Volume 10 — South Carolina Equity Reports

<p>where a 'widow, before her second marriage, conveys her property to the children of her first marriage, reserving only a life estate in a portion, to herself, and this was known to her intended husband, the conveyance is not a fraud on his marital rights, but is valid. [*4]†</p> <p>Where a parent gave a slave to his daughter, on her marriage, on condition that he should have a right to take him back, on paying his value, or substituting other property; the marital rights of the husband attach, and the right of property vests in him, subject to that condition, and devolves on his administrators, after his death, to the same extent, and in the same condition. [*6]</p> <p>A husband who has administered on his wife’s estate, cannot be reimbursed out of it, for payments made by him, during coverture, on a contract of the wife before marriage; but he will be entitled to credit for any payment on that account, since her death. [*7]</p> <p>A husband, as the administrator of his wife, will not be allowed to raise an account against her children by a former marriage, for her care and trouble in attending to them before her second marriage, and for raising young negroes, when she herself, made no such charges. [*8]</p> <p>A trustee who has received money, must discharge himself by proof. [*9]</p> <p>A defendant, who in his answer, prays an account from the plaintiff, is bound to render an account of any moneys due to the latter, although the bill does not pray an account against him. [*9]</p>

The facts necessary to a correct understanding of the points made and decided in this case, are so fully stated in the following decree of this Court, as to render any further report unnecessary.

<p>Where the payee of a promissory note, by contract with the principal maker extends the time of payment, without the consent of the surety, the latter is discharged, and he may avail himself of this defence, in a Court of Law ; but having failed to do so, he cannot afterwards obtain relief in Equity. [*15]</p>

<p>In order that the parties should he hound by the decree of the Ordinary on matters of account, it should appear by the proceedings, that they were legally before him, either by citation duly served, or appearance by consent, set out on the face of the decree. [*27]</p> <p>where an administrator, in the course of his administration, on a sale of his intestate’s property, took a note payable to himself as such, and dies ; and administration de bonis non is granted, although the legal right to the note is in the first administrator, yet the equitable right is-in the administrator de bonis non; and if, on a final settlement of accounts, the amount of the note appears to be due from the estate of the first administrator, the administrator de bonis non will be entitled to the possession of the note.[*J9]</p>

<p>Where a bill is for discovery and relief, in a case -where discovery is the only ground of Equity jurisdiction, it must be sworn to ; but if the bill is for discovery merely, no affidavit is necessary. [*33]</p> <p>As a general rule, the plaintiff in a bill for discovery is required to pay the costs ; but if he aslts a discovery from the defendant before filing the bill, who refuses it, and he is compelled to come into Equity, the defendant will not be allowed costs. [*34]</p>

<p>A bequest of personal property in the following words, “ I lend to my daughter, P. S., four negroes [naming them] during her natural life, and then to the heirs of her body,” vests the absolute estate in the first taker.[*37]</p> <p>The term ‘ lend’ in a bequest will be considered synonymous with “give,” unless it is manifest that the testator did not intend the legal estate to pass to the legatee.[*38]</p> <p>After a bequest to P. S., during her natural life, a limitation over to the heirs of her body, enlarges the life estate into an absolute one, unless the remainder can take effect. [»89]</p> <p>Effect of the word “ then,” in such a bequest. [*39]</p> <p>The appointment of executors in a will “for the intents and purposes therein contained,” will not control the legal eifect of words creating a limitation over to the heirs of one’s body.[*39]</p> <p>The Court of Equity will entertain jurisdiction of a bill by an administrator against a distributee in possession, or one claiming under him, in order to prevent circuity of action, and to enable the latter to set up an equitable demand against the estate.</p> <p>IVhere a defendant is in possession of property, which is claimed in different rights, by two plaintiffs in separate bills against him ; the Court of Equity will entertain jurisdiction of both cases, and decide in favor of the paramount title, in order to prevent further litigation between the parties.[*42]</p> <p>Existing equities between the parties, will give jurisdiction in Equity ; and if the Court can see that, after sending the plaintiff to law, the defendant will bring him back to set up his equity, the Court will retain the bill, and decree at once on the questions made.[*42]</p> <p>The effect of two separate bills for the same property being tried together, and decided by one decree, is the same as if all the matters contained in both, had been stated in one ; and the cases may be consolidated. [*43]</p> <p>IVhere the defendant is in possession of personal property as tenant per outer vie, Equity will entertain jurisdiction at the instance of the remainder-men, in order to compel him to give security for the forthcoming of the property, if there has been any attempt to remove it; and the defendant cannot, in such case, defeat the jurisdiction of the Court, by setting up a paramount legal title in one of the plaintiffs. [x44]</p> <p>Where one who was a distributee of an estate conveyed certain slaves of his ancestor by bill of sale, in which no words are used descriptive of his distributive share, and before administration, when he had no legal interest; the distributive share does not pass to the vendee; but if the vendee has advanced money, in satisfaction of a debt due by the intestate, he may be subrogated to the rights of the creditor, whose debt he has paid.[*45]</p> <p>Decretal orders. [x46]</p>

<p>where land is held jointly, each co-tenant has a right to the enjoyment, lo the extent of his interest; and if one tenant voluntarily abandon his possession, the other remaining, will not be accountable for the rent of the entire tract, but only of such portion as has been rendered productive by the labor of the tenant who abandoned it.[*-50]</p> <p>W'here one joint tenant is in possession of land, and his co-tenant is indebted to him on account of the purchase money, the rents and profits must be applied to the payment of that debt; first to the interest -which had accumulated up to the time the rent became due, and then to the accruing interest, before any part is applied to the principal. [*50]</p>

<p>On a bill to charge a specific legacy with the payment of an annual sum, all the parties in interest should be before the Court; and the Court may, at any stage of a case, direct a bill to be amended so as to make proper parties, and this may be done with or without costs, according to the discretion of the Court. [*53]</p> <p>The testator, by his will, bequeathed certain negroes to his helpless daughter, B., and then declares “ I allow my daughter M., to take care of the said B., and at her decease I allow my said daughter M., to have the said negroes, to her and her heirs and assigns, foreverHeld, that this is a bequest on condition that the direction be complied with, and that if M. should not “ take care of B.” the remainder would not vest, and that the negroes might be sold for the support of B.[*55]</p> <p>The word “ allow” in a will, may be construed as synonymous with “ direct” or “ give,” so as to effectuate the intention of the testator [*66]</p> <p>A contract, to be sustained and specifically enforced as a bar to the plaintiff’s equity, must be fair, just, reasonable, mutual, and founded on a good or valuable consideration. [*56]</p> <p>But an agreement wanting some of these essential requisites, may avail tho defendants so far as to prevent the account against them, from being carried beyond the time of filing the bill. [*57]</p> <p>On questions of fact, the concurrence of the Commissioner and Chancellor, is generally decisive with this Court. [*58]</p>

<p>Trustees of estates shall not exceed in expenditure the amount of the income, so as to charge the capital; in some cases of necessity this has been sanctioned by the Court: (a) but where the defendant had assumed the management of a testator’s estate without authority, and refused to qualify as executor, it was held that he was not entitled to the privileges of a trustee. The Court would not require him to give security, but ordered him to account annually before the Commissioner, until he qualified, and that no balance should be struck in his favor, nor allowance made for his personal services. [*60]</p> <p>The Court will not discharge an executor from his office. [x61]</p>

The bill states, that on the plaintiff’s attaining full age, George Lever, his father and the defendant’s testator, proposed to undertake the management and control of his estate, and to transact all… Held: that this was not sufficient to authorize the notes to be received, and rejected them. The case came to trial at Newberry, July Term, 1832, and the following decree was afterwards delivered. September, 1832. Johnston, Chancellor.

This bill was filed to restrain the defendants from removing certain slaves out of the State, which the plaintiffs claimed in reversion. The defendant Anne Saxon pleaded coverture, and it was agreed that no other answer should be required of her, and that the costs as to her, should abide by the decision of the Court on her plea. James Saxon, by his answer, sets up title in himself by purchase, and under the statute of limitations.

<p>when the credit of a witness is impeached, by proof that he has made declarations inconsistent with what he has sworn to: in reply to such evidence, proof of his declarations on other occasions, consistent with what he has sworn to, is admissible. (a) [*77]</p> <p>The credibility of witnesses is a question for the jury. [*79]</p> <p>When the presiding Judge had expressed to the jury his opinion of the evidence, is not a ground for a new trial. [*80]</p> <p>The object of an issue at law, is to satisfy the Chancellor as to the truth of certain facts, and he may look at the report of the trial and collect what may satisfy his conscience ; and if upon the whole, he is satisfied that justice has been done, he may refuse a new trial, although evidence has been improperly rejected at law. ' [*813</p> <p>The value of rent can only be ascertained by the opinion of witnesses acquainted with the lands; and where the Commissioner had fixed the value of rent, and adopted ten per cent, per annum, as a scale of depreciation, so that at the expiration of ten years no rent was charged, the Court held it error, and ordered the report hack. [*84]</p> <p>A co-tenant has the right of enjoyment to the extent of his interest, and is not liable for rent, unless he cultivated to a greater extent than his interest, or unless he has expelled his co-tenant, or keeps her out of possession. [*86]</p> <p>A trustee who has neglected to make annual accounts will be charged for negro hire, at £10 for full, and £5 for half, task hands. [*87]</p> <p>If one obtain possession by force or fraud, and forces another out of the administration, he may be held to account at a higher rate; the rule was intended to apply only to cases where the party stands in an amicable relation as trustee, guardian, executor, &e. and is a substitute for the regular annual account. [*89]</p> <p>The defendants being in possession of negroes of which the plaintiff is entitled to' partition, and having employed them as their own, and some of the negroes having been removed out of the State, the Court ordered the defendants to account for the value of negroes, by the appraisement, with interest thereon, instead of the negroes themselves and their hire. [*90]</p> <p>The defendants (distributees) made individually liable for what they had received over and above their distributive shares. [*91]</p> <p>On doubtful questions of evidence, the Court will not interfere with the decision of the Commissioner and Chancellor, [*91]</p> <p>Costs are so much under the control of the Chancellor, that they are not, of themselves, regarded as the subject of appeal; it is only where the Appeal Court reforms or reverses the Circuit decree, that it will reverse or modify an order on the subject of costs, (a) [*92]</p>

The defendant had been appointed, by an order of the Court, guardian to his six minor children to whom a legacy had been left by the last will and testament of Daniel Green, their uncle. The complainants were securities to his guardianship bond, and the object of this bill was to compel an account, and to relieve the complainants, on account of the mismanagement of the legacy.

The bill in this case, states that George P. Smith, on the 6th of April, 1813, in consideration of a marriage then about to be had and solemnized, between himself and one Rebecca J. Clayton, executed an agreement of which the following is a copy. “South Garolina — Barnwell District. “ Know all men by these presents, that in consequence of a marriage about to take place between myself and Rebecca J. Clayton, I do agree to make and sign a legal marriage séttlement of the…

<p>It is not necessary to tlie validity of recording, that tlie probate of the witness should be endorsed on the deed. — (per Chancellor De Saussure.) [*107]</p> <p>Where a feme covert joins her husband in a conveyance, and renounces her inheritance according to the act of 1795, the renunciation is not “complete and legal ” until recorded ; and if it has not been recorded within the time prescribed by the Registry Act (1785), it is absolutely void. [*110]</p>

<p>No mode of investment laving been prescribed by the will, the Court ordered a residuary trust fund to be invested in land and negroes, subject to tie trusts and limitations of the will. [*113]</p>

The bill states that the plaintiffs, John Eigleberger and Martin Kinard, have lately obtained judgments for considerable sums against the defendant, Michael Kibler, on debts which were contracted as far back as 1816 and ’18, and which have been, by successive renewals of notes, continued to the notes on which judgments were obtained.

<p>A residuary bequest to be paid when the legatee arrives at twenty-one, gives a present vested legacy, and the legatee will be entitled to the profits or interests (if any accrue) in the interval between the testator’s death and her attaining twenty-one. [*123]</p> <p>The testator by his will, directed the remainder of his estate to be sold, and the proceeds to be equally distributed among his grand-daughters, and adds “I allow my undernamed executors to retain the aforesaid children’s parts in their hands, until the children arrive at maturityon a bill filed against the executors to account, it was held, that parol evidence was admissible to show that the executors retained the legacies in their hands without making interest on them, in consequence of an agreement with the testator that they should not be bound to invest the fund or make interest, nor be chargeable with interest on their failure to do so; and that they accepted the executorship on that condition. [*125]</p> <p>where there is something certain due, and there is a doubt whether the creditor may not be entitled to something more, and he thinks proper to accept what is certainly due and give a receipt in full, he is bound by it, notwithstanding it should afterwards turn out that he was entitled to more. [*127]</p>

The bill states that the plaintiff Wilson, being indebted to the plaintiff Loveland and others, a tract of land belonging to him in Pickens District, of 250 acres, was levied on by virtue of Loveland's execution, and advertised for sale on the first Monday in July, 1829 ; that pending the levy, the plaintiffs made a contract for the sale of the land to the defendant Mansell, for $500 ; and the sheriff, Reid was directed not to sell in July, but to continue the advertisement…

<p>IVhere a settlement of certain negroes was made to the use of husband and wife during their joint lives, and to the use of the survivor, with a limitation over; it was held, that upon the death of the husband, a legal estate vested in the wife for life, which was subject to levy and sale under execution; but that the purchaser at sheriff’s sale, should before delivery, give bond and security for the forthcoming of the property on the termination of the life estate. [*137]</p>

Bill for injunction. On the 23d of April, 1824, the defendant obtained a judgment against the plaintiff, upon which a fi. fa. was issued, and subsequently a capias acl. satisfaciendum; under the latter, the plaintiff was arrested, and having given the necessary security, was admitted to the benefit of the prison bounds. After remaining for some time in the bounds, the plaintiff broke them, and went at large.

James Bradshaw died in 1828, having previously made his will, bequeathing his property to his two minor children, about the ages of eight and fire years. Geo. W. Egleston and P. G. Gerard were appointed executors. They qualified and sold the property, paid the debts and invested the proceeds under the order of this Court, in stock. Mrs. Bradshaw died before her husband. The children reside with their maternal grandfather, John Smith of New York.

Mary Bell, under her- father’s will, was entitled to a number of negroes for life. She married William Palmer, and the negroes were settled to her use, but there was no schedule annexed to the deed, and the deed was not recorded. Palmer and Isaac Perry Fripp, joined one William Barns, as his sureties in two administration bonds on the estates of Bichard and Sarah Reynolds.

<p>A Court of Equity may decree between co-defendants, on evidence arising from pleadings and proofs between plaintiffs and defendants. [*146]</p>

<p>The Court of Equity has no power to substitute an executor in the place of another; but where an executor has removed from the State, leaving his cestui que trusts and the trust estate, the Court will, on the application of the cestui que trusts, appoint a receiver, (a) [*150]</p> <p>Quaere. — Can the Ordinary appoint an administrator, where the executor had made probate and gone without the State ?</p>

The Commissioner having been directed to settle with the guardians of the children of William and James Patterson, legatees under the will of William Patterson, deceased, submitted to the Court the following clause of said will, and requested the opinion of the Court, for his direction in making partition among the legatees. *“ All the residue and remainder of my real and personal estate wheresoever situated, to be equally divided in the following proportions, that is to…

<p>A contract for the sale of land made by letter-correspondence between the parties is valid, and will be enforced if the consideration to be paid, the time of payment, and a description of the premises, appear therein, sufficiently certain to enable the Court to decree a specific performance. [*166]</p> <p>The defendant in a letter to the plaintiff’s agent, proposed to purchase a plantation at eight thousand dollars — six thousand dollars in cash, and two thousand dollars in January following, and requested an immediate answer; the agent, by return post replied, accepting the proposal, but added that he presumed the two thousand dollars were to bear interest from the date: Held, that this was a contract obligatory on the defendant; and that the suggestion in the letter of acceptance with respect to interest, did not constitute a new and distinct term, which set the contract afloat. [*167]</p>

<p>The plaintiff made a shipment on joint account with L., who sold and invested the proceeds in merchandise shipped on board the brig Eliza, and gave the plaintiff a written acknowledgment to this affect; L. stopped payment, and assigned Ms estate, including the cargo of the Eliza, to the defendants, as trustees for the payment of certain preferred debts, who sold the same, and applied the proceeds according to the deed ; on a bill filed by the plaintiff against the assignees, Eeld, that the plaintiff was an equitable owner of the cargo to the extent of his investment, and that if the defendants had paid away the proceeds with a knowledge of the plaintiff’s equity, they were liable to account to him, — Reference ordered to ascertain whether the defendants had paid away the funds, and if so, whether with or without a knowledge of the plaintiff’s claim. [*171]</p>

Before Harper, J. (sitting for Chancellor De Saussure), at Coosa-whatchie, January Term, 1833, who made the following report. “ In the first of these cases, the complainant Lawrence B. Dawson, obtained a decree against the defendant at January Term, 1830. The decree was signed during the sitting of the Court, and execution was lodged 2d February, 1830.

<p>A trustee under a deed, who lias the management of the estate of a minor, is entitled to commissions under the Act of 1745, although he has failed to make returns to the office of the Secretary of State. [*183]</p>

<p>Where a party has neglected to file exceptions to the Master’s report, within the time prescribed by the rule of Court, he will not afterwards be permitted to file them, unless he shows by affidavit, that he was prevented from filing them by accident, mistake or surprise [*185]</p>

<p>Where an insolvent debtor rendered in a schedule of his estate, in which was included a bond on the defendant’s intestate, and was discharged according to law, but inadvertently omitted to execute an assignment of the schedule. — Held, that under such circumstances, this was a good equitable assignment of the bond, which a Court of Equity would set up and decree on ; but that the insolvent or (in case of his death) his legal representative, should be made a party to the bill. [*187</p>

This case came before this Court on appeal from the decree of Chancellor Johnston, at Charleston, making the defendants liable for a trust fund which had been wasted. The facts of the case and the questions made, are so fully set forth in the following opinion, as to render any other report unnecessary. cited and relied on Kipps v. Dennison, 4 John. Rep. 23, 24, 26 ; 3 Atk. 480 ; 4 Yes. 628 ; 2 Mad. 121; B. P. C. 293 ; 2 Bro.

This case came to a hearing before Chancellor De SausstjRE, at Charleston, April Term, 1831.

John Pawley, of Georgetown, by Ms will, dated 17th August, 1810, devised all his estate to Ms infant daughter Mary, and now Mrs Frazier, the plaintiff, and appointed the defendant, Percival E. Yaux, his executor Mr. Yaux, from time to time, laid out the surplus income of the estate in negroes, for the use of his ward, and in the year 1822, bought of J. P. LaBrace, for her, twenty-five negroes on credit, at $500 per head.

The defendant, Hubbell, having been arrested under a ca. sa., applied to the Court of Common Pleas for the benefit of the Insolvent Debtors’ Act; and, in conformity *with its provisions, filed a schedule of his estate. The creditors being dissatisfied, filed a suggestion alleging fraud on the part of Hubbell, in the conveyance of his property, and in the transfer of funds which were invested in property and settled on his family.

Theodore Sompeyrac, by his last will, bearing date the day of 1822, gave the residue of his estate, to be held by his executors, liable to the draft of his father, or, in the event of his death, of bis mother — ■ of which will be appointed Louis De Villers and A. Fourgeaud, his executors, and soon afterwards died, leaving his father, Jean Louis Sompeyrac, and his mother, Desire Sompeyrac, him surviving.

<p>The testator by his will, disposed of his whole estate, and amongst other things, bequeathed certain negroes to his son, W. H. D. during life, remainder over ; and by another clause, directs “ his estate to be kept together until his debts are paid; it was held, that the testator meant no more than that the absolute right of the legatees should not vest until his debts were paid; that the restrictive clause applied only to the mass of the estate, and not to the specific legacy ; and (the tenant for life being dead,) that the legatee in remainder was entitled to the immediate possession of the negroes, although the debts were not paid, and could retain them until the rest of the estate should prove insufficient to pay the debts. [*225] - ■ .</p> <p>A bequest of “Driver Dick and his family, to wit, his wife and children,” includes only the wife then living, and the issue of their cohabitation. [*227]</p> <p>Where a contingent legacy in remainder was given on the legatee’s attaining twenty-one, and assuming the surname of the testator, and there was nothing in the will showing an intention on the part of the testator to provide a fund for maintenance and education: Held, that the legatee in remainder was not entitled to the intermediate profits of the legacy, from the death of the tenant for life until the estate vested in him.[*227]</p>

By a marriage contract, bearing date the 8th- of April, 1801, between Archibald Simpson Johnson, of the first part; Agnes Ewing of the second part; and James Ewing, John Ewing, Robert William Ewing and David Lamb, trustees, of the third part; it was agreed, that all the estate to which Miss Ewing was entitled, and nearly all Mr. Johnston’s, should be settled as follows, to wit: the fortune of the lady, to her sole and separate use during her life, and after her decease, to…

<p>P. R. M. a young man of intemperate habits, was prevailed on to execute a deed of his property to his mother and brother and sisters, reserving a life estate to himself, with the understanding on his part, and promises on their’s, that the object was to protect his property, and not to deprive him of the right to control and dispose of it by will; but the deed contained no power of revocation, nor was there any undue influence exercised ; P. R. M. afterwards made a will by which he disposed of his property, and died: Held, that the deed was valid and irrevocable. [*242]</p> <p>The decision in Lawrence v. Beaubien, considered and adhered to. Distinction taken between ignorance and mistake of the law; the first is not susceptible of proof, and cannot therefore be relieved ; but mistake may be proved, and when proven relief will be afforded. [*250]</p>

John Screven, who died in the year 1801, by his last will and testament directed that a large body of land containing eight thousand acres, and known by the name of “ Jasper’s Barony,” which he had recently purchased from Joseph Blake, should be divided by a certain line, specified in the will, into two separate tracts ; one of which, called the “ Upper Plantation,” containing six thousand acres, he devised to his son Thomas E. Screven, the present plaintiff, and the other,…

TMs case came to a hearing before Chancellor Harper, at Coosa-whatchie, January, 1830. The decree so fully recites the facts, and develops the merits of the case, as to supersede the necessity of any other report. who cited and commented on the following authorities Beclon v. Bedon, 2 Bailey, 231 ; 6 Cruise, tit. 38, chap. 12 ; Porter v. Bradley, 3 Terni Rep. 1 43 ; Forth t~. Chapman, 1 Pr.

<p>A private agent or assignee is not entitled to commissions, unless they are stipulated far in the contract creating the agency. [*287]</p> <p>On a bill against an agent for an account, his books are not admissible to prove the sale and delivery of provisions and necessaries to the principal [*287]</p> <p>Although the agent in such case may be considered a trustee, and bis transactions regarded with jealousy, yet he will be entitled to credit for notes on his principal, payable to himself during lii's agency, without showing their consideration, unless there be some evidence to impugn them. [*287]</p>

<p>A sheriff’s sale of a tract of land to one who purchased at the instance of the debtor in the execution, and conveyed to a trustee for the benefit of the debtor’s family, under the circumstances set aside; but the mother of the debtor’s wife having advanced money towards the purchase, and which went to the payment of his debts, and the trustee having afterwards paid out money in discharge of a mortgage, to which the land was subject when sold, and neither of them having been accessory to the fraud, the Court held that the money thus advanced should be refunded, and that the land should stand as security for the payment. [*292]</p> <p>The fraud of a third person may sometimes vitiate a conveyance — a party to the conveyance shall not be allowed to derive any advantage from such fraud; but in setting aside such a conveyance, the Court will take care that innocent persons shall not suffer. [*293]</p> <p>Equity will entertain jurisdiction to set aside a fraudulent deed. [*295]</p> <p>where the Court of Equity by a decretal order directed the legacy of the wife for which a decree had been obtained, to be settled to her separate use, &c., according to the trusts of the will, this is not a marriage settlement which need be recorded ; and a deed afterwards executed to the wife’s trustee, is not void because not recorded as a marriage settlement. [*295]</p>

<p>If an executor or administrator find the affairs of the estate so complicated as to render the administration difficult and unsafe; he may institute proceedings in Equity against all the creditors to have their claim adjusted by the Court, and to obtain its judgment for his guide. There is no difference in this respect between an executor and administrator. [*301]</p> <p>The general rule is that a creditor must first obtain a judgment at law before he can ask relief in Equity; but this rule applies only where the Court is called to aid a creditor in furtherance of his legal remedy; it has no application when the Court is asked to give effect to its own judgment. And therefore, where on a bill by an administrator against creditors to marshal the assets &c., an injunction was obtained restraining proceedings at law and creditors came in and established their demands; this is a judgment of the Court of Equity: and if the creditors afterwards file their bill to set aside certain conveyances by the intestate as fraudulent, and it appears from the bill that they have no remedy at law, they will be entitled to relief in Equity. [*301]</p> <p>A general prayer in the bill for relief, will authorize a decree for the specific relief appropriate to the case. [*302]</p> <p>It is not indispensably necessary to establish fraud in a deed, that the grantor was indebted at the time of its execution, or that it was executed with a view to future indebtedness; it may be avoided by showing that the sale was merely colorable. [*303]</p> <p>IVhere the grantor, being indebted, conveyed his land to his mother, for a valuable consideration, which was paid and applied to his debts, and it was agreed at the time, that he should retain possession of the land during his life, and it should go to his children on his death, and he did hold possession, and the grantee afterwards devised the land to the grantor’s children: the conveyance was held to be fraudulent as to creditors, and set aside. [*304]</p> <p>Conveyance of land set aside as fraudulent against creditors, but the grantee intending no actual fraud, having paid the consideration and applied it to the payment of the grantor’s debts, and afterwards devised the land, the Court ordered the money actually paid to be refunded to the devisee, and the deed to JT stand as a security for it. (a) [*305]</p> <p>Quere, whether a promise by a parent indebted at the time, to pay an infant for his services, will support a deed against the other creditors ? [*305]</p> <p>Where negroes were purchased and paid for by a debtor, and the title made to his sons, under the circumstances it was held, that a trust resulted to the debtor in favor of creditors, and the negroes were held liable for his debts. [*306]</p>

<p>Where the residuary clause of a will contains the following words — “I do hereby leave all the rest of my property .that is not above mentioned, such as horses, cattle, hogs, sheep, geese, beds, crop and other articles, too tedious to mention,” &c.; Held, that money on hand at the testator’s death, passed under it. (a) [*309]</p>

This casé was heard at Lancaster, July, 1830. The following decree of the Chancellor then pronounced, presents the facts and the questions made for the decision of the Court. submitted the case on the brief, without argument. The only question in the case is — whether the offspring of Elizabeth Cole, as a class, take collectively one-half of their testator’s estate, or individually each one-fifth ?

This case came to a hearing before Chancellor Johnston, at Sumter, Feb. 1833, on the bill, answers and exhibits, and the following statement of facts agreed to by the parties : Ephraim Adams, the grandfather of the plaintiff Elizabeth, on the 2d of January, 1817, conveyed certain slaves mentioned in the conveyance exhibited with the bill, to Daniel Wade, “ in trust to and for the sole and separate use and benefit of his daughter Sarah O’Quin, during her natural life, and…

This case was heard before Chancellor Johnston, at Sumter, February, 1833. Held: that it passed to the grantee. See also 2 Black. Rep. 801. And so if the husband alter the nature of .the debt to the wife, executrix, *he alone may bring an action to recover it. See the cases collected in 1 Roper, Husband and Wife, 186. The debt due in this case was Bank stock, which the husband converted into money. 4.

<p>A creditor who has obtained judgment, sued out execution and levied it on property in which the debtor has the equitable but not the legal estate, is entitled to the aid of the Cojrrt of Equity, to make the property available in payment of his demand. [*386]</p>

The bill in this case was brought by the plaintiff’s creditors, by bond of William Capers, deceased, against the defendant as his administrator. Of the numerous questions presented to the Court, it is only thought necessary to notice one, viz.: Whether the plaintiffs were entitled to recover beyond the penalty of the bond.

<p>Where a mortgage of land having been recorded, the land was sold by the mortgagor and the purchaser took possession, Held, that the recording was notice to the purchaser, and the statute of limitations will not bar the mortgage lien. The decision in Thayer v. Cramer, 1 M’C. Ch. 395, considered and adhered to. [*342]</p>

<p>Where a trustee has been legally compelled to pay money, as the surety of his cestui que trust, in Equity the trust estate will be charged with the amount paid; and where the trustee and the principal debtor being devisees of the estate, with ' the other parties interested, referred all their “ claims, rights and interest in said estate” to arbitration, and the arbitrators awarded a portion of the share of the principal to the trustee, in payment of the money advanced by him as security, it was held, that the arbitrators had not exceeded their authority, and the award was confirmed. [*349]</p> <p>A surety paying the debt of his principal, may be remitted to all the rights of the creditor; and where separate judgments were obtained against the principal and surety for the same debt, and the latter paid the judgment against himself, and thereupon the sheriff entered satisfaction rn both executions, the surety will be allowed to vacate the entry of the satisfaction on the judgment against the principal, and to set it up as a lien on his estate. [*85l]</p>

A bill having been filed by the assignees of Baker Wiggins, against his heirs and creditors to marshal Ms assets, the Court ordered a sale of his real estate by the Commissioner, under the superintendence of the assignees, who were directed to join in the conveyance to the purchaser. At this sale R. B. Wiggins, one of the assignees, became the purchaser of the whole estate, and afterwards filed this ^petition to confirm the sale.

<p>where there are two inconsistent Requests of the same property in the same will, the second revokes the first: and where the testator, by one clause of his will bequeathed a slave to his son, remainder to his issue, and failing in issue, remainder over; and by a subsequent clause bequeathed the same slave to his daughter, with like limitations: — Held, that the clauses were inconsistent, and the last revoking the first, that the daughter was entitled to the legacy. [*367]</p>

York, June, 1833. This was a petition praying that a judgment the plaintiffs had obtained at Union Court House, might be satisfied out of the proceeds of the sale of a tract of land sold by the Ordinary of York District, to make partition among certain distributees, of whom the defendant was one.

Bill for account and partition, heard before Chancellor De Saussure, at Abbeville, June, 1833. George Robertson, deceased, by his last will and testament, executed in 1811, devised and bequeathed to his wife, viz. : “I also give her, during her widowhood, the whole of the interest and profit arising from my estate real and personal, except so much thereof as may be necessary for *the education and -maintenance of my children, hereinafter mentioned.

TTriali Wicker being possessed of considerable real and personal estate, died in 1808, without issue, leaving a widow, Catharine, and brothers and sisters, and their descendants, all of whom, except the children of a deceased brother (John) were of age.

<p>The defendant having married in Maryland, was divorced a mensa et thoro and afterwards (his wife there living) married the plaintiff in this State, and took possession of her property; on a bill filed to compel an account and surrender of the property, the marriage here was declared void, and the defendant ordered to surrender the property, and account for the rents and profits. [*883]</p>

<p>This Court views contracts between trustees and their cestui que trusts in relation to the trust property with great suspicion. [*390] ’</p> <p>A party coming into Equity for relief against a fraudulent deed, must come within four years after the fraud w#s discovered (a) [*391]</p> <p>And the same lapse of time (four years) will bar relief against fraud in a deed for land, as well as for personalty. [*392]</p>

<p>An administrator in possession of his intestate’s estate died, and the funds fell into the hands of his administrator. The widow was then appointed administratrix, de bonis non, and guardian of her children, who were entitled to distributive shares of the estate, and afterwards married the plaintiff, and together with her husband received the estate from the administrator of the first administrator:— JBeld, that in respect to the fund thus received, the plaintiff was not clothed with a representative character that he received it from the administrator in the character of husband, and consequently that the marital rights attached. [*395]</p>

<p>where the wife before marriage was a joint tenant of slaves, which went into the possession of her oo-tenant in her lifetime: — Held, that this was such a possession by her, as that the marriage rights of her husband would attach. [*404]</p>

<p>where a wife, before marriage, had administered on an estate and done certain acts amounting to devastavits, the moneys arising from which on her marriage went into the hands of her husband; after the decease of the husband on a bill filed against her, and the administrators of her husband for an account of the funds so received, it was held, that she was a competent witness on being released from all liability to her intestate’s estate; and perhaps even without such release. [*407]</p> <p>Generally those acts of a guardian are binding on the infant which are for the benefit of the infant, and for which the guardian can account; he may therefore in a suit brought for the benefit of his wards, execute a release in order to render a witness competent. [*409]</p> <p>The husband (or if he be dead, his administrator) is accountable for the funds of the wife’s intestate which have conte into his or her hands during cóverture, and which may not be left in specie at the husband’s death and go into the wife’s possession. [*410]</p> <p>An executor or administrator who litigates in good faith, will be reimbursed out of the estate for his costs and expenses, but the estate he represents, and which is presumed to be benefited by the litigation, must bear the expense. [*411]</p>

<p>Costs not allowed for a defence to a petition in Chancery. [*412]</p>

Abbeville, June, 1833. The plaintiff had obtained a decree in this case against the defendant, for a certain amount with costs. In the progress of the case the plaintiff filed an exception to the Commissioner’s report, which was overruled by the Chancellor — an appeal taken thereon, and the Chancellor’s decision sustained by this Court.

<p>where a Commissioner in Equity who had been re-elected at the expiration of his first term, had received moneys during his first term which were not demanded or ordered to be paid over or invested during that term, the securities to his official bond for the first term are not liable therefor, unless it be shown that the Commissioner had wasted, or converted to his own use, the funds in his hands; and in the absence of such evidence, the presumption is that he retained the funds and that they were in his hands as his own successor. [*428]</p> <p>But where the Commissioner, by orders of the Court during the first term, was directed to pay over a part of the funds then .in his hands, and to invest a part, and neglected to comply with these orders; it was held, that the failure to pay over or invest, was a breach of the condition of the bond, and that the application for such an order was prima facie evidence of a demand, and the sureties to the bond of the term in which the orders were made were liable. Harm®, J., dissenting, held with Chancellor Johnston, that the orders to pay over were only an authority to pay over, and that there was no default until demand made; and that the failure to invest could only make the sureties liable for the interest which would have been made if the funds had been invested. [*429]</p> <p>An assignment by a debtor to a trustee, in trust, first to pay existing liens; second, to pay his sureties whatever sums they might have to pay for his defaults as Commissioner in Equity; third, to pay the balance to such of his creditors as should exhibit their demands within a year, and agree in writing to take a dividend of the surplus; is valid. [*430]</p>

Spartanburgh. The bill in this case was filed by the assignees of George Keenan, against the defendants, as administrators of Thomas Price, for an account of Keenan’s estate, — charging that Price and Keenan, having been concerned together in‘trade for many years, Price, before and at the time of his death, had in his possession funds and merchandise of Keenan’s, not accounted for; and that they had colluded for the purpose of defrauding Keenan’s creditors.

Spartanburgh. The bill states that John Turner executed his last will and testament on the 9th May, 1813, and shortly afterwards died,… Held: the Commissioner reported that the personal estate was all sold at full value, under the administration of Rebecca Turner, the parties in interest being all of full age and present assenting thereto, and have since received their full shares, amounting to $221 each — that Rebecca Turner did not purchase more than her one-third part,…

On the 5th of May, 1823, Henry Shultz purchased 398 acres of land called the Leigh Tract, from Whitefield Brooks, Commissioner in Equity, for $15,500, and mortgaged the same for the money. The mortgage was not paid, but Shultz built a town on the land, and added it to the town of Hamburg; and on the 4th June, 1824, mortgaged the same land with the exception of one lot, to W. E. Snowden, for $36,000.