Volume 102 — South Carolina Reports

Before Hon. C. M. Efird, special Judge, York, December, 1914. Action by J. M. Givens against Seaboard Air Line Railway. From order granting a new trial, plaintiff appeals. The facts are stated in the opinion. submits: Tender is an affirmative defense, and must be specially pleaded: 70 S. C. 211; 84 S. C. 120; 62 S. C. 150; 27 S. C. 621; 58 S. C. 32; 73 S. C. 510.

<p>Before Wilson, J., Walhalla, April, 1914.</p> <p>Action by Anna Catherine Adams and others against John D. Verner. From judgment for plaintiffs, defendant appeals. The -facts are stated in the opinion.</p> <p>submit: The estate in Catherine H. Biemann, by the will of Catherine Biemann, if any, is a fee conditional: 98 S. C. 234; 56 S. C. 549; 71 S. C. 278; 1 Rich. Eq. 400; 1 Brev. 258; '3 Rich. Eq. 572; 65 S. C. 345; 1 Rich. Eq. 404; 2 Strob. Eq190; 48 S. C. 440; 52 S. C. 554; 47 S. C. 288; 76 S. C. 487; Leak on Property in Rands 135; 5 Rich. Eq. 441; Harp. 92; 67 S. C. 122; 90 S. C. 470; 82 S. E. 793; 20 Pic. 514; 5 Rich. Eq. 356; 1 Strob. Eq. 344; 83 S. C. 265; 91 S. C. 183; 2 Strange 729; 1 Gray 284; 5 Gray 523 ; 2 Johns. Ca. -384; 10 Mete. 87; 67 Mass. 87; 71 Mass. 523; 13 Md. 415; 7 R. R. A. (N. S.) 1110; 83 S. E. 260; 69 S. C. 292; 4 Page 345; 79 Pa. St. 333. Catherine Biemann, the elder, was seised no estate in the lands of Dietrich Biemann, as the duty was imposed upon his executor to convert his lands into money to pay his debts, he being insolvent at the time of his death: 35 S. C. 534; 22 S. C. 92; Pom. Eq. Juris. 1011, 1013 ; 1 Rich. Eq. 449; lb. 324. Under the will of Dietrich Biemann, the executor had the pozver to mortgage the real estate to J. D. Verner for the purpose of securing the ‡12,000 debt, due to him by the testator: 31 Cyc. 1080; 109 Ga. 42; 34 S. E. 341; 38 Pa. (2 Wright) 112; 78 Am. St Rep. 164; 10 R. R. A. 756; 56 S. C. 78. The Court will, treat the action which was brought to foreclose the mortgage of September 3, 1S92, executed by H. D. A. Biemann, as executor of Daniel Biemann, and by Catherine A. Biemann, the devisee, as an action to foreclose the equitable mortgage created' by the agreement of February 3, 1883, made by Daniel Biemann with defendant: 1 Jones, Mortgages (6th ed.), sec. 163; 3 DeS. 74; 1 Sp. Eq. 416; Powell on Mortgages 459, 460; 14 S. C. 116; 45 S. C. 144; 47 S. C. 100; 72 S. C. 25; 3 Pom. Eq. Juris., sec. 1237; 2 Hill Ch. 421; lb. 167.</p> <p>cites: As to fee conditional: 3 Rich. Eq. 271, 280; 14 S. C. 597, 608; 13 S. C. 115, 119; 71 S. C. 278; 67 S. C. 130; 8 Rich. Eq. 10; 1 Rich. Eq. 404; 48 S. C. 440; 52 S. C. 554; 86 S. C. 445, 449; 91 S. C. 300; 16 S. C. 311; 73 S. C. 469; McM. Eq. 349; 3 Rich. Eq. 559, 575; 85 S. C. 477; 25 S. C. 289; 28 S. C. 238; 6 Rich. Eq. 92; 25 S. C. 289; 17 S. C. 551; 1 Rich. Eq. 400; 76 S. C. 487; 67 S. C. 307; 1 Brev. 358. Conclusive effect of judgment of foreclosure: 19 S. C. 399, 400; 21 S. C. 147; 58 S. C. 530; 41 S. C. 337; 72 S. C. 499; 58 S. C. 529; 62 S. C. 482. Conversion of lands into money to pay debts: 35 S. C. 534; 1. Pom. Eq. Juris., sec. 371; 5 Rich. 206; 22 S. C. 102; 27 S. C. 298; 31*Cyc. 1080; 36 N. J. Eq. 169; 56 S. C. 87; 12 S. C. 572; 51 S. C. 366; 70 S. C. 225; Bigelow, Estoppel 239.</p> <p>submit: The children take as purchasers under will of Catherine Biemann: 71 S. C. 275; 3 Strob. Eq. 66; 3 Rich. Eq. 156; 36 S. C. 38; 42 S. C. 342; 91 S. C. 300; 89 S. C. 214; 83 S. C. 269; 47 S. C. 288; 1 Strob. Eq. 344; 3 Rich. Eq. 559; lb. 576; 16 S. C. 2S0; 28 S. C. 493; 52 S. C. 654; 48 S. C. 262; 1 Rich. Eq. 141; 35 S. C. 314; 89 S. C. 561; 165 U. S. 564. Effect of foreclosure proceedings: 12 S. C. 573; 56 S. C. 87; 51 S. C. 366; 6 S. C. 188; 42 S. C. 170; 56 S. C. 78; 70 S. C. 225; 41 S. C. 337; 19 S. C. 405; 72 S. C. 501, 502; 59 S. C. 498; 68 S. C. 184; 72 S. C. 384; lb. 499-502. Subrogation: 41 S. C. 337; 82 S. C. 256; 59 S. C. 498.</p>

Before SeasE, J., Barnwell, February, 1914. A creditor’s bill* filed by Barrett & Company, a corporation duty created by and existing under the laws of the State of Georgia, in behalf of itself and all other creditors of H. D. Still, deceased, who may choose to come into this action and contribute to the expense thereof against H. D. Still, in his own right and as administrator of H. D. Still, deceased, Marian M. Still, relict of H. D. Still; R. C. Still a*nd S. H. Still,…

<p>Before Mauldin, J., Greenville, June, 1914.</p> <p>Action by Seymour Forrest against Greenville, Spartan-burg- and Anderson Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>submit: As to charge on accord and satisfaction: 5 Strob. 126; 8 Cyc. 505, 506, 509; 54 Vt. 182; 41 Am. Rep. 842; 55 Vt. 391; 45 Am. Rep. 622; 47 E. R. A. 417; 55 Atl. 411; 156 Pa. 276; 27 Atl. 162. Nature of action: 9 S. C. 453 ; Pom. Remedies, p. 159, secs. 568, 801, 567-570; 15 Cyc. 254; 9 Am. St. Rep. 721; 3 Enc. PI. & Prac. 818.</p> <p>cites: Charge as to eviction responsive to complaint and testimony: Hutch. Carriers, sec. 1025; 104 Tenn. 74; 78 Am. St. Rep. 911; 49 L. R. A. 319; 20 Am. St. Rep. 223. Verdicts in actions for eviction of passengers: 97 S. C. 153; 88 S. C. 421; lb. 7; 69 S. C. 327; lb. 110; 64 S. C. 514; 87 S. C. 184.</p>

Before Memminger, J., Walhaila, November, 1914. Action by J. R. McMahan against the Walhaila Light-and Power Company.

<p>■ Before Mauldin, J., Orangeburg, Fáll term, 1914.</p> <p>Action by Sophia F. Jernigan, administratrix of the estate of W. P. Jernigan, deceased, against Atlantic Coast Line Railroad Company, H. B. Strickland and J. A. Henry. From judgment for plaintiff, defendant appealed on the following exceptions:</p> <p>1. That his Honor erred, it is respectfully submitted, in allowing the plaintiff’s counsel, over the objection of the defendants’ counsel, to introduce evidence to show that it was the custom for this particular train to be backed out of the siding at Copes, S. C., and stopped a second time at the station for the purpose of letting passengers get on and off, and by such custom endeavored to explain the reason that the deceased had for being on the platform of the moving train, the error being that the proof showed that the train had stopped at the station for more than a sufficient length of time to let passengers off and on and had then pulled into the sidetrack beyond the station, and that the deceased had been afforded more than ample opportunity to board the train and had actually boarded it, and as to him the railroad company owed no duty whatsoever under the law to stop again at the station at which he embarked, and he had no right to rely on any custom of that kind.</p> <p>2. That his Honor erred, it is respectfully submitted, in refusing to grant a nonsuit on the cause of action based on wilfulness at the close of plaintiff’s case, for the reason stated in the ground of the motion for a nonsuit, which was as follows:</p> <p>“Each of the defendants moves for a nonsuit on the cause of action based on wilf.ulness on the ground: .</p> <p>“First. That there is no evidence of any wilfulness or wantonness on the part of any of the defendants or of all the defendants, and no verdict can be based thereon.”</p> <p>3. That his Honor erred, it is respectfully submitted, in refusing to direct a verdict in favor.of the defendants, á motion therefor being made at the close of the entire case, for the reasons stated in the grounds of said motion, which were as follows:</p> <p>“Each of the defendants moves for a directed verdict on the cause of action based on wilfulness on the grounds:</p> <p>■ “First. That there is no evidence of any wilfulness or wantonness on the part of any of the defendants or all of the defendants, and no verdict can be based thereon.</p> <p>“And each of the defendants moves for a directed verdict on the cause of action based on negligence on the grounds:</p> <p>“First. That there is no evidence of any negligence on the part of any of the defendants or of all the defendants, and no verdi t can be based'thereon.</p> <p>“Second. That- the entire evidence shows that the accident to the deceased, and his resulting death, was due to his sole negligence as the proximate cause thereof.</p> <p>“Third. That the entire evidence shows that the accident to the deceased, and his resulting death, was due at least to his own contributory negligence as a proximate cause thereof, without which it would not have happened.</p> <p>“Fourth. That there is no evidence that the deceased was a passenger on the defendant railroad company’s train at the time of his fatal accident.</p> <p>“Fifth. That the entire evidence shows that at the time of his fatal accident on the train of the defendant railroad company, the deceased was a trespasser on said train, and there is no evidence that he was wilfully or' wantonly injured.”</p> <p>4. That his Honor erred, it is respectfully submitted, in charging the jury as follows:</p> <p>“The 'standing of a passenger on the platform of a moving coach is not per se negligence (that is, not negligence within itself). The mere fact of the standing pf a passenger on the platform of a moving coach is not within itself negligence, but if it is obviously dangerous to do so, it'is negligence. Whether or not a passenger is guilty of negligence in standing on the platform of a moving coach is a question solely for the jury and depends on the facts and circumstances of the particular case.”</p> <p>The charge, as given, is erroneous for the reason that whether a passenger is guilty of negligence in standing on the platform of a moving coach is not a question solely for the jury, but it is negligence per se for a passenger to occupy such a place as one of obvious danger to any man in his senses on a train that is leaving a station and by the.very manner of its operation is known to every one to be constantly increasing its speed.</p> <p>5. That his Honor erred, it is respectfully submitted, in giving the jury the following charge:</p> <p>“Contributory negligence will defeat a recovery. That means, gentlemen, that if a man is injured by the negligence of another and his own contributory negligence is the cause, then he can not recover. In other words, you must get at the thing that really is the proximate or immediate .cause that leads up to the injury.”</p> <p>The error being, that in order for contributory negligence to defeat a recovery, it is not necessary to prove that it was the cause of an injury, but it is sufficient to prove that it was a proximate cause thereof.</p> <p>6. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, defendant’s second request, which was as follows:</p> <p>“Where the car provided by, the railroad company for the transportation of passengers affords even standing room therein, for the accommodation of passengers, it is the duty of a passenger to keep off the platform of the car while the train is in motion, and unless the passenger can show that he went out on the platform of the car by an order or invitation of the carrier, or can prove a necessity warranting him in being on the platform of such moving car, his presence upon the platform is negligence per se, and he can not recover if he sustains injuries by reason of his being in such place when he would not have sustained them had he been in the car.”</p> <p>And in adding the following modification to said request:</p> <p>“Now, then, gentlemen, it is negligence if it is obviously dangerous to be on the platform, and if it is not obviously dangerous to be on the platform, it is not negligence, and that is a question for you to determine by all the evidence in the cause and in connection with what I have told you as to a man’s rights on a car.”</p> <p>The error being:</p> <p>(a) That the request, as presented, contained a sound proposition of law directly applicable to the facts of the case.</p> <p>(b) That the modification lost sight of the rule requiring a person on a platform of a moving train to show an "excuse or necessity for being there, and allowed him to be there even without excuse or necessity, provided the jury could find it was not obviously dangerous for him to be in such position.</p> <p>(c) The proof showed that this was a train leaving a station and not in the act of stopping at a station, and upon a train being so operated, it must be held as a matter of law to be negligence per se for a party to stand on the platform of one of the coaches.</p> <p>7. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, defendants’ third, fourth, fifth, sixth and seventh requests, for the reason that, as drawn, said requests contained sound propositions of law, directly applicable to the facts of the case, and the Court modified them in such a manner as to leave it to the jury to excuse the conduct of the deceased in being upon the platform of a train leaving a station without proof of any necessity or excuse therefor, and upon their finding that it was not obviously dangerous, it being respectfully submitted that it is negligence as a matter of law for a passenger to stand on the platform of a train that is leaving a station, and he can not be excused on any other theory than by proving a necessity therefor.</p> <p>8. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, the defendants’ eighth request, which was as follows:</p> <p>“I charge you further that a passenger who is afforded even standing room in the vehicle provided by the carrier for the transportation of passengers has no right to go upon the platform of a moving train that is leaving a station, as he must be held to know that such a train is likely to increase its speed, and his act in going on the platform under such circumstances, without any. excuse or necessity, is such negligence on his part as will bar recovery.”</p> <p>The modification of which was as follows:</p> <p>“Now, gentlemen, I want to say to you again, that it is a question for you to determine whether or not -it was obviously dangerous, openly dangerous, for the plaintiff’s intestate in this case to be in that position where the testimony in this case shows that he was. If it was, then this request would be perfectly applicable.”</p> <p>The error being that the request, as it was drawn, contained a sound proposition of law, directly applicable to the facts of the case, and the modification thereto does not state a correct principle of law, as the question of obvious danger, under the circumstances detailed in the request as drawn, does not enter into the question of the duties required of the passenger, but the law will hold him negligent under the circumstances detailed, regardless of proof or disproof of obvious danger.</p> <p>9. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, defendants’ ninth request, which was as follows:</p> <p>“I charge you further as a matter of law that the fact that a passenger who is afforded ample accommodations in a car provided for his transportation goes upon the platform of the car of the train when the train is leaving the station and likely to increase its speed merely to deliver a message, or on some similar personal ground, is not impelled by such necessity as will keep his act in going on the platform from being negligence per sc.”</p> <p>And which was modified as follows:</p> <p>“Provided, In addition to this, you find that it was obviously dangerous for a man of ordinary prudence and reason to do what plaintiff’s intestate did, or is alleged to have done in this case.”</p> <p>The error being, that the request, as it was drawn, contained a sound proposition of law, directly applicable to the facts of the case, and the modification thereto does not state a correct principle of law, as the question of obvious danger, under the circumstances detailed in the request as drawn, does not enter into the question of the duties required of the passenger, but the law will hold him negligent under the circumstances detailed, regardless of proof or disproof of obvious danger.</p> <p>10. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, defendants’ tenth request, which was as follows:</p> <p>“It is alleged in this case that the train upon which it is alleged the deceased was a passenger was a mixed train and I charge you as a matter of law that ‘a passenger riding on a freight train or a mixed train must be deemed to assume all the inconveniences and risks usually incident to transportation or ttavel upon such trains, and is not entitled to insist upon having the same care and attention that he might justly demand upon a regular passenger train. The nature of the train may also have an important bearing upon the question of contributory negligence. As the passenger upon the freight train assumes the risks usually and reasonably incident to that means of conveyance, and must take notice thereof; he must exercise ordinary and reasonable care to guard against injury from such risks and must not voluntarily take a position where he is likely to' be injured by a sudden jerk of the car, resulting from the taking up of the slack, in the ordinary way, or the like.’ ”</p> <p>The modification of which was as follows:</p> <p>“I charge you, in addition to that, that such a person is charged with assuming the risks usually and reasonably incident to that means of conveyance, and the jury is to determine whether it was obviously dangerous to be where the person injured is alleged to have been. Whether or not a person of ordinary prudence would have done that. I don’t mean to qualify the language of the Supreme Court, but so far as determining whether it is obviously dangerous for a person to be in a given place, that is to be determined by the jury.”</p> <p>The error being, that the request, as it was drawn, contained a sound proposition of law, directly applicable to the facts of the case, and the modification thereto does not state a correct principle of law, as the question of obvious danger, under the circumstances detailed in the request as drawn, does not enter into the question of the duties required of the passenger, but the law will hold him negligent under the circumstances detailed, regardless of proof or disproof of obvious danger.</p> <p>11. That his Honor erred, it is respectfully submitted, in refusing to charge, without modification, defendants’ eleventh request to charge, which was as follows:</p> <p>“When a person enters a car provided for passengers by a carrier, with the bona fide intention of becoming a passenger to a station on the carrier’s line, he thereby enters into a contract with the carrier to transport him, with the highest degree of care, to his destination. The statute law of the State required the carrier to afford a passenger a reasonably sufficient time to get aboard the car upon arrival of the train at the place from which he takes passage, but I charge you that neither the contract of carriage, nor the law required the carrier to make a second stop at such station for the benefit of a passenger who has already been afforded the opportunity and who has, as a matter of fact, taken passage by obtaining a seat in the car, and such passenger, under these circumstances, can not charge it as an act of negligence against the carrier for failing to make a second stop, his only right being to require.the carrier, under the law and under his contract, when he has been afforded .a sufficiently reasonable time to obtain passage and has actually obtained it, to carry him to his destination and to stop the train there to allow him to alight or to otherwise accommodate him.</p> <p>“I, therefore, charge you that if you find from the evidence that the deceased was given an ample opportunity to board the train while it was at rest at the station and did actually board it, he could not legally require the defendant company to make a second stop for him at such station.”</p> <p>The modification of which was as follows :</p> <p>“I will add this, it for the jury to say under all the facts. and circumstances developed in the case as to what was the established custom as to stopping trains pursuant to the requirements of the statute bearing upon the subject and the jury are to say as to whether the deceased was warranted in relying upon any established custom in doing what he is alleged to have done. In that connection I want to read you section 3225 of the statute. (Reads.)</p> <p>“Now, gentlemen, so far as this request to charge and its modification as I .have read it to you, I charge you that it is for you to say from the evidence in the case whether there has been a custom established there pursuant to the act and by the railroad company in carrying out that statute. Whether there was a custom and what that custom was, if any.</p> <p>“Mr. Raysor: If there was a custom there to stop twice, that would be in contravention of the statute.</p> <p>“The Court: There may have been more than one way of complying with the statutory requirements, the question in this case is whether from the evidence there has been established a custom there, and, if so, what that custom .was.”</p> <p>The error being, that the request, as submitted, contained a sound proposition of law, and as the proof showed beyond any question that the deceased had been afforded an opportunity to board the train, had actually done so, and after doing so, had stayed aboard the train in the sidetrack for some time, he could not, as a matter of law, rely on any custom to stop the train at the station a second time, as the railroad company had complied fully with its duties as to him in every particular.</p> <p>submits: Testimony as to custom zvith regard to stops at station irrelevant: 93 S. C. 125. Requested charge thereon: 82 S. C. 463; Code, sec. 3225; 67 S. C. 61; 69 S. C. 445; 87 S. C. 375; 18} R. R. Reports [41 A. & E. Ry. Cas. (N. S.)] 320; 25 S. C.-30. Charge on test of decedent’s negligence.</p> <p>It is the law, not only of this Court, but in every reputable jurisdiction where the common law prevails, that a passenger who is afforded a seat in a car (which is the case here, even if it be conceded that this man was a passenger), must stay in the place provided for him by the carrier, and has absolutely no business on an open platform of the train while it .is in motion between stations. We do not contend that it is negligence per se for a passenger ever to be on the platform of a moving train; on the contrary, we know there are many times when he has the right to be there, and there are numerous cases that have so held. In- fact, there are decisions of this Court that have held it was negligence per se for a passenger to be on the platform of a moving train or in some other place not provided for him, and there are cases in this Court which have held directly to the contrary. As we view them, however, this question of conflict is more seeming than real, for the reason that they can be clearly separated into two distinct classes. In the first class of cases, that is those holding that it was not negligence per se for the passenger to be on the platform or other place not intended for riding, it was shown either that he had business there or that he could prove an excuse or necessity for being there. Of this class of cases, the far larger part embraced those where the passenger came upon the platform as the train was in the act of stopping at his destination, thus proving conclusively that he had a right to be there.</p> <p>The cases belonging to the first class are found in: 9 Rich 84; 51 S. C. 150; 61 S. C. 345; 62 S. C.', 130; 83 S. C. 26; 83 S. C. 66; 85 S. C. 216; 88 S. C. 223; 89 S. C. 122; 94 S. C. 324; 96 S. C. 456.</p> <p>In the second class of cases, that is those holding that it was negligence per se for the passenger to be on the platform, he had no business that required him to be there and could furnish no excuse or necessity to explain his presence there.</p> <p>Those belonging to the second class are found in: 58 S. C. 491; 72 S. C. 114; 72 S. C. 336; 80 S. C. 336; 81 S. C. 100; 81 S. C. 275; 90 S. C. 42; 97 S. C. 465. ■</p> <p>But the question of obvious danger has never been allowed to operate in any case where the passenger or other party could not explain his presence on the platform or other improper place by the excuse of right as a matter of business or some other necessity equally entitled to respect ■in the law. 5 R. C. R. “Carriers,” sec. 674; 3 Hutch. Carriers, ,sec. 1197; 72 Am. St. Rep. 121; 4 Elliott on R. R’s, secs. 1629, 1630; 61 S. E. 171 (28 R. R. 735); 97 N. W. 431, 10 R. R. 602; 29 R. R. A. (N. S.), note on p. 325; 162 Fed. 665; 93 Am. Dec. 495, note; 43 Am. Dec. 366, note; 91 Am. St. Rep. 345; 88 Am. St. Rep. 827; 71 Am. St. Rep. 767; 128 Am. St. Rep. 1021; 32 Am. St. Rep. 17; 61 Am. St. Rep. 90 and note. Assumption of risks incident to operation of freight trains: Elliott, R'.. R’s, sec. 1629; 100 Am. St. Rep. 621; 2 lb. 346; 58 Am. Rep.' Ill; 38 Fed. 822; 55 S. C. 389; 65 S. C. 447; 77 S. C. 337. Plaintiff bound to prove his allegations: 45 S. C. 278; 84 S. C. 54. No duty to make second slop, hence no negli-i gence: 83 Am. St. Rep. 302; 58 S. C. 491. Intoxication of plaintiff: 53 Ind. 163; 72 S. C. 162. Nonsuit: 58 S. C. 491; 85 S. C. 216; 81 S. C. 100; 90 S. C. 42. Charge on proximate cause: 58 S. C. 228; 59 S. C.’311; 70 S. C. 470; 71 S. C. 58; 73 S. C. 500.</p> <p>cite: As to evidence: 72 S. C. 449; 76 S. C. 476. . Citstom as to stopping: 39 N. E. 797; 66 S. C. 528; 96 S. C. 456; 57 S. C. 209. Explanation of deceased’s presence on platform: 51 S. C. 154. Nonsuit properly refused: 89 S. C. 314; 65 S. C. 444; 75 S. C. 293; 61 S. C. 357; 72 S. C. 354; 60 S- C. 74; 65, S. C. 430; 77 S. C. 377; 76 S. C. 378; 52 S. C. 323. Evidence of conductor’s wilful acts: 73 S. C. 502; 93 S. C. 342; 77 S. C. 370; 62 S. C. 138; 52 S. C. 444; 72 S. C. 392; 52 S. C. 566; 51 S. C. 154; 55 S. C. 392; 66 S. C. 537. Charge proper: 51 S. C. 150; 62 S. C. 142. Not misleading: 78 S. C. 70; 75 S. C. 307. Proximate cause: 62 S. C. 141; 61 S. C. 360; 90 S. C. 431; 70 S,. C. 492; 94 S. C. 324. Rights of passenger while on platform: 4 R. C. R. 494; 32 C. C. A. 1; 1 R. R. A. (N. S.) 861. Questions for jury: 81 S. C. Ill; 96 S. C. 458. Failure to stop in accordance with custom: 77 S. C„ 370; 66 S. C. 528; 96 S: C. 456; 57 S. C. 208.</p>

Action by Forrest Newsom, by his guardian ad litem, A. F. Spruill, against F. W. Poe Manufacturing Company. From judgment for plaintiff, defendant appeals. submit: There was no evidence of negligence or recklessness on the part of the defendant: Crim. Code 426, 427; 113 N. Y. 540; 21 N. E. 717; 3 Labatt, M. & S. 912; 89 S. C. 505.

<p>Before Wilson, J., Bennettsville, November, 1914.</p> <p>Appeal by Hamp Jones, former administrator of the estate of Jesse Jones, deceased, from an order removing him, as such administrator, and appointing Sidney Stanton Jones in his stead.</p> <p>submit: The act of appointing an administrator is a judicial act, and must be assumed to have been rightly rendered until the contrary appears: 28 S. C. 283. The first grant of administration confers something' like a vested interest, and is conclusive of the right: 6 Rich. E. 380. The proper way to revoke administration is by appeal from the judgment of probate Judge to the Circuit Court: 3 Brevard 520; 38 S. C. 47; 19 A. & E..Enc. of R. (1st ed.) 205. Necessity of citation before new appointment: Code, sec. 3609; 69 S. C. 46; 17 S. C. 33; 12 Ga. 56; 117 Ga. 723.</p> <p>cites: As to jurisdiction of probate Court: Code, Civ. Proc., sec. 42; 11 Enc., of R. (2d ed.) 815; 18 Cyc. 151, 152. Revocation of letters: 2 Hill E. 347; Dudley E. 336; 2 Strob. E. 337; 17 S. C. 32; 38 S. C. 47; 33 S. C. 442; 28 S. C. 281. Appeal: 38 S. C. 41. No right to trial of issues by jury, where party does not comply with C. C. rule 28: 4 S. C. 44; 33 S. C. 447; 3S S. C. 420; 37 S. C. 168; 84 S. C. 447.</p>

Before Gary, J., Kingstree, Spring term, 1914. Action by J. C. Scott against Liverpool and London and Globe Insurance Company. Prom judgment for plaintiff, defendant appeals. submit: Provisions as to title valid: 98 S. C. 244; 93 S. C. 363; 70 S. C. 296; 3 Ga. App. 130; 60 S. E. 118. Description of property being wrong, remedy, if any, was by reformation: 98 U. S. 85; 136 U. S. 287; 40 W. Va., 518; 32 Am. St. Rep. 908; 185 N. Y. 84.

<p>Before Moor®, J., York, July, 1914.</p> <p>Action by Smith & Furbush Machine Company against T. L,. Johnston and J. B. Creighton, doing business under the name and style of Enterprise Manufacturing Company. Erom a judgment for plaintiff, the defendants appeal upon the following exceptions:</p> <p>1. Because his Honor erred in refusing to admit, and in striking out, all testimony offered by defendants tending to establish failure of the machinery in question to work sugar sacks, and to establish the damage resulting therefrom; the error being, that defendants were induced to purchase said machinery by plaintiff’s representations and guarantee that same would successfully work sugar sacks.</p> <p>2. Because his Honor erred in refusing to submit to the jury testimony offered, and in not allowing defendants to offer testimony, tending to show an offer of settlement (not of compromise) made by plaintiff to defendants through Messrs. Smythe, Lee & Frost, as attorneys for plaintiff; the error being, that such testimony given and offered was sufficient to be submitted to the jury upon said question of settlement.</p> <p>3. Because his Honor erred in charging the jury, in effect, that if the defendants, notwithstanding the failure of the machinery to come up to the requirements of the contract in substantial particulars, while refusing to accept same as in compliance with the contract, nevertheless retained the same with the assent of the plaintiff without waiving the objection to the failure of the same to come up to contract, then the defendants would not be liable for the whole contract price, but would be liable for the contract price, less the reasonable cost and expenses of remedying such particulars in which the machinery failed to come up to contract; the error being, in limiting the amount to be deducted from the contract price to the reasonable cost and expenses of remedying such defects, and without allowing any deductions for loss arising from overhead charges and from other causes proved to have been sustained while operating said machinery while such defects were being remedied.</p> <p>4. Because his Honor erred in limiting plaintiff’s guarantee of machinery to its having a capacity of thirty rolls of bagging, fifty yards to the roll, and of standard width and weight; the error being, in not including in the guarantee that the bagging manufactured on said machinery from jute bagging scraps would have the strength of the original bagging; and, further, that said machinery would work sugar sacks.</p> <p>5. Because his Honor erred in limiting defendant’s damages resulting from failure of plaintiff’s guarantee “to such actual loss as might so accrue during such time as would reasonably be necessary to remedy such defects or to ascertain that same could not be remedied by exercise of due care;” the error being, in imposing upon defendant, and not upon plaintiff, the duty of remedying said defects or ascertaining that same could not be remedied.</p> <p>6. Because his Honor erred in charging: “It is a well settled rule of law that one who is injured by a breach of a contract is required to exert himself to lessen the damage resulting from such breach of the contract, and such effort would require the reasonable expenditure of money.” And, further, in charging: “If you find from the evidence that the expenditure of a certain sum of money would have made thé machinery purchased in all respects cbnform to the terms of the contract, then the measure of damages—that means to which the defendants would be entitled in such case— would be just what sum so expended would have made the machinery so purchased to conform to the contract, including a fair and reasonable sum for trouble and expenses;” the error being, in imposing upon defendants the duty of expending skill and money in altering the machinery so as to conform with contract, and in not imposing such duty and expenditure upon plaintiff, although such duty was imposed by the contract between plaintiff and defendant, and although defendants promptly notified plaintiffs of such defects in the machinery.</p> <p>7. Because his Honor erred in charging: “The defendants cannot recover damages on account of the alleged purchases of sugar sacks and the loss alleged in connection therewith, for the reason, as I remember it from the testimony, that that purchase of sugar sacks was not made until after they discovered—the defendants discovered—that this particular machinery could not manufacture sugar sacks as they claim was represented. I think I ruled out that evidence on that ground, didn’t I ?” Mr. Wilson: “Not on that ground, your Honor, but upon the ground that we paid five thousand dollars afterwards.” The Court: “Yes, sir; but had waived the objection. That is the ground upon which ,1 say you cannot take into consideration as a matter of damages;” the error being, that the same was a charge upon the facts, and even did not correctly state the facts, as the testimony ciearly shows that the sugar sacks were purchased long before it was discovered that said machinery would not work sugar sacks. And, further, there was no evidence that defendants had ever waived the objection, but the evidence is overwhelming that such objection had not been waived.</p> <p>8. Because his Honor erred in charging: “That if the defendants would sustain less loss by closing down said machinery than by operating said machinery, then it would be the duty of the defendants to pursue that course which would lessen the damages;” the error being, in requiring the defendants, on their own motion and judgment, to discontinue a business entered into on the faith of a contract made with plaintiff, and eliminating all prospects of future improvements.</p> <p>9. That his Honor erred in charging: “The defendant cannot recover any damages arising from the operation of said machinery due to alleged defects after the discovery of said defects;” the error being, to excuse the plaintiff from all damages resulting from the operation of machinery after discovering defects therein, although such defects might be provided against by plaintiff’s guarantee set out in their contract with defendants and might be capable of being remedied.</p> <p>10. That his Honor erred in charging: “The defendants cannot recover any damages alleged in the answer as overhead charges, such not being the proximate result of the breach of the contract;” the error being, that same is a charge on the facts; and, further, the testimony shows that such damages from overhead charges were a proximate result of the breach of contract, and of- a failure of plaintiff’s guarantee, and in contemplation of the parties at the time said contract was entered into.</p> <p>11. Because his Honor erred in refusing defendants’ motion for a new trial, and -in holding in the order refusing, such motion that “there was no warranty as to the machinery in- question that sugar sacks could be used therein, but only a representation that to a certain extent this could be done.” And that “if such representation could have any effect, it would be effective to support a rescission of the contract; and the retention of the property and part payment therefor with knowledge of the untruthfulness of such representation was a waiver of any such defense.” “The fact that there was no warranty, but only a representation as to the adaptation of the machinery for the use of sugar sacks would exclude damages arising from the operation of the machinery after the discovery of such defects, and this would exclude overhead charges due to any such defect after the discovery thereof;” the error being, that testimony offered showed that plaintiff’s representation in question amounted to a warranty, and was guaranteed in the written contract, and that such representation was an inducement, which led defendants to contract for the purchase of said machinery; and, further, in limiting the effect of said representation to support' a rescission of th¿ contract; and, further, that testimony showed that said sacks were purchased before it was ascertained that said representation was untrue, and that the only payment made by defendants on the purchase price of machinery" was with the express stipulation that the same should not be considered as an acceptance of the machinery.</p> <p>12. Because his Honor erred in limiting the admission of testimony as to damages resulting from deficiency in capacity of machinery; defective bagging sold in consequence of defective machinery; depreciation in the value of raw material purchased in the season of 1907 and carried over, and overhead charges, as only being relevant on the question of showing what would be the difference in value between the machinery plant here as contracted to be sold and the value of it as actually delivered, and not as setting up any specific element of damage; the error being, that testimony on either, or all, of said points was admissible as tending to establish the allegation contained in defendants’ counterclaim, as set up in their answer.</p> <p>cite: As to warranties: 30 A. & E. Ene. E. 129, 136, 137; 24 lb. 1091; 11 S. C. 337. Damages: 3 Exchequer 341; 74 S. C. 205.</p>

Before Hon. M. L. Bonham, special Judge, Marion, November, 1912. Action by Mary E. Layton against Herbert A. Lewis. Erom a judgment on counterclaim in favor of the defendant, plaintiff appeals. The facts are stated in the opinion. cites: As to first exception: 2 Speer 673; 7 Cyc. 674; 69 Am. Dec. 111. As to second exception: 78 S. C. 166; 34 Cyc. 652; 81 S. C. 332. cites: As to statute of frauds: 20 Cyc. 188 and 195; 29 S. C. 9; 68 S. C. 376; 68 S.' C. 392; 88 S. C. 415.

Before Shipp, J., Greenville, September, 1914. Action by J. S. Osteen, as administrator of the estate of Richard S. Osteen, deceased, against South Carolina Cotton Oil Company. From judgment for plaintiff, defendant appeals.

<p>Before Hon. C. J. Ramage, special Judge, Columbia, December, 1914.</p> <p>Action by Aileen Voight Hand against E. C. Kelly, individually and as administrator of the estate of Carrie Kelly, deceased.</p> <p>The facts are thus stated by Mr. Chief Justice Gary:</p> <p>This action was commenced in the Court of probate for Richland county for the purpose of recovering judgment against the defendant, and for the purpose of selling the lands of the estate of Carrie Kelly, the deceased, in aid of assets.</p> <p>The action is against E. C. Kelly, individually and as administrator of the estate of Carrie Kelly, deceased.</p> <p>The complaint alleges that the defendant, E. C. Kelly, is the sole heir at law and distributee of Carrie Kelly, deceased, who died intestate on the 13th of February, 1913, and is the duly qualified administrator of the estate of Carrie Kelly, deceased.</p> <p>It is also alleged, that Carrie Kelly was indebted to -the plaintiff, at the time of her death, in the sum of one thousand and thirty dollars.</p> <p>It is further alleged, that the personal estate of Carrie Kelly, deceased, is insufficient to pay the debts of said estate, but that she owned certain real estate in the city of Columbia, S. C., at the time of her death.</p> <p>The prayer of the complaint is as follows:</p> <p>“Wherefore, plaintiff demands judgment against the defendant: 1. For the sum of one thousand and thirty ($1,030) dollars. 2. That if the personal estate of Carrie Kelly, deceased, be insufficient to pay the indebtedness to this plaintiff, and to the other creditors, that the lot of land above described be sold, and the proceeds thereof be applied to the payment of the costs of administration, the costs of this suit, and the debts of said estate, and the balance, if any, be distributed according to law.”</p> <p>The defendant answered the complaint, denying certain allegations thereof, and setting up several defenses.</p> <p>The defendant also interposed a demurrer to the complaint, on the following grounds:</p> <p>“That this is an action by the plaintiff against the defendant, as administrator of the estate of Carrie.Kelly, to recover judgment for an alleged debt upon an alleged contract.</p> <p>That this defendant does not admit the debt or the contract, but, on the contrary, denies the same, and this Court has no jurisdiction to try such action.”</p> <p>The demurrer was overruled by the probate Judge, and on appeal to the Circuit Court, his ruling was sustained, on the following authorities, which were cited by his Honor, the Circuit Judge: McNamee v. Waterbury, 4 S. C. 165; Scruggs v. Foote, 19 S. C. 274; Dyson v. Jones, 65 S. C. 308, 43 S. E. 667.</p> <p>submits: In actions for recovery of money only, the right to trial by jury is inviolate: Const., art I, sec. 25; Code Civil Proc. 1912, sec. 312; 28 S. C. 533; 31 S. C. 265; 36 S. C. 561; 54 S. C. 359; 61 S. C. 5; 19 S. C. 290, 291; 52 S. C. 463; 29 S. C. 63. Issue here was triable by jury, unless waived: 91 S. C. 424; 85 S. C. 70; 43-S. C. 301. Probate Court is of limited jurisdiction: 4 S. C. 169; and must not assume constructive powers: 1 Bailey 460; 12 S. C. 214; 112 U. S. 306; 8 How. 449; 6 Wheat. 127; 1 Hill 53; 79 S. C. 320, 321. Claim must first be established: 60 S. C. 345, 349; 69 S. C. 237, 239. Cases distinguished: 19 S. C. 274 ; 65 S. C. 317; 80 S. C. 159, 160. Equity rule in creditor’s actions: 82 Fed. 780; 140 U. S. 106; 149 U. S. 451; 27 S. C. 416; 80 S. C. 89. Mode of trial essential: 61 S. C. 4; 99 S. C. 466.</p> <p>cite: As to jurisdiction of probate Court: Code Civ. Proc., sec. 42; Civil Code 3637; 4 S. C. 156; 19 S. C. 274. Appeal premature: 4 S. C. T56. Not necessary to exhaust legal remedies: 29 S. C. 84; 4 S. C. 293; 21 S. C. 159; 60 S. C. 351.</p>

Before DeVorE, J., Lexington, March, 1915. Held: were not proper parties to said cause, and should have refused their petition to be made such parties. cites: Code Civil Proc., secs. 167 and 168; 77 S. C. 412; 71 S. C. 425.

<p>' Before Moore, J., Gaffney, Fall term, 1914.</p> <p>Action by Nannie S. Flambright, as administratrix of J. M. Hambright, deceased, against Atlanta and Charlotte Air Fine Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. See, also, former appeal, 98 S. C. 219, 82 S. E. 416.</p> <p>submit: J.t appeared as matter of law that deceased’s death was due. to his own recklessness in attempting to cross the track after he saw and knew the approaching train was almost on him: 37 F. R. A. (N. S.) 135; Ann. Cas. 1912b, 1133; 5 S. C. 221; 94 S. C. 145 ; 78 S. C. 374; 34 S. C. 457; 81 S. C. 193 ; 94 S. C. 143. Charge on facts: 83 S. C. 325; 76 S. C. 49, 63. Res gestae: 68 S. C. 276; 68 S. C. 309; 13 S. C. 463.</p> <p>cites: As to res gestae: 71 S. C. 9; 68 S. C. 309. Refusal to direct verdict: 95 S. C. 209, 210; 83 S. C. 355; 91 S. C. 548; 52 S. C. 323; 76 S. C. 368. Charge as an entirety: 69 S. C. 360; 70 S. C. 490; 71 S. C. 102; 74 S. C. 305; 75. S, C. 153; 78 S. C. 520; 65 S. C. 269; 56 S. C. 377. Wantonly reckless: 65 S. C. 43. Construction of charge: 63 S. C. 287, 288. Mortuary tables as evidence: 87 S. C. 330.</p> <p>submit: Testimony offered as res gestae properly excluded: 68 S. C. 276; 60 S. C. 71; 67 S. C. 349. Direction of verdict properly refused: 72 S. C. 389; 76 S. C. 378; 59 S. C. 429; 47 S. C. 375; 83 S. C. 327; 94 S. C. 145; 61 S. C. 409 ; 77 S. C. 345. Charge on contributory negligence: Civil Code 1912, sec. 3230; 86 S. C. 393; 91 S. C. 203. - Obstruction of view: 33 Cyc. 1117-1125-1136. Charge on duty of railroad states rule of law only: 65 S. C. 539. Charge not on facts: 98 S. C. 338; 93 S. C. 373. Whole charge to be considered: 65 S. C. 32; 98 S. C. 42; 98 S. C. 262; 58 S. C. 226. Stating ■ law applicable to admitted facts: 96 S. C. 14, 74. Brrors not prejudicial: 96 S. C. 385. Charge as to duty in operating special not on facts: 61 S. C. 468; 41 S. C. 20; 71 S. C. 102; 91 S. C. 223; 92 S. C. 189; 17 R. R. A. 505, 1255 and'1256; 129 Ga. 204; 95 U. S. 161; 65 S. C. 381 and 447. Mortuary tables: 87 S. C. 330.</p>

Before Moore, J., Monck’s Comer, March, 1914. Action by William Pressley and George Pressley against Joseph Pressley and others. Prom a decree dismissing complaint, plaintiffs appeal. The facts are stated in the opinion. submits: Widow gets her third, irrespective of when her marriage occurred: 58 S. S. 125. Widow’s testimony competent to prove moral marriage prior to i860: 85 Pa. St. 352; 151 Id. 294. Not within inhibition of Code Civ.

<p>Before Sease, J., Bennettsville, September, 1913.</p> <p>Action by Minnie E. Evans, in her own right, and as administratrix of the estate of W. D. Evans, deceased, Alexina W. Evans, Hattie Evans Hodges, Nell Evans Thurmond, Samuel W. Evans, Erank P. Evans, Elizabeth G. Evans, Thomas S. Evans, Nan K. Evans, Margaret D. Evans, by J. J. Evans, her guardian ad litem, and J. J. Evans in his own right and as guardian ad litem of Margaret E. Evans, against O. M. Pegues, W. E. Pegues, B. E. Pegues, Carrie Pegues Smith, F. W. Pegues, E. S. Pegues, S. O. Pegues, H. E. Pegues and Mrs. Eucy McClellan, and Miss Martha Pegues, Mrs. Ella E. Pegues and E. W. Pegues.</p> <p>The facts are stated in the following Circuit decree:</p> <p>This action was originally commenced by W. D. Evans, C. K. Pegues, W. L, Pegues, B. E. Pegues and John K. Pegues against O. M. Pegues and others; but subsequent to the commencement of this action all of the original plaintiffs except W. D. Evans withdrew from the action and conveyed any interest that they might have had to O. M. Pegues for himself and certain other defendants, they have no further interest in the action.</p> <p>Subsequently, W. D. Evans died intestate, and his widow, Minnie E. Evans, was appointed administratrix of his such estate, and she, as administratrix and in her own right as heir at law of W. D. Evans, along with his children, the other plaintiffs, substituted as plaintiffs in lieu of W. D. Evans. Mrs. Minnie Evans, in addition to claiming an interest in the subject of action as administratrix and heir at law of W. D. Evans, also an interest in her own right as heir at law of Mrs. Sue S. Pegues, her deceased sister, the second wife of R. M. Pegues, had died intestate leaving no children.</p> <p>It was contended by the heirs at law of W. D. Evans that he owned a one-third interest in the land described in the complaint and that O. M. Pegues and others were in possession thereof and had absorbed the rents and profits, and that the estate of W. D. Evans was entitled to recover one-third of said land and also were entitled to an accounting for rents and profits. The land described in the complaint was conveyed by E. H. Frost & Company in the year 1881 to R. M. Pegues, John K. Pegues and W. D. Evans in consideration of the sum of seven thousand. ($7,000) dollars. No part of it was paid in cash, but the three grantees executed their joint bond for the said sum of seven thousand dollars in favor of E. H. Erost & Company, and executed a purchase money mortgage on said land to secure said bond in the sum of $7,000, and they took possession of the property at the end of the year 1881, and operated the same as a farm during the years 1882, 1883 and 1884 under the firm name of John K. Pegues & Company. Toward the end of the year 1884, the business of John K. Pegues & Company having become involved and the interest on the purchase money not having been paid, except in part, and no part of the original purchase money of seven thousand ($7,000) dollars having been paid, the three grantees entered into a contract in writing whereby R. M. Pegues assumed the payment of the indebtedness of John K. Pegues & Company to the extent of eleven thousand ($11,000) dollars, and assumed the payment of the whole purchase price of the lands as purchased from E. H. Frost & Company; and W. D. Evans and John K. Pegues contracted and agreed to execute unto R. M. Pegues good and complete title to their respective interests in said property upon R. M. Pegues carrying out his part of the contract, and they thereupon put R. M. Pegues in exclu-. sive possession and control of the said lands, and he moved on the same with his family and resided there at all times afterwards until his death in 1909.</p> <p>In 1894 R. M. Pegues, having become financially involved, had all of his property sold at public auction by the sheriff of Marlboro county under execution against R. M. Pegues, and this property was sold by Sheriff J. B. Green as the property of R. M. Pegues, and conveyed to Mrs. M. E. Stevenson, who, it appears, held the title temporarily for convenience for G. Walter Mclver, or the Imperial Fertilizer Company of Charleston, and other creditors of R. M. • Pegues. Subsequently Mrs. M. E. Stevenson conveyed the said land to G. Walter Mclver and subsequently G. Walter Mclver conveyed this land to F. Wilds Pegues, who subsequently conveyed the same to Mrs. Sue S. Pegues. In 1895, after the sale of this property at sheriff’s sale as the property of R. M. Pegue's, and after the paper title had gotten in G. Walter Mclver, and after the contract had been entered into between G. Walter Mclver and the family of R. M. Pegues to convey same back to R. M. Pegues, or his nominee, the last of the purchase money due under the bond and mortgage originally executed by R. M. Pegues, John K. Pegues and W. D. Evans to E. H. Frost & Company was paid, and the bond and mortgage was transferred in blank and delivered to R. M. Pegues, and same was found amongst his papers at the time of his death.</p> <p>When this case was called for trial four issues were submitted to a jury by consent of all parties to the action, except the parties represented by Townsend and Rogers, and were framed by their attorneys and approved by the Court, as follows:</p> <p>(1) Did W. D. Evans at the time of the beginning of this action have legal title to one-third of the land described in the complaint ?</p> <p>(2) DidR. M. Pegues pay the mortgage given for the purchase money of the land described in the complaint under an agreement such as is set out in the answer of O. M. Pegues and others, and was such an agreement made?</p> <p>(3) Did Mrs. Sue S. Pegues at the time of her death hold title to this property described in the complaint in trust'for the benefit of herself and the children of R. M. Pegues, as is alleged in the answer of O. M. Pegues ?</p> <p>(4) Was the release of the heirs of' Mrs. Sue S. Pegues set up in the answer binding on any or all of the parties signing same? If binding upon any, name them.</p> <p>The first issue, and the only legal issue, submitted to the jury was: Did W. D. Evans, at the time of the commencement of this action, own one-third interest in the lands described in the complaint? The jury answered this question in the negative, and motion to set aside such verdict' or finding is made on behalf of the heirs at law of W. D. Evans.</p> <p>I refuse to grant the motion to set aside the verdict dor a new trial on this legal issue because I am satisfied the finding of the jury is correct. While it is true that one-third of this land was conveyed to W. D: Evans in 1 1881, and while it does not appear that he ever executed a deed to his interest in such land, yet it does appear that in 1884 he entered into contract to execute a deed to his interest in said lands to R. M. Pegues and upon R. M. Pegues carrying out the. agreements and covenants which R. M. Pegues had made in the same contract, and R. M. Pegues was placed in the exclusive possession and control of the property at the time of the execution of this contract, and he and those claiming under him, have held the property openly and notoriously, using the same as their own, up to the time of the death of R. M. Pegues and up to the time of the commencement of this action in 1910, and for more than 20 years, and during all this time W. D. Evans knew that R. M. Pegues, and those claiming under him, were exercising the exclusive rights of ownership over same, and claiming same as their own; and by reason of his inaction for more than 20 years, coupled with the possession and control of the property in all manner incident to ownership the law presumes that R. M. Pegues, and those claiming under him, had a grant from the State and a deed from W. D. Evans, and it presumes that W. D. Evans at the time of the commencement of this action had no interest in the property. In addi2 tion to this it does not appear from the testimony that when this property was sold in 1895 at sheriff’s sale at public auction as the property of R. M. Pegues that W. D. Evans took any steps to guard or protect any interest that he may have had. It does not appear that he gave any notice that he had an interest in the property, and innocent third parties purchased the property 'as the property of R. M. Pegues and by successive conveyances the title finally went in the name of Mrs. Sue S. Pegues, and that the family of R. M. Pegues paid a very large sum as the purchase money therefor, and W. D. Evans, and those claiming under him, by reason of this, along with the other facts which raised the presumption hereinbefore stated, are estopped from claiming a title to the land. For these reasons I concur in the finding of the jury on the legal issue, and a motion for a new trial on same is refused.</p> <p>All other issues submitted to the jury were in equity, and were submitted for the enlightenment of the Court. It being admitted on all sides that at the time of the death of Mrs. Sue S. Pegues the paper title to the property was in her name, and it being contended by her heirs at law, except the children of R. M. Pegues, that Mrs. Sue S. Pegues was the owner of the property, and it being contended by the children of R. M. .Pegues that she did not own the property in her own right, but held same in trust for the benefit of herself- and the children of R. M. Pegues for her life, and at her death for the sole use and benefit of the children of R. M. Pegues, the third issue, to wit: Did Mrs. Sue S. Pegues hold the title to the land described in the complaint at the time of her death in trust for herself and the children of R. M. Pegues, as is alleged in the answer of O. M. Pegues and others, was submitted to the jury and the jury answered in the affirmative. It was contended by the defendants, children of R. M. Pegues, that Mrs. Sue S. Pegues held the title in trust, both as a special trust and a resulting trust. Written evidence was offered by the plaintiffs themselves in the record, or copy of record, in the case of Wulborn v. Pegues to the effect that Mrs. Sue S. Pegues acknowledged in writing that she held the title to the property for the benefit of herself and the children of R. M. Pegues. In addi3 tion to this a deed executed by the mother and all the sisters and brothers of Mrs. Sue S. Pegues, and the heirs of the deceased ones who were sui juris, with the exception of E. W. Pegues, who was at the time in the State of Alabama, and Miss Martha Pegues, who was in the State Hospital for the Insane, containing recitals stating that Mrs. Sue-S. Pegues had held the property in trust, was put in evidence by the children of R. M. Pegues, and while there was no instrument in writing put in evidence whereby the trust was created, there was evidence in writing that such trust had been created, which was sufficient to go to the jury as to whether there was an express trust in this matter. 4 In addition to this it was proven beyond.all question that the family of R. M. Pegues paid the purchase price for this property, which was put in the name of Mrs. Sue S. Pegues, and- this fact, together with all the circumstances and other facts of the case, establish clearly to my mind that there was an implied or resulting trust, even if there was no express trust, and I concur with the jury in the finding that Mrs. Sue S. Pegues did hold the title to this property át the time of her death in trust for the benefit of the children of R. M. Pegues solely after her death. 5 This being so, her heirs at law could not inherit anything from her, but the property immediately vested under the trust in the children of R. M. Pegues. It was contended by certain of the heirs at law of Mrs. Sue S. Pegues, who had executed a release to O. M. Pegues of any interest they might have had in this^property, that they were not bound by their deed; that their signature, to same had been procured by misrepresentations and on account of their great confidence in and respect for R. M. Pegues, now deceased, I submitted this issue also to the. jury and the jury found that all the parties who executed the deed were bound thereby, and this included all the heirs at law of Mrs. Sue S. Pegues except E. W. Pegues and Miss Martha Pegues. In view of the fact that the jury has found that Mrs. Sue S. Pegues held the property in trust for the children of R. M. Pegues at her death, this issue is' unimportant because whether those who signed the deed were bound thereby or not, if Mrs. Sue S-. Pegues held the property in trust, then her heirs at law had nothing in same to convey, and it is immaterial whether they had executed a deed or not, 6 but there was a total lack of evidence to sustain the charge of misrepresentation and fraud, and I concur fully in finding of jury that all of parties who executed the deed are bound thereby, and I am satisfied that the whole transaction was open, fair and free from deceit, misrepresention, concealment or fraud of any kind. I find, there-3 fore, that there is evidence in writing contained in the answer of Mrs. Sue S. Pegues in the case of Wulborn v. Pegues, and contained in the deed from most of the heirs at law of Mrs. Sue S. Pegues to O. M. Pegues that Mrs. Sue S. Pegues acknowledged in writing that she held this property in trust for the benefit of herself and the children of R. M. Pegues during her life and for the sole benefit of the children of R. M. Pegues immediately upon her death, and as there is no evidence to the contrary, the contention of the children of R. M. Pegues that she held the property in special trust, as is alleged in their answer, is sustained by the greater weight of the evidence and is sufficient to decree a special trust in Mrs. Sue S. Pegues for the benefit of the children of R. M. Pegues; but even if this were not true, it is contended by the children of R. M. Pegues that Mrs. Sue S. Pegues held the property in trust by reason of the fact that the children of R. M. Pegues paid the purchase money to G. Walter Mclver for the conveyance of property to E. Wilds Pegues and that such payment by them created a resulting trust in the property for the benefit of the children of 4 R. M. Pegues. The overwhelming weight of the evidence showed to my mind that the purchase price for this land was paid by the family of R. M. Pegues, which brought the conveyance of same to E. Wilds Pegues, and E. Wilds Pegues, who took the title from G. Walter Mclver, admitted same and never claimed that the property was his own, and there was a total lack of evidence to dispute this contention on the part of the children of R. M. Pegues. This being so, the law implies that it was the intention of the parties who paid the money and the party who took the conveyance that the party holding the title should hold it in trust for the benefit of the children of R. M. Pegues, and thereby a resulting trust arises in favor of those who paid the purchase money, to wit, the children of R. M. Pegues. So even, if there had not been sufficient evidence to establish a special trust in this.property for the benefit of the children of R. M. Pegues, yet a resulting trust arose in their favor from the fact that they paid all the purchase money, and the result of this case must be the same, whether there was both a resulting trust and a special trust, or whether there was only a resulting trust in their favor. For these rea5 sons I concur in the finding of the jury that Mrs. Sue S. Pegues held the property at the time of her death in trust, as is alleged in the answer of O. M. Pegues and others; and inasmuch as Mrs. Sue S. Pegues held the legal title to this property in trust for the benefit of herself and the children of R. M. Pegues during her life and then to go absolutely to the children of R. M. Pegues, it follows as a necessary consequence that her heirs at law could not inherit this property from her. Therefore, the contention of certain of her sisters and brothers that they were entitled as heirs at law to a proportion of this property under the statute of distribution, cannot be sustained and the title must be confirmed in the children of R. M. Pegues.</p> <p>Mrs. Minnie E. Evans in her complaint elects to claim, not as heir at law of W. D. Evans, but sets up a claim to dower, or thirds, in all lands of which W. D. Evans was seized and possessed during his life, and especially claims dower in the one-third interest in the lands described in the complaint which was conveyed in 1881 to R. M. Pegues, John K. Pegues and W. D. Evans. So the remaining question to be determined is: “Is Mrs. Minnie E. Evans, the widow of W. D. Evans, entitled to dower in the interest claimed by W. D. Evans in the lands described in the complaint? As throwing some light on this subject, an issue was submitted to the jury as follows: Did W. D. Evans execute a contract such as is set up in the answer of O. M. Pegues and others, and did R. M. Pegues carry out and perform his part of such contract? The jury answered this inquiry in the affirmative; that is to say, the jury found that W. D. Evans in 1884 did enter into a contract with R. M. Pegues whereby he contracted and agreed to convey unto R. M. Pegues, and to make good and sufficient title to, all of his interest in the lands described in the complaint upon R. M. Pegues paying the debts of the firm of John K. Pegues & Company to the extent of $1,100, and paying the bond and mortgage of $7,000 and interest, which had been executed in 1881 by R. M. Pegues, W. D. Evans and John K. Pegues to E. H. Frost & Company; and further, that R. M. Pegues did perform and carry out his part of said contract, and did pay the whole of the purchase money for the land described in the complaint to E. H. Frost & Company. There can be no question of the correctness of the finding of the jury on this issue. The original contract, such as is set out in the answer of O. M. Pegues and others, signed and executed by all the parties thereto, was put in evidence, and the undisputed facts showed'that all of the purchase money of $7,000, except possibly a small amount of interest which had become due before the execution of the contract, was paid by R. M. Pegues. The amount due on the bond and mortgage for the purchase price at the time of the execution of the contract in 1884 was nearly, if not quite, $10,000, and all of this was paid by R. M. Pegues, or procured to be paid by him, and the bond and mortgage, upon the payment of the last installment of same, was assigned in blank and délivered to R. M. Pegues, and was found amongst .his papers after his death. Therefore, I concur in and adopt the findings of the jury on this issue, and -with this finding of fact the legal question remains: Is Mrs. Minnie E. Evans, the widow of W. D. Evans, entitled to a dower in one-third interest in said land? The law is well established that in the admeasurement of dower the value of the land at time of alienation must be taken as the true measure of the quantum of the dower, to wit: the life use of one-third, or one-sixth absolutely, of the value of the property at the time of alienation, together with interest from the death of the widow’s husband. It was alleged in the complaint of Mrs. Minnie E. Evans that she was entitled to dower in one-third of the land described in the complaint, and that she elected to take dower in lieu of a distributive share. The answer of O. M. Pegues and others denied.that she was entitled to dower, alleged that at the time of alienation by W. D. Evans that the property was not worth more than $7,000, the original purchase price, and that at the time of alienation under the contract of 1884, no part of the purchase price of $7,000 had been paid, and that a bond for same, secured by a mortgage on the property, was outstanding in favor of E. H. Erost & Company, and that R. M. Pegues paid all of said purchase money bond and. mortgage, and that the widow of W. D. Evans was not entitled to dower as against said purchase money. The law is well established that as against the purchase money contracted to be paid by the husband the wife cannot claim a dower. As was held in the case of Gross v. Ponder, 63 S.C. 162,41 S.E.83 : “Where a husband buys lands upon which there is a mortgage which it is agreed he shall pay, and the transaction is arranged by his taking a deed to the land and at the same time giving a mortgage to the holder of the first mortgage, which is marked satisfied, the transaction being simultaneous, there was no such seizin in the husband,as will give the wife dower as against the mortgage lien.” The whole theory of the law is based upon the idea that until the purchase money is paid the husband is not fully seized of the property, and until he pays for same his wife cannot acquire a dower in something that he has not fully owned. Bearing in mind the fact that no part of the purchase money was paid by W. D. Evans, and that at the time of the execution of the contract to convey to R. M. Pegues the whole of the purchase money was outstanding as a lien upon the property, and it being shown by the evidence in the case that the property was not worth at that time, 1884, more than the purchase money debt, and that all of same was paid by R. M. Pegues there could be no dower as against R. M. Pegues, and those claiming under him, in the widow of W. D. Evans. At most, all she could claim absolutely would be one-sixth of the difference between the purchase money debt then outstanding and the value of the one-third interest which had been conveyed to W. D. Evans. The whole property was conveyed for $7,000, no part of which had been paid. One-third thereof amounted to $2,333.33; and the value of the whole property, according to the evidence, did not exceed $7,000, one-third of which could not exceed $2,333.33. Therefore, there was no- difference between the value of the interest of W. D. Evans and the amount which he was required under the law to pay before he came seized of one-third, so as to permit his widow ■to claim dower therein. For this reason, even if Mrs. Minnie E. Evans is entitled to dower in one-third of the lands' described in the complaint, which had been conveyed to her husband, W. D. Evans, and in which she had never renounced her dower, there is nothing as against R. M. Pegues and those claiming under him, out of which he could secure dower. In other words, if she is entitled to dower at all, ’ it would be one-sixth of the difference between $2,333.33 and $2,333.33, which would be nothing.</p> <p>In addition to the foregoing there is another complete answer under the facts in this case to the claim of dower on the part of Mrs. Minnie E-. Evans. While the legal title was taken from E. PI. Frost & Company to R. M. Pegues, John K. Pegues and W. D. Evans jointly, the whole purchase price was paid by R. M. Pegues, and under the law, in view of their contract entered into in 1884, coupled with the fact that the whole purchase price was paid by R. M. Pegues, a trust would result in the three grantees jointly for the benefit of R. M. Pegues, and the holding of the title by the three grantees jointly under this state of facts would render the deed in their name a trust deed for the benefit of R. M. Pegues immediately upon his paying all the purchase, price. The heirs at law of the trustee cannot inherit the title to the land from the trustee, nor can the widow of the trustee secure a dower in property held in trust by her deceased husband. Therefore, in an)*- view of the case it seems to me that Mrs. Minnie E. Evans has no dower in the land described in the complaint. It may be contended that, the purchase money having been paid, and it not being an outstanding obligation as against the three original grantees, the dower right would not be barred. It could not for a moment be contended that if the purchase money was still due to E. H. Frost & Company that Mrs. Evans could claim a dower as against E. H. Frost & Company. Does the fact that the purchase money obligation has been transferred, either by transfer in its ordinary acceptation or final payment on the part of one of the grantees, make any difference in the law? The mortgage was transferred and assigned in blank upon the payment of the last amount due thereon, and was found amongst the papers of R. M. Pegues. A man cannot hold a mortgage on his own property, and I am satisfied that the mortgage for the purchase money has been paid in full and is not an outstanding obligation against the property which could be enforced, nor is it so contended by the children of R. M. Pegues. Therefore, I conclude and concur with the jury in their finding that the whole purchase money has been paid, or procured to be paid, by R. M. Pegues, and for all general purposes such mortgage is extinct; but for the purpose of protecting the property against a dower claim on the part of the widow of one of the three original grantees, who paid nothing, as against those claiming under another one of the grantees, who paid the whole of the purchase price, equity will keep alive the lien of the mortgage to protect the estate against such claim of dower. And for the purpose of determining whether Mrs. Minnie E. Evans is entitled to dower in the property, the mortgage having been paid entirely by R. M. Pegues, and no part of same having been paid by W. D. Evans, the situation is exactly the same in equity as if the mortgage still remained in the hands of the-original mortgagee, to wit, E. H. Erost & Company.</p> <p>There is one more equitable issue which is properly before the Court and should be settled, which may not be of much practical importance in view of the fact that the jury has found, and I have concurred with them in such find-7 ing, that W. D. Evans did not own one-third interest in the land described in the complaint at the time of the commencement of this action. Under the facts in this case, even if W! D. Evans did hold the legal title to one-third interest in the property described in the complaint at the time of the commencement of this action, I am clearly of the opinion that the equitable title to the one-third interest originally conveyed to W. D. Evans is now in the defendants, O. M. Pegues and others, children of R. M. Peagues. W. D. Evans made his contract to convey his legal title upon the payment by R. M. Pegues of the purchase money. Said purchase money was paid entirely by R. M. Pegues, who carried out his contract completely and fully. The contract to convey on the part of W. D. Evans was clear and beyond all question as to its terms and was in writing. He has failed to carry out his part of the contract notwithstanding that the other party to the contract, R. M. Pegues, carried out his part of the contract fully, and those claiming under R. M. Pegues, as R. M. Pegues was during his life at all times after the performance of the contract,,are entitled to specific performance of the contract. They are entitled to conveyance of any interest that W. D. Evans may have had in the property, and even though the legal issue should have been decided against the contention of the children of R. M. Pegues, they would still be entitled on the equity side of the Court to have their equitable title decreed and a conveyance thereof made to them.</p> <p>It is, therefore, on motion of Edward Mclver, W. P. Pollock and J. W. LeGrand, attorneys for O. M. Pegues and others, defendants, children of R. M. Pegues, ordered, adjudged and decreed:</p> <p>1. That the title to the property described in the complaint be, and the same is hereby, confirmed and decreed in said defendants.</p> <p>2. That the deed from G. Walter Mclver to F. Wilds Pegues, and the deed from F. Wilds Pegues to Mrs. Sue S. Pegues be, and the same are hereby, adjudged and decreed to have been in trust for the benefit of the children of R. M. Pegues upon the death of the said Mrs. Sue S. Pegues.</p> <p>3. That Mrs. Minnie E. Evans is not entitled to dower in any part of the lands described in the complaint.</p> <p>4. That the deed of conveyance executed by the heir? at law of Mrs. Sue S. Pegues to O. M. Pegues be, and the same is hereby, declared to be valid.</p> <p>5. That the defendants, E. W. Pegues and Miss Martha Pegues, appearing herein by her guardian ad litem, be, and they are hereby, decreed to have no interest in the property described in the complaint.</p> <p>6. That the complaint be dismissed with costs.</p> <p>The following are the exceptions of the plaintiffs-appellants:</p> <p>1. The plaintiffs except to his Honor’s order submitting issues to the jury over their objections, as to whether there was a trust created under which Mrs. Sue S. Pegues held the property in dispute.</p> <p>2. They except to the ruling of his Honor in allowing O. M. Pegues and other defendants to testify that there was such a trust; it being submitted that the trust being an express trust as to real estate, could only be proved by writing.</p> <p>3. The plaintiffs except to the ruling of his Honor allowing the defendant, F. W. Pegues, to testify as to the transaction between him and Mrs. Sue S. Pegues, on the ground that the said transaction could not be detailed under the 438th section of the Code of 1912; and further, that it was proving an express trust in real estate by parol testimony. The Court erred, it is respectfully submitted, in stating that if it was not the law, that parol testimony could be offered under the circumstances of this case to prove the trust, that it ought to be the law.</p> <p>4. The Court erred further in refusing to charge, as requested by the plaintiffs, that they should answer the first issue “yes,” and further in refusing the plaintiffs’ request to charge that there is no competent evidence to establish the trust relation alleged in the answer of O. M. Pegues, and the answer to the third interrogatory should be “no.”</p> <p>5. The Court erred further in refusing to charge the fourth request of the plaintiffs, that the deed from R. M. Pegues et al., is invalid on its face as to the parties represented, for the reasons set forth in the said request.</p> <p>6. The Court erred in not charging the plaintiff’s eighth request to charge.</p> <p>7. The Court erred further in charging the defendant’s fourth request, it being submitted that it was misleading and was not applicable to the facts in this case; the fact being admitted, and the jury finding, that the alleged contract to purchase made by R. M. Pegues was not complied with until 1895, and no time could run, therefore, until such purchase was completed and no presumption of a grant or deed could arise.</p> <p>8. The plaintiffs except to the submission by his Honor of the fourth issue, to wit, the question of the binding force of the alleged release, that being an issue of law and not of fact.</p> <p>9. Plaintiffs except to the decree of his Honor in overruling the motion to set aside the verdict, on the ground that' there was no legal evidence to sustain the findings on the first, third and fourth issues.</p> <p>10. The plaintiffs further except to the finding of his Honor that there was sufficient written evidence upon which to base an express trust.</p> <p>11. The plaintiffs-appellants do except to the finding of his Honor that there was any express trust or resulting trust proved by competent evidence.</p> <p>12. The plaintiffs further except to his Plonor’s decree in holding that the alleged release of certain heirs of Mrs. Sue S. Pegues was binding and valid, when on its face it was invalid, in that it was not executed by all who were to sign and was witnessed by two of the beneficiaries.</p> <p>13. The plaintiffs further except to the holding of his Honor that the purchase money of this land from G. Walter Mclver was paid by the children of R. M. Pegues and that nó part thereof was paid by Mrs. Ella E. Pegues; and in holding that there was a resulting trust, under the evidence, to the children of R. M. Pegues, it being wholly contrary to the evidence.</p> <p>14. The plaintiff, Minnie E. Evans, excepts to the holding of his Honor that she is not entitled to dower in one-third of the said lands, and in holding that although W. D. Evans was the Owner in fee during coveture of one-third of the said lands, that the fact that it was covered by a bond and mortgage for the purchase money ousted her right of dower, the bond and mortgage being equal to-the value of the land when the contract was made to convey it; it being respectfully submitted that the bond and mortgage, under the finding of the jury, was paid and discharged in 1895, and that there was nothing then that was paramount to the claim of dower of Mrs. Minnie E. Evans, and she should have been adjudged to be entitled to dower.</p> <p>15. The Judge erred, it is respectfully submitted, in holding that there would be a resulting trqst in J. K. Pegues and W. D. Evans for R. M. Pegues, which would bar dower; whereas, the title to the land had been in J. K. Pegues, W. D. Evans and R. M. Pegues for three years before the contract of 1884, and the inchoate right of dower had vested before any contract was made, subject only to the payment of the purchase money mortgage, and when that was paid and discharged the right of dower was complete in the whole. The Judge erred, it is respectfully submitted, in not holding that Mrs. Minnie E. Evans was entitled to dower in any amount to be admeasured to her, and it was not the province of Court to hold what the value was to Mrs. Evans if entitled to have her dower admeasured, and if there was any outstanding encumbrance she had the right to redeem in so far as her dower was concerned, and by his assumption to pass upon the value of the property and determine the right on the basis of that question, he denied her the right to have her dower admeasured in kind and then to redeem.</p> <p>16. The Court erred further in holding that the value of the land in 1884 was only $7,000, and also in holding that the value at that time determined the question of the right of dower and not the value of the land at the date of conveyance, which was in 1895, if a conveyance were made, and also for the reason that under the contract of 1884 R. M. Pegues was not entitled to a conveyance until he perfected his part of the contract, and under the finding of the jury arid the evidence in this case, that was not done until 1895, and there is no evidence to sustain the Court’s holding that the value of the land by that time was only $7,000; but, on the other hand, it was the duty of the Court to order the dower admeasured and the value determined by commissioners under the statute law of South Carolina, and the fact that there was an encumbrance against it could not defeat the right to have this dower and to redeem.</p> <p>17. The Court erred in not holding that the purchase money mortgage was not only paid in full, as shown by the finding of the jury,' and in pursuance of the contract, but that it was presumed clearly to be paid, and, therefore, could not be set up, directly or indirectly, to defeat the claim of d'ower.</p> <p>Grounds of appeal of E. W. Pegues and Martha Pegues, defendants, are:</p> <p>1. Because his Honor erred in submitting to the jury the question as to whether or not Mrs. Sue S. Pegues held the land in dispute, in trust or for her own benefit over protest of counsel, who contended that same was a bald legal question, which should have been decided by the Court, without the intervention of a jury, and the said question should not have been jumbled and confused before a jury, as it was, with the legal issues in the case. And his Honor further erred in adopting and following the finding of the jury in this particular.</p> <p>2. Because his Honor erred in allowing several different witnesses to testify to the alleged declarations of Sue S. Pegues, for the purpose of establishing a trust in her, for the benefit of said witnesses.</p> <p>3. Because his Honor erred in holding that the testimony showed that Mrs. Sue S. Pegues ever acknowledged in writing that she held the title to the property, in dispute, for the benefit of the children of R. M. Pegues.</p> <p>4. Because his Honor erred in holding that there was sufficient testimony to establish an express trust in the said Sue S.Pegues, in the land in question.</p> <p>5. Because his Honor erred in holding that even if there was no express trust, that there was an implied or resulting trust in favor of the children of R. M. Pegues; whereas, it is respectfully submitted that the testimony shows the contrary, in that it is established by the testimony that the major portion of the purchase money, when this land was conveyed to her, was paid by the said Sue S. Pegues and that the balance was either paid by her husband for her, or with money which was borrowed by her.</p> <p>6. Because his Honor erred in holding that there was an expressed or resulting trust, when the testimony showed that there was neither.</p> <p>7. Because his Honor erred in holding and deciding" that the defendants, E. W. Pegues and Martha Pegues, have no interest in the property described in the complaint.</p> <p>8. Because his Plonor erred in holding that Mrs. Sue S. Pegues, at the time of her death, held a title in the land, described in the complaint, in trust for the benefit of the children of R. M. Pegues, and should have held that she held the title in fee simple.</p> <p>The defendant, Mrs. Ella L. Pegues, adopts as her exceptions the exceptions of the plaintiffs, as follows, to wit:</p> <p>Exceptions one, two, three, five, eight, nine, ten, eleven, twelve and thirteen; and all the exceptions of E. W. Pegues and Miss Martha Pegues, except the seventh.</p> <p>submit: Proof of trusts must be in writing: Civil Code 1912, sec. 3676; 78 S. C. 490; 1 Strob. Eq. 370; 5 J. C. R. 1; 1 McC. Ch. 120; 12 Rich. Eq. 214, 215; 4 S. C. 152; 2 Stats. 526. Sufficiency of writing: 28 A. & E. Enc. of R. 879; 65 Me. 500; 107 Mass. 82; 47 N. J. E. 477; 1 Ark. '447 ; 5 Johns. Ch. 1; 7 L. R. A. (N. S.) 1125; 1 Rewin, Trusts 14; 11 S. C. 34; 194 Fed. 1007; 95 N. Y. 403; 47 Am. Rep. 53; 151 N. Y. 282; 45 N. E. 876; 37 R. R. A. 305; 153 Ind. 403; Perry, Trusts, sec. 83; 98 111. 628. Was deed a sufficient declaration of trust? It bound only those signing it: Harper’s Eq. 282; 28 Enc. of E. 877, 878; Tiffany & Bullard, Trusts 355, 356; 19 Beaver 330; 153 Ind. 401; 16 Mass. 221; 119 111. 626; 44 N. J. 156; 5 Johns. Ch. 13; 9 Am. Dec. 256; 53 N. J. Eq. 275; 167 111. 64; 66 Md. 249; 1 Greenleaf Ev.,266; 4 Kent. Com. 305. Deed witnessed by persons taking an interest 'thereunder: Code, sec. 3567; 13 Stats. 312; Code Civil Proc., secs. 400, 438; 13 Stats. 377; 12 Stats. 700; 79 Ala. 50; 125 Ala. 391; 94 Tenn. 38; 24 Neb. 188; 9 Baxter 607; 26 Conn. 199; 3 Strob. 590; Civil Code 3453; 5 Stats. 255; 1 Rich. 534; 10 Rich. 518; Cheves L. 272; 9 A. & E. Enc. of R. 148; 79 S. C. 363; 21 A. & E. Enc. of R. 568; 46 R. R. .A. 723; 89 S. C. 349. Deed not signed by all intended grantors an incomplete paper: 9 S. C. 252; 19 S. C. 215; 3 S. C. 330; 9 S. C. 234; 62. S. C. 194; 88 S. C. 437. Effect on dower of payment of outstanding purchase money mortgage: 27 S. C. 562. Right of dower: 9 Rich. Eq. 500; 10 lb. 285. Certainly in surplus: 1 Bail. Eq. 65, 66; 10 A. & E. Enc. of R. 68; 13 Mass. 229; 14 Allen 188; 8 S. C. 99; 12 S. C. 465; 49 S. C. 436; 17 S. C. 558. No subrogation to defeat dower: 29 S. C. 508. Right to dower, seisin, etc.: 34 S. C. 191; 59 S. C. 57; 59 S. C. 222; 75' S. C. 471. Not estopped by warranty: 87 S. C. 54; 89 S. C. 177; 16 S. C. 91. Resulting trust: 19 S. C. 134.</p> <p>submits: Express trust can not be established by parol: 52 S. C. 393; 57 S. C. 155; 76 S. C. 490. Deed not witnessed by competent witnesses: Civil Code, sec. 3453; 13 Cyc. 558; 1 Devlin, Deeds (3d ed.) 259; 79 Ala. 49; 58 Ohio St. 86; Cheves 272; 1 McM. 376; 29 S. C. 170. Resulting trusts: 32 S. C. 595; 78 S. C. 496 ; 2 Devlin, Deeds (3d ed.) 992.</p> <p>submit: Express trust can not be shown by parol: 52 S. C. 393; 57 S. C. 163; 12 Rich. Eq. 213; 78 S. C. 496. When recitals operate as estoppel: 6 Cal. 149;'65 Am. Rep. 496; 3 Dev. (N. C.) 108; 11 S. C. 29. Resulting trusts: 27 A. & E. Enc. of R. 299; 19 S. C. 127, 135; 78 S. C. 494; 56 S. C. 83; 90 S. C. 583; 93 S. C. 450; Hill on Trustees 164; Perry on Trusts 143; 16 Cal. 350. Not estopped by acts of others: 40 Ohio 63; 70 S. C. 194; 20 A. & E. Enc. of L. 461; 27 76. 322; 9 S. C.'234. Incomplete instrument: 19 S. C. 212; 3 S. C. 330; 9 S. C. 204.</p> <p>cites: As to presumption of conveyance: 78 S. C. 155; 1 Hill Ch. 376; 86 S. C. 295; 2 Rich. 19; 48 S. C. 489, 490; 81 S. C. 347; 50 S. C. 168; 80 S. C. 112. Resulting trusts: 75 S. C. 237; 78 S. C. 494 ; 57 S. C. 163; 23 S. C. 251; 59 S. C. 294. Express trust: Statute of Frauds, 1 McC. Ch. 119, 130. Incomplete paper: 3 S. C. 330; 9 S. C. 234; Í9 S. C. 211; 39 S. C. 14; 62 S. C. 193. Subrogation of purchaser paying mortgage to rights of mortgagee against subsequent claim of dower: 31 S. C. 206; 75 S. C. 249; 40 S. C. 413, 457.</p> <p>submits: W. D. Evans was never seised in land: 63 S. C. 162; 31 S. C. 206. Resulting trust: 75 S. C. 245 ; 39 Cyc. 36; 56 S. C. 83; 78 S. C. 494; 23 S. C. 251; 59 S. C. 294. Laches: 80 S. C. 114; 48 S. C. 47; 88 S. C. 191; 2 Hill’s Ch. 511; 11 Rich. 429; 3 S. C. 254; 26 S. C. 179; 1 S. E. 711; 38 S. C. 394; 17 S. E. 136 ; 40 S. C. 179; 18 S. E. 257; 48 S. C. 291; 26 S. E. 657; 48 S. C. 472 ; 26 S. E. 787; 78 S. C. 155.</p>

Before DeVore, J., Spartanburg, October, 1913. Action by N. S. Trakas against Southern Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: As to contract limiting amount of damages in case of loss: 226 U. S. 491; 35 Sup. Ct. Rep. 351; 84 S. C. 249. Duty of consignee to minimize damages by prompt acceptance of goods: 5 Ribh. 462; 7 Rich. 190; 82 S. C. 307; lb. 375.

<p>Before DeVore, J., Winnsboro, Spring term, 1914.</p> <p>Action by Hattie S. Smith, William M. Clark, W. H. Clark, Kathryne E. Poole, Mamie E. Wright, J. Austin Clark and James B. Clark against Frances C. Byers, John B. Clark and John M. Glenn. Prom a judgment dismissing the complaint, the plaintiffs appeal. J. A. Clark, executor and devisee for life, died in 1908. The other facts are stated in the Circuit decree, as follows:</p> <p>This case was heard by me at Spring term of Court for the above county, 1914. The action is one for partition of land in the usual form.</p> <p>The answer of the several defendants deny the right of plaintiffs to have the land, described in the complaint, partitioned, on the ground that they have no interest whatsoever in the land, and also set up the plea and right of subrogation and the right and plea for improvements, etc.</p> <p>It was referred to a special referee to take the testimony in the case and report to this Court. The record and documentary evidence in the case, and reported, is very voluminous, while the verbal evidence is rather short.</p> <p>Without going into details, I find from the documentary evidence that Henry Clark is the source from whom all the parties to the suit claim. He died in 1879, leaving a will, probated February 12, 1879. By the will, J. A. and W. A. Clark were appointed executors, and duly qualified and assumed their duties as such. By the terms of the will the land involved in this suit was devised to J. A. Clark during his natural life, and at his death to be equally divided among all the minor heirs at the present date, that the heirs at that • date were the plaintiffs and defendants. That W. A. Clark, on July 26, 1871, was appointed guardian of' Frances C. Clark and J. B. Clark, and executed a bond for each, with Henry Clark and J. A. Clark as sureties on each of said bonds; that an accounting was had between the guardian and the two wards, and on the 21st of May, 1891, the probate Judge rendered a judgment against the guardian for $1,198.72 in favor of Frances C. Clark, and $1,723.56 in favor of J. B. Clark, and for the costs; that soon thereafter, the Judge of probate commenced action for the benefit of Frances C. and J. B. Clark against W. A. Clark and Jas. A. Clark individually and as executors of the estate of Henry Clark, for the recover)'- of the amounts found to be due Frances C. and J. B. Clark by their guardian; these actions were tried in Laurens county, the place of residence of W. A. Clark, and judgment was obtained in both actions amounting in the aggregate to $3,121.25, in favor of Frances C. and J. B. Clark. Said judgments were duly entered of record in Laurens county, and transcribed to Fairfield county, on March 8, 1892; that the land involved was mortgaged to J. C. Herring by J. A. Clark, mortgage foreclosed and land bought by Herring, that Herring’s claim to the land was set aside and decreed to be null and void, on account of fraud, etc. This has nothing to do with the case, as it stands as if Herring had never had a mortgage, same having been declared null and void.</p> <p>On August 10, 1894, executions were issued under the judgments obtained, as above stated, against the executors of Henry Clark, and against the same parties individually and the lands involved here, sold by the sheriff and purchased by C. E. Spencer, who conveyed the 310-acre tract to John M. Glenn, one of the defendants, and the 600-acre tract to Frances C. Clark, now Byers, another of the defendants.</p> <p>So far as argument of counsel is concerned and the records themselves, they áre regular. The above is in substance a statement found to be true from the record and documentary evidence. Now as to the law. The plaintiffs’ contention is that the land could not be sold and subjected to the payment of the debts of Henry.Clark, without making his heirs or devisees parties to a proceeding or action for that purpose.</p> <p>The defendants’ contention is, that by and under the judgments obtained against W. A. and J. A. Clárk, as executors of Henry Clark, and individually,- as above shown, and the sale under the same, they have a perfect' title to said lands.</p> <p>The law as stated in the case of D’Urphey -v.Nelson,3$. C. T. (1 Brev.) 289, and modified in Huggins v. Oliver, 21 S. C. 147, is, that the lands of a deceased person may be sold under judgments against his personal representatives, 1 unless the heir or devisees can show that he had acquired the actual and exclusive possession before such judgment was obtained against the executor or administrator, if this is shown, then the lands so in his possession cannot be sold for the debts, until he has had an opportunity to defend. The above rule has been followed invariably by a number of decisions of the Supreme Court. The 2 verbal evidence does show that J. A. Clark was in possession of this land while he was both executor and life-tenant devisee, under the will, but the evidence is silent as to the capacity in which he was in possession and holding. This being so, the law will treat him as being in and holding in the capacity of executor, it being his duty to take charge of the estate for its protection and benefit, as well as for the protection and benefit of thé creditors of Henry Clark, deceased, in fact, he was the testator, Henry Clark, in possession and he could not claim any rights inconsistent with his duty. He must under the law be regarded as in possession and holding as executor until the debts are paid. Roberts v. Smith, 21 S. C. 455 Hendrix v. Holden, 58 S. C. 495, 36 S. E. 1010.</p> <p>The evidence does not show that any of the plaintiffs were ever in possession of the land, but they contend that J. A. Clark was in as life-tenant devisee, and in this way held possession, which made it necessary for the plaintiffs 3 to be made parties to an action or proceeding for the purpose of subjecting the lands to the payment of the debts. This contention is in conflict with the last above statement and authorities cited and cannot be sustained. Again, J. A. Clark was either in as life-tenant devisee, or as executor (the law regards him in as executor), but suppose he was in as life-tenant devisee, in the absence of testimony to the contrary, it must be assumed that he was there for the purpose of using the land for his own benefit, reaping and getting from it whatever he could as an income, which he had a right to do, as life tenant, and his right to the possession excluded every one else from entering, so long as he lived, and this he did according to the evidence, so he was not .and could not have been in possession holding for the benefit of the plaintiffs, or any one, except himself, because the plaintiffs were excluded from possession, and the evidence is they were never in possession. Clark’s possession, therefore, could not in any way subserve the plaintiffs.</p> <p>Now, while Clark was in possession, whether as executor or devisee, the judgments under which the land was sold were obtained in actions to which J. A. Clark was a party as executor and individually, hence he was made a party to the very action which was to subject his interest (at least) as devisee (life tenant) in this land to pay the debts of the deceased, hence he nor any one claiming under or through him can complain. He is bound by the judgments.</p> <p>The plaintiffs never having been in possession at any time, are concluded by the law, as above stated. It is my opinion under all the evidence, facts and circumstances to be gathered therefrom, that the complaint should be dismissed, and the defendants adjudged to have the title to said lands involved in this action, and it is so ordered. Having reached this conclusion, it is unnecessary to consider the other pleas and defenses of the defendants.</p> <p>The plaintiffs appeal on the following exceptions: .</p> <p>1. Because the Court erred, it was respectfully submitted, in holding under the testimony in the case that J. A. Clark was in possession of the premises in question as executor of the will of Henry Clark, deceased; the error being that the uncontradicted testimony shows that James A. Clark, the life tenant, entered upon the premises as devisee under the will, managed and controlled them as such devisee, paid the taxes thereon in his individual name, mortgaged the premises and in every way exercised ownership not as executor, but as such devisee.</p> <p>2. Because the Court erred as a matter of law in holding that the law would presume the devisee, J. A. Clark, to hold the premises as executor until all the debts of the estate were paid, and in holding that the evidence was silent as to the capacity in which he was in possession in holding the premises; the error being that there was an abundance of uncontradicted testimony showing that the devisee, James A. Clark, while he qualified as executor, that he never performed any of his duties as such, but on the contrary, entered upon the premises as devisee under the will and managed and controlled them as his own, in no way accounting to the estate for the use thereof by paying rents or any profits thereon in any manner recognizing his executorship.</p> <p>3. Because the Court erred in holding that the mortgage given by James A. Clark to Herring had nothing to do with the cause and stands as if Herring had never had the mortgage, the same having been declared null and void; the error being that the plaintiffs were not parties to the action to set the same aside, nor did the devisee, James A. Clark, or Herring make any answer in the cause, the said judgment having been entered by default and instead of its having nothing to do with the case, is conclusive evidence to show that the devisee, James A. Clark, was claiming and holding the land as his own and exercising acts of ownership over it in his individual capacity and not as executor.</p> <p>4. Because the Court erred in holding that the plaintiffs and the minor defendants at the date the sale was inade had never been in possession of the premises and'had no right to be made parties to the suit brought to subject them to the judgments in favorof the defendants, Fannie Byers and J. D. Clark; the error being that the evidence shows conclusively that James A. Clark, the life tenant, was in possession of the land as such life tenant and immediately upon his entering possession as such life tenant his possession accrued to the benefit of the remaindermen, who had no right to enter until his death, and because of such right and benefit accruing therefrom the plaintiffs should have been made parties the same as if they had been in the actual possession of the premises, they having the right to rely upon his possession as life tenant.</p> <p>5. Because the Court erred in holding that J. A, Clark, having been made a party to the suits under which the premises were sold both in his individual capacity and as executor, that the plaintiffs were bound thereby; the error being that immediately upon the possession of the lands passing into the hands of the life tenant as devisee the fee of the remainder vested in the remaindermen and could be divested only by a suit in which they were made parties.</p> <p>6. Because the Court erred in holding that under the facts and circumstances in the case the complaint should be dismissed and the defendants adjudged to have title to the lands involved in this action; the error being'that the uncontradicted testimony shows that the life tenant entered into possession of the premises immediately upon the death of his testator, he, together with his assignee, Herring, and held the same for a period of from fifteen to sixteen years and immediately upon his death the plaintiffs each became vested with right to the possession of a one-ninth (1-9) interest in the premises and under the law is each entitled to hold his interest in severalty and the Court should so have held.</p> <p>7. Because the Court was in error in failing to find that the plaintiffs were entitled to have the defendants, Fannie C. Byers and John M. Glenn, account to them for the rents and profits derived from the premises since the death of the life tenant; the error being that the testimony shows conclusively that such holding by the defendants was unlawful and without legal title of the right to the possession of the interest of plaintiffs having vested in the defendants under which circumstances the plaintiffs were entitled as a matter of right to have the defendants account to them for such use of the premises.</p> <p>8. Because the Court erred in dismissing the complaint in said action and in holding that the plaintiffs have no interest in the premises when the testimony shows conclusively that they did have such interest and have never been divested of same in any suit to which they were parties and in denying to them the right to have the premises partitioned as provided by law.</p> <p>cite: 1 Brev. 289; 2 Hill L. 579; 6 S. C. 361 ;</p> <p>60 S. C. 322; 24 S. C. 417; 1 S. C. 197; 6 S. C. 146; 19 S. C. 166; 204 Fed. 407. Distinguished: 21 S. C. 455; 58 S. C. 515.</p> <p>submit: Findings that the executors were in possession, and that possession had not passed to the devisees exclusively, are on the facts, and this being a legal issue, are not reviewable. Here plaintiffs are seeking to oust defendants of their sole possession. Cases distinguished: 60 S. C. 322; 204 Fed. 407. The possession of an executor devisee must be referred to his capacity as executor until debts are paid: 21 S. C. 455;-58 S. C. 515; 10 S. C. 354, 368.</p> <p>cites: 21 S. C. 147; lb. 455; 10 S. C. 368; 58 S. C. 495; 15 S. C. 149.</p>

Before Shipp, J., Greenville, October term, 1914. Action by B. F. Brown, by his guardian ad litem, J. L. Brown, against Piedmont Manufacturing Company. From an order of nonsuit, the plaintiff appeals. The facts are stated in the opinion. cite: Duty to warn: 48 S. C. 190; 80 S. C. 567; 89 S. C. 390; 77 S. C. 69. Assumption of risks: 84 S. C. 286.

<p>Before Gary, J., Abbeville, September, 1914.</p> <p>Action by Florence Sullivan Smith against James F. Clinkscales and Ellen Sherard Thomson to recover an undivided interest in real propert}*-, and to partition the same. From an order sustaining a demurrer to the complaint, the plaintiff and Mrs. Thomson appeal.</p> <p>The order of the Circuit Judge was as follows:</p> <p>This suit was instituted by the plaintiff for the partition of certain real estate, particularly described in the complaint, between the plaintiff, the defendant, James F. Clinkscales, and Mrs. Ellen Sherard Thomson. The real estate was at one time owned by Albert J. Clinkscales who, by deed bearing date the 29th of February, 1876, granted the said land to his two sons, John T. and James F. Clinkscales. John T. died without issue. He devised the land granted to him by the said deed to James F. At the time the deed was executed Albert J. Clinkscales and his wife, who has since died at the age of eighty-three years, had four children living, to wit: James F., John T., Ellen, the mother of plaintiff, and Elizabeth C. Sherard, the mother of the defendant, Ellen Sherard Thomson. Both the daughters predeceased Albert J. Clinkscales and his wife. At the time of the death of John T. the only brother or sister he had living was James E. His two.predeceased sisters each left a daughter, to wit, the plaintiff and Ellen Sherard Thomson. The complaint alleges that James F. and these two nieces now own the land which was granted to John T. by his father, and a partition between these three alleged owners is asked for by the plaintiff. James E. demurs to the complaint on the ground that it does not state a cause of action in that the complaint shows on its face that James F. is the owner of the land in fee simple, absolute.</p> <p>It is conceded in the argument of counsel that the judgment of the Court upon the demurrer must depend upon the construction of the deed above referred to. The deed is made a part of the complaint, as is also the will of John T. Clinkscales, who died in November, 1912, leaving neither wife, children nor any descendants surviving him. The land granted in the said deed was divided between the said John T. and James E. as directed by the deed, each taking possession of his moiety. In construing the deed we will only refer to the moiety of John T. and not to the moiety of James E.</p> <p>Before the plaintiff can maintain the action it must appear that she has an interest in the- land sought to be partitioned. If the complaint shows on its face that the absolute fee is in James F. Clinkscales, the plaintiff must go, out of Court regardless of whether that fee was conferred on him by the will of -John T. or whether it has come to him by reason of the fact that he is the sole surviving member of a class of persons who, under the terms of said deed, would take the fee upon the happening of a particular event, which event happened.</p> <p>Let us see, then, what estate was granted by Albert J. Clinkscales to John T. by this deed of February 29th, 1876. Upon this question the numerous attorneys in this case have many and widely different views.</p> <p>The words of the premises of the said deed are: “I, Albert J. Clinkscales, for the natural love and affection I have and bear for my two sons, James F. Clinkscales and John T. Clinkscales, have granted, bargained, sold and released unto the said James F. Clinkscales and John T. Clinkscales (here follows a description of the property), and with the limitations and reservations below expressed, namely (here directions are given as to a division), and when so divided, the said moieties and- parts will be held in severalty by the said James F Clinkscales and John T. Clinkscales, respectively, with this limitation, that if either the said James F. Clink-scales or John T. Clinkscales should die leaving no issue living at the time of his death, the brothers and sisters of the said James F. and John T. who may die without issue aforesaid, shall take, have and hold such lands to them, the said brothers and sisters, their heirs and assigns as tenants in common, in fee simple” (with certain reservations to A. J. Clinkscales). ' The habendum is as follows: “To have and to hold all and singular the said premises and moieties when division is made as aforesaid to the said James F. Clink-scales and John T. Clinkscales, respectively, and their heirs and assigns, respectively, subject to the limitations over to their brothers and sisters as aforesaid, and reservation and use to Albert J. Clinkscales as aforesaid.” Then follows a general warranty to James F. and John T. Clinkscales and to their heirs and assigns against all persons.</p> <p>It may be laid down as an established principle of construction, that where there are no words of inheritance in the premises, in which case the grantee will take only a life estate by implication, then resort may be had to the terms of the habendum to ascertain the quantity of the estate intended to be conveyed, and those terms may, if sufficient, rebut such implication; and that in the exposition of deeds the construction must be upon the view and comparison of the whole instrument and with the endeavor to give every part of it meaning and effect.</p> <p>A careful analysis on the premises in the deed before us shows that there was granted to John T. Clinkscales the land in dispute without words of inheritance, but in case of his death without issue the fee is vested in his brothers and sisters. The fee is not disposed of, however, except upon the contingency named. Where the grant is indefinite from its generality-in respect to the estate in the lands conveyed, which it is intended to create in the grantee, the habendum serves to define, qualify or control it.</p> <p>Looking, then, to the habendum we find that the grantor has by appropriate words of inheritance enlarged what was by implication, a life estate, in John T. Clinkscales with a possibility of a fee vesting in his brothers and sisters, into an absolute fee in John T. Clinkscales. We have, then, a deed granting the fee to John T. Clinkscales with conditions annexed that tend to reduce or cut down the absolute estate given to a base, or determinable or defeasible estate. Conditions are of two kinds, conditions precedent, and conditions subsequent. A condition precedent, is a condition upon the happening of which an estate will vest. A condition subsequent, defeats an estate already vested. In the case before us the condition referred to is a condition subsequent, in so far as the estate granted.to John T. Clinkscales is concerned; and it must, therefore, be governed by the rules governing conditions subsequent.</p> <p>Generally, to be valid they must not be repugnant to the estate given or devised. They must not be an exception to the very thing, that is, to the substance of the gift; if so, they are void, and the estate granted will stand unaffected by such condition. A condition subsequent, inconsistent with and repugnant to, the amplitude of the powers of the estate granted, is void; and, therefore, no condition. 2d Blackstone’s Com. and 2d Washburn on Real Property. We have seen that the deed granted the fee to John T. Clink-scales, conditions being injected into the grant. Let us see, then, if the conditions are repugnant to the fee granted.</p> <p>The power of alienation belongs to a fee, in fact, it is the very essence of a fee. The condition herein referred to, is inconsistent or repugnant to the fee granted, for, if effect should be given to the condition, it was beyond the power of John T. Clinkscales to alienate the land, notwithstanding the fee was in him; and, it could not be known until after his death whether or not he might exercise the right of disposing of the property by will. “A legal estate in fee simple cannot by the terms of its creation be made subject to a provision that it shall not be transferred by its owner; and this is the case, whether such a provision takes the form of a condition, special limitation, or executory limitation, etc. Tiffany on Real Property, vol. II, page 499, section 500.”</p> <p>The condition in the deed before us is a direct and positive restriction upon the power of alienation. The deed grants the fee, but the condition strikes at the very substance of this fee, and, if valid, would take away and destroy its most important and essential quality—the power of sale. A fee may be defeated by a condition which is independent of the estate granted and upon the happening of which the estate is lost; but a condition, the effect of which is to cut down a fee to a less estate, is void because repugnant to the fee. Such is the character of the provision in this case. Moore v. Sanders, 15 S. C. 442.</p> <p>We are aware that from the earliest time the decisions are uniform, that where there is a clear and manifest repugnance between the premises and the habendum clauses of a deed, the former must prevail; and that the doctrine is no less well recognized and maintained now than in the days of Coke and Sir Matthew Hale. The view we have taken of the deed in nowise contravenes this well known rule of property, for it will be observed that the grantor, has in the premises given to John T. Clinkscales a life estate by implication, which implication is destroyed by the positive language of the habendum and warranty clauses. As was well said in a case from another State, “The rule just referred to gives way, of course, as all rules of construction must, where there is one clear and unmistakably expressed intention. Rules of construction are intended only to assist in ascertaining intention, and must not be perverted into defeating it; but where two repugnant intentions have been expressed with equal clearness in the instrument, some rule of construing it must be adopted. The particular rule under consideration here will not apply where but one plain intention can be deduced from the instrument as a whole, and that intention must prevail whether it be discovered in the first or last clause of the instrument; nor has it any application where no particular estate is expressed in- the granting clause, so that the habendum may be regarded as fixing that which was before uncertain, or where the habendum enlarges the estate conveyed by the premises, or speaking, generally, wherever it can fairly be said that the effect of the habendum is merely to enlarge or explain or qualify the estate granted, without contradicting or nullifying it.”</p> <p>Having reached the conclusion that we need not violate or disregard the rule just mentioned, in order to conclude that the grantor has granted the fee to John T. Clinkscales, we may here quote as applicable what was said in Maker v. Lasell, 83 Me. 562, 29 Atl. 474, 23 Am. St. Rep. 795, viz.: “There is one rule pertaining to the construction of deeds as ancient, general, and rigorous as any other. It is the rule that a grantor cannot destroy his own grant, however much we may modify it or load it with conditions, the rule, that having once granted an estate in his deed, no subsequent clause even in the same deed, can operate to nullify it. - 11th Bacon’s Abridgment, Sheppard’s Touchstone 79, 102. We do not find that this rule has ever been disregarded or even seriously questioned by Courts. We find it often stated, approved, and sometimes made a rule of decision. In Marboro v. Godolphin, 2d Ves. Sr. 74, Lord Chancellor Hard-wick: Tn whose judgments equity shone resplendent,’ declared that the Courts should not adopt such a construction of an instrument of devise as would defeat the interest given. In Cholmondly v. Clinton, 2d Jac. W. 84, which was a case most elaborately argued and considered, it was said by-the Court that, where a limitation in a deed is perfect and complete, it cannot be controlled by intention collected from other parts of the same deed.” -</p> <p>Not only is this the rule in other States, but has been a recognized rule of property in South Carolina since the advent of jurisprudence.</p> <p>“An estate in fee simple is the entire and absolute property of the subject, and, therefore, when one grants such an estate, he can make no further disposition of the property for he has already granted the whole and entire interest that is possible for him to have.” 2d Minors’ Institutes 72.</p> <p>This language was quoted with approval in Chavis v. Chavis, 57 S. C. 177, 35 S. E. 507. This or similar,statements of the doctrine have been approved in Bdwards v. Bdwards, 21 S. C. Eq. (2d Strob. Eq.) 101; Allen v. Bolger, 40 S. C.E. (6th Rich.) 54; Bx parte Yown, 17th S. C.; Glenn v. Jamison, 48th S. C. 316, 26’S. E. 677; Clinkscales v. Clinkscales, 91st S. C. 59, 74 S. E. 12; Bagan v. Touchberry, 93 S. C. 569, 77 S. E. 706; Browning v. Hoover, 95 S. C. 32, 78 S. E. 521; Adams v. Chaplin, 10 S. C. Eq. (1st Hill’s Chancery) 265, and in many other cases. The principles and the facts upon which these decisions were made are so generally known and recognized by the profession that a particular statement as to each case is unnecessary and would protract this order to an unreasonable length. But it may be said that without exception the cases recognize the principles referred to.</p> <p>We conclude, therefore, that the deed from Albert Clink-scales to John T. Clinkscales grants to John T. Clinkscales the absolute fee in the lands sought to be partitioned; that the said John T. devised the said lands to James F. Clink-scales, who is now the absolute owner in fee thereof under the said devise.</p> <p>The demurrer should be sustained.</p> <p>But even if I am in error in the above reasoning, and even if the condition in the deed from Albert J. to John T. Clink-scales should be held to be valid, the same final conclusion must be reached for the following reasons: The premises give the property to John T. Clinkscales with the limitation that if he should die, leaving no issue living at the time of his death, the brothers and sisters of the said James F. Clinkscales and John T. Clinksales who may die without issue aforesaid shall take and hold such lands, to them, the said brothers and sisters, their heirs and assigns, as tenants in common, in fee simple (with certain reservations to the grantor). The premise just quoted grants to the sisters and brothers of John T. Clinkscales, a fee upon the happening of a particular event, which event has happened. The grant is to a class of unascertained persons. Upon the happening of the event, only James F. Clinkscales answered the description. He took the estate, therefore, per formam doni.</p> <p>In gifts to unascertained classes the rule is, that all who constitute the class at the period when the provision takes effect, whether in being at the date the instrument is executed or born afterwards, are entitled to take the estate, and only those who are living can take. Cole v. Creyón, 10 S. C. Eq. (1st Hill’s Chancery) 311; Clark v. Clark, 19 S. C.; Shanks v. Mills, 24 S. C. 362.</p> <p>Only those of the class in existence at the period when the provision takes effect are entitled to the estate, the predeceased ones or their representatives are excluded. Hayne v. Irvine, 25 S. C. 289; Corbett v. Laurens, 26 S. C. Eq. (5th Rich. Eq.) 301. None are entitled but those that can bring themselves within the description, at the happening of the contingency. Lowry v. O’Bryan, 25 S. C. Eq. (4th Rich. Eq.) 262.</p> <p>There are many other decisions to the same effect, but it is unnecessary to quote further.</p> <p>So whether we regard the condition in the deed from Albert J. Clinkscales to John T. Clinkscales as an unavailing attempt to modify or make defeasible the fee that was granted, or, whether we regard it as a valid vesting of the fee in his “brothers and sisters” upon the happening of an event, which event did happen, the fee simple absolute is now in James F. Clinkscales and the plaintiff cannot maintain this suit.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the demurrer herein be sustained and the complaint dismissed.”</p> <p>The exceptions were as follows:</p> <p>I. Because his Honor erred in holding that John T. Clink-scales took a fee simple absolute under the deed involved, which passed .to his brother, James, by will, whereas said John T. Clinkscales took only a life estate, or at most a fee determinable or fee defeasible thereunder.</p> <p>II. Because his Honor erred in holding in effect, in this connection, that a fee defeasible cannot be created by deed in this State, since the so-called condition of defeasance, according to his Honor’s holding, “is repugnant to the fee granted,” and it is “beyond the power of (grantee) to alienate the land, notwithstanding the fee is in him;” whereas, such defeasible fees can be and are freely and lawfully created by deed in this State. We respectfully submit that it is error to hold that conditions or limitations cannot be annexed to a fee, “tending to reduce or cut down the absolute estate given to a base, or determinable or defeasible estate.”'</p> <p>III. Because his Honor erred, in this connection, in holding in effect' that the limitation annexed to the estate of John T. Clinkscales was repugnant to the estate granted, creating a condition that is “an exception to the very thing, that is, to the substance of the gift,” and that it is therefore void; whereas there is no real repugnancy to the estate that the grantor intended to convey to the said John T. Clink-scales, and the clauses can be harmonized.</p> <p>IV. Because his Honor erred, in this connection, in holding in effect tiiat there was a condition subsequent annexed to the estate granted to John T. Clinkscales, which condition is in restraint of alienation, and, therefore, void, whereas the limitation or so-called condition is not in restraint of alienation of the estate that was actually granted in the said deed to the said John T. Clinkscales.</p> <p>V. Because his Honor erred, in this connection, in holding in effect that it is never permissible for a grantor in a deed to destroy his own grant, and that “having once granted an' estate in his deed, no subsequent clause, even in the same deed, can operate to nullify it,” and in holding that this is a rule of property “recognized * * * in South Carolina since the advent of jurisprudence;” and yet proceeding in the same opinion to nullify the grant in the premises to the brothers and sisters of John T. Clinkscales, their heirs and assigns.</p> <p>VI. Because his Honor erred in holding that if he was in error in holding that John T. Clinkscales took a fee simple absolute under the deed, which would pass to James by John T.’s will, yet James would take under the limitation in the deed the entire fee in the John T. Clinkscales moiety of the land described, being the only person of the class therein named, and the only, person answering the description “brothers and sisters” at the death of John T. Clinkscales. We respectfully submit that the said James F. Clinkscales could not take such future estate under the deed; such future estate could take effect, if at all, only by way of remainder, or by way of executory limitation. It could not take effect as a remainder if a fee was granted to John T. Clinkscales, because a fee cannot be limited after a fee, whether a fee simple absolute or a fee defeasible; and it could not take effect by way of executory limitation, for an executory limitation cannot be created by deed in this State. Furthermore, the deed speaks as of the date of delivery, and in any event, if it be possible to give effect ih the deed to such future estates, the two sisters of John T. Clinkscales would take their share. '</p> <p>VII. Because his Honor erred in not sustaining the contention that the two appellants, Mrs. Smith and Mrs. Thomson, took each an undivided one-third interest in fee simple in the land involved in this controversy; since the fee simple absolute of the construction of the provision for John T. Clinkscales is impossible, the said John T. took either a fee defeasible or a life estate; if he took a fee defeasible, then upon the death of John T. Clinkscales without leaving issue at his death, the real estate reverted to the grantor and passed to his heirs under the statute of distributions; but, if John T. Clinkscales took only a life estate, then his sisters took transmissible contingent remainders, which have been transmitted to these appellánts who were their only heirs.</p> <p>VIII. Because his Honor erred in not overruling the demurrer and in not holding that the facts stated in the complaint constituted a cause of action against the defendant and under the deed of Albert J. Clinkscales the plaintiff was entitled to an interest in the said estate.</p> <p>submit: The deed created a determinable fee, and not an estate upon condition: 1 Washb. Real Prop. (4th ed.) 88, 89; 15 R. R. A. 231; Challis, Real Prop. 197; 14 Gray 586-612; Plowd. 557; 1 Preston, Estates 475; 3 Gray 146. Regard to intention: 39 S. C. 274; 42 S. C. 342. Distinction between antecedent and subsequent clauses limiting grant: 23 Am. St. Rep. 295; 2 Strob. Eq. 101; 1 Hill Ch. 263; 6 Rich. Eq. 54; 48 S. C. 320; 57 S. C. 177; 91 S. C. 59; 93 S. C. 569; 95 S. C. 32. Compared with: 14 Rich. Eq. 277; 4 McC. 198, 200; 9 A. & E. Ency. Raw 139, 140; 13 Cyc. 551; 17 S. C. 536; 94 S. C. 1 and 57 S. C. 173, distinguished. Qualified fee: 1 Washb. R. P. (4th ed.) 89 and 100; 12 Black Com. 113; 2 Preston, Estates 358, 360; 15 E. R. A. 231, 233. Defendant cannot take as sole survivor of class: 24 A. & E. Enc. of E. 380, 381. Fxecutory limitation cannot be sustained in a deed: 83 S. C. 270; 17 S. C. 537; 16 S. C. 303; 14 S. C. 271; 2 Hill Ch. 552.</p> <p>submits: Under the grant the brothers and sisters then in existence took transmissible interests: 66 S. C. 370; 23 S. E. 224; 17 S. C. 52; 44 S. C. 503; 2 Hill Ch. 638; 10 Rich. Eq. 394; 4 Strob. 37; 23 S. C. 225;.26 S. C. 450; 1 Hill Ch. 311 and 2 Hill Ch. 41 conflict with Dudley’s Eq. 201; 59 S. C. 15; 27-S. C. 486; 28 S. C. 125; distinguished; rule stated in Fearne, Remainders: 239; 2 Washb. R. P. 588, *pp. 261, 264.</p> <p>submit: A., the grantee, took a fee simple: 48 S. C. 316; 2 Strob. Eq. 101; 1 Hill Ch. 265; 6 Rich. 54; 17 S. C. 532;' 57 S. C. 175; 15 S. C. 440; 23 S. C. 235; 94 S. C. 1; 93 S. C. 569; 91 S. C. 59. The interest given to brothers and sisters, upon death of A without issue, was not transmissible to their heirs: 4 Strob. Eq. 37; 57 N. C. 387. Defendant, J. P. C., takes to the exclusion of others, as the only member of designated class; fees defeasible: 2 Blackstone Com. 109; 4 Kent. 8; 155 Mass. 171; 15 S. C. 443; 1 Hill 181; 32 S. C. 563; 46 S. C. 273; 27 S. C. 479; 2 McC. Ch. 214; 1 Hill 311; 23 S. C. 224; 26 S. C. 450; 2 McC. 440; 1 Strob. Eq. 84; 4 Vesey 692; 10 Vesey 195: 4 Rich. Eq. 262; 59 S. C. 4; 25 S. C. 358; 95 S. C. 86.</p> <p>submits: Gift over after fee ineffectual: 16 S. C. 303; 17 S. C. 532; 26 S. C. 677; 57 S. C. 173; 69 S. C. 292; 76 S. C. 36; 2 Strob. Eq. 101; 1 Hill Ch. 265; 64 S. C. 680; 67 S. C. 130; 6 Rich. 54; Fearne, Remedies, p. 371, ch. VI, sec. 8. Pee defeasible: 38 S. C. 45; 4 Rich. Eq. 262; 1 Bailey 100. Only survivor of class to whom gift over was limited can take: 1 Hill Ch. 311; 19 S. C. 350; 24 S. C. 362; 2 McC. 257. The predeceased ones or their representatives are excluded: 5 Rich. Eq. 324; 25 S. C. 462; Id. 289; 22 S. E. 823; 2 Hill Ch. 41.</p>

<p>Before Moore, J., Columbia, May, 1915.</p> <p>Petition for writ of certiorari by J. A. Callison, M. E. Quattlebaum, T. A. Robinson, D. L. Burnett, J. P. Quattlebaum, J. D. Moseley, J. W. Golpb, S. O. Quattlebaum, T. B. Bell, E. H. Hollingsworth, J. C. Drennan, D. W. Dowtin, C. C. Clinkscales, J. W. Langley and A. E. Hollingsworth, on behalf of themselves and others similarly interested, against T. H. Peeples, chairman of State board of canvassers, R. M. McCown, A. W. Jones, S. T Carter, W. W. Moore and D. B. Carter, constituting the State board of canvassers for the State of South Carolina. The facts are stated in the following order :</p> <p>This cause comes before me to review the order of the State board of canvassers upon a contest and protest filed against the declaration of the result of an election held in Greenwood county upon the formation of the proposed new county of McCormick.</p> <p>A writ of certiorari was issued out of the Supreme Court directing the record to be sent to that Court for review, and on the call of the case it was referred to this Court to pass upon the issues between the parties, and was heard by me under that order.</p> <p>The facts about which there is no dispute are, that the proposed new county cuts off from Greenwood county the whole of Yeldell township and parts of Troy, Callison, Bradley and Kirksey townships. The voting precincts of the four last named townships were left within the old county and the election was held at only one precinct in Greenwood county, to wit, the precinct in Yeldell township.</p> <p>Voters from the other townships cut off into the proposed new county were denied the right to vote at the precinct in Yeldell township, because the managers held that only those persons could vote at the precinct in Yeldell township who held registration certificates calling for that particular precinct ; accordingly only those qualified electors who lived in Yeldell township and had registration certificates calling for the precinct therein were allowed to vote upon the formation of the proposed new county.</p> <p>The number of qualified electors residing in those, portions of Troy, Callison, Bradley and Kirksey townships, which were cut off into the proposed -new county, is greater than the number of qualified electors who voted upon the formation of the proposed new county at the precinct in Yeldell township. This fact is apparent from the testimony of both the contestants and those in favor of the formation of the new county. The testimony does not seriously question the number of qualified electors residing within that portion of these four townships cut off into the proposed new county. For instance, the record shows that in Yeldell township sixty-four votes were cast while testimony of the petitioners show that in that portion of Troy township alone, cut off into the proposed new county, forty-seven qualified electors reside, and in Callison forty-one, Bradley four and Kirksey two. The testimony on behalf of the' proponents of the new county undertakes to reduce this number, but insufficiently to bring the result in dispute. So it is an undisputed fact in the case that there were more qualified electors residing in those portions of Callison, Bradley, Troy and Kirksey townships cut off into the proposed new county, than there were qualified electors who voted at the election held in Yeldell township.</p> <p>It is also an undisputed fact that six of the parties who voted at the precinct in Yeldell township were registered within thirty days of the election, to wit, on December 7, 1914. The election was held on December 29, 1914.</p> <p>It is also an undisputed fact in the case that the territory left in Greenwood county has been reduced below five hundred square miles.</p> <p>The facts about which the record might give rise to some dispute are that there were a sufficient number of qualified electors residing within Troy, Callison, Bradley and Kirksey townships, cut off into the proposed new county, who would have voted against the formation of the new county to have changed the result.</p> <p>On the hearing of the case before the county board of canvassers affidavits were introduced pro and con to show how qualified electors residing in these four townships would have voted, had they been allowed to vote. Some of these parties made affidavits on both sides of the question, and of those who made such double affidavits, some of them appeared on the trial and testified as to how they would have voted and undertook to explain why they had made affidavits both ways. The contestants introduced the affidavits of fifty-three parties who swore they were qualified electors residing within this territory and would have voted against the formation of the new county had it not been for the fact that their voting precinct was left within the old county, and for that reason they were not allowed to vote. Twelve of these fifty-three made affidavits on both sides of the question and of these twelve four appeared on the trial and testified that their affidavits in favor of the new county were made under a misapprehension of the facts, and if allowed to vote they would have voted against it.</p> <p>The county board of canvassers, after going into the matter thoroughly, found the facts practically as stated above. On appeal the State board of canvassers did not undertake to decide these questions of fact, but declared the election upon the face of .the returns after deducting those votes which they held to be illegal on account of the fact that they were registered within the thirty-day limit.</p> <p>The State board declared the election upon the face of the returns, and made no finding as to how many voters reside within the disputed territory, how they would have voted if‘allowed to vote or how many were in favor of the new county or against it. To construe the decision of the State board as a finding upon these facts would be to disregard the reason upon which its decisions is expressly based, and would be unjust to the board, as well as to the contestants.</p> <p>But if it were conceded that the State board made such finding on the facts this would not be conclusive; for unless there is testimony susceptible of that inference, it becomes a question of law which the Court will review just 1 as a nonsuit; or the direction of a verdict. The testimony is susceptible of no other inference than that more qualified voters reside within the portions of Troy, Callison, Bradley and Kirksey townships cut off into the new county than voted at the election held in Yeldell township. The testimony of both sides is conclusive as to this. The statute making the findings of fact by the State board conclusive, presupposes that the findings must be supported by some testimony. t The jury is the final arbiter of the facts in a law case—made so by the Constitution, yet, where only one inference can properly be drawn from the testimony—there are no facts to decide and the direction of a verdict becomes proper and necessary to the adminis2 tration of justice. So it is here. The State board declared the result on the face of the returns and gave its reason ’ for not passing upon the facts, and the results as stated by the board are in consequence of its decision that it was not proper for it to undertake to pass upon the questions of fact involved. The first question 3 which arises under the facts as hereinabove stated is: Who are entitled to vote upon the formation of a new county? To determine this, recourse must be had to the Constitution.</p> <p>Section 1, article VII of the Constitution of 1895, makes the following provision as to the formation of a new county:</p> <p>“The General Assembly may establish new counties in the following manner: When over one-third of the qualified electors within the area of each section of the old county proposed to be' cut off to form a new county shall petition the Governor for the creation of a new county, setting forth boundaries and showing compliance with the requirements of this article, the Governor shall order an election within a reasonable time thereafter, by the qualified electors within the proposed area, in which election they shall vote ‘Yes’ or ‘No’ upon the question of creating said new county; and at the same election the question of a name and county seat for such county shall be submitted to the electors.”</p> <p>Section 2 of the same article makes the following provision :</p> <p>“If two-thirds of the qualified electors voting at such election shall vote ‘Yes’ upon such question, then the General Assembly at the next session shall establish such new county.”</p> <p>Authority of the Governor to order an election is based upon a petition of one-third of the qualified electors within the area proposed to be cut off. What is the character of this election? The Constitution says: “That it shall.be by the qualified electors within the proposed area.” No authority is given to order an election for any portion of the qualified electors, but the rights extend to every qualified elector within the proposed area. It is not given to those who may have voting precincts within the area, nor to those who are qualified to vote at any particular precinct, but to the qualified electors within the proposed area, no matter where their precinct is located. In other words, the purpose of the Constitution was to allow every person qualified to vote to express his preference for the new county or against it. Not only is the political rights of the elector affected by the election, but his property rights as well. The character of the election is peculiar in this respect from the ordinary election. It may transfer the property of the pro-4 posed electors from one governmental subdivision of the State to another, and proposes to place new burdens upon the people living within the area. The formation of a new county necessarily involves the expenditure of large sums of money, the maintenance and support of many officers and the apportionment of debts of the old county upon the new area, and many other incidents and expenditures it is not important here to mention. So, then, an election on a new county means something more than a mere expression of a political right. It involves, peculiarly, the property rights of every person within the area pro-5 posed to be cut off. The Constitution, recognizing this, not only provides that the election shall be by the qualified electors within the proposed area, but further places a limitation upon the number of inhabitants, the taxable property and the area of the proposed new county. This provision is made to protect the electorate of the State against the formation of new counties so small that the burden of taxation would be unreasonable and unjust. When the proponents of a new county are able to comply with those provisions of the Constitution as to inhabitants, taxable property and the area, and whenever one-third of the qualified electors within such area petitions the Governor, he is authorized to order the election, not for a portion of the electorate, but the whole of it.</p> <p>Section 2 is conclusive of this construction of section 1. It provides in specific terms for “electors voting at such elections” a very different term from that used in section 1, which is “by the qualified electors within the pro-3 posed area.” So reading the two sections together the clear purpose of the Constitution is that the election shall be held for the benefit of all of the qualified electors residing within the area proposed to be cut off, and such qualified electors may or may not exercise their right to vote as they see fit, and the result of the election will depend upon those who see fit to exercise the right.</p> <p>This question arose in Parler v. Fogle, 78 S. C. 570, 59 S. E. 707, and Parler v. State Board, 79 S. C. 414, 60 S. E. 967, but was not decided because in the one case it was prematurely raised, and in the other the result of the election was such that if all the qualified voters, who were deprived of the right to vote, had voted against the new county the result would have been the samé.</p> <p>If there was any doubt as to whether the constitutional requirements should be strictly followed, the cases of State v. Shaw, 9 S. C. 141, and State v. Board of Canvassers, 78 S. C. 461, 14 L. R. A. (N. S.) 850, 59 S. E. 145, are to the point and conclusive. The contention that the act of the General Assembly made no provision for electors situate as these were is not sufficient to warrant the Court in dismissing their application for protection; for the General Assembly can no more deprive them of their constitutional rights than the proponents of the new county. It makes no difference how or why they were deprived of the right, unless, of course, they themselves were responsible for it. The fact that they were deprived of the right to vote goes to the legality'of the election, and its validity depends upon the determination of what part of the electorate so deprived of the right would be necessary to render the election void.</p> <p>In Parler v. Fogle, supra, and Parler v. State Board of Canvassers, supra, the Court indicated that if there was a sufficient number deprived of the right to vote to have changed the result—counting all against—this would be sufficient. ■ •</p> <p>The true doctrine is, that whenever the irregularity or illegality of the election is such that the result of the election would be placed in doubt, then the election must be set aside. This is the effect of the holding in the case of Gunter v. Gay-den, 84 S. C. 48, 65 S. E. 948, where registration certificates were issued within thirty days of the election. The Court held that the provisions of the Constitution were mandatory and the failure of the managers to comply with it rendered the election void, because it was impracticable to purge the election and the result was, therefore, left in doubt.</p> <p>In Wright v. State Board of Canvassers, 76 S. C. 574, 57 S. E. 536, it was held that the failure of the managers to require the production of proof of the payment of taxes and registration certificates, as prescribed by the Constitution, was sufficient upon which to declare the election void. In his concurring opinion, Mr. Justice Woods holds that this was a mere irregularity, so far as the presentation of registration certificates was concerned, and infers that that would not be sufficient to annul the election, unless it would throw doubt upon the result.</p> <p>In Davis v. State Board of Canvassers, 86 S. C. 451, 68 S. E. 676, the Court clearly lays down the doctrine that if there were enough illegal votes cast in an election to affect the result or leave any doubt, the election should be held void.</p> <p>If this is the true doctrine as to illegal votes cast in an election, it would certainly be applicable to an election where qualified electors were • illegally deprived of their right to vote.</p> <p>The effect of the decision in Rawl v. McCown, 97 S. C. 1, 81 S. E. 958, is the same, for the Court there declares: “After deducting the vote of the ‘precincts which should have been thrown out, and all other illegal votes, there still remains a majority in favor of sale.”</p> <p>Probably the first judicial announcement of this rule in our State will be found in the case óf Johnson v. Charleston (1 Bay), 1 S. C. L. 441, where the question arose out of an election for wardens. At page 442, the Court says:</p> <p>“As to the mode adopted by the council in deducting the bad votes from the highest candidate, it was perhaps the best general rule that could be adopted; for if after such deduction he had still a majority, then this election would stand unimpeached; but if after the deduction the next candidate had an equal or greater number of votes than the other, so as to make it a doubtful case, which one of them really and truly had the greatest number of unquestionable votes, then, according to the principles of free government and the rights of the people, it ought to be sent back to the people at large to determine finally on the point.”</p> <p>The result of the election here would certainly be left in doubt, for it is impossible to say how many of these electors would have voted or how they would have voted. The county board found that 53 of them made afft6 davits or testified that they would have voted against the new county. The board deducted 12 of these because they had made affidavits favorable to both sides. Without adopting this board’s calculations, it is clear that the result would be doubtful, for Yeldell polled 64 votes, of which 51 were “for” and 13 “against,” and it would only have taken a few more “against” to have changed the result. Thirteen additional votes would have effected a change in result, assuming all óf them would have voted “against.” With this number the vote would have stood as follows:</p> <p>Total vote, plus 13—77; for 51, against 26. Two-thirds are necessary to carry the election, or 52 votes. In Troy alone there were 47 according to proponents. In Callison there were 41, according to contestants, and not less than 30 to both parties. In Kirksey there were 2, according to the testimony of these two, which is riot questioned. So there is certainly not less than 76 voters in the contested territory, and how they would have voted could only be properly determined by allowing them to vote under the provisions of law in that behalf.</p> <p>It was contended that the Constitution did not contemplate that all qualified voters within the area proposed to be cut off should vote, but only those whose precincts were in the new county. The facts of this case illustrate the fallacy of this position. The minority might thus be vested with the power to control the destinies of the majority—a condition subversive of the institutions of a free people, and contrary to every principle of our government.</p> <p>That it is necessary to declare the act of the General Assembly providing for elections on the question of new counties violative of the Constitution does not necessarily follow. Every doubt ought to be solved in favor of the constitutionality of an act of the General Assembly, and it is not necessary to declare this act void, to effect the result herein mentioned. If it were necessary the Court would not hesitate to do so, for the Constitution is the Magna Charta of the liberty of the people and must be upheld at all cost.</p> <p>The act is susceptible of such construction as will carry out the legislative intention and do no violence to its expressed terms. The clear purpose of the act is to provide a means by which all qualified electors within the 7 area cut off into a proposed new county may vote upon the question. About this purpose of the General Assembly there can be absolutely .no question. The mode provided for, is the appointment of three managers for each voting place in the area of the old county proposed to be cut off. This means that three managers shall be appointed for each voting district cut into the new county, partially or wholly, so that in this particular case managers should have been appointed for the voting precincts situate in Callison, Troy, Bradley and Kirksey, whether the box for that precinct be within the area, or without. The 8 words “voting place” used in the statute are used in a broader sense than the mere location of the box in the particular precinct. It refers rather to the whole territory which the precinct is intended to cover, than the particular point where the box is located. If this were not so the General Assembly would be placed .in the absurd position of undertaking to restrict the limitation placed upon elections of this kind by the Constitution. It was certainly the intention of the legislature to provide for the election, under the requirements of the Constitution, so that all qualified electors in the area cut off could vote upon it. The Constitution itself provides that every elector must voté at his own precinct, so that it could not have been contemplated by this act that electors could vote at any other place than the precinct for which they were registered. If, then, the purpose was to carry out the plain intention of the Constitution, the words “voting place,” as used in the statute, must be construed to refer to territory covered by a precinct rather than the location of the box for the precinct, and managers are authorized for the precinct, whether its actual location be within or without. This construction is supported by the rule laid down in Stackhouse v. County Board, 86 S. C. 419, 68 S. E. 561.</p> <p>“However plain the ordinary meaning of the words used in a statute may be, the Courts will reject the meaning, when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the legislature, or woul'd defeat the plain legislative intention; and if possible will construe the statute so as to escape the absurdity and carry the intention into effect.</p> <p>The cardinal rule that the Court should in all cases give effect to the obvious intent of the legislature, and that every technical rule of construction should yield to the clear meaning of the statute, is stated in Endlich on Stat., Inter., sec. 295. Numerous cases in which clerical errors have been corrected by the Courts pursuant to this principle are given in section 319 of the same work.</p> <p>While this rule is generally recognized,, the Courts in applying it should exercise circumspection to avoid any effort to amend statutes. The principle depends upon the absurdity being manifest and the legislative intent obvious. Here'it is perfectly obvious that the purpose of the legislature was to give the electors of Dillon county the opportunity to decide by an election whether funds should be provided by issue of county bonds for buildings absolutely indispensable. What public officials should conduct the election was an entirely subordinate matter. •</p> <p>A statute so plain and important in its purpose should not be declared impossible of execution merely because as to a subordinate—the method of holding an election—the legislature has used words, which, given their literal meaning, would impose impossible or absurd conditions. In such a case the literal meaning of the words must be rejected and a meaning assigned to them expressive of the legislative intent, if such intent be plainly indicated to the Court by consideration of the entire statute, or other statutes on the same and similar subjects, and by taking into view all the related facts and conditions.”</p> <p>If this doctrine is applied to the act in question keeping in mind the obvious and manifest intention of the General Assembly, the construction to be placed upon it is clear and there is no necessity for declaring it unconstitutional, 7 . or defective. The construction placed upon the act, conforming it to the intention of the General Assembly made evident from its expressed terms, would authorize the appointment of managers of election for voting districts partially cut by new county line's where the box itself is left on the outside.</p> <p>This being so, it was the duty of the commissioners of election for Greenwood county, to have appointed managers in Troy, Callison, Bradley and Kirksey for the precincts in those townships, in order that all electors residing within the area of the township cut into the new county could have the opportunity to cast their votes. Failing to do this, 9 those electors were deprived of their constitutional right and should be protected, especially where it is apparent that there were more than enough of them to have changed the result of the election, or, at least, renderéd the result very doubtful.</p> <p>Having reached the conclusion that the election must be declared void, it is unnecessary to pass upon the interesting question whether Greenwood county is an “old county” within the meaning of the Constitution, and, thereto fore, cannot be reduced below five hundred square miles. The Supreme Court, in Rhame v. DuRant, 93 S. C. 217, 76 S. E. 611, considered the question and were divided upon the construction to be placed upon sections 4 and S of article VII, but inasmuch as the construction of those sections were only indirectly before the Court, the construction of section 7 being under consideration, the question was left open. I am content to leave them thus, until their construction becomes necessary.</p> <p>For the reasons stated the decision of the State board of canvassers should be reversed and the decision of the county board affirmed, and it is so ordered.</p> <p>The State board of canvassers appeal on the following exceptions:</p> <p>1. His Honor erred, after holding that “the facts about which the records might give rise to some dispute are that there were a sufficient number of qualified electors residing within Troy, Callison, Bradley and Kirksey townships, cut off into the proposed new county, who would have voted against the formation of the new county to have changed the result,” in holding that the State board did not settle, determine and find the facts to be that the result would not have been effected or changed in this election, if these parties had voted.</p> <p>2. His Honor erred, in holding that “on appeal the State board of canvassers did not undertake to decide these questions of fact, but declared the election upon the face of the returns;” whereas, he should have held that the State board found and declared the facts to be that the result had not been affected by the failure of these parties to vote and would not have been changed had they voted.</p> <p>3. The presiding Judge erred in holding that “while it was contended before me that the State board of canvassers did decide these facts adversely to the contestants, this contention is contrary to the clear declaration of the board. * * * The State board declared the election upon the face of the returns, and made no finding as to how many voters reside within the disputed territory, how they would have voted if allowed to vote, or how many were in favor of the new county or against it;” whereas, he should have held that the State board declared the result in accordance with the face of the returns only after having first determined and found the facts to be that the result would not have been effected or changed had these parties voted.</p> <p>4. The presiding Judge erred in holding, “but if it were conceded that the State board made such finding on the facts this would not be conclusive;” whereas, he should have held that the statute giving the authority to the State board of canvassers to declare the result of this election made such finding and declaration absolutely conclusive, and denied the Court any authority to pass upon any of the facts growing out of the contest.</p> <p>5. His Honor erred in holding that only one inference could be drawn from the facts in this case; and that, therefore, the action of the State board of canvassers was really declaration of the result on the face of the returns without regards to the effect on the result of the fact that certain voters could not vote; the error being that there was testimony before the State board pro and con as to the effect on the result of the fact that certain voters could not vote, from which facts more than one inference could be drawn, and from which, as a matter of fact, the State board found and declared that the result would not have been effected or changed.</p> <p>6. His Honor erred in holding that under sections 1 and 2, article VII of the Constitution, that those who were not able to vote in this election, by reason of their voting place being without the line of the proposed new county, were qualified electors under Constitution and entitled to vote in this election upon the new county issue.</p> <p>7. His Honor erred in holding that the Supreme Court decided in Parler v. State Board, 79 S. C. 414, 60 S. E. 967, that all of the voters who could not vote, were to be considered in determining the effect on the result of the election as being opposed to or voting against the new county.</p> <p>8. His Honor erred in holding that the election was rendered uncertain or doubtful on account of the inability of these parties to vote, and that this should be treated the same as illegal votes are treated when they render the result of an election uncertain or doubtful; whereas, he should have held that as in case of illegal votes where the effect of illegal voting may be determined, the result will not be considered doubtful or uncertain, so here, it being practical to determine the effect on the result of these parties not being able to vote, the result on that account was not rendered doubtful or uncertáin.</p> <p>9. His Honor erred in holding that “the result of the election here would certainly be left in doubt, for it is impossible to say how many of these electors would have voted or how they would have voted;”, whereas, he should have held that the effect on the result of the fact that certain voters could not vote could be practically determined.</p> <p>10. His Honor erred in holding that a proper construetion of the statute under which this election was held gave authority to the commissioners of election to place boxes for the purpose of this election in the-townships of Troy, Callison, Bradley and Kirksey, within the lines of the proposed new county; the error being that the statute specifically required that the commissioners of election appoint managers for the voting places within the territory for the proposed new county, and it was error to hold that voting for the proposed new county, and it was error to hold that voting place here in this statute meant voting precinct, and that the voting places as fixed by statute could be for the purposes of this election moved to some place within the lines of the proposed new county. ,</p> <p>11. His Honor erred in not passing upon and not holding that Greenwood county could be reduced below five hundred square miles under the Constitution.</p> <p>. 12. His Honor erred in reversing the decision of the State board of canvassers and in declaring the election to be null and void.</p> <p>13: The presiding Judge erred in considering, passing upon and reversing the State board on matters of fact; the error being that the Court is without jurisdiction to pass upon the facts in this case, the statute law of the State having-given this authority solely and only to the county and State board of canvassers.</p> <p>submits: The decision of the State board of canvassers was final on questions of fact: Civil Code 1912, secs. 641 and 642 ; 79 S. C. 416; 65 S. C. 85. As to reduction of area of old county: 93 S. C. 217; Const., art. VII, sec. 7. Voting place established by the legislature cannot' be moved by the managers. Election could not be held at boxes without area of proposed new county: Const., art. VIII, sec. 1. The inquiry is, then, why was no provision made so that every one in the territory could vote? The answer is that this was not practical under the Constitution, and this the General Assembly saw. The Constitution had just regulated the right of suffrage. To fully accomplish its object and make the same effective it laid down certain fixed rules for voting. It provided, as to polling precincts: “(a) The General Assembly shall provide for the establishment of polling precincts in the several counties of the State * * *; (b) Each elector shall be required to vote at his own precinct * * *; (c) Provision shall be made for his transfer to another precinct upon his change of residenceV Art. II, sec. 9. As to qualifications of suffrage: “(a) Registration, which shall provide for the enrollment of every elector * * *; (b) The General Assembly shall provide for issuing to each duly registered elector a certificate of registration * * *Art. II, sec. 4, subdivisions (a) and (b). These constitutional provisions received immediate legislative construction at the i8p6 session of the General Assembly: 22 Stats., p. 32, sec. 9; p. 44, sec. 22; Civil Code 1912, secs. 219, 239. It is plain, therefore, that the Constitution meant to limit the right of the elector to vote strictly at the polling place where his registration certificate read for and nowhere else. Now, then, is it not clear that these parties, in order to have voted, would have had to have had their voting places outside of the area of the new county opened on the day of the election? They were registered there. They could not change or transfer to some inside box, for only upon a change of residence does the Constitution permit or provide for a transfer. But should the boxes on the outside have been opened, then what would have become of the constitutional provision, art. VIII, sec. i, requiring the election to be held in the territory? To have opened the boxes on the outside would have been to hold the election on the outside as well as on the inside of the territory. But, it may be argued that the words “within the proposed area” refer to the “qualified electors” just preceding them. The General Assembly of i8p6, with a great many of the ablest members fresh from the constitutional convention, however, construed “within the proposed area” to refer to the election as well; and hence it provided that boxes only should be opened therein. This is a legislative construction of the meaning of the Constitution, which is entitled to great weight and respect: 76 S. C. 590. Then, how did they expect every voter in the territory to be able to vote? Did they, as a matter of fact? Turn to Const., section 2, art. VII, for an answer. Does this not show that they realized that there would be those who were qualified to vote in general and other special elections who would not be able to vote in a new county election? “Two-thirds of the qualified electors voting at such election.” “Two-thirds of those voting in such election.” Where else does this expression occur? Was it inserted to avoid the construction that the two-thirds vote required would have to be two-thirds of all the qualified electors in the territory? Certainly not. A'majority vote, a two-thirds vote, a three-fourths vote, etc., means, of course, of those voting, and no provision is necessary to be inserted in order to guard against any other construction. Why, then, was this expression inserted in section 2 of art. VII? It means that the framers of the Constitution saw the whole situation, and determined that a two-thirds vote of those able to vote at the election held within the proposed area should be sufficient to create a new county. And this means that for the purpose of this election there may be and often will be those so situated, as some were here situated, with regards to their voting places as not to be able to vote. As to these the Constitution does not confer upon them the right to vote in this election: See 78 S. C. 574; 65 S. C. 85; 54 S. C. 25.</p> <p>cite, as to: i. Who are entitled to vote on the formation of q .new county? Const., art. VII, secs. 1, 2; 78 S. C. 574; 79 S. C. 414; 9 S. C. 141; 78 S. C. 461. 2. What part of the electorate deprived of the right to vote would be necessary to render an election void? 78 S. C. 570; 79 S. C. 414; 84 S. C. 48; 76 S. C. 574; 86 S. C. 451; 97 S. C. 1; 1 Bay. 441. j. Does the statute relative to the formation of new counties —applied to the facts of this case—meet the requirements of the Constitution? Civil Code 1912, sec. 641; 86 S. C. 419. q.. Can Greenwood county be reduced below the five hundred square mile constitutional limit? 93 S. C. 217.</p>

Before SeasE, J., Hampton, February, 1914. Action by Boykins Buggy Company against W. Fred. Lightsey. From judgment for plaintiff by default, defendant appeals. The facts are stated in the opinion. cites: Code Civil Proc., sec. 207; 6 S. C. 404; 5 S. E. 478. The latter submits: Exceptions too general: 77 S. C. 255; 79 S. C. 120; 70 S. E. 428. Verification: Code Civil Proc., sec. 207; 28 S. C. 181; 27 Hun. 369; 20 Abb. N. C. 1; 13 Civ. Proc. Rep.

Before DeVorE, J., Greenville, February, 1915. Dean Farmer, having leased certain lands in Greenville county for the year 1914, purchased from the Greer Fertilizer Company certain fertilizers to be used in making a crop upon the lands leased by him from another. The fertilizer was so used.

Before Shipp, J., Spartanburg, Spring term, 1914. Action by W. H. Lee against Southern Railway Company. From judgment for defendant, plaintiff appeals.

<p>Before Memminger, J., Bennettsville, April, 1914.</p> <p>Action by Ansel A. Gray against Marion County Lumber Company. The plaintiff appeals from the Circuit decree, which was as follows:</p> <p>On January 30, 1899, H. R. Peele conveyed to Cape Fear Lumber Company certain timber and easements in Marlboro county. The plaintiff herein is the successor in title of H. R. Peele, and the defendant is the successor in title of Cape Fear Lumber Company. The conveyance in question contained this provision:</p> <p>“The said Cape Fear Lumber Company to have ten years from the time they commence to cut the timber to cut and remove same, and if at the end of that time they have not removed said timber, then to pay six per cent, upon purchase price they can have ten years longer time to remove same.”</p> <p>Owing to the fact that the defendant had not commenced to cut the timber and had not paid any interest money for an extension of the period, on January 27, 1913, as shown by the verification, the plaintiff brought an action to have the deed set aside as a cloud upon his title. The defendant duly answered, and the cause was referred to W. M. Stevenson, Esq., for the purpose of taking testimony, and the cause now comes before me for determination.</p> <p>In a timber contract of this character, the law has imposed upon the grantee the duty of commencing to cut within a reasonable time. In this case, having failed to commence to cut for nearly fifteen years, in my judgment, standing alone would be an unreasonable time and the Court should come in and fix a reasonable time within which the cutting should have been commenced just as if it had in fact been commenced and thus put in operation the running Of the first definite period of ten years. The defendant conceded that fifteen years .should terminate these two periods when it made a tender of a year’s interest within the fifteen-year period, thereby terminating the reasonable term for commencing to cut and the first period of ten years provided in the contract and putting in operation the second period of ten years. From the facts and circumstances surrounding the parties as adduced by the testimony, I find this was a reasonable exercise of the rights conferred by the deed under ■which the defendant claims; and the defendant so far has complied in a reasonable way and in a reasonable time with the duties imposed upon it by the grant; and, further, that it can keep its rights alive for ten years from the date of January 30, 1914, by continuing to pay or offering to pay six per cent, interest per annum upon the original purchase price on or before each January 30th, during the term. From these conclusions of law and of fact, it follows that plaintiff is not entitled to the relief prayed for and that the complaint should be dismissed.</p> <p>It is, therefore, so ordered.</p> <p>The defendant-respondent asked that the Supreme Court sustain the decree of Judge Memminger in dismissing the complaint in this case, upon the following additional ground:</p> <p>2. Because when the plaintiff comes into Court asking equitable relief he must come with clean hands; whereas, it appears from the evidence that the pretended equities alleged in the complaint, upon which the plaintiff seeks equitable relief for the removal of a cloud upon his title by the forfeiture of defendant’s rights, are a mere subterfuge to cover his true intent to promote a speculative scheme by forfeiture for the resale of the timber in dispute.</p> <p>submit: The additional ground on which respondent asks decree to be sustained'was not urged or considered on Circuit: 94 S. C. 373;78S. C. 551.' Plaintiff’s equities are superior to any of defendant: 67 S. C. 450. Defendant’s rights under timber lease: 98 S. C. 8; 90 S. C. 178. Tender of performance: 16 S. C. 430. Reasonable time: 15 Penn. 364; 128 N. C. 46; 13 Me. 122; 56 Ala. 560; 19 Fla..141; 111 Ga. 400.</p> <p>cite: 97 S. C. 250. Cases distinguished: 89 S. C. 346; 90 S. C. 162; lb. 364; 98 S. C. 22. Tender too late: 14 S. C. —. Motive-of plaintiff 'immaterial: 98 S. C. 155.</p> <p>cite: As toi2th, 13th, 14th and 13th exceptions: 98 S. C. 8; 96 S. C. 44; 99 S. C. 168; 97 S. C. 335; lb. 278. As to term of grantee’s rights: 92 S. C. 418. Reasonable time: 90 S. C. 163. Option for extension: 97 S. C. 248; 98 S. C. 21. Fixed time for extension: 79 S. C. 170; 80 S. C. 110. Testimony as to tender: 94 S. C. 33.</p>

<p>Before Rice, J., Manning, Pall term, 1914.</p> <p>Action by the Williamson Heater Company, plaintiff-appellant, against the Paxville School District No. 19, P. S. Geddings, J. W. Mims, T. Parker Brown, trustees Paxville School District No. 19, and F. S. Geddings and T. Parker Brown, individually, defendants-respondents.</p> <p>From a judgment for defendants, plaintiff appeals.</p> <p>The facts are stated in the dissenting opinion, delivered by Mr. Justice Watts.</p> <p>submits: Purchaser was estopped to plead breach of warranty: 52 S. C. 382; 97 S. C. 129; 134 Ga. 325; Daniel, Negotiable Instruments (5th ed.), par. 1150. Evidence of waiver: 106 Iowa 85; 148 Fed. 145; 39 Mo. App. 67; 84 S. C. 96. No question for jury under evidence produced: 63 S. C. 197. Effect of giving new note for purchase money: Daniel, Neg. Inst. (5th ed.), pars. 1164, 1162; 20 How. 496. Error in admitting evidence to sustain counterclaim: 91 S. C. 423; 85 S. C. 350; 30 S. C. Ill; 77 S. C. 495; 57 S. C. 493; 78 S. C. 205. Supreme Court should render judgment absolute for plaintiff: 92 S. C. 361.</p>

<p>Before Smith; J., Spartanburg, April, 1915.</p> <p>Proceedings under Civil Code 1912, sec. 3508, by Carolina, Clinchfield and Ohio Railway of South Carolina, against J. V. Worley. From an order on proceedings in certiorari, affirming the order of the magistrate’s Court, the defendant appeals on the following exceptions:</p> <p>1. Because his Honor erred in not sustaining the second ground of demurrer to the notice, as follows: Because it appears from the affidavit'that the alleged landlord is acting in violation of the terms of its charter and the condemnation proceedings by which said premises were acquired, and the act of such landlord is ultra vires and beyond the power and authority conferred upon the alleged landlord.</p> <p>Because his Honor erred in not sustaining the third ground of demurrer, to wit: Because it does not appear from the alleged notice to show cause that the C., C. & O. Ry. of S. C. is demanding said premises for railway purposes in compliance with the terms of this charter.</p> <p>Because his Honor erred in not sustaining the fourth ground of demurrer, to wit: Because it does not appear from the alleged notice to show cause that the alleged landlord had demanded the premises described in the alleged notice to show 'cause for railway purposes or for the purpose of constructing a railroad thereon.</p> <p>Because his Honor erred in not sustaining the fifth ground of demurrer, to wit: Because it does not show upon the face of the alleged notice to show cause that the Court of magistrate has jurisdiction to determine the issues herein, to wit: (a) The corporate power and authority of the alleged landlord; (b) because an ejectment proceeding had no power to determine the nature of the ownership or title of the alleged landlord, the C., C. & O. Ry. of S. C.</p> <p>2. Because his Honor erred in not sustaining the demurrer and discharging the notice to show cause, on the ground of jurisdiction; and that said notice showed upon its face that the magistrate’s Court had no jurisdiction.</p> <p>3. Because his Honor erred in not dismissing the proceedings on appellant’s first ground of dismissal, to wit: Because it does not appear that this is a case of tenancy at will, as provided in section 3508, volume I, Code of Laws South Carolina.</p> <p>4. Because .his Honor erred in not dismissing the proceedings on appellant’s second ground, to wit: Upon the ground that the C., C. & O. Ry. of S. C. have no land and own no tenement, and for that reason cannot move in this Court under section 3508 of the Code.</p> <p>5. Because his Honor erred in not dismissing the proceedings on appellant’s third ground of dismissal, to wit: Because there is no testimony that Worley is a'tenant at will, or under contract to serve another, either as a domestic servant, laborer, or otherwise, and, unless such is the case, the Court has no jurisdiction under section 3508.</p> <p>6. Because his Honor erred in holding under the evidence that the appellant was a tenant at will, and in not finding that the appellant was a tenant for an agreed period, to wit: until necessary to tear down the building occupied by appellant (and who had paid rent therefor by tearing down and removing the old Southern Cafe) in order to lay down additional tracks, as agreed upon between the railroad and the appellant, and until such time the building belonged to the appellant.</p> <p>The facts are stated in the opinion.</p> <p>submits: One not the owner of a fee cannot maintain an action of ejectment. The remedy for interfering with an easement is indictment. The true test of the action of ejectment seems to he that the thing claimed should he a corporeal hereditament. Civil Code, section 3508, is a summary remedy, and must he strictly construed, and limits such actions to owners of lands and tenements. The petitioner here is neither, and simply owns an easement, and for that reason can not proceed under section 3308 (Acts of 1866, p. 408): 1 S. C. 256; 18 Barb. 484. It has been repeatedly held that the owner of the fee can bring an action of ejectment. Under section 32pp the fee remains in the owner of the lands, after condemnation, and only an easement is vested in the party condemning. If the right of ejectment belongs to the owner of the fee, it is clear that such right can not be vested in the owner of the easement: 46 Atl. 1096; 134 Mo. 392; 24 N. Y. 655; 170 111. 513. Ejectment does not lie for a right of way, or other easement: 24 Cal. 474 ; 40 Midi. 232; 48 N. H. 105; 54 N. W. 505. There are a few cases where a railroad has been permitted to maintain an action of ejectment to recover a right of way; but an examination of the cases will show, we think, in every case, that it was by virtue of a special charter or act of the legislature the railroad company held the fee to the land: 71 Vt. 84. 'The rule is a railway company can not use or authorise the use of land for any purpose for which it could not condemn: 2 Mills, Eminent Domain, sec. 584; 93 A. Dec. 722; 60 S. C. 381. Under 26 S. C. 208, it is expressly held that the jurisdiction must appear upon the face of the petition. Indictment being the remedy for interfering with an easement the magistrate, it is respectfully submitted, on a notice to show cause, under sec. 3308, acquired no jurisdiction: 61 S. C. 25; 54 S. C. 294. The third and fourth exceptions charge error in the magistrate holding this was a case of tenancy at will. We think this can be demonstrated by showing that the petitioner under its charter can not legally assume the position of a landlord. If there is no landlord, there can be no tenant. Again the petitioner has only an easement, and there can be no tenant of an easement, and the plaintiff can not be the owner, either of lands or tenements.</p> <p>submit: The function of certiorari is solely to determine whether or not errors of law had been committed by the magistrate, or whether jurisdictional questions were involved. In ejectment proceedings the facts “can not be reviewed either by certiorari or any other process; whether wisely so or not, they are final with the inferior Court:" 24 S. C. 519; 29 S. C. 558; 44 S. C. 467. As to magistrate’s jurisdiction: 26 S. C. 211, 212; 24 S. C. 508, 509; 32 S. C. 148, 149; 81 S. C. 466; 79 S. C. 141. There are four affirmative reasons why defendant’s defense, that plaintiff cannot eject him because it is a railroad corporation, does not obtain: I. The defendant cannot, after having received the benefits of a contract, avoid the same upon the ground that it was an illegal contract. If it was wrong and illegal in its inception, it was the defendant’s wrong, which he can not now take advantage of: 1 Bail. L. 315; 28 S. C. 463, 465; 85 S. C. 134; 33 Cyc. 190. 2. It is a well recognised principle of law, since our first statutes on the subject of landlord) and tenant, that a tenant can not be heard to dispute title of one from whom he has tenancy: Chevis 100; 4 Rich. L. 592; 1 N. & McC. 371; 4 Strob. 196; 7 Rich. L. 188; lb. 355; 40 S. C. 178. g. The limitations upon a railroad company’s rights in a right of way, zvhether purchased or condemned, can not be raised by a third party who has no interest in the land, except in questions of public policy: 41 S. C. 406; 15 Cyc. 578; 6 L. R. A. 116. 4. Under condemnation proceedings, the railroad acquires such a right in the property as enables it to eject occupancy thereof to recover possession: Lewis, Em. Domain (3d ed.), sec. 930; 107 U. S. 188; 41 S. C. 406.</p>

Before Rice, J., Barnwell, July, 1914. Rule to show cause, issued at instance of Daisy A. Bonham, judgment creditor, against W. L. Case, as purchaser at a judicial sale, to show cause why the sale should not be vacated and set aside, and a resale ordered. The facts are stated in the opinion. From order refusing motion, the plaintiff appeals. cite: 2 McC. 450;. 34 S. C. 330; 69 S. C. 143. The former cites: 83 S. C. 65; 35 S. C. 416; 14 S. C. 153.

<p>Before Bowman, J., Aiken, October, 1914.</p> <p>Action by T. Geneva Etheredge and L. B. Etheredge against .¿Etna Insurance Company. From judgment for plaintiffs, defendant appeals. The facts are stated in the opinion. ’</p> <p>The former cites: As to amendment of complaint: 55 S. C. 90-98; 51 S. C. 415; 86 S. C. 98; 92 S. C. 297. As to failure to return premium: 55 S. C. 450; 68 S. C. 387. No evidence of waiver: 88 S. C. 221; 72 S. C. 355; 81 S. C. 541; 83 S. C. 262. Construction of insurance contract: 36 S. C. 213.</p> <p>cite: As to relevancy of evidence: 75 S. C. 264; 76 S. C. 276; 73 S. C. 352; 60 S. C. 70; 62 S. C. 145; 63 S. C. 559; 48 S. C. 195. Copy of agent’s license: Civil Code, secs. 2697, 2704. Amendment of complaint: 12 S. C. 173; 68 S. C. 403; 18 S. C. 315; 79 S. C. 272; 82 S. C. 2; 9 S. C. 334; 96 S. C. 19; 93 S. C. 79. Agent’s knowledge imputed to his principal: 79 S. C. 529; 75 S. C. 315; 52 S. C. 228; 36 S. C. 213; 16 L. R. A. 33. Retention of premium as waiver: 57 S. C. 358; 79 S. C. 526; 81 S. C. 152. Delivery of deed in escrow: 19 S. C. 216; 3 Words & Phrases, 2464; 117 Ga. 814; 45 S. E. 68. Entry of wrong name as insured: 67 S. C. 407; 74 S. C. 246; 78 S. C. 390. ■</p>

Before Moore, J., Union, September, 1914. Action by Republic State Bank, assignee, against Bailey Furniture and Lumber Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: As to coun- terclaim: Code Civ.

<p>Removal of Causes. Time for Filing Petition. Appearance. Attachment. Jurisdiction. Pleading. Time Limited.</p> <p>1. Removal of Causes—Proceedings—Appeal.—Where whether defendants’ petition and bond for removal to the United States Court had been filed in time depended upon when the defendants should have answered or pleaded in State Court or upon when they were in Court and bound to plead, although the final and controlling designation of the forum was with the United States Supreme Court, the State Supreme Court was under obligation on appeal to determine the issue, which was controlled by the statute law of the State.</p> <p>2. Judgment—Jurisdiction—Necessity.—A defendant is not bound by the procedure and judgments of a Court unless he is actually and in contemplation of law before it; it having secured jurisdiction of his person.</p> <p>3. Appearance — Jurisdiction Acquired — Voluntary Appearance — Summons.—Under Code of Civ. Proc. 1912, secs. 146, 189, a Court may acquire jurisdiction of the defendant’s person by summons or by his voluntary appearance.</p> <p>4. Appearance ■—• Voluntary Appearance. — Where a defendant announced in open Court that, having heard the sheriff was looking for him, he came of his own motion into Court, the action constituted a voluntary appearance and submission to the jurisdiction of the Court.</p> <p>5. Appearance — Voluntary Appearance — Answer to Merits. — Defendant’s answer to the merits, is a formal appearance.</p> <p>6. Appearance—Voluntary “Appearance.”—Any action by the defendant, amounting to a manifestation of an intent to be in Court, is a voluntary appearance, and may be by formal writing or by informal parol action, the act of “appearance” being a coming into Court, the first act of a defendant in Court, or a submission to the jurisdiction of the Court.</p> <p>7. Appearance—Jurisdiction—Attachment.—Before the enactment of the Code of Civil Procedure and under statutes then in force, the writ of attachment was used, in addition to regular process, to secure jurisdiction of the person of a nonresident defendant; and, if such a defendant, whose property had been attached, gave bail bond and retook possession of the property, the act was held to be equivalent to an appearance.</p> <p>8. Courts — Jurisdiction — Foreign Dependant — Attachment.—The procedure by attachment to secure jurisdiction of a defendant by direct provision of Code Civ. Proc. 1912, sec. 279, is permissible in six cases, all referring to the absence or concealment of the defendant or the concealment or disposal of his property, and the procedure is allowable only when the summons is issued and the service of summons personally or by publication effected within 30 days after the attachment, the express object of which is, “as security for the satisfaction of such judgment as the plaintiff may recover.”</p> <p>9. Attachment—Necessity por Service—Statute.—Under Code Civ. Proc. 1912, sec. 284, the writ of attachment need not be served, except in case of an attachment of real estate.</p> <p>10. Attachment—Jurisdiction-—Mode op AcauismoN—Summons and Appearance.-—-Where' writ of attachment was levied upon defendants’ property and their goods seized, plaintiffs could not subject such goods to payment -of their claim until they secured judgment, which they could not do until the defendants were in Court, which could only acquire jurisdiction by personal service of summons, by service by publication, or by voluntary appearance.</p> <p>11. Attachment—Jurisdiction.—Under Code Civ. Proc. 1912, sec. 189, providing that from the time of the service of summons in a civil action or the allowance of a provisional remedy the Court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings, procedure by attachment is part of the whole procedure in the cause, and is .not severable from the summons, but dependent upon it.</p> <p>12. Jurisdiction—Attachment.—Proceedings in. attachment are quasi in rem, and the Court thereby acquires jurisdiction to render judgment, only where they are followed by service of summons personally, or by publication, on defendant, or by his voluntary appearance.</p> <p>13. Appearance—Nature—Provisional Remedy—-Discharge of Attachment.^—By direct provision of Code Civ. Proc. 1912, secs. 295, 296, when property has been attached and the defendant has appeared, he may then apply to have the attachment discharged and the property returned to him on execution of an undertaking, and although the statute does not constitute the act of executing an undertaking an act of appearance, it contemplates appearance before the execution of the bond.</p> <p>14. Appearance.—A motion by defendant after levy of attachment and before judgment to have the attachment discharged, and the property attached returned to him, upon his giving the bond or undertaking required by Code Civil Proc., sec. 296, amounts to a general appearance, unless the defendant has expressly limited his appearance solely for the purpose of the substitution of security.</p> <p>15. Appearance—Presumption of Generality.—An appearance is presumed to be general if it has not been expressed to be limited.</p> <p>16. Appearance—General Appearance.—Where the attorneys of defendants, upon whose goods attachment had been levied, wrote on the back of the original summons and complaint, “The sheriff of Rich-land county having levied the attachment herein upon the property of the defendants of the value of $25,000, now the defendants move the Court to discharge this attachment, under the provisions of law, upon the giving of a bond in the sum of $25,000 in lieu thereof, which is hereby tendered,” notice of the motion being accepted immediately under such notation by the attorneys for the plaintiffs, and it being ordered by the clerk that the attachment be discharged and the bond filed in lieu thereof, the action of. the defendants in moving for the attachment’s discharge constituted a general appearance, subjecting them to the jurisdiction of the Court.</p> <p>17. Pleading—Answer—Time for Piling—(Statute.—Under Code Civ. Proc. 1912, sec. 180, defendants are bound to demand a copy of the complaint within 20 days after its filing to their knowledge, and to answer within 20 days of service of the copy of the complaint.</p> <p>18. Pleading—Time Limited.—Where a defendant has appeared generally in an action, he is bound to demand a copy of the complaint within twenty days, and to answer it within twenty days.</p> <p>19. Pleading—Time Limited.—Where plaintiffs elect after a voluntary appearance by defendant, to pursue publication of summons and call upon defendant to answer within 20 days after completion of publication, they waive their right to insist on answer within 20 days from time of appearance.</p> <p>20. Removal op Causes.—Where, after attachment of defendant’s property, and appearance before judgment of defendant on motion to discharge the attachment and substitute other security, the plaintiff elects by publication of summons to require the defendant to answer within 20 days after completion of publication, a petition filed for removal of the cause to Federal Court within 20 days after such publication, though more than 20 days after such appearance, is within time.</p> <p>21. Pleading—Removal of Causes—Waiver op Time—Requirement.— The Federal statute, regulating removals from' State Courts for diversity of citizenship, provides that the petition therefor must be filed within the time for answering the complaint, which, by Code Civ. Proc. 1912, sec. 180, was within 20 days after service of a copy of complaint. Plaintiffs attached defendants’ property, and on the 9th of October defendants’ attorneys procured the clerk of Court to accept a bond in lieu of the warrant of attachment. The appearance of the defendants for that purpose on the 9th subjected them to the jurisdiction of the Court, giving them notice of the complaint, and making it requisite that they answer within 20 days, but on the 13th of October the plaintiffs procured from the clerk, an order for publication of the summons as for the service of a nonresident, and the order was made the same day, and publication had, beginning the 14th of October and ending the 18th of November. On the 30th of November, more than 20 days after their appearance, defendants’ attorneys notified plaintiffs they would file petition and bond for removal of the action to the United States Supreme Court. Held, that plaintiffs’ action in initiating the procedure to serve defendants by publication indicated an intention not to rely on the legal effect as an appearance of defendants’ motion of the 9th of October to discharge the attachment, so that defendants’ petition for removal was filed in time, plaintiffs having elected not to stand on the events of the 9th of October, as an appearance requiring defendants to answer within 20 days.</p>

<p>Before Mauldin, J., Bamberg, January, 1915.</p> <p>Action by Farmers Mercantile Company, the Continental Insurance Company, SEtna Insurance Company and the Girard Fire and Marine Insurance Company against Seaboard Air .Bine Railway. From a nonsuit the SEtna Insurance Company and Girard Fire Insurance Company, and from a judgment against it, the Continental Insurance. Company appeal. The facts are stated in the opinion.</p> <p>The former submits: The fact of insurance was collateral to the cause of action, and might have been proven by parol: 36 S. C. 265; 148 N. C. 437; 62 S. E. 519; 138 N. C. 503; 51 S. E. 42; 82 S. C.' 430; 59 S. C. 471; 52 S. C. 82; 43 S. C. 95; 78 S. C. 39; 4 Cooley’s Briefs on Ins. 3895,' 3896; 36 S. C. 267; 90 Atl. 244; 35 N. J. E. 413; 55 Ark. 176; 197 Fed. 79; 166 U. S. 474; 57 Fed. 243 ; 24 Fed. 285; 23 Fed. 88; 17 Fed. 919. Proof of policy by triplicate on register: 2 Elliott, Ev., sec. 1439; 57 Md. 446; 24 Barb. 404; 1 Greenleaf, Ev., sec. 588; 17 Cyc. 517. General denial did not put in issue the interests of the insurance companies: 86 S. C. 54; 83 S. C. 536; 41 S. C. 410. Plaintiff’s capacity to sue: 85 S. C. 346; 65 S. C. 116; 35 N. J. R. 413; 83 S. C. 536. Only one cause of action: 86 S. C. 54; 41 S. C. 408; 83 S. C. 536. Original policy should have been admitted when offered after close of plaintiff’s other evidence: 68 S. C. 133; 55 Ark. 180. Special verdict: Code Civ. Proc., sec. 321; 88 S. C. 569. . Charge to deduct amount of insurance from amount of loss in finding verdict for insured: 33 Cyc. 1392; 16 S. C. 587; 134 Ind. 215; 20 R. R. A. 405; 72 S. W. 457; 110 Tenn. 104; 160 S. W. 907. This divided the single tort into more than one cause of action: 86 S. C. 52; 83 S. C. 536; 76 S. C. 105; 41 S. C. 408. Wrongdoer not entitled to benefit of insurance: 76 S. C. 105; 68 Pac. 607. Insured as trustee for insurer: 76 S. C. 105; 83 S. C. 536. Verdict should have been directed for Continental Ins. Co. if any were found for plaintiff: 68 S. C. 184; 68 S. C. 466. The insurer being entitled, as matter of law, to recover: 36 S. C. 267. Error in refusing new trial: 66 S. C. 302; 74 Mo. App. 106; 73 N. Y. 402; 103 Mass. 223; 21 N. J. Eq. 107.</p> <p>submit: Best proof of policy of insurance required: 6 Gray. 73; 17 Cyc. 476; 54 Minn. 336; 56 N. W. 48. Rulings 'on evidence when offered out of time discretionary: 68 S. C. 133. Special verdict discretionary: Code Civ. Proc. 321. Distinct claims on behalf of each insurer: 74 S. C. 102-135; 80 S. C. 407, 409; 73 S. C. 70; 68 S. C. 38; 68 S. C. 401; 62 S. C. 382; 59 S. C. 445; 54 S. C. 509. Inad- . vertenP error in charge: 57 S. C. 335; 77 S. C. 403 ; 79 S. C. 128; 81 S. C. 3.</p>

<p>Before Gary, J., Charleston, November, 1914.</p> <p>Action by Georgie Johnson against Watson C. Finger, as administrator' of the estate of John W. Alston, deceased, commenced in the Civil and Criminal Court of Charleston county, by service of summons and verified complaint on defendant on the 5th day óf November, 1913. On November 20, 1913, defendant served on plaintiff a notice that at the call of the case, he would move to make the complaint more definite and certain. On December 16, 1913, no answer or demurrer having been served on plaintiff by the defendant, judgment by default was granted by the Hon. Theo. D. J'ervey, acting Judge of the Civil and Criminal Court of Charleston. The defendant contended in his argument that the service of said notice to make plaintiff’s complaint more definite and certain operated as an extension of the time within which to answer, while the plaintiff asserted the contrary. From an order overruling defendant’s contention as to the effect of said notice and granting plaintiff judgment by default, defendant appealed. This appeal came on to be heard before Judge H. F. Rice, at the April, 1914, term of the Court of Common Pleas of Charleston county. In his argument on this appeal defendant not only-asked the reversal of the order of the inferior Court, but also moved Judge H. F. Rice to open the said default judgment on the ground of mistake and excusable neglect. In his order, after hearing argument on said appeal, Judge Rice upheld the lower Court in its ruling that the service of a motion to make the complaint more definite and certain does not operate as an extension of the time for answering, but at the same time sent the matter back to the lower Court to give the defendant an opportunity there to move to have the said judgment set aside on the ground of mistake and excusable neglect. Judge Jervey refused to open the said defáult judgment on the ground asked for, holding that defendant’s mistake was one of law and not of fact. The defendant again appealed to the Circuit Court from said order refusing to open the default judgment on the one ground of abuse of discretion. Thereupon, Judge Gary made the following order:</p> <p>“This case comes before me on an appeal from an order of the Judge of the Civil and Criminal Court of Charleston refusing to vacate default judgment and refusing to allow defendant to answer.</p> <p>Under the circumstances of this case it is my opinion that the default judgment ought to be vacated and defendant allowed his day in Court. The Courts are loath to shut off a meritorious defense and when, as in this case, defendant put in his appearance and showed a bona fide desire to fight the case on the merits, I believe he should be allowed his day in Court. I believe that substantial justice requires it, and I think it was the duty of the lower Court under the power given him in section 225 of the 1912 Code of Civil Procedure to have ordered the default judgment vacated. It is, therefore, ordered, that the default judgment heretofore entered in this action against the defendant be vacated and the case remanded to the Civil and Criminal Court, and that the defendant be allowed twenty days from the date of this order in which to plead, answer or renew the motion heretofore noticed in this cause.”</p> <p>From this order the plaintiff appeals.</p> <p>cite: 81 S. C. 130; 65 S. C. 129; 14 S. C. 324; 73 S. C. 207; 51 S. C. 405; 59 S. C. 481; 53 S. C. 580; C. C. Rule XX; 6 Fnc. PI. & Pr. 167; 53 S. C. 230; 17 S. C. 453.</p> <p>cite: 93 S. C. 487, 499; 129 Fed. 966; 130 Pac. 911; 121 Pac. 654; 116 S. W. 673.</p>

Before Wilson, J., Greenville, April, 1914. Action by Morgan-Austin Company against S. J. Eassy. From a judgment for foreclosure of a mechanic’s lien, defendant appeals. The facts are stated in the opinion, submits: Sale was under builder’s contract: 86 S. C. 313. And seller was thereby estopped from asserting claim to lien against building: 91 S. C.175 ; 4 Cyc. 1; 23 Cyc. 1260.' cites: Civil Code 1912, sec. 4113; 16 S. C. 143; 71 S. C. 361; 19 S. C. 1-7; 86 S'. C. 48.

<p>Deeds. Construction. Limitations .op Estates. Remainders. Trusts. Evidence. Estoppel. Issues.</p> <p>1. Limitations op Estates—Deeds—Construction.—Where a grantor unfamiliar with the vernacular of the law, uses words which he did not understand, they will be interpreted in accordance with the canons of the law.</p> <p>2. Limitations of Estates — Deeds — Construction. — As a reversion arises by operation of law, a direction in a deed that lands shall revert is inapt and meaningless.</p> <p>3. Limitations of Estates — Deeds — Construction — Vested Remainders.—Under a grant in a deed, after an express life estate to A, of lands to “be distributable among my next of kin,” the grantors next of kin at the time of his death, during the existence of the precedent life estate, took a vested estate in remainder.</p> <p>4. Limitations of Estates—Deeds—Construction—Fee.—A fee cannot be conveyed by a deed at common law without the use of the word “heirs” prescribed by law to convey the fee.</p> <p>5. Limitations of Estates — Deeds — Construction — Remainders.—A grant by deed at common law to A and B during the terms of their natural lives, or the lives of either of them, afterwards to revert back to my estate, and be distributable among my next of kin, conveyed successive life estates to A and B, and the grantors next of kin, while the fee remained in the grantor, and descended at his death to his heirs.</p> <p>6. Trusts—Limitations of Estates—Deeds.—A deed creating only successive legal estates is not a trust deed.</p> <p>7. Evidence—Declarations as to Title.—The declarations of a tenant as to what she thought about her title are irrelevant .in determining the construction to be given the chain of title under which she holds.</p> <p>8. Estoppel.—Where one is not misled to his prejudice by the declarations of another there is no estoppel.</p> <p>9. Issues.—Where there is no ambiguity in the deeds under which a defendant holds, and no evidence tending to show estoppel, the Court properly directed a verdict in accordance with the legal effect of the undisputed chain of title.</p>

<p>Before Rice, J., Charleston, April, 1914.</p> <p>Action by Hampton Park Terrace, Inc., against James Sottile. From order of nonsuit, the plaintiff appeals. The facts are stated in the opinion.</p> <p>submit: Lease was from year to year: 27 N. W. 647; and not to be recorded under Civil Code, sec. 3500: 31 S. C. Eq. 149; 15 S. C. 171; 31 S. C. E. 346. Notice necessary to terminate lease: 44 S. C. 526. A lease from year to year is not for more than a year: 18 N. W. 523.</p> <p>cite: Civil Code, sec. 3500; 162 Mass. 473; 39 N. E. 280; 83 N. E. 870.</p>

Before Wilson, J., Bennettsville, December, 1914. Action by Sam J. Pearson against A. J. Matheson and E. V; Richards. From a decree dismissing the complaint, plaintiff appeals. The facts are stated in the opinion. submit: The reservation contained in the granting clause of the deed was in conflict with the general grant, and void: 2 McM. E. 24; 48 S. C. 316; 79 S. C. 166; 36 S. C. 295; 48 S. C. 341; 47 S. C. 288; 32 S. E. 676; 54 S'.

<p>Before Mauldin, J., Greenville, June, 1914.</p> <p>Action by Charles Crumley, Leo Crumley and Otis Crumley, by their guardian ad litem, M. Mr Crumley, against Sovereign Camp of the Woodmen of the World.’</p> <p>From judgment for defendant, plaintiffs appeal. The facts are stated in the opinion.</p> <p>cites: Code, sec. 2770; 95 S. C. 61, 67. Waiver by agent of compliance with laws of orderf etc.: 80 S. C. 392; 77 S. C. 531; 78 S. C. 398; 80 S. C. 407.</p> <p>cite: Code, secs. 2755, 2768, 2770; 2 Bacon, Benefit Societies 1110 and 1115, 1083; 160 Mass. 289; 35 N. E. 855. All conditions of contract must be complied with: 4 S. C. 321; 4 E.'R. A. (N. S.) 421; 93 S. C. 88; 22 Mo. App. 127; 153 Mass. 53; 85 N. Y. 282; 2 Bacon, Benefit Societies, p. 977, sec. 389; 95 S. C. 61; 183 U. S. 308; 35 E. R. A. 643; 115 Cal. 466; 143 Mass. 435; 32 Fed. 443.</p>

<p>Before Rice, J., Bishopville, Fall term, 1914.</p> <p>Action by J. E. Stokes and others against Elizabeth Murray and others, commenced in 1909, for recovery of real, property. From judgment for plaintiffs, defendants appeal on the following exceptions:</p> <p>“1. Because this action being for the recovery of the possession of the land the title of the plaintiffs to which being put in issue by the general denial and special pleas in the answer and the evidence showing that there were issues of fact, as to title and the right of possession, that his Honor was without authority of law to decide the issue of title and right of possession, and erred in not submitting the same, under a proper charge, to the jury to decide the same and erred in instructing the verdict thereon for the plaintiffs.</p> <p>2. Because the defendants, having pleaded the statute of limitations against femes covert of 1712, his Honor erred in not charging the jury as to the force and effect of such statute in this case and what effect the statute would have if the adverse possession began prior to its repeal in 1870, there being an issue of fact in the case whether the adverse possession against the plaintiffs’ ancestor began prior to 1870 or since that date.</p> <p>3. Because his Honor erred in refusing to admit in evidence that part of the written statement attributed to Jesse A. Corbett as of testimony of a former trial of a witness deceased at the time of this trial, the portion excluded being, ‘Furthermore, that more than fifty years ago his sister, F. E. Stokes, was paid the consideration for the tract of land in dispute by J. J. Corbett, who took possession of such land and held it for many years.’</p> <p>4. Because his Honor erred in not instructing the verdict for the defendants, in that it was admitted that when this action was brought by the children of Frances E. Stokes, her husband and their father, J. E. Stokes, was alive, who joined in the action with them, and who died since it was brought, and the present plaintiffs had no right of possession when they brought the action, their father, J. E. Stokes, only, having then, the right to claim possession of his wife’s land under the marital law applying to this case, that at his death his right of possession died with him, as óf a life tenant, and that the plaintiffs having had no right of action when they brought this suit, the same must fall, whatever rights may have accrued to them since that time, and the jury should have been instructed to find for the defendants.”</p> <p>The former cites: A. A. 1712, P. E. 103; 2 Brev. Dig., title 110, secs. 2 and 16, pp. 19 and 23; 36 Am. Dec. 70, 71; 3 Rich. 449. Action premature: 83 S. E. 35; 1 Cyc. 744, 745.</p> <p>submits: First exception is too indefinite: Rule V, Sup. Ct.; 83 S. C. 202; 91 S. C. 228. Decision on last appeal, pp S. C. 223, conclusive on question attempted to be raised; new matter showing eqidtable title should have been plead: Code Civ. Proc., sec. 199; Pom. Rem. Rights, pp. 733, 110; 31 Cyc. 131, 218; 16 S. C. 586; 4 S. C. 52; 7 Enc. PI. & Pr. 799 and 805. Exception in favor of estoppels: 27 S. C. 235; 81 S. C. 329. Life tenant and remaindermen may join action to recover lands: Code Civil Proc., sec. 166. Husband’s exclusive right to possession continued only during coverture. On death of married woman, lands descended to her heirs: Act of 1791, 5 Stats. 163.</p>

Before Shipp, J., Greenville, November, 1914. Action by Floyd Baldwin, by J. H. Price, guardian ad litem, against Piedmont Manufacturing Company. The following statement of facts is taken from appellant’s argument: “The plaintiff, eighteen years old, was employed in the card room of the defendant. There were 100 or more of these carding machines in the mill and the plaintiff attended to about 25 of them. His duties were to keep them oiled, cleaned and in proper operation.

<p>Before Hon. C. J. Rama,ge, special Judge, Columbia, October, 1914.</p> <p>Action by Mary Vant against Grand Lodge Knights of Pythias of South Carolina, subordinate to the Supreme Lodge, Knights of Pythias, of North America, South America, Europe, Asia, Africa and Australia. From judgment in favor of plaintiff, defendant appeals.. The defendant’s request to charge, which was refused, was:</p> <p>3. “If a subordinate lodge discovers that one of its members is not qualified for membership in the order and yet retains him as a member, no notice officially of the facts being given to the grand lodge, the same cannot be construed as a waiver of the provisions by the grand lodge, and a policy issued to such a person under such circumstances is of no force.”</p> <p>The facts are stated in the opinion.</p> <p>submits: Verdict should have been directed for defendant: 44 S. C. 315; 52 S. C. 225; 66 S. C. 283; 31 Cyc. 1667; 29 S. C. 96; 23 S. C. 289; Civil Code 1912, sec. 2755; 95 S. C. 67; 47 S. C. 139; 31 Cyc. 1335, 1329, 1676, 1678; 2 Hill 307; 57 S. C. 16. Charge inapplicable to case: 55 S. C. 403; 60 S. C. 498; 72 S. C. 194. Request refused: 31 Cyc. 1573, 1596. Charge on facts: 80 S. C. 387; 51 S. C. 461. Duty to declare the law: 70 S. C. 427; lb. 148; 76 S. C. 297. Charge inconsistent, contradictory and misleading: 31 Cyc. 1679.</p> <p>submits: Subordinate lodge was agent of grand lodge: 100 S. C. 121; 88 •S. C. 37; 90 S. C. 168; 12 A. & E. Ann. Cas. 636, and cases there cited in note. Duty to call Court’s attention to inconsistency in charge: 64 S. C. 311. Requests for further charge: 83 S. C. 251; 73 S. C. 277; 61 S. C. 276; 63 S. C. 462 ; 70 S. C. 148; 70 S. C. 427.</p>

Before Shipp, J., Greenville, October, 1914. Action by Moneyweight Scale Co. against Gordon Mercantile Co. From order for nonsuit, plaintiff appeals. The facts are stated in the opinion.

Before Rice, J., Charleston, April, 1914. Action by Sarah A. Smart, as administratrix, etc., against the Charleston Terminal Company. Judgment for plaintiff, and defendant appeals. cite: As to motion for nonsuit; proximate cause: 21 A. & E. Enc. of L. 485; 68 S. C. 55; 94 U. S. 475. submit: Same rules apply-on motions to direct verdict, as for nonsuit: 84 S. C. 299.

Before SeasE, J., Abbeville, November, 1914. Action by Annie R. Powell against J. E. McDavid and another. From ah adverse judgment, plaintiff appeals. cites : As to satisfaction of statute of frauds: 1 McC. E. 426; 1 Peters 640; 7 L. Ed. 295; Fry on Specific Performance, secs, 486 and 498; 2 Noth & McC. 207; 6 East 307; McMull. Eq. 311; 28 E. R. A. (N. S.) 680 to 701; 217 111. 262; 2 R. R. A. (N. S.) 221; 84 S. C. 197; 10 Rich.

Before Bowman, J., Barnwell, December 16, 1914. Action by Jane R. Patterson against Home Bank of Barnwell. From a judgment for plaintiff, defendant appeals. cites: As to evidence to prove agency: 59 S. C. 115; 69 S. C. 327; 89 S. C. 470; 80 S. C. 207'; 78 S. C. 457. No evidence to sustain judgment: 78 S. C. 457. Waiver of rent lien: 2 Cyc. 159; 9 Cyc. 302.

<p>Before DeVore, J., Florence, Fall term, 1914.</p> <p>Action by W. F. Brown and another against Henry Barrineau and others. Judgment for defendants, and plaintiffs appeal.</p>

Before Hon. C. M. Eeird, special Judge, York, July, 1914. Action by Buena Vista Woods against the Rock Hill Fertilizer Company. Judgment for plaintiff, and defendant appeals.

Before Hon. C. M. Eeird, special Judge, York, September, 1914. Action by J. B. and R. E. Fewell against the Catawba Power Company. Judgment for plaintiffs, and defendant appeals. The charge of the Court relative to plaintiffs’ duty to minimize damages is as follows: If A do an act causing loss to B for which he is liable to B, it is B’s duty to use reasonable effort both in labor and reasonable expenditure of money to lesson the loss.

Before Memminger, J., Anderson, October, 1914. Action by S. A. Turner and others, for recovery of possession of land, or for partition, against John Poole and others. Decree for plaintiffs, and defendant, Emily C. Pearson, appeals. cites: As to claim for betterments: 58 S. C. 544, 547; 15 S. C. 552; 39 S. C. 145; 21 S. C. 313; 27 S. C. 197; 28 S. C. 562; 26 S. C. 179.

Before Hon. C. J. Ramage, special Judge, Columbia, Fall term, 1914. Action by J. M. Graham and another, partners, against the Columbia Railway, Gas and Electric Company. From a judgment for plaintiffs, defendant appeals. cite: As to empaneling jury: 84 S. E. 778. As to plaintiff’s negligence: 94 S. C. 13. cite: As to empaneling jurors: Civil Code, sec. 4042 ; 92 S. C. 236.

Before Prince, J., Columbia, March, 1914. Action by G. W. McCormack against Equitable Eire Insurance Company. Prom judgment for defendant, plaintiff appeals. The facts are stated in the opinion. cite: As to construction of release given by appellant to defendant in other action: 4 S. C. 94; and submit: There was no privity between the different insurance companies. cite: 172 Pa.; 34 Atl. 580; 70 S. E. 819; 93 Fed. 161; 143 N. W. 554; Civil Code, sec. 2711.

<p>Before Memminger, J., WalHalla, March, 1914.</p> <p>Action by Baxter Roach against the Farmers Mutual Insurance Association of Oconee County, South Carolina. From a judgment for plaintiff, defendant appeals.</p> <p>cites: Plaintiff estopped to deny defendants corporate existence: Clark, Corporations, p. 82, sec. 40. By-laws part of contract: 54 S. C. 373;. 91 S. C. 577; 95 Mo. App. 335; 74 S. W. 705; 29 Cyc. 68 to 71; 22 Cyc. 1411, 1413; 106 Iowa 457; 76 N. W. 809; 113 Mo. App. 19; 87 S. W. 530; 79 Conn. 218. Charge on facts: 47 S. C. 498; 50 S. C. 151; 51 S. C. 453; 49 S. C. 550; 63 S. C. 271; 85 S. C. 450.</p> <p>cites: Civil Code, sec. 2777; 31 Cyc. 218; Code Civ. Proc., sec. 199; 10 Cyc. 352, 353; 24 S. C. 70. Charge on facts: 87 S. C. 244; 91 S. C, 161; 79 S. C. 526; 61 S. C. 21; 97 S. C. 116; 95 S. C. 196; 96 S. C. 81.</p>

<p>Before DeV ore, J., Greenville, Spring term, 1915.</p> <p>Action by F. A. Trammell against Victor Manufacturing Company. From judgment for defendant, plaintiff appeals. The facts are stated in the opinion.</p> <p>cite: As to rule of construction: 91 S. C. 377, 379; 82 S. C. 177; 96 S. C. 1; 102 S. W. 206, and 132 S. W. 911, distinguished.</p> <p>cite: Civil Code, sec. 3812; 66 N. W. 453; 18 Ct. Cl. 303; 5 Words & Phrases, par. 4575. Rule of Constitution: 3 S. C. 423; 9 S. C. 392; 25 S. C. 228; 26 S. C. 160; 33 S. C. 255; 40 S. C. 134; 13 S. C. 134; 62 S. C. 57; 99 S. C. 213.</p>

<p>Before Mauldin, J., Greenville, June, 1914.</p> <p>Action by Willie Porter, by his guardian ad litem, C. R. Hammett, against F. W. Poe Manufacturing Company. From judgment for plaintiff, defendant appeals.</p> <p>submit: There is no presumption of negligence: o9 S. C. 530; 66 S. C. 256; 72 S. C. 398; 39 S. C.'39; 97 S. C. 112; 4 Rabatt, M. & S. (2d ed.) 1517, 1576; 3 Id. 1066 and 1028; 167 Mass. 588; 46 N. E. 121; 108 N. W. 53. Duty to warn: 72 S. C. 240; 55 S. C. 483; 29 Okla. 351; 116~Pac. 908. Error in charge on effect of delay: 1 Moore on Facts, sec. 550; 1 Wigmore, Ev., sec. 284; 108 Fed. 741; 47 C. C. A. 655; 11 Rich. Eq. 576, 577; 21 Fed. Cas. No. 12373, p. 529; 1 Pittsburg R. 185; 4 Rich. R. 105; 97 S. C. 112; 2 Hill Eq. 228; 7 Wall. 390;'25 Cyc. 983; 4 Wheaton 372, 373; 3 Enc. of Ev. 755; 11 A. & E. Enc. 503; 147 U. S. 164; 11 Penn. St. 307.</p> <p>cite: As to negligence: 83 S. C. 19; 80 S. C. 351; 70 S. C. 243.</p>

Before Prince, J., Florence, Spring term, 1915. Action of claim and delivery of certain intoxicating liquors in the possession of the Atlantic Coast Line Railroad Company, as carrier, shipped to the E. M. Matthews Company, at Florence, S. C., by Jas. A. Webb & Co., of New York city. From judgment in favor of the E. M. Matthews Company, as plaintiff, the defendant, Atlantic Coast Line Railroad Company, appeals. cite: As to construction of statute: 2 Strob. Eq. 174.

Before Moore, J., Dillon, February, Í915. Action by Malcolm Mercantile Company against John D. Britt. From an order refusing to vacate an order of arrest, defendant appeals.

Before Rice, J., Sumter, Fall term, 1914. Action by Amanda McDaniel against Atlantic Coast Dine Railroad Company. From judgment for defendant,' plaintiff appeals.

Before Rice, J., Columbia, June, 1915. Action in nature of mandamus by J. Fraser Lyon, as attorney for S. H. Owens et al., against Andrew Patterson, as County Supervisor, et al. From an order directing the issuance of the writ, the respondents appeal. The facts are stated in the Circuit order as follows: “This is a mandamus proceeding heard by consent at chambers during the present Sessions Court.

Original Jurisdiction. Application for writ of certiorari, to review the declaration of the result of a primary election, directed to the city Democratic executive committee of Charleston.