deficiency of funds provi- ded for the payment of debts, the after-acquired personalty was first liabk» Knight v. Knight, 134. jL Personalty in the hands of an executor or administrator, whether bequeath- ed specifically or otherwise, is first liable to the payment of debts, unlea* specifically exempted, and the real estate belonging to the deceased, wheth- er descended or devised, is not liable until the former is exhausted. Jbid. GUARDIAN— COMPENSATION TO. Vide Guardian and Ward, 1. INDEX. ^» GUARDIAN AND WARD. 1. A guardian is entitled to commissions on payments made for goods bcHjpht of a firm of which he was a member ; but not on charges for board while his ward lived in his family. Williamson v. Williams. 62. 2. Where a guardian waited six months after the principal in a note, held by him as guardian, died insolvent, before he sued the surety, who also be- came insolvent before suit was brought, such surety, though much indebt- ed, being, up to one month before his failure, in good credit, and failed suddenly, the guardian having opportunity all the time of knowing the tnia condition of the obligors, it was held that by his lachc?, he made himself responsible for the loss of the debt. Ibid. 3 Where it appeared that the property^ in this State, of a ward residing in another State, consisted of good bonds, at interest, in the hands of his guar- dian here, a part of ^fllich arose from the sale of land, and the ward was ni'arly of age, and there was no special necessity made to appear for mak- ing a transfer of the property, the Court of Equity, in the exercise of il« discretion, refused to order a transfer of the estate to the hands of a guardi- an appointed in such other State. Douglas v. taldwell, 20. HUSBAND AND WIFE. Vide Fraud upon Marriage ; Jurisdiction, 4, 5 ; Ovkrreachino con- tracts, 1 ; Wife's interest in a distributive shark. IDENTITY OF CAUSES OF ACTION. Vide Decree former as a bar. IMPOTENCY. Impotency in a husband does not render a marriage by him, void ab initio, but only avoidable by sentence of separation, and until such sentence, it is deemed valid and subsisting. Smith v. Morehead, 360. IMPROVEMENTS. Vide Specific performance, 4. INDEMNITY. Vide Bond of indemnity. INDEMNITY. Vide Corporators, &c. INFANT'S ESTATE DISPOSED OF BY FRIENDS. Where the friends of an infant made an exchange of his slaves for others, and those received in his behalf were carried off by his friends and Bold, and he afterwards, without taking any benefit from the arrangement, re- pudiated it, and recovered in trover for those belonging to him, a court of equity will not interfere to restrain his execution, with the view of com- pelling him to return the slaves received on his behalf or account for their value. Tarborotigh v. Tarborough, 209. 396 INDEX. INJUNCTION. 1. Where the defendant, in his answer, admitted that a cause was referred, (no pleas having been entered,) and that the reference was stricken out without notice to the otlier party, and tlie cause was submitted to a jury, and a judgment obtained against him without his knowledge, the Court refused to dissolve an injunction granted to restrain the collection of the same. Myers v. Daniels, 1. 2. Where both parties to a trade for the sale of slaves had full time for delib- "'eration, and the deeds were executed without secrecy, and attested by a respectable witness, and there was no evidence of mental incapacity, and no sufficient proof of a gross inadequacy of price, it was held that the trans- action should be sustained. Carman v. Page, 37. ?>. Gross inadequacy of price is not sufficient, in itself, to set aside a deed, al- though it is a strong circumstance, tending with others, to make out a case of fraud or imposition. Ihid. 4. Whenever it can be clearlj' proved that a place of sepulture is so situated that the burial of the dead there, will endanger life or health, either by cor- rupting the surrounding atmosphere, or the water of wells or springs, a court of equity will grant injunctive relief. Clark v. Lawrence, 83, 5. Where a bill was filed! praying to have a nuisance abated, and for an in- junction to restrain -the defendant from erecting it in future, and the act complained of was of the character of a nuisance, but the testimony was not sufficient to satisfy the Court that it amounted to a nuisance in the par- ticular case, the Court directed an issue to be tried in the superior court, to determine the fact. Ibid. ♦5. Where dealings between a father-in-law and his son-in-lav,', wherein the latter had been the other's agent, were closed in a hurried manner, and a note given by the father-in-law at the importunate solicitation of the son- in-law, on calculations made by him, under a promise that the whole set- tlement should be open to subsequent examination, and the answer to spe- cific allegations of errors was unfair and evasive, itwas/ieW that an injunction to restrain a judgment at law on such note, should be continued to the hearing, and that the judgment should stand as security for whatever might be ascertained to be due. Hadley v. Rouniree, 107. 7. Except to stay waste or prevent some irreparable injury, the writ of in- junction is only issued as ancillary to some primary equity, which the bill seeks to enforce. Ehorn v. Waldo, 111. 8. Where, it appeared that a contract made with a corporation to do certain work, was fulfilled to the satisfaction of the board of directors managing the concerns of the corporation, and that such work was done on favorable terms, and was beneficial to the company, it was held that a court of equi- ty would not, on the allegation of one of the corporators that there was a secret agreement between one of the directors and the contractor to divide the profits, enjoia the payment of the stipulated compensation. Havens v, Hovt, lib. INDEX. 397 ?». A bill will not lie at the instance of the heirs, afjainst the Rdministrator of one who liad executed a bond to make title, to enjoin the latter from making a deed to the obligee, upon the ground that he had not paid the purohase-Oioneyl but fraudulently pretended to have had done so, and 'to nullify the contract. It would be the duty of the administrator, if the money, in such a case, was not collected, to enforce the payment, and he would be liable if he failed to do so. White v. Hooper, 152. 10. Where one, who had only a life-estate in land, made a deed for a fee sim- ple, and the deed contained a warranty in fee, and the vendee, knowing of the defect in the title, gave his notes for the purchase-money, upon which judgments were obtained, it was held that a court of equity would not interfere by injunctive process to restrain the collection of any part of these judgments, but would leave the vendee to his action on the warran- ty, it appearing that the warrantor was solvent. Henry v. Ellioii, 175. 11. In the case of a common injunction, where the answer is full, and the plaintiff fails to prove his allegations by any admission in the answer^ be- ing without proof, his injunction must, be dissolved. Mimsv. McLean, 200. V2. In a case of a common injunction, where the answer is full and respon- sive to the bill, and the equity is not confessed, but denied the injunction must be dissolved. Jones v. McKenzie, 203. 1,*^. Where the obligee, in a bond for title, paid a material portion of the pur- chase-money down, and gave a note for the residue, and entered into pos- session and continued it up to the time of a suit in ejectment by the obli- gor, it was held to be a strong case for the court of equity to interfere by injunction, to prevent the obligee from being turned out, under the execu- tion, in the suit at law. Allen v. Pearce, 309. 14. Where, to a bill for an injunction, the defendant answers lightly and eva- sively to material allegations, the injunction will not be dissolved. Tbid. iL. Where new matter is introduced in an answer, in avoidance of the plain- tiir's equity, it will not be considered on a motion to dissolve. Ibid. Vide Nuisance, Restkaint on sukriff &c. INTEREST— EXECUTOR'S LIABILITY FOR. An executor is not liable for interest on money collected by him, unless he receives interest on the same. Chumhers v. Kerns, 280. INTEREST ON A LEGACY. 1. Interest, on a legacy, as a general rule, is only chargeable from the tim« the legacy is ordered to be paid. Ballaniijne v. Ihtrner, 22-1. i. Where money is given by will, as a portion to a cbdd, or to one to whom the testator stood in loco 2>nrentis, or for whose support it was intended to make a provision, or where the legacy is deinonstrative, and the fund is productive, it was held that the legatee is entitled to interest from the death of the the testator. Mg Williams v. Falcon, 235. i. Where the legatees were children and grand-children of testator's wife, and the assets, out of which the pecuniary legacies were to be paid, were 398 INDEX. bearing interest, it was held that such legacies were entitled to draw in* terest from the testator's death, Mordecai v. ^oyJan, 365. INTEREST AGAINST AN AGENT. Where an agent withheld the notes of his principal from the administrator, which notes were of long standing, and large amounts of interest had ac- cumulated, and being warned by the administrator that he would be held liable for interest on the accumulation unless he surrendered the notes, or had them renewed, it was heJd that he should be made liable so to account from the date of the filing of the bill. Hill v. Williams, 242. IRON-WORKS— BOUNTY TO. 1. Where a grant of 3000 acres of land was made as a bounty under the act of 1788, in respect to a particular seat for iron-works, it was held that such grant was appendant to the seat, and exhausted the bounty intended to be given by the statute ; so that one who afterwards became owner of the seat, and rebuilt the works there, after the former works had gone down and were abandoned, had no right to another bounty in respect of such seat, and that a second grant for bounty in such a case was void. — The Attorney General v. Oshorn, 298. 2. Whether the requirements of the statute of 1788, Rev. Statutes, chap. 75, in regard to making the entry — its return to the county court, the order of survey and the appointment and report of a jury should be strictly com- plied with as a condition precedent to the issuing of a grant, or whether such matters are merely directory, and do not affect the validity of tb« grant, — Quere. Ibid. 3. Whether a grant, which includes within its boundaries, a large scope of coHntry, say an area of ten miles by seven, but Avhich in its face, purports to be for 3000 acres of vacant land, the excess being included in older pat- ents is void, — Quere. Ibid. ISSUE SENT TO A COURT OF LAW. Vide Injunction, 5. JURISDICTION. 1. There is no ground for going into a court of equity to recover back dam- ages assessed at law in behalf of a defendant to an action of replevin, up- on the ground, that the plaintiff has the title, and has brought another ac- tion of replevin, but cannot recover back those damages in that or any other action at law. Eborn v. Waldo, 111. 2. That a note had been obtained by fraud in the factum, is a good deiens« at law, and cannot afterwards be brought forward for the purposes of aa injunction. Parton v. Luterloh, 341. 3. It is no ground for a bill for an injunction, that the complainant was not a party to the suit at law because that process had not been served on him. His proper remedy is to have the judgment set aside, on motion, in th« Court granting it Ibid. INDEX. 39» 4. The domicil of the husband, draws to it the domicil of the wife ; thert/ort, according to the 14th Rule of the 3d section of the 32d chapter of the Re- vised Code, where both parlies are residing in this State, a bill, by the wife, for a divorce for the cause of impotency, must be brought in the county where the husband resides. Smith v. Morehead, 360. 6. As a general rule, ao objection to the jurisdiction of the court of equity may be taken on demurrer when the facts appear upon the record. Ibid. Vide Nonresident, &c. I..\CHES IN (GUARDIAN. Vide Guardian and Ward, 2. LEGITIMACY. 1. A child is, in law, legitimate, if born within matrimony, though born in a week or day after marriage. Rhyne v. Hoffman, 335. 2. A child begotten while the parties were man and wife, but not born until bix months after the husband had obtained a divorce from the bouds of matrimony on account of the wife's adultery, will be taken to be legitimate, unless it be proved, by irresistable evidence, that the husband was impotent or did not have sexual intercourse with his wife. Ibid. 3. Where a man and woman live together as man and wife, and are so re- puted in the neighborhood, up to the death of one of the parlies, and hav* children which they treat as legitimate, a court will not declare against the marriage except upon the most overwhelming proof that there was nomai- nage. Jackson v. Rhem, 141. LEGACIES. Vide Mistake or fact. LEGACIES. Vide Executors in different States. LEGACY TO A DECEASED PERSON. A legacy to & grand-daughter, who died before the will was made, is void. Scales v. Scales, 163. LEGACY AS A PORTION. Vide Interest on a Legacy, 2. LEGACIES— LEX LOCI AS TO. The personal estate, which is in this State of one residing in another State, \n respect to both debts and legacies, must be administered by one quali- fied to act under the orders and control of our courts and according to our laws, but in regard to the payment of legacies and distributive sh»re«. our courts, from comity, adopt the laws of the domiciL Jona v. Giock. 190. 400 INDEX. LEGACIES IN REMAINDER. Yide Tax on collatkrals, 2. LIMITATION TO ONE AND HIS REPRESENTATIVES. A limitation by deed '• to her and her representatives" can only mean to her executors and administrators. AfcLaurin v. Fairhj, 375. MARRIAGE SETTLEMENT. Vide OVER-REACIIING CONTRACTS, 1. MISTAKE OF FACT BY A TESTATOR. 1. By the Act of 1860, chapter 37, slaves attempted to be emancipated by will, go back to the next of kin, and not to the residuary kgatee. Morde- cai V. Boylan, 265. 2. Where a testator, in a codicil, gave as a reason for a legacy to a grandson, that lie had di-inhcrited such grandson^ but the foct Avas, that he had not disinherited him. but had given him a large legac}^ in a clause of his wili, it was held that the bequest, in the will, was not revoked by that of tha eodicil, but that the latter, itself, was void on account of the mistake, and held further, that parol evidence, as to testator's feelmgs towards the lega- tee, was admissible, in the question of fact, as to the mistake. Ihid. MISTAKE IN DESCRIPTION IN DEED. Where land, which was yold to A under a mistaken description, was after- wards cx)nveyed by the same owner to B by a proper deed, for a valua- ble consideration, without notice to B af the mistake, it was held that a bill to reform the former deed and correct the eri'or, would not lie again?t either A or B ; but it appearing that A had got paid for part of the same land twice, he was not allowed to recover costs on the dismissal of tb« bill. Sealey v. Brtcmhle, 295. MONEY ARISING FROM PRIVATE SALE OF WIFE'S LAND. Money arising by the sale of the wife's land by a deed executed by th« husband and wife has none of the characteristics of real estate, and after the death of the vvife, goes to the husband jure mariii. Rouse v. Le4, J 352. MULTIFARIOUSNESS. A bill in equity, for a discovery and an account by one of two wards againsc one of two joiut-guardians, alleging that hs had, exclusively, re- ceived the estate of the wards, in wliich bill the other guardian is mada plaintiff, and the other ward defendant, is not multifarious. Cam]) y. Mills, 274. NON-RESIDENT— SUIT AGAINST. Where a plaintiff has a remedy at law on a covenant of quiet enjoyment, and brings a bill in equity against the covenantor on account of his non- residence in the State, it is necessary for him to aver also, that the de- INDEX. 401 fendant has no property or effects in this State, out of which satisfaetion could be had upon his recovery at law. ' Falls v. Dickey, 357. NUISANCE. 1. It is the general course of the court of equity, on applications to restrain private nuisances by injunction, to order an issue at law to ascertain the fact of the existence of such nuisance before the Court will act. Frizzle v. Patrick, 354. 2. Where a party has no particular interest in an alleged nuisance from the ponding back of water, he cannot sustain a bill for an injunction, but must ' rely on the remedy by information in the name of the Attorney General. Ibid. Vide Injunction, 4. 5. ORE TENUS OBJECTION. Vide Practice, 5. OVER-REACHING CONTRACTS. 1. Where a woman and her intended husband, upon the eve of marriage were induced by her brothers to sign a marriage contract, by which her proper- ty was to be conveyed to trustees in such manner as to deprive her not only of the right to dispose of the rents and profits thereof during cover- ture, but also of the right to dispose of the property itself, both during the coverture and afterwards, if she survived, and gave the ultimate remainder over after her death without issue, she being at the time advanced in life, it was held that such a contract, unless proved by th(^ clearest testimony to have been fully understood and freely assented to by the intended wife must be declared fraudulent as to her, and inoperative as against the hus- band, except so far as it can be presumed that he freely assented to it. — Sanderlin v. Robinson, 155. 2. Where one, having considerable influence over an old man, feeble in body and mind from a long course of intemperance, procured from the latter a deed for his land when he was without counsel, and in no condition to un- derstand it, wherein was recited a large debt, which had no existence, and about which the grantee answered vaguely and evasively, it was held that although no confidential relation was proved then to exist between the parties, yet, that such deed, on the score of fraud and imposition, should be held only as a security for sums actually due. Fuirill v. Fuirill, 337. PAROL PROOF TO SUPPLY A BOND FOR TITLE. Where an insufficient description was given in a bond to make title, parol evidence cannot be resorted to to show what the parties meant, or to identify the particular parcel of land which was the subject-matter of the written contract. Richardson v. Godwin, 229. PARTIES. Vide NoiSANOE, 2 ; Practice, 5. 402 INDEX. PAYMENT REPELLING A PRESUMPTION. The payment of interest upon a mortgage debt within ten years before the filing of a bill to foreclose, repels tha presumption of payment or aban- donment arising from the length of time, Hughes v. Blackwell, 73. PARTNERSHIP. 1. Where a partner, whose duty it is to keep the books, seeks, to make a charo-e in his own favor, which is not supported by a proper entry in the books, he must account for that fact, and can only support 'the charge by clear p^oof; every presumption being against him. Broiuri v. IIaynes,/>0. 2. Where one entered into a copartnership with his son-in-law, and it was agreed that the father-in-law should furnish a house for a shop, tools, &c., and a house for\he defendant to live in, and that he "'should be at no ex- pense," it was lield that these words must be intended to mean expense for things connected with tbe business, and not family expenses. Ibid. .3. One partner cannot, without the express concurrence of his copartner, make a note of the firm payable to himself and charge the firm therewith. Ibid. 4. Where A, who was the active partner, and the book-keeper of a firm., sought to charge it with the value of a slave which it was alleged belonged to the firm, and iiad been-appropriated by B, his copartner, to his individu- al use, it was held tliat in the absence of any charge upon the booths of the firm, the mei:e allegation of it in his answer^ supported by vague and im- probable testimony that such slave belonged to the firm, was not sufScient. Ibid. 5. Where A. who was the active partner of a firm, and its book-keeper, set up a claim against the firm for money which the answer alleged was due the partners jointly, for services rendered independently of the copartnership, but which we.-e appropriated by B to his own use exclusively, it was held that this could not be made a charge upon the firm in the absence of proof that the money had been appropriated to the purposes of the firm, there being no entry on the books to show the fact. Ibid. PARTNER— ACTIVE. Vide Partnership, 1, 2, 3, 4, 5. PARTNER— SECRET. 1. Where one was a partner in a firm in 1855 and 1857, but alleged that for 1856 he was not a partner, and that his witlidrawal was evidenced by a deed which was lost, and it turned out that the deed had been destroyed by himself, and he answered delusively about it, and it appeared that he had acquiesced in certain acts of his partner, treating him as a partner, it •was declared by the Court that he was to be considered as a partner for the year 1856, also. Clements v. Mitchell, 171. 2. It was held by the Court that the destruction of the deed which it was ad- mitted explained defendant's connection with the firm, and that too, after INDEX. 403 he knew that it would be necessary to make such explanation, aflbrded a strong presumption that such deed committed him as a partner. Ibid. PENALTY. Vide D.vMAGES liquidated. PERPETUITY. In determining whether a hmitation of property does, or does not amount to a perpetuity, regard is had to possible, not actual events, and the fact, ^ that the gift might have included objects too remote, is fatal. Moore v. Moore, 1.32. PERSONALTY. Vide FuKD for payment of dkbts. POWER TO DISTRIBUTE AMONCI CHILDREN. Where a husband devised and bequeathed as follows: "I give and be- queath to my beloved wife D A, after the payment of my just debts, all my propert}'-, real, personal and perishable, to be hers in fee simple, so that she can have the right to give it to our six children as she may think best," it was held under the terras of the will, the testator's widow had the power to sell, at her discretion, any one part of the property for the payment of the debts of the testator, so as to release another part from such debts ; and Battle, J., was strongly inclined to the opinion that she took an absolute interest in all the property. Ahton v. Lea, 27. PLEADING. Where certain matters have been set forth in the answer^ by the way of plea, and there has been replication to the answer, it is too late to ex- cept to the answer for insofficiency. Worth v. Gray, 380. Vide Alteunative relief ; Decree, e. Worth v. Gray, 4. 2. Where a bill was demurred to, which seemed to be dehcient in equity, yi-;, as there were facts and circumstances incident to the matter disclosed which would have an important bearing on the case, some of which wert- not set out at all, 'and' others but? vaguely, and the amount involved was large, the Court, without costs and without prejudice to the defendant's equity, over-ruled the demurrer ui order that the plaintiflf's bill might be ameniled. Ibid. 3. The office of an exception is to call the attention of the court to some spe- cific matter or item in an account in respect to which error is alleged; if it does not answer this purpose, the Court will not notice it. ^roini v. Haynes, 50. 4. Whore the plaintiff, in a suit, failed to file a replication to the answer, and 404 mDEX. the parties proceeded to take proofs in the cause, this was held a Waiver by the defendant of a rephcation, and the Court allowed an amendment under the 17th section of the 33rd cha. of the Revised Code. Fleming v. Murph, 59. 5. Where an objection, for the want of parties, was taken ore tenus, for the first time, on the argument of the demurrer in this Court, which was deem- ed valid, the Court refused, nevertheless, to dismiss the bill, but remanded it without costs to the Court below, that it might be amended as to parties. Rountree v. McKay, 87. 6. Where the defendant has a distinct equity, he must set it up by a cross- bill or by an original bill ; but he cannot have the benefit of it by an an- swer. Weisman v. Smith, 124. 7. Although a plaintiff may fail as to the principal equity he seeks to estab- lish, he may fall back on a secondary equity, provided it is not inconsistent with the principal equity, and the allegations, in the bill, are sufficient to raise it. Whitfield v. tates, 137. 8. A motion to dissolve an injunction may be continued for any cause the Court ^ay deem suflicient, even without a written affidavit. Dillin v. Se^s&ms, 256. 9. After a cause is in this Court and the party is ready to have it heard, a > motion to dismiss, for want of a prosecution bond, will not be entertained. The Attorney Oeneral v. Allen^ 144. Vide Contempt of Court ; Recusant Bidder ; Sale for partition, 2 ; Special interrogatories. PRESUMPTION OF ABANDONMENT. 1. Where a husband having a right to receive satisfaction for, or release the equity of his wife, permitted a long time to elapse without bringing suit, during which time his adversary was in the open use of the property, claiming it as his own, it was held that a presumption of abandonment, re- lease or satisfaction arose against the equity, which would be fatal, unless the delay was accounted for. Worth v. Oray, 5. 2. Whether ignorance of the claimant's right is sufficient to repel the pre- sumption arising from the lapse of time. Quere ? Ibid. 3. Whether where a bill by way of anticipation sets forth facts to repel the presumption of satisfaction, release or abandonment, which avers that in fact there was none, and the defendant pleads the statute of presumptions, it is necessary to support such plea by an answer to the plaintiff's allega- tions. Quere ? Ibid. Vide Payment — repelling a presumption. PRE-EMPTION. 1. Whether a court of equity would interfere to compel a specific perform- ance of a contract between two joint owners of land that neither should sell without first giving the other the refusal of it. Quere ? Weisman v. Smith, 124. 2. A sale of a part of the interest of one, by the consent of both of two joint INDEX. 405 owners of land, as to which there was a right of pre-emption, without any provision as to its future exercise, justifies the inference that such right was intended to be abandoned. Ibid. Z. On the death of one of two joint owners of land, between whom the right of pre-emption existed, it was held that such right cannot be enforced spe- cifically against the devisees of the deceased owner. Ibid. PROCEEDS OF A FUND BEQUEATHED. Vide Ademption of a legacy, 1. PROCESS— WANT OF SERVICE OP. Vide Jurisdiction, 3. PROSECUTION BOND. Vide Practice, 9. PURCHASER WITHOUT NOTICE. Vide Mistake in description. REGISTRATION. A deed of settlement, intrust for a wife and children, proved and register- ed three years after the date of its execution, was held to be valid as against creditors, whose debts were contracted after such registration. — Johyislon v. Malcom, 120. REFERENCE OP A SUIT PRIVATELY. Where a cause was referred to arbitrators, no pleas having been entered, it was held that the reference was nothing more than a parol reference, and that the presiding Judge had no power to have it stricken out Myers v. Daniels, 1. REMEDY— FAILURE OF AT LAW. Vide Jurisdiction, 1. REMOVAL OF PROPERTY TO ANOTHER STATE. Vide Guardian and Ward. REPLEVIN. Vide Jurisdiction, 1. REPLICATION— WAIVER OF. Vide Practice, 4. RESIDUARY CLAUSE. Vide Fund for payment of debts. RESTRAINT OF SHERIFF FROM PAYING OVER TAX MONEY. Where a sheriff left his county for something over a month, on necessary business, with an iutcntion of returning by a given time, it not appearing that he was insolvent, it was held that the fact of a deputy's having ap- 406 INDEX. plied a portion of the taxes of a given year to a judgment against him (the sherifi") for the taxes of a preceding year, without being instructed so to do, by the sheriff, was not a suflficient ground for the sureties of that year to have an injunction to restrain the sheriff from paying the taxes of that year, oiheriuise than as the law directs. MitcheU v. Ward, 66. RECUSANT BIDDER. Upon the refusal of a bidder at a sale of land by the master, under a de- cree of Court, to comply with his bid, it is not proper, in the first in- stance, to order a resale of the land, and that the delinquent bidder pay the difference between the former and the latter sales. The proper course is for the master to report the facts to the Court, and for the bid- der to be put under a rule to show cause why he shall not comply, with hia contract. In the irMiter of Yates, 212, and Harding \ . Yarhrough, 215. Vide Sale for partition. 2. SALE BY COURT OP EQUITY. Vide Recusant Bidder. SALE FOR PARTITION. 1. Where it appeared that the title to land, sought to be sold for partition, was subject to be divested out of the petitioners, by the terras of an execu- tory devise, which extended to it,, it was lield that the Court could not or- der a sale of the premises. McKay v. McNeill, 258. 2. Where a Court of Equity is resorted to, for the sale of land, after the sale is ordered to be confirmed (by which the bid hecovaGS accepted,) if the mas- ter informs the Court that the bidder refuses to comply with the terms of the sale, no order prejudicing the rights of the bidder can be made, until he is made a party to the proceedings, by the service of a rule upon him to show cause. In the matter of Yates, 306. SECONDARY EQUITY. Where a bill is filed to have land sold for partition, but no actual partition is asked in the alternative, and no general relief prayed for, the Court will not order such actual partition, though the parties might seem to be en- titled to it, if the bill had been framed with such an aspect. McKay v. McNeill, 258. Vide Practice, 7. SEQUESTRATION. Where the owner of a life interest in slaves, a demoralized and needy man, who had made a sale of all his property, enquired of a person whether he could be subjected, criminally, if he removed the slaves out of the State, and intimated to another, after a suit was brought, that if he could get the slaves in his possession, the remainderman should never receive any benefit from them, it was held a proper case for a writ of sequestra- tion. McNeill V, Bradley, 41. INDEX. 40T SETTLEMENT. Vide Injunction, G; Tax on collaterals, 1. SETTLEMENT— HOW FAR CONCLUSIVE. Where it appeared that during a copartnorsliip of eight years duration, there had been occasional calculations of interest and summing up of results and a division of profits, but uo surrender of vouchers or cancella- tion of books, nor release, nor receipt in full, it was held that the trans- actions were not of sueh a gonc'lusive nature as to bar an account. Lynch V. Bitting, 238. SHERIFF'S POWER UNDER A FIERI FACIAS A sherifif has a right to sell any property of the debtor, that is subject to the lien of his execution, and the fact that one has bought part of such property at private sale, hona fide, and paid the full value, and that enough of other property remained to satisfy the execution, and that the sheriff and purchaser had knowledge of this purchase, but were benefit- ted in the sale of this particular property, and made it from such motive, could raise no equity against the sherifl' or purchaser. Bevis v. Landis 312. SPECIFIC CHARGE ON PROPERTY. 1. Where a testator directed a pecuniary legacy of $1500 to be paid to his wife by his executors " out of my estate," for a certain purpose, and by a codicil reduced the amount to $750, " to be paid by my executors," it was held that the terms of the codicil did not annul the force of the words " out of my estate," contained in the will. Biddle v. Carraway, 95. 2. Where a testator, after bequeathing certain property for the payment of his debts, gave the residue of his property in specific devises and bequests, and then bequeathed general pecuniary legacies with the direction " to be paid by my executors out of my estate," and the fund provided for the pay- ment of debts, proved insufficient for the purpose, it was hdd, (Pearsok, C. J., dissentiente,) that the pecuniary legacies were a charge upon the specific ones, an^ the latter must be exhausted before the former could be touched. But whether they were a charge on the land specifically, devised. Quere ? Ihid. 3. Personal property, which a testator has given away in his life-time, and which does not need the aid of his will to pass the' title to it, does not abate for the payment of debts, where there is a deficiency of' assets, al- though the testator confirms the gift in his wilt. Ibid. c^l'ECIFIC PERFORMANCE. 1. Where a paper-writing was signed and sealed by the owner of land, with blanks as to the name of the bargainee and le(t with an agent, who was authorised, by parol, to fill up the blanks with the name of the purchaser and the price, it was held that, though such an instrument could not ope- rate as a deed, yet, it was a contiaci for the sale of land, signed, for ih^ 408 INDEX. person to be charged therewith, by his lawfully authorised agent, aud could be specifically enforced. Blacknall v. Parish, 70 2. Where a dispute existed between the owners of contiguous lands as tO' their dividing Hnes, and it was agreed, in wiiting, to submit the matter to arbitration, and to stand to and abide hy such lines as should be made and'' laid doivn hy the referees, and the arbitrators made an award designating dividing lines between the parties, which the recusant party failed to show were erroneous, it was held a proper ease for the Court to decree a specific performance. Thompson v. Deans, 22. 3. The remedy of the heirs-at-law, in a case where the obligee had not paid the purchase-money oa a bond to make title, would be to file a bill against such obligee to compel a specific performance. Wliite v. Hooper, 162. 4. Where the answer to a bill for a specific performance of a parol contract to convey land, and in the alternative for compensation for improvements, denies the terms of the contract as set out in the bill, and alleges a differ- ent one, which was not performed on account of the improper conduct of the plaintiff, and the defendant also insists on the statute of frauds, it was held that the plaintiff was not entitled to compensation for value added to land by such improvements. Sain v. Dulin, 195. 5. The maxim, that Equity will not enforce the specific performance of an agreement, upon which an action will not He, at Law, for damages, never meant more than that the contract must be such as the law would have recognised, if sued on in proper time and under proper circumstances. — Willie V. Butcher, 231. 6. One who has executed a bond to make title to land, has no right to insist, in a suit for a specific performance, that the defendant had abandoned his right to relief, while he still holds the bonds given for the purchase-money, and has never made an offer to surrender them to his vendee. Ibid. SPECIAL INTERROGATORIES. Where a plaintiff' in his bill makes direct charges, and calls upon the defend- ant by special interrogatories to. make discoveries as to those charges, the answer, directly responsive to such interrogatories, becomes evidence for the defendant, as well as against him, notwithstanding that a replication to the answer had been put in. Hughes v. Blackwell, 73. STATUTE OP LIMITATIONS. 1. After the death of one of the members of a copartnership, the statute of limitations begins to run in favor of his personal representative against a claim to have an account of profits received by him. Weisman v. Smith, 124. 2. Where slaves, limited in remainder on a contingency, were sold under an execution against one claiming a present, absolute interest, it was held that the purchaser under such execution, who took possession and held them for inore than three years, got title by the statute of limitations. Hei'ndon V. Pratt, 327. INDEX. 409 3. Where the statute of limitations is a bar to a trustee, it is also a bar to the cestui qui trust, for whom he holds the title. Ihid. Vide Trust fund in hands of husband. STOCK IN A RAIL ROAD CO. Stock in a rail-road company is embraced in the term, property, directed by the will to be sold. Adams v. Jones, 222. TAX ON COLLATERALS. 1. The 8th section of the 99th chapter of the Revised Code, which directs the tax on legacies to strangers in blood, unposed by the preceding section to be retained by the executor or administrator " upon his settlement of the estate," and directs ^the tax to be paid mto the clerk's office, has reference to his settlement with the individual to whom the legacy is bequeathed, and not to the final settlement of the estate, and the tax must be paid into the office on the settlement with the legatee. Attorney General v. A2l€7i, 144. 2. A legacy in remainder to collateral kindred, is liable to the tax imposed by the act of 1846, chap. 72, and the proper mode of suing for such tax is by a bill in* equity, in the nature of an information, in the name of the Attor- ney General. Attorney Gkneral v. Pierce, 240. TRUSTEES. Vide Creditors Bill, 2. TRUST FUND— FOLLOWING A. 1, Where the agent of a trustee received money, arising from the sale of trust property, made by collusion with him, it was held not to be a defense to a bill against such agent to follow the funds in his hands, that he bad paid the money over on liabilities which he had incurred for the trustee. Ben- nett V Merritt, 263. 2. Where trust property is wrongfully sold by a trustee, by collusion with another, who did not, however, receive any part of the price for which the property sold, it was held that the principle of following a fund m its con- verted state, does not apply. Ihid. Vide Trust fund in tue hands of a husband. TRUST FUND IN THE HANDS OF A HUSBAND. Where a bill set forth that certain slaves were sold at auction by an admin- istratrix, and a bill of sale made to B, the purchaser, but it was agreed that'he should hold the property, in trust, to indemnify himseU against certain debts, in which he was surety for the intestate, and he paid no money ; that the debts remained unpaid for nine years, and that in the meantime B married the administratrix, and took with her the slaves in question, it was held that these allegations were sufficient to make out a case against B as succeeding to the trust his wife was under to distri- bute, and having the legal estate by the bill of sale, the property could 410 INDEX. be followed in his hands and held fariher, that the statute of hmitationa did not run against the distributees. McLaurin v. Fairly, 375. TRUSTEES PURCHASING TRUST PROPERTY. Where the trustee of an insolvent debtor, under a deed of trust which left out certain creditors, bought property at his own trust sale, at less than its value, but without an}*- actual fraud, in a suit by the unsecured credit- ors to compel a re-sale of the property for their benefit, it was held that such trustee was entitled to have bona fide debts due him from the trus- tor satisfied out of the increased price obtained by a re-sale of the pro- perty before the unsecured creditors could come in. Elliott v. Pool, 42. TRUST— PAROL. ,s» Vide Deed declared a security, 2. TENANT FOR LIFE AND REMAINDERMAN HOW ENTITLED TO DAMAGES. '■ Damages assessed against a railroad company, on the condemnation of land to the use of the company, belong to the tenant for hfe and remainder- man, in proportion to the period for which each sulTers the incumbrance. Joyner v. Conyers, 79. WARRANTY— SUIT ON. Vide Injunction, 10. " WHEN" AND " IF"— HOW INTERPRETED. Vide Contingent Remainder. 3. WIDOW RESIDING IN ANOTHER STATE. 1. Where one, residing in another State, made a will, which was not satisfac- tory to his widow, who duly entered her dissent on its being offered for probate in that State, and also entered her dissent, when it was ofl'ered for probate in this Stale", it was held 'that she is entitled to dowei' and a distributive share of property lying in this State. Jones \. G^eroc/c, 190. 2. The widow of one domiciied m another State, who died intestate, seized and possessed of lands in lliis Slate, is entitled to her dower in such lands. Ihid. WIFE'S INTEREST IN A DISTRIBUTIVE SHARE. Where a husband and wife brought suit in a court of equity for the distri- bution of a lund limited to thern and others by deed, as joint owners, and after an interlocutoiy decree for an account, but before the ac- count was taken, the husband died, it was held that the wife, surviving, was entitled to the fund. Taiham v. Wilson, 250. WILL— CONSTRUCTION OF 1. Where a testator bequeathed as follows: "I lend to my wife, during her life, all my negroes (three in number) for the purpose of raisiug and ed- INDEX. . 411 ucating my two sous," which was but a leasonable share of her hus- band's estate, and gave in the same will, in appropriate terms, to his wife, as guardian to his two sons, the remainder of his estate, it was held that the former clause conferred upon her, for life, a beneficial interest in said property, with a recommendation in behalf of the two sons. Mason v. Sadler, 148. 2. Where a testator in his will, gave a slave to one of his sons, and (hen pro- vided that should ho sell such slave, the proceeds sliould go into a com- mon fund, and afterwards, by a codicil made a contingent limitation of the same slave to a dan^diter in the event of the former legatee's dying without leaving children, and further provided that if any of the slaves beqeathed to the daughter, should be sold by him, their value should be made good to Iier out of his estate, it was held that the 'said slave havinf^ been sold by the testator, the daughter had no claim lor its proceeds out of the estate. Tillman v. Tillman, 20G. 3. Were a testator had derived certain slaves from his maternal grandfather, who had lived in the county of Martin, and it appearing to be a leading purpose wiih him to restore such slaves to their original place of resi- dence, and to their fixmily connexions, he bequeathed to one in Martin as follows : " all my negroes on ray Roanoke plantation, (which laid in the county of Martin,) alscf,' all my negroes on my Edgecombe farms, which I got from Martin county, whether I inherited or purchased them," it was held that slaves bought by the testator in Martin or elsewhere, and removed from that county -to Edgecombe, and the children born in Edgecombe of women removed from Martin, and one born of a woman on the Roanoke plantation, but which was casually residing elsewhere, all passed under said bequest. Norfleet v. Slade, 217. 4. Where there were two persons of the same name, mentioned in a will, the one a grand-daughter, to whom a small legacy was given, and the other a daughter, to whom a larger portion is given in a clause with two oth- ers, daughters, it was held that the daughter was meant in such bequest. Ballantyne v. Turner, 22-i. 5. The Avords, "wheat and corn on hand," in a will, were held to mean that, only, which was in the granaries of the testator at the time of his death, and not to embrace the uugaihercd or standing crop. Adams v. Jones 221. 6. Where a testator gave directions in his will, that his wife should " put out his money and take security for it," it was held that the ezecutor was not bound or authorised to interfere with the widow in the investment and management of the fund. Ihid. 7. A wish expressed at the conclusion of a will, that if the testator had not provided his wife with a plentiful support, she was to have enough of the interest of his money to make her such plentiful support, was held too vague and indefinite to impose any duty on the executor. Ballan- tyne V. Turner, 225. 8. However deeply impressed the Court may be as to a testator's particular 412 INDEX. intention, if he has been grossly negligent in setting forth his purpose, and to declare such to be his intention, would require the Court to ig- nore the principles which have been adopted to give eflfect to the inten- tions of testator's, such declaration will not be made. Gillis v. Harris, 267. 9. Grand-children and gi-eai- grand-cliitdren cannot be included in the divi- sion of a residue directed to be made among children. Mordecai v. Boy- Ian, 365. 10. Where a bequest was made, to the children of a brother and sister of the testator, to which is added, "that is, on the supposition, that my brother is dead ; but if he is alive at the time of ray death, then, he is to receive one-haJf of my estate," it was held, that no question as to whether the estate was to be divided, according to heads or stocks oould arise, for that the brother took one-half of the estate, and his children uothing. Cham- bers V. Reid, 304. 11. Whether the word, " wish," in a will, was intended to create a trust, dis- cussed. The case was decided upon the peculiar phraseology of the will. Cook V. Ellington, 371. 12. A testator, in contemplation of a certain contingency, provided that there- upon an estate, consisting of realty and personalty, should be divided into four parts, and distributed as follows : One each to a brother and a sister, and their heirs :" " One part to my other lawful heirs, and the fourth part to foreign missions, to be paid over to the treasurer of that board, to be appropriated to that purpose." By another clause, he pro- vided that — " If there should be any property, either real or personal, not given away heretofore, it is to be equally divided between all my lawful heirs." The brother and sister survived the testator, but died be- fore the happening of the event contemplated. Upon the happening of that event : 13. Held (1) that the two shares, first mentioned, descended — the realty to the heirs, and the personalty to the personal representatives of the broth- er and sister respectively. Hackney v. Griffin, 380. 14. (2) That the third share belonged to such as were heirs of the testator as to really, excluding the heirs of the brother and sister first mentioned. — Ibid. 16. (3) That the share devised to foreign missions, having lapsed on account of the ambiguity of the clause which contained it, fell into the residue, and descended upon all those who were heirs of the testator as to realty. Ibid. Vide Bonds, notes, &c., whether to be sold ; Partnership, 2 ; Power TO DISTRIBUTE : StOCK IN A RaILROAD. SB* i \ \