Volume 16 — South Carolina Equity Reports

<p>1. Complainant and defendant entered into tlie following written agreement: “ Thm instrument of writing between David Aiken and James Walling, sheweth, that David Aiken does agree to give to James Walling the exclusive privilege of cultivating and tilling, for his own special benefit, two parcels or tracts of land, in connexion with each other; one containing 215 acres, formerly called the Keith Tract; the other containing 73 acres, adjoining P. D. Cooke. That the said James Walling is to have the full use of said lands upon these terms, viz: that he is to pay David Aiken the rent of said lands. It being the interest on the within specified amount, annually, as will appear by the titles of the said lands. In case he does not pay to the said David Aiken, the whole amount of the original cost, which is $875, one half payable on the first of January, 1837, the other half on the first of January, 1838. And in all cases, James Walling is not to call upon any man, or company of men, to assist him in the payment of said land; but unless he is able, by his own exertions, to comply with the above requisitions, that from and after the first of January, 1838, the land shall be considered the property of the said David Aiken, free from all encumbrances on the part of James Walling. And should the said James Walling, by his own exertions, be enabled to pay the amounts respectively due for said lands, as is herein specified, that he, the said James Walling, shall have the free use and exercise of said parcels of land, for the sole and special benefit of him and his heirs, from and after the first day of January, 1838, free from all encumbrances on the part of said David Aiken. But in case the said James Walling, at the expiration of the above specified time, shall still be due to the said David Aiken, any amount of money, he shall be required to relinquish the said land, in conformity with the foregoing requisitions.” This was held to be a mortgage, under the principle that that which was originally intendod as a security, shall never be turned into an absolute conveyance.</p> <p>3. A mortgagee is considered in the Court of Equity as a creditor; and all that be is entitled to is his money, coming at what time, (within the known limits,) or from v.'bat source it may.</p> <p>3. Where the mortgagee had, subsequently to the date of the mortgage, advanced to-the mor tgagor other sums than those specified in the mortgage, or the mortgagor became indebted to the mortgagee, it was held that the mortgagee might withhold the can-celling of the mortgage until all the claims he had against the mortgagor were paid.</p>

<p>1. It is a well settled principle, that a debtor has the right to give a preference among his creditors; but if in the deed of assignment he secures any advantage or contract to himself, this provision invalidates the deed. And the leaving of property in the hands of the debtor, or in his possession, raises the presumption in law, that there exists a secret understanding and a secret trust; and so far as the rights of creditors are affected, the deed is void.</p> <p>2. It makes no difference that an additional consideration is advanced, at the time of taking a conveyance or an assignment of property.</p> <p>3. Where there is no corrupt agreement between the parties, but an act of spontaneous kindness and indulgence, on the part of the grantee, it would in general be proper, when setting aside a conveyance, on the legal inference alone, to decree it to stand as a security for any consideration advanced at the time.</p> <p>4. Where the grantee, at the time of receiving the conveyance, obligated himself to pay off a mortgage and judgment, that liad a lion upon the land conveyed, and afterwards did discharge those lions ; the Court held, in sotting aside the deed, that the grantee was entitled to payment first out of the proceeds of the sale of the land, (decreed to be sold to pay off debts,) for the sums which he had advanced in extinguishing those liens.</p>

Lewis Harrell, jr., who died in 1823, was possessed of the lands hereinafter mentioned, and some other real estate, and several negroes. He left a widow, Milissa Harrell, and two children, who are the complainants in this suit. On the 9th of May, 1827, the sheriff of Marion district levied on the land in dispute, as the property of Lewis Harrell, jr., by virtue of an execution against William Lat-ta, executor of Lewis Harrell, jr...

The substance of this bill is, that Samuel Bacot, deceased, was formerly sheriff of Darlington District. The complainant lodged in his office several writs and executions, in respect to which it is alleged that the sheriff failed in his duty.

This case was first before the Court of Appeals, in May, 1837. (See 2 Hill, 611.) At June Term, 1839, the case was again heard on the Circuit, upon the Commissioner’s Report and exceptions thereto; and Chancellor J. Johnston delivered a decree confirming the Commissioner’s report, and charging the defendant with about $5,000. From this decree there was another appeal, which was heard and dismissed at May Term, 1840.

On the 1st of January, 1837, E. & T. MTIugh, partners in trade, executed their promissory note in the following form: Fifteen days after date, we promise to pay Thomas Roberts and Jacob Roberts, or bearer, fifteen hundred dollars, for value received. January 1,1837. E. & T. M’HIJGH.

<p>Defendant, James, was the trustee of the estate of the Brailsfords, and the administrator of the estate of complainant’s father. During the time that he continued to act as trustee and as administrator of the two estates, he filed his hill in the Court of Equity against complainants, for the purpose of obtaining the sanction of the Court, to a sale of the real estate belonging to his intestate.</p> <p>An order granting leave to defendant to sell, was passed by the Court, and defendant, as”trustee to the Brailsford estate, became the purchaser, for the benefit of his trust estate, and took possession of the land so sold. Defendant also purchased, for the estate of his intestate, other lands in lieu of those sold.</p> <p>Defendant was ordered by a decree of the Court of Equity, to make titles to the land sold, to the Brailsfords, who were in the possession, but he never did so — alleging in his answer, that the title deeds could not be found, and the title was defective. Defendant afterwards obtained a decree in the Court of Equity, against complainants, for $2138, with interest from 1830, and lodged execution. Complainants, in 1837, filed their Bill against defendant, James, and the Brailsfords, and among other things, charged defendant with having promised, as trustee, to credit, or that he had credited his execution against them, for $2138, with the sum of $800, and interest thereon, from 1st January, 1822, it being for a part of the purchase money, or the amount for which the land belonging to their father’s estate, had sold. Defendant, James, denied, in his answer, that he had ever informed complainants, that he had credited the execution with the money for which the land had been sold; but he admits that he did “mention to them” that he intended to credit the execution with that sum, if good titles could be made.</p> <p>One Thomas C. Richardson, it appeared, had an older grant, from Comfort Strange, under whom he claimed, that covered a part or nearly all of the land of complainants, that was sold by defendant, as administrator, and purchased by the trust estate. On his re-surveying his lands, and defendants discovering that fact, the land was abandoned by defendants, notwithstanding the length of time that they had held possession. Complainants, on the reference before the commissioner in this case, produced a deed from T. C. Richardson, to defendant, James, for this land, duly executed, but no delivery or acceptance by defendant, James. They produced also, a receipt for six hundred and fifty dollars, payment in full to T. C. R. for this land.</p> <p>Under the above circumstances, a specific performance of the agreement by defendant, James, to credit his execution with the sum of eight hundred dollars, and interest thereon, from 1st January, 1822, was ordered and decreed, upon complainants lodging with the Commissioner in Equity, the title deed to the lands, from T. C. Richardson.</p>

<p>1. Where a feme covert is interested in lands, sought to be partitioned in the court of equity, she must be made a party to the bill, (if withiiCthe jurisdiction of the court) by her signature to the bill or answer (as the ease may be,) or by her signature to a warrant or power of attorney, for the special purpose, to be filed with the proceedings, as a part of the record, or she must be examined separately under the order of the Court.</p> <p>2. It is not necessary, when the commissioners allot the land to one or more of the heirs and direct a sum of money to be paid, that they should fix, in their return, the precise amount that each party should receive. But this should always be done in the order of confirmation.</p> <p>• 3. It is within the discretion of commissioners, where they allot a tract of land to one or more of the distributees, to recommend a credit to the party o whom the land is allotted. But the court will prescribe such conditions, in respect to the credit, as may seem expedient.</p> <p>4. A writ of partition cannot regularly be issued, where a part of the defendants reside without the limits of this State, until the bill has been taken pro confesso against the absent defendants.</p>

This case was submitted to the Court at the same time with Grayclon vs. Graydon; all the observations made in the decree delivered in that case are applicable to this. Superadded to which it may be remarked, that it does not appear that Wm.

The original hill in this case was filed 20th February, 1838, by Nancy, Simon, and William J. Hancock, infants, suing by B. R. Tillman, their guardian.

This case toas heard before. Chancellor Dunkin, at Charleston, June Term, 1839, and the following decree was made by him. In 1 Story Eq. 616,' it is said, “ Cases have occurred in which suits at law have been maintained for the breach of an agreement to furnish a certain sum, or stock, for the partnership purposes.

Heard before his Honor Chancellor Dunkin, at Charleston, -Term, 18 — , who made the following decree. The will of Micah Jenkins, was proved in March, 1830. Held: that “ where the wife has a legal estate in chattels personal, and the right of immediate possession in severalty, the marital rights of the husband will attach, and vest the property in him.” It is proper to apply the principle, in the first place, to the slaves claimed under the will of Mr. Jenkins. Mr..

<p>1. A marriage settlement is not inoperative and void, between the parties to it, because it has never been recorded; neither they nor their personal representatives, can take advantage of their omission to record it.</p> <p>2. Where negroes have been given to one, upon his marriage, by the father of his wife, and shortly thereafter, a deed of settlement is executed by the donor (of the negroes) upon the wife. It was held to be void as to creditors, unless the execution of the deed had been with the knowledge and privity of the husband at the time, or accepted by him.</p> <p>3. A parol transfer of personal property might be made, with restrictions and limita, lions; but it is a species of loan not much to he encouraged.</p>

This was a bill for the specific performance of a verbal agreement to convey lands, and for an injunction to restrain the defendant from enforcing a writ of habere facias posses-sionem, founded on a judgment obtained by defendant, against the complainant, in an action of trespass to try titles to the lands in question. Amongst other things, the defendant relies on the statute of limitations, as a bar to the relief sought.

The statement of the case appears, from the Chancellor’s decree, in the following words: The object of the bill is to restrain the City Council of Charleston from collecting a tax, assessed under the city ordinance of 1837, upon certain lots and buildings, the property of the complainants. These lots are generally in the hands of lessees, to whom they have been let for thirty years, renewable forever.

<p>Guardians, executors, administrators, trustees, and all persons acting in a fiduciary ■capacity, are bound and liable for the solvency of securities, which they take for money duejtheir wards, or their testator’s or intestates’s estates, or their cestui que trusts,as the case may be, or for any negligence in collecting money, where the party is likely to become in. solvent. A party acting in a fiduciary capacity, is expected to use the same care andman-agement, that a prudent man would exercise over his own affairs.</p>

<p>Appeals in Equity,</p>

Heard before Johnson, Chancellor, at Charleston, January Term, 1835, who pronounced the annexed decree. David Murray, being seized in fee of a plantation called Nelville, by deed, dated 1st February, 1770, demised the same, described in the deed as containing 600 acres, for a term of 2000 years, to Charles Murray, by way of mortgage, to secure a debt of £1000.

<p>The testator, by the 12th clause of his 'last will, declared, that in order to make provision for the five children by his “ present” marriage, his executors, or such of them as should qualify and act on his will, shall, as soon as may he convenient, or as the same may he deemed advisable, lay out and invest the sum of one hundred thousand dollars, in the purchase of lands and negroes, for the use of his estate. After directing that the lands and negroes, so to be purchased, together with certain other lands and negroes, should be kept together, and improved to the best advantage, until his eldest child, by this marriage, should attain to the age of twenty-one years ; he then directs that all the lands of his estate, not before specifically devised, the lands and negroes, so to be purchased by his executors, and four-sevenths of the negroes which he then owned, should be divided into five equal shares, among his said five children, allowing an equal portion to each. One of the said shares he devised to each of his said children, as they should respectively attain the full age of twenty-one years, with limitations on the land, hereinafter mentioned. After providing that the income of those under age, should fall into, and form a part of the testator’s residuary estate; and that eacli child, during minority, should receive only a proper education anda reasonable maintenance and support, out of the income of the said estate — he devises, “ to each of the said children, as they, severally •and successively, reach twenty-one years of age, the share, or portion of lands, that may ■be allotted to them, respectively, for and during their respective natural lives; and from and after the deaths, severally, of the said children, to the issue of each, in the manner therein particularly declared. And should any, or either of them, (the said five children,) respectively, depart this life, without leaving lawfully begotten issue, living at the time of his, her, or their deaths, respectively, who shall live to attain the age of twenty-one years, or dying before that time, leaving lawfully begotten issue, to live until the parent, ■if alive, would have reached twenty-one years of age — then the share, and shares, respectively, in the lands of such child, or children, respectively, so dying, shall revert to my estate; and I give, devise, &e., the share and shares of the said lands, so reverting, unto my own right heirs, forever. It being my wish and will, that the shares in my said lands, given to my said five children, respectively, shall go to their issue, respectively, so long as the law will permit the said lands to be so limited, and no longer. And that on the failure of their said issue, respectively, within the period so limited, the share and shares in the said lands of such issue, and of such issues, so failing, shall revert to my •estate. The issue of any one of my said five children, not inheriting, or taking under this will, from any other of my said children, except so far as on the happening of the ■contingencies here contemplated, they, the said issue, or any, or either of them, may be the right heirs of me, the said William Seabrook.”</p> <p>Joseph E. Seabrook, one of the five children of this marriage, died under age, and unmarried; and the widow of the testator insists that, by a proper construction of the will, she is entitled, as one of the right heirs of the testator’s will, to one-third of the share of the lands which were to be allotted to J. E. Seabrook, and the ten children surviving the testator, (of whom Joseph was one,) to the other two-thirds ; or if excluded as one of the right heirs of the testator, she is entitled, as an heir of her son, J. E. S., to ■a proportion of one-tenth of his share, which vested in him.</p> <p>It was held, among other things :</p> <p>1. That Joseph Edings Seabrook took no interest in the lands.</p> <p>2. That the widow was included within the description of the right heirs of the tes. tator.</p> <p>3. That on the death of J. E. S., his share of the real estate passed to the right heirs of the estate.</p> <p>4. That the widow, accepting the share allotted to her by the first clause of the testa, tor’s will, which declares that this shall be in lieu and bar of dower, &c. &c., and when a distinct and separate provision was made for her — she is excluded from insisting on her right, acquired under the statute, and by mere operation of law. It is altogether a ques. tion of law, and not of intention.</p> <p>5. That the bequest of the negroes to J. E. Seabrook, did not vest an absolute interest in him, at the time of the death of the testator.</p> <p>6. That by the codicil, what remains, after satisfying the twenty thousand dollars, (willed for charitable purposes,) is distributable among the children of the testator generally.</p> <p>7. That the residuary clause of the codicil repealed, or modified, the residuary clause of the will.</p>

N. jP.— Vide Preston on estates 440. Before Dunkin, Chancellor, at Columbia, June Term, 1841, 'who Decreed, as follows. This bill was filed for the specific performance of a contract for the sale of a house and lot in the town of Columbia. An objection having been made to the sufficiency of title, the Commissioner was directed to enquire and report on the title. It is very clear that the defendant cannot have a title without the aid of this court.

The facts and circumstances of this case will he fully understood, by the subjoined decrees made in this case, by Johnston and Johnson, CC. which are herewith subjoined.

All the facts and circumstances of this case fully appear in the opinion of the Court, delivered at Columbia, by Johnson, Chancellor, May Term, 1841.

<p> In the Court of Errors, </p>

This was an appeal from the Ordinary of Fairfield District. The facts and circumstances of the case will he fully understood by the following decree .made by him. “John McAlister, junior, departed this life in the year 1823, intestate, leaving no heirs in this country, but leaving a father, brothers and sisters in the county of Antrim and Kingdom of Ireland.

Heard before Johnson, Chancellor, Abbeville,-Term, 18 — . In December, 1840, an order was made for the sale of various tracts of land, by the Commissioner, on credit, for partition, and, amongst other things, it was ordered, “that the tract, called Bordeaux, be sold, provided that it be sold for ten dollars per acre.” In his general report of sales, made August, 1841, the Commissioner reported that the Bordeaux tract, containing 625 acres, more or less, was purchased by…

<p>The occupying tenant, of a tenancy in common, is not bound to account for the rent óf iand, rendered productive by his own labor. He is only bound to account for the' rent of so much as is fit for cultivation at the time he enters and takes possession.</p>

<p>1. A bill well lies, in the Court of Equity, for the specific delivery of slaves; and all that seems necessary, to be stated in the bill, is, that his slaves have come into the possession of the defendant, and he refuses to give them up. This isa sufficient ground for the interference of this Court.</p> <p>Note. The same point were decided by the Court of Errors, at Columbia, May Term, 1841, vide Young vs. Burton, ante, in this volume. Rep.</p>

Heard before Johnson, Ch. at Edgefield, June Term, 1841. The late John Hatcher, by his last will and testament, devised to the defendant, his wife, Christiana Hatcher, a tract of land, containing five hundred and fifty acres, for life, remainder in fee to his son, Edward Hatcher, the late husband of complainant, Lucinda, and father of the other complainants ; and the complainants state in their bill, that defendant, Christiana, after the death of the said John, released in…

The complainants state in this bill, that Richard H. Tutt, the late husband of the defendant being indebted to them in the sum of $1379… Held: that if, after marriage, the husband make a settlement to the use of the wife, in consideration of her having relinquished some interest which she held independently of the husband, as of her inheritance, or her equity in personalty, there was no necessity for recording the deed of settlement in the office of the Secretary of State,…

Before Johnson, Chancellor, Abbeville,-Term, 1841. The details of this case may be fully understood by the able opinion of the Chancellor delivering the opinion of the Court, without any further abstract. — (See note at the close of the case.) Cited 2 Mills, Const. Rep. 218, Swycard vs. adm’r. Swycard. Sumter vs. Morse, 2 Hill. Ch. 92; executor not bound to plead the statute. Watson on Arb. 17, 47.

Before Johnson, Ch. at Edgefield, June Term, 1841. The only question remaining of this much contested case is the extent of the defendant’s liability for the hire- of the complainant’s negroes, which the defendant had in his possession for many years; and this of course involves the rules by which that is to be ascertained.

This case ivas heard before Harper, Chancellor, at Beaufort, who made the subjoined decree, which, with the grounds of appeal, willfully explain the case. “I should have little difficulty in giving an opinion in this case, hut it would he improper to do so. It is a bill merely for the purpose of taking the opinion of the court on an abstract point, without any case made. No relief is asked for, nor could any be given, nor any effective order made. It is a bill for advice.

In Chancery,* February Term, 1842. The hill is filed against Mr. Williamson as executor of Henry Taylor, deceased, and alleges that he has proved the will of testator, in Savannah and Coosawhatchie; and that the testator was seized of lands and personal estate in South Carolina, in Beaufort District. On return of the subpoena, that defendant was not found; andan affidavit, that he resided in Savannah, complainant moved for a rule that he should appear at a certain day.

1 Malloy, 141; the Court stand in loco the guardian of infants, and may exercise a discretionary interest over their estate; 1 Jacob & Walker, 627, Bradshaiv vs. Bradshaw. The commissioner increased the allowance of a minor, to enable him to provide for an illegitimate brother, 1 Malloy, 256; reasonable family charities allowed out of infant’s estates.

These were an original, and a cross-bill, which were heard together, at Gillisonville, in May, 1841, by Harper, Chancellor, from whose decree the matters in issue will be fully understood. “In June,… Held: that although the old sureties were discharged from future liabilities, yet they were liable for any funds which the administrator had in his hands at the time of their dischargebut that the new sureties were also liable, and the remedy was cumulative.

Before Dunkin, Chancellor, at Charleston, February Term1 1842. The facts of this case can more properly be understood by the pleading. The petition is therefore given at length, which is as follows; “The petition of Laurence E. Dawson respectfully shew-eth — That on, or about the 27th day of January, 1841, Wm.

Heard by Harper, Chancellor, at Charlerton, Jane Term, 1841. Elliott must have paid to W. S. Elliott, upon his own receipt — receipt not produced, Gill vs.-, Hard. 314. Receipt never questioned, but thought too hard on executors, 1 Eden, 357. Wesley vs. Clarke, 4 Ves. 596. Hobby vs. Blakenslon, 16 Ves. 477. Shipbrooke vs. Kitchenbrooke, 3 Swanst, 1 p. 63 — 7 East, 246. Smith vs. Cross. — Rule; Ex’or. may be liable to creditor and not to legatees.

Who made the following decree, which will be found sufficiently explanatory of the case. “This is a bill to restrain the defendant from enforcing against the complainant a judgment obtained at law. The complaint and the defence are set out very fully and at large in the bill and the answer, but the questions really involved appear to me to be embraced in a very narrow compass. In June, 1815, one Sami.

<p>The Act of 1816, Which gives aliento builders and mechanics upon the premises which they have improved, requires that the memorandum, or agreement between the parties, should be recorded before the lien attaches. The same Act does not, however, give a lien to sub-contractors, who may undertake a part of the work from the original undertaker, although they may have the guaranty of the agent of the owner, or of the company employing the first contractor.</p>

<p>In genera], one administrator is not bound for the default of his co-administrator, unless where their acts are concurrent.</p> <p>But, at law, both may be jointly liable on their bond. . This Court, however, discriminates and charges each with his own proper defaults. They are both hable, at law, upon the administration bond, both being princiapls. In Equity, they are regarded only as the sureties of each other.</p> <p>Where the surety to an administration bond is before the Court, the Court will give complete relief, according to its usual course, by affording a remedy against the surety— vide S. P. the cases of O’Neall vs. Herbert, and M’Bee vs. Croker, in this vol.</p>

<p>Before Harper, Chancellor, Edgefield, at Chambers, December, 1841.</p>

Who decreed as follows, viz : Benjamin Gillman, the father of the complainant, by deed, bearing date the 19th June, 1838, gave to the complainant, his daughter, a female slave, called Louisa, “ to have and to hold the said negro girl, Louisa, forever, unto the said Susan A. Ryan, and her' bodily heirs, and should the said Susan A. Ryan die without issue, then the said negro girl, Louisa, and her increase, to be equally divided between my other childrenand by another deed, of…

This case arises out of the last will and testament of Robert Smyth, deceased. A number of points have been urged, with more zeal and ability than the merits of it deserved. The will has been drawn with skill, and there is not a clause in it, which does not clearly show the intention of the testator.

<p>■1. Lapse of time will not raise the presumption of partition of lands, so as to bar the claims of minors ; unless there is some evidence, that there had been a division.</p> <p>2. One co-tenant is not bound to pay rent for land, that he himself has cleared, and reduced to a state of cultivation ; but he is bound for the rent of all the land, fit for cultivation, at the time he takes possession. Vide, Thompson vs. Bostick, ante.</p>

The facts of this case, so far as they are material to a proper understanding of that part of it which relates to the liability of the defendant, Thomas E. Herbert, administrator of Pendleton Page, on whose behalf this motion is made, are briefly these; James W. Sibley was appointed the guardian of the complainants, Caroline, and Eliza Mc-Hardy, in this State, and gave as sureties to his guardianship bond, Joseph Sibley and Pendleton Page, and af-terwards died insolvent.