Volume 102 — North Carolina Reports

This was a motion for the appointment of a receiver in proceedings supplemental to execution, in the Superior Court of Beaufort County, heard before Avery, J., at Chambers, on June 10, 1887. The case settled on appeal states that the facts were “admitted,” and such of them as are material here were as follows: “ On September 22, 1885, defendant W. A. Harvey and wife Caroline conveyed to Thomas Coffee a tract of land containing sixty-eight acres.

Civil ACTION, for the recovery of land, tried before Montgomery, J., at February Term, 1888, of the Superior Court of Beaufort County. The plaintiff claims title to two-thirds of the land in controversy by virtue of two deeds — one from Alice Jordan, dated September 5, 1883, and the other from Emma Beacham, dated August 3, 1883, conveying their respective interests in said land.

<p>Action to Recover Land — Exceptions in Deeds.</p> <p>1. An answer of defendants asserting title in them to land claimed by plaintiff, involves a denial of plaintiff’s title, and plaintiff must prove his title, even though it appear the defendants have none.</p> <p>2. When land sued for by plaintiff was included in the general boundaries of a tract described in the deeds under which he claimed, but there was a reservation in one of the deeds constituting his chain of title excepting the land heretofore conveyed by T. H. 8. to other parties, and by B. J. M. to S. M. M., and by J. S. M., and the locus in defendants’ possession, and to which their answer averred ownership in them, was identified as described in a deed from T. H. S. to a son, which was produced: Held, that the reservation was good against plaintiff, though the deed from T. H. S. was fraudulent and void as to creditors.</p>

Civil action to recover land, tried before Graves, J, at Fall Term, 1887, of the Superior Court of WASHINGTON County. The following are the facts agreed: 1. In August, 1868, the land in controversy belonged to L. B. Davis.. 2. At that time Davis conveyed the said land to the defendant Davenport, trustee, by deed hereto attached and made part of this case, marked “ A.” 3. Davis and wife remained in possession’ of said land from August, 1868, up to the present time. 4.

Civil action, tried before Montgomery,/., at Spring Term, 1888, of the Superior Court of Pasquotank.

This was a motion by appellee to dismiss the appeal, and a counter motion by appellant to be allowed to rile undertaking in this Court. At the present term, appellee therein moved to dismiss this appeal upon the ground that the undertaking on appeal was not riled within ten days next after the rendition of the judgment appealed from at the last Fall Term of the Court wherein it was given, which ended on the 23d day of October, 1888.

This is a civil action, which was tried before MacRae, J., a trial by jury being waived, at Fall Term, 1888, of Pee-quimans Superior Court.

<p>Husband and Wife — Colored Persons Cohabiting as — Descent— Judge's Charge.</p> <p>1. The act of March 10, 1866, and that of February 27, 1879 (The Code, §1281), in reference to colored persons cohabiting as husband and wife, &c., at timesmentioned in said acts, were intended to apply for the benefit of those who occupied such relations to each other exclusively, and not to others at the same time.</p> <p>S. Therefore, when the evidence tended to show that a former slave cohabited with a woman belonging to another owner as her husband until her death, just before the act of March, 1866, and that at the same time he lived with another woman, the slave of his owner, as her husband, and he and the latter acknowledged themselves husband and wife, according to the terms of said act, in an action about the title to his real property after his death between his children by those women respectively, born during the time he cohabited with them both, it was error to charge the jury to find in favor of one and against the other party, (not because of any infirmity in the evidence of either, but because there could but one such state of things exist, to which legal sanction could be given), and to direct ohe jury to decide between claims equally supported by proof, instead of telling them that the statute did not in such cases apply.</p>

<p>Evidence — Estoppel—Proceeding to Condemn a Right of Way for a Railroad Company.</p> <p>Where, in an action for damages against a railroad company for negligence in setting fire to brush, &c., on the land condemned for its right of way, by which it was communicated to land adjoining, alleged to be plaintiff’s, the records of the proceeding of condemnation were in evidence, from which it appeared that the plaintiff and two others were made parties defendant to the proceeding, and that the condemnation money was paid into Court by the petitioner, the railroad company, to await the termination of a controversy as to title to the land, and it being in proof that the land injured by the fire was the same over which the right of way had been condemned: Held, that said proceedings were not conclusive evidence that the land belonged to the plaintiff, rather than one of the other defendants in the proceedings to condemn.</p>

This was a Civil actioN, heard at the Pall Term, 1887, of the Superior Court of Chowan County, before Graves, J. The material portions of the complaint are as follows: “ 1.

This was a civil action, tried at the Fall Term, 1888, of the Superior Court of Perquimans County, before MacRae, J., for damages for an alleged unlawful expulsion of plaintiff from defendant’s cars. The complaint and answer and issues were as follows: The plaintiff alleges; “ 1. That the defendants are a railroad corporation, doing business in, and under a charter of the General Assembly of this State. “ 2.

Civil actioN, tried before Graves, J, at Fall Term, 1887, of Hyde Superior Court. This action is brought by Mary L. Spencer and her five children — Emma E Worthy (wife of J. A. Worthy), E. A. Spencer, H. J. Spencer, A. L. Spencer and F. J. Spencer— against George Credle, as administrator of Samuel R. Sadler, former Clerk of the Superior Court of Hyde County, and the other defendants as sureties upon his official bonds for the years 1868, 1869,1870, 1871, 1872 and 1873.

Civil actioN, tried before MacRae, J., at Fall Term, 1888, of Currituck Superior Court. It appeared that one Griggs, being indebted to divers persons, on the 22d day of January, 1886, conveyed a stock of goods in store to the plaintiff in trust to pay the indebtedness therein named. This deed was registered at 4 a. m. on the next day.

<p>Arrest and Bail — Property—Construction of Statutes — §§291 and 3765 of The Code.</p> <p>1. The provision in §291 (1) of The Code, for the arrest of a defendant, “for injuring or for wrongfully taking, detaining or converting property,” has reference to personal and not to real property, notwithstanding the definition of the word property in §3765.</p> <p>2. Where the terms of a statute, which has received judicial construction, are used in a later statute, that construction is to be given to those terms in the later statute.</p> <p>(Merrimon, J., dissented.)</p>

Civil action, for the recover}' of land, tried before Montgomery, J., at Spring Term, 1888, of the Superior Court of PASQUOTANK County. The land was bid off by the plaintiff, at a sale made by his father as trustee, in a deed of trust executed to him by the defendant. The other facts sufficiently appear in the opinion.

Civil ACTION, heard by Graves, J., at Fall Term, 1887, of Tyrrell Superior Court. The action was begun by the plaintiffs, distributees of W. 0. Puckett, against the defendants, his administrator, and the sureties of his administration bond, for an account and settlement of that estate. The matter was referred to the Clerk, who filed his report and credited the defendant with the sum of $325 for medical services to the deceased for the year 1883.

<p>Deeds — Probate—Registration—Clerk Superior Court — Jurisdiction — Evidence.</p> <p>1. In an action to impeach a deed and have its probate and registration annulled, evidence that the officer who purported to have adjudged the probate and registration had no authority to do so, is competent.</p> <p>2. A Clerk of the Superior Court cannot exercise his jurisdiction to take proof of deeds, &c., outside of his own county.</p> <p>3. Where both parties claim title to the land in controversy from the same source, it is not necessary for either to prove title beyond that source,</p>

<p>Mortgage — Right to Redeem — When Barred — Rev. Code, ch. 65, § 19 — The Code, § 152.</p> <p>1. When mortgaged land is not in the actual possession of either mortgagor or mortgagee, the title remains undisturbed as fixed in the deed of mortgage, and the statutory presumption (Rev. Code, ch. 65, § 19) does not arise to the prejudice of either.</p> <p>2. The mere lapse of time, unaccompanied by any possession, neither obstructs the right to redeem nor the right to foreclose a mortgage. Therefore, where a mortgage was made in 1856 to secure a debt falling due in 1858, and no payment was made on the debt after maturity, an action to redeem commenced in 1888 is not barred by ch. 65, § 19, Rev. Code, it being shown that neither mortgagor nor mortgagee had been in possession of the land.</p> <p>Davis, J. (dissenting). The statute, Rev. Code, ch. 65, §19, is plain, and there is no room for construction ; it says nothing about an actual possession being essential to the prescribed effect of the lapse of time. Where there is no actual possession the constructive possession follows the legal title, and was in the mortgagee in this case, who held the land, by virtue of such title and possession, for more than ten years alter the right to redeem accrued. Under this state of facts the statute barred plaintiff’s right of redemption.</p>

This was a civil action, tried at the June Term, 1888, of the Superior Couri of Pitt County, before Avery, J. It appears that Sherrod Tyson died in 1866, leaving a last will and testament, which was duly proven. The plaintiffs' are his heirs-at-law and the devisees of his will, including the executrix thereof, and bring this action to recover the land described in the complaint,- and presently to be again mentioned.

Civil action, tried before Graves, J., at October Terra, 1888, of Gbeicne Superior Court, upon a case agreed. From the judgment rendered below, which is set out in the opinion, the defendant appealed. Thé feme plaintiff is the daughter of J. T. Freeman. The defendant is the administrator of J. T. Freeman, of Leora Freeman, who was the wife of J. T. Freeman, and also of John IT. Freeman, who was the son of J. T. Freeman. The facts are stated in the opinion.

<p>Deed, Construction of — Rule in Shelley’s Case.</p> <p>1. Where the premises of a deed were “unto M., wife of P., during her natural life, then to descend to her heirs, the children of the said P., after her demise ; ” and the habendum, was to “ the party of the second part and their heirs forever”: Held, that the deed created a life estate only in M., with a contingent remainder in fee to the children of herself and her husband P.-</p> <p>2. Such a deed does not create a fee-tail special which would be converted into a fee-simple estate under our statute.</p>

Civil action, tried before MacRae, J., at Fall Term, 1888, of Wasi-iiNGton Superior Court. Plaintiffs appealed. The following is the case agreed, as settled by the parties: “ This was a civil action, for ihe recovery of certain timber logs alleged to have been cut and carried by the defendant Ploff from the land of plaintiff.” The following issues were agreed upon : “1.

<p>Arrest, What Constitutes — False Return by Sheriff.</p> <p>1. The term “ arrest ” has a technical meaning, applicable in legal proceedings. It implies that a person is thereby restrained of his liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made.</p> <p>2. To constitute an arrest, the person of the party to be arrested must be seized, or be brought within the control of the officer, with power to seize, if necessary; or the person against whom an order of arrest is directed must submit to the control of the officer, and consent to be subject to him. No actual seizure of the person is essential, but if there is no seizure the officer must intend tomate the arrest and have present power to control the party arrested.</p> <p>3. A sheriff, having in hand an order of arrest against B., told B. that he “ had better come and go with him to Jackson, and fix the matter there;” B. refused to go’ with him, and the Sheriff left, without taking any further action: Held, that what passed did not constitute an arrest of B., and the Sheriff was not liable for a false return, in that he returned on the order'of arrest, “not served.”</p>

Civil action, to recover land, heard by MacRae, J., upon a case agreed, at February Term, 1889, of Chowan Superior Court. The land, the title to which is contested in the action, belonged to the plaintiff Richard Wynne, and he and his wife, the plaintiff' Alice, on February 27, 1883, united in making a deed therefor to C. W. Cason, by whom it was also executed, to secure a debt due him.

Civil action, tried before Graves, J, at January Term, 1888, of the Superior Court of Northampton County. Wm. T. Stephenson died in 1876, and the plaintiff is his executor.

MotioN, to vacate an injunction in a civil action, heard before Graves, J., at Spring Term, 1888, of the Superior Court .of NoRti-iamptoN County.

<p>Negotiable Bond, Endorsee After Maturity — Evidence, Oral, to Explain Written, Contract.</p> <p>Although two obligors appear on the face of a negotiable bond to be joint principals, yet, if ihe obligee had notice that one was a surety, that fact can be shown by oral evidence, as against the obligee; but if the obligee endorse the bond before maturity to A, who has no notice, and he in turn endorses the paper to B, after maturity, who takes for value and without notice, the fact that one of the obligors was a surety cannot be shown as against B.</p>

Civil actioN, tried before Graves, J., at May Term, 1888, of the Superior Court of Halifax County. There was á verdict for plaintiff, and the defendant appealed to the Supreme Court. The pleadings were as follows, omitting immaterial portions of them: The plaintiff, complaining of the defendant, alleges: “ 1.

<p>Petitions to Rehear may he filed during Term at which, the Case is decided — The Code, §§966, 968; Ch. 41, Laws 1887.</p> <p>Sections 966 and 968 of The Code are in pari materia, and must be construed together. As § 968 has been amended by ch. 41, Laws 1887, so as to require the decisions of the Supreme Court to be certified to the lower courts during the term, thus placing them beyond the control of this Court in term-time, the reason for requiring petitions to rehear to be filed only in vacation (as is done by § 966) has ceased, and such petitions may now be filed during the term at which the opinion is filed. In amending §968 the Legislature also amended § 966, and modified the rule of the Supreme Court regulating petitions to rehear.</p>

This was a civil action, heard before Graves, J., at the-Spring Term, 1888, of the Superior Court of Northampton. County. The plaintiffs are the executor and heirs-at-law of Samuel Calvert.

<p>Homestead, — Burden of Proof— Validity of Deed Presumed.</p> <p>1. Where a land-owner makes a deed or mortgage, in which his wife does not join, the burden rests on him to show the existence of such facts as render the conveyance inoperative as to the homestead.</p> <p>2. The presumption of law is in favor of the validity of every deed executed in due form.</p> <p>(See syllabus in plaintiff’s appeal, ante.)</p>

This was a civil actioN, tried before Graven, J, at March Term, 1888, of Superior Court of Halifax County. There was a verdict of the jury and a judgment in favor -of the defendant, ^ from which judgment the plaintiffs appealed. The facts appear in the opinion.

<p>Deed, Absolute, intended as a Mortgage — Parol Trust.</p> <p>1. In order to convert a deed, absolute on its face, into a mortgage, it must be alleged and proven that the clause of redemption was omitted by reason of ignorance, mistake, fraud, or undue advantage.</p> <p>2. The principles governing parol trusts, as defined in Wood v. Cherry and Shields v. Whitaker, approved.</p>

Civil ACTION, tried before MacRae, J., at January Term, 1889, of Halifax Superior Court. The facts are stated in the opinion. This is an action to recover land, and the pleadings raised issues of fact. On the trial the plaintiff offered in evidence-what purported to be a deed of conveyance, to the admission of which the defendants objected. The Court, “ being of the-opinion that the probate was insufficient, sustained the objection,” and the plaintiff excepted.

Civil action, tried before BoyJcin, J., at August Term, 1887, of the Superior Court of Burke County, and heard upon the report of the referee (to whom the cause had been referred) and exceptions thereto. There was judgment confirming the report, and the defendant, Richmond Pearson, executor, &c., appealed.

<p>Notice to Creditors under §1452 of The Code — Jurisdiction of Cleric of Superior Court — Special Proceeding under § 1448 of The Code — Assignment of Error</p> <p>1. The notice to creditors required by §§1451 and 1452 of The Code must ' be published as prescribed by § 1452, in a newspaper and at the court-house door. The failure to make such ’ publication is an error which the personal representative may assign in the Superior Court in term, upon appeal from a judgment of the Clerk directing a distribution of the assets, although he did not except on this ground before the Clerk.</p> <p>2. A creditor is not bound by special proceeding against a personal representative, in the nature of a creditor’s bill, under The Code, §1448, et seq., unless personally served with notice, or a general notice is published as prescribed by § 1452.</p> <p>8. It seems that in a special proceeding under § 1448, et seq., of The Code, the Clerk has jurisdiction to render judgment, in favor of a creditor, against the personal representative personally, as well as in his representative capacity, if a devastavit is established.</p>

Civil action, tried before Shepherd,_ J., at April Term, 1887, of WayNE Superior Court.

This was a civil action, tried at the March Term, 1887, of the Superior Court of Wayne Count}7, before Shepherd, J. It was agreed by the parties to waive a trial by jury, and that the Court shall find the facts and decide the law. The Court, on hearing the testimony, finds the facts as follows: 1.

This was an appeal by the defendant from an allotment of homestead, made to him under execution in favor of the plaintiff, tried at October Term, 1885, of Wayne Superior Court, before Clark, J., and a jury. In 1879, the homestead of the defendant was duly valued and laid off to him.

<p>Statute of Limitations, between Distributee and Administrator— Practice, Ordering Reference when Plea in Bar is interposed— The Code, §§ 153, 154, 155, 158 — Appeal, when it Ides.</p> <p>1. Where the facts upon which a.plea in bar is based are admitted in the pleadings, it is the duty of the Judge to determine the question of law raised, and if he refuses to pass upon the plea in bar, but orders a reference to state an account, such refusal is a denial of a right, and in ifft-ct an adverse ruling upon the plea, which is open to correction on appeal to this Cuurt.</p> <p>3.Upon such appeal this Court will pass upon the question, whether or not the facts admitted by the pleadings constitute a plea in bar, although such question was not passed upon directly by the Court below.</p> <p>3. An administrator filed his final account, ex-parte, before the Clerk of the Superior Court in May, 1879, which account showed a balance in favor of the administrator'. The plaintiff sued in April, 1888, as one of the next of kin, to have the account restated. The defendant administrator pleaded the six-year statute of limitation as a bar to the account: Held, that such statute did not apply, and an order for a reference to state the account was proper.</p> <p>4. The statutes of limitation applicable to actions against administrators make a distinction between their fiduciary liabilities and their liabilities upon the administration bond.</p> <p>5. Under The Code, §153 (3), acreditar must bring his action within seven years next after the qualification of the personal representative, and the advertisement for creditors.</p> <p>6. Under The Code, § 154 (3), an action against the personal representative, on his bond, must be brought within six years after the filing and auditing of the final account. In addition to the protection of this section, the sureties on the bond are exonerated unless action is brought within three years after breach of the bond. The Code, § 155 (6).</p> <p>7. No statute of limitations is a bar to an action to recover a balance admitted by a personal representative to be due legatees or dis-tributees on his final account, unless he can show that he has disposed of such balance in some way authorized by law, or unless three years have elapsed since a demand and refusal to pay such admitted balance.</p> <p>8. An action to impeach the final account of a personal representative must be brought within ten years from the filing and auditing thereof. Such cases are governed by The Oocle, § 158.</p> <p>9. The Code, § 154 (2), expressly applies to actions on the *• official bond,” § 154 (6) to sureties only, and § 155, so far as executors, administrators and guardians are concerned, is applicable only when there has been a settlement, either by acts of the parties or a decree of Court.</p> <p>.(Davis. J., dissented.)</p>

Civil actioN, tried before MacRae, J., at the February Term of the Superior Court of Hertford County.

This was an action to recover damages for right of way for branch railroad of defendant company, across land of plaintiff, tried at December Term, 1888, of Martin Superior Court, before Graves, J. The plaintiff filed his petition before the Clerk of the Superior Court of Martin County, asking the appointment of commissioners or jury, under the charter of defendant company, to assess the damages, and benefits in accordance therewith, to the lands of plaintiff, by reason of…

This was a civil actioN, tried before Avery, J., at Fall Term, 1888, of the Superior Court of JoiikstoN Countjc The defendant company, to whom, under the name of “ The Wilmington and Raleigh Railroad Company,” its charter was granted in 1833 by the General Assembly, and whose corporate name was, by the act of February 14, 1855, changed into that it now has, upon the substitution of another terminus for the road, was authorized by section 21 “to construct a branch or brandies…

This was a civil ACTION, tried before Merrimon, J., and a jury, at June Term, 1888, of the Superior Court of Duehaji County.

<p>Administrators, Resignation and Removal of — Probate Court, Jurisdiction of — Administrator d. b. n. Only can 8ue for TJnadministered Mssete of Intestate — The Code, §§ 103, 1521, 1517, 1518.</p> <p>1. In 1869 ail administrator, in proceedings pending in the Probate Court, resigned, with the permission of the Court, and administrator d. b. n. was appointed and duly qualified. In 1887 the next of kin of the intestate brought an action on the bond of the original administrator, alleging breaches of the bond and for an account and .settlement: Held, that accepting the resignation of the administrator and appointing his successor, having been done in proceedings duly instituted, and there having been no exceptions filed or appeal taken, it was too late to disturb the judgment of the Probate Court after the lapse of nearly twenty years.</p> <p>2. The Probate Court in 1869 (and semble the Clerk now) had the power, for go(od and sufficient cause, to remove an administrator; or for like cause, as necessarily equivalent, to permit him to, resign his trust.</p> <p>8. However it may be held elsewhere, it is well settled that in this State an action against a former administrator or his bond must be brought by an administrator d. b. n., and not by the next of kin, distributees or creditors of the intestate.</p>

<p>Judgments — Validity of — Action for Land — Defending without Bond.</p> <p>1. Alternative or conditional judgments are void.</p> <p>2. Where a Judge granted a judgment for plaintiff in an action for the possession of land, to be stricken out if defendant filed a proper bond in 30 days after adjournment of Court, the judgment was void, and the Clerk had the power to make an order allowing defendant to answer without bond, upon his filing the affidavit and the certificate of counsel required by law.</p>

This was a civil ACTION, heard at the Fall Term, 1888, of the Superior Court of Nash County, before Graves, J. The plaintiff Battle, under an order in a supplementary proceeding against the defendant James M. Mayo instituted, by T. P. Braswell & Co., judgment creditors of said Mayo, was appointed receiver on the 7th January, 1887, after judgment creditors of Mayo had been made parties to that proceeding. The plaintiff alleges in the complaint; 1.

<p>Religious Societies — Episcopal Church — Division of Diocese of North Carolina — Will—Construction of.</p> <p>Until 1883 the Protestant Episcopal Church in the State of North Carolina constituted the Diocese of North Carolina. In that year, in accordance with the Constitution and Canons of the Church, a Diocese, known as East Carolina, was constituted out of part of the territory of the Diocese of North Carolina, and the Church in the residue of the territory retained the name of The Diocese of North Carolina. In 1881 M. R. S. executed a will, by which she devised certain of her property “to the Board of Trustees for the Protestant Episcopal Church in the Diocese of North Carolina,” and died in 1885: Held, that the object of the testator’s bounty was the Episcopal Church in the State of North Carolina, and the Diocese of East Carolina is entitled to share with the present Diocese of North Carolina in the property.</p>

Civil action', to foreclose a mortgage, tried before Merri-mon, J., and a jury, at the October Term, 1888, of Moobje Superior Court. The plaintiffs, executors of E. N. Moffitt, alleged that the defendant executed a bond to their testator in the sum of $508.50, and a mortgage on certain lands to secure the payment of the same. They also allege that no part of said indebtedness has been paid. The defendant denied all of these allegations.

Civil ACTION, tried before Merrimon, J., at February Term, 1889, of Richmond Superior Court. Defendant appealed. The relator of the plaintiff and the defendant were, at the election held in Richmond County, in the month of November last, competing candidates for the office of Register of Deeds for said county, and were voted for, as such, at the various precincts therein.

Civil action, tried before Brown, J., at January Term, 1889, of Cabarrus Superior Court. This was a special proceeding for partition, commenced before the Clerk, and transferred to the Superior Court -in term, upon issues being raised by the pleadings. The plaintiffs were J. P. Goodman and wife Peggy, Leah Safrit, Thos. J. Safrit, Geo. W. Safrit, and Rufus, Sarah and Francis Yost. The defendants were Thos. IP.

<p>MotioN to Remand, heard at the present term of this Court. The grounds of the motion appear in the opinion,</p>

At the present term of this Court the plaintiffs moved to dismiss the appeal for the following reasons: 1. That the appellants have not complied with the statute regulating cases on appeal, by making out a statement of their case on appeal, and serving a copy on the plaintiffs or their counsel, as is provided by law. 2. The record does not show that any appeal was taken or entered within ten days from the rendition of the judgment, as required by the statute. 3.

Crviu ACTION, tried before Shipp, at October Term, J887, of the Superior Court of Vaxce County.

This was a MOTION to dismiss,,heard before Philips, J., at June Term, 1887, of the Superior Court of Guilford County. The action was for libel, and the defendant being a nonresident, publication of the summons was made. The affidavit upon which the order was made stated that the plaintiff was a resident of North Carolina, that the defendant had property within the State, and was in other respects regular.

<p>Deeds — Unregistered—Waiver of Tort — Damages.</p> <p>1. An unregistered deed vests an inchoate legal estate, deficient only in the want of registration, under our statute, and when tor-tiously destroyed by the bargainor after delivery, he will be decreed, in a proper action, 10 execute another deed for purpose of registration.</p> <p>2. Where the plaintiff, the bargainee in an unregistered deed from his father-in-law, committed it to the latter to be kept for him during his absence from home, and the father-in-law wrongfully destroyed the deed and executed another to his daughter, plaintiff’s wife, and the plaintiff, instead of bringing an action to have the latter deed cancelled and another deed executed to him to be registered, sued the bargainor for the value of the land: Held, (1) that there being no express promise to repay the purchase money, none was implied, and plaintiff was not entitled to recover the value of the land; but (2) that his action would lie for the spoliation of his deed, for such damages as plaintiff would suffer in regaining the land and securing a restoration of the deed.</p>

Civil ACTION, tried on appeal from a Justice of the Peace, before Armfield, J., and a jury, át Spring Term,' 1889, of Burkic Superior Court. This was an action upon a note, executed by defendant for the pui’chase money of a cooking stove, purchased by the defendant.

Civil action, tried before Clark, J., at Spring Term, 1888, of the Superior Court of Davie County.

Civil action, heard before Armfield, J., at Spring Term, 1889, of the Superior Court of Burke County. The following is a copy of the material parts of the case settled on appeal: Plaintiffs bring suit for the foreclosure of a mortgage, dated the 21st July, 1887, to secure the sum of $253.90, a part of which sum, to-wit., $129, had been secured by a former mortgage, dated the 30fch day of October, 1885.

Civil, ACTION, tried at February Term, 1889, of Forsyth Superior Court, before Philips, J. The defendant T. H. Pegram, Jr., on the 31st of October, 1887, executed his promissory note for value to plaintiff for three hundred and thirty four dollars and thirty cents, upon which, at May Term, 1888, of said Court, the plaintiff recovered judgment for the full amount of the debt, with interest and costs, and no part of said judgment has been paid.

<p> Statute of Frauds as Regards Lands. </p> <p>1. Where plaintiff declares upon an oral contract respecting lands, void under the statute of fiauds, and defendant either denies the contract, or sets up affirmatively another and a different contract, or admits the alleged contract and pleads specially the statute of frauds, in each of these cases testimony offered to prove the alleged contract is incompetent, and should be excluded.</p> <p>2. Michael v. Foil, 100 N. C., 178, distinguished from this case.</p>

<p>Jurisdiction of Court in Term in Special Proceedings Trans~ ferred from Clerk — Chapter 246, Laws ’87 — Estoppel by Judgment.</p> <p>1. Where a special proceeding is duly transferred from the Clerk’s office to the Superior Court in term, and the Court in term, having ■ jurisdiction of the subject-matter, with the assent of the parties interested, finally disposes of case, such action is regular and will be upheld, although the proceeding, as originally constituted, was not within the jurisdiction of the Clerk; and would be so even if cb. 376, Laws ’87, did not apply to this case.</p> <p>3. A sale of land under the judgment of a Court having jurisdiction of the subject-matter, is binding upon and estops all persons interested therein, who were duly represented before the Court by counsel.</p>