Volume 26 — South Carolina Equity Reports

Doctor McClerlrin, on January 30, 1845, mortgaged to the plaintiff a tract of land to secure the payment of a single bill; and also gave to the defendant John S. Bratton, a confession of judgment,… Held: upon the testimony, that the plaintiff had the first lien upon the land.

<p>To a bill to enjoin execution creditors from proceeding to enforce their executions, the sheriff is not a necessary party. Notice to him of the order for an injunction is sufficient.</p> <p>Though a decree as to costs is not the subject matter of appoal, yet while the case is before the Court of Appeals, inadvertency or oversights as to costs, will be corrected there, on the suggestion, or by the consent of the Chancellor who tried the cause.</p>

Before Wardlaw, Ch., at Richland, June, 1852. This case came up on exception to the Commissioner’s report. Held: that the administrator prudently kept in his hands the rents for the lands, to meet the damages likely to be recovered, in pending suits, from tenants to whom he was responsible, and was not liable for interest while the suits were in progress.

Before JoHNSTON, Ch. at Union, June, 1852. This case came up on exceptions to the Commissioner’s report, which is as follows: “Your Commissioner, to whom it was referred to take into account and to report upon the receipts and expenditures of the administrators, B. W. Lee and J. M. Ison, and also to ascertain the advancements made to the distributees of Frederick Ison, begs leave to report; that the intestate died some time in the Fall of 1845, and the plaintiffs, B. W. Lee…

<p>Testator bequeathed property to his wife for life, and directed the same, after her death, to be divided between Ann M., the children of his brother Peter, and the childron of his sister Hester, “ alive at the death of my wife, share and share alike, for and during their natural lives, and after their death to their respective children forever. It is my will, that if the said Ann M., either of the children of my brother Peter, or sister Hester, should die in my life time, or the life time of my said wife, that the child or children of such one or more of them as may so die, take the part of their deceased parent.” Peter and Hester, the brother and sister of testator, were both dead when the will was executed: at that time, and at the death of testator, there were eight children of Peter, and fivo of Hester, living: testator’s wife also survived him : — jELeldy that, at the termination of the life estate, Ann M. and the children o^ Peter and Hester will take equally and per capita — the children of such as may be dead taking their parent’s share.</p>

<p>A charge for board made by an administrator against infant distributees, who resided with him, he being their uncle, rejected on the proof.</p> <p>The plaintiff, a distributee, haying been unreasonably tardy in the assertion of her right, interest not allowed her during the time she resided with the administrator.</p> <p>An ex parte return to the ordinary in which an administrator strikes a balance against the estate, is not such an act as will giye currency to the statute of limitations in his fayor.</p>

<p>The Commissioner having in his hands, as receiver, eortain funds, to a share of which a married woman was entitled as tenant in common, without any order of Court paid out her share to her husband, she not joining in the receipt: — Eteld, that the payment was unauthorized; and that the Commissioner was bound to a'ccount to the wife for her share. Per Dargan, Ch.</p> <p>A Commissioner having a fund in his hands as receiver, must keep it until ordered to pay it out 5 if he pays it out without an order, he cannot exonerate himself without showing, that he paid it to one, who, if application had been made to the Court, would have been entitled to receive it under its sanction. Per Dargan, Ch.</p> <p>A husband’s marital rights do not attach on the undivided interest of his wife in a fund, in the custody of the Court. Per Dargan, Ch.</p> <p>"Where a decree is made overruling defendant’s defence and ordering him to account, additional evidence to show that defendant is not liable to account cannot be offered at the reference. Per Dargan, Ch.</p> <p>An order confirming the annual report of the Commissioner upon a fund in his hands, does not conclude the parties interested in the fund. Per Dargan, Ch.</p> <p>Where grounds of exception to a Commissioner’s report state matters which are objections, not to the report, but to the decree ordering the reference, the Chancellor should refuse to decide them 5 nor will thetCourt of Appeals decide them on appeal from the decree on tho report 5 the appeal should be from the decree ordering the reference.</p> <p>A Commissioner paying out money during his term of office to one not entitled to it, held bound to pay interest from twenty days after he went out of offico — that time being allowed him,- by tho Act of 1840, within which to turn over the fund to his successor.</p>

Before Dunkin, Ch., at Edgefield, June, 1852. The bill stated, that the river Savannah is the boundary between the States of South-Carolina and Georgia; that the sovereignty and territorial jurisdiction of each State extend, usque adftlum medium aquae, to the central line of the river, as your orators are advised, and that the said States have no convention to regulate the exercise of their respective jurisdictions over the waters of the said river, in respect to bridges,…

Before Wardlaw, Ch. at Union, June, 1852. The circuit decree is as follows: Wardlaw, Ch. In this case objection is made to the confirmation of the Commissioner’s report on sales, in behalf of James Rogers, a purchaser of land, on the grourid that he had been required to give bond for forty-three acres covered by Tiger river.

<p>To a bill for foreclosure of a mortgage of land, against ono who holds, through intermediate conveyances, under the mortgagor, the statute of limitations is inapplicable— although the defendant and those undor whom ho claims have been in possession more than ten years.</p> <p>The doctrine of Thayer vs. Cramer, 1 McO Ch. 395, re-affirmed in Smith <J- Guttino vs. Osborne, 1 Hill, Ch. 342, may be regarded as the settlod law.</p>

<p>Testator bequeathed certain slaves to his daughters M. and 3? : the residue of his estate he gave to his wife for life — the personalty to be divided, after her death, among his three daughters M., P., and J\, and the lands among all his children (not naming them:) he then declared, “should any of my daughters above mentioned, hereafter marry and die, léaving no issue living at the time of their death, their respective shares shall go to the survivor or survivors, free from any claim or control of their husbands;” and, lastly, he proceeded to say, “as my daughter N. and son A. are already provided for, I leave them $100 to be equally divided between them— Held, (1) that M., P., and J. took, in their legacies, transmissible interests, defeasible upon the conditions mentioned in the will; and (2) that the words “ survivor or survivors,” referred to the three daughters M., P., and J. only, and not to all the children Bequest of slaves to one absolutely, and “should she hereafter marry and die, leaving no issue living at the time of her death,” then over, is defeasible only upon the double contingency of her marrying, and dying leaving no issue.</p>

Before Johnston, Oh. at Chester, July, 1852. Johnston, Oh. The bill is filed by Mrs. Rosborough and her husband, for the construction of the will of her father, the late William Moffatt, and for an account of her interests in his estate.

Before Dahgan, Ch. at Barnwell, February, 1852. The circuit decree, is as follows: Dargan, Ch. James Harley and George W. Collins were partners in trade in Barnwell District, under the name and style of James Harley and Company. The business was conducted by Harley, at his own residence, and Collins also carried on business as a merchant on his separate account, in Savannah, Georgia.

Before Dargan, Ch. at. Barnwell, February, 1852. Held: that evidence of a confession by a party, that he was guilty of a fraud, could not be read, because it was not distinctly put in issue.

Before Wardlaw, Ch. at Fairfield, July, 1851. Wardlaw, Ch. This is a bill by the principal against his agent, to enjoin the execution of a judgment of the agent against the principal, and to set aside certain purchases of the principal’s estate by the agent, and for a general account of the agent’s transactions in the affairs of his principal. On November 13, 1844, Z. Rawls confessed a judgment to Wm.

Before Dargan, Ch. at Barnwell, February, 1852. Dargan, Ch. This is a bill for account and distribution of the estate of Joseph Tucker, deceased. The complainants are legatees. ■ The defendant, George H. Tucker, is a legatee ; he is also executor of the estate. The other defendants are legatees. The present litigation relates entirely to three negroes, alleged by the complainants to belong to the estate.

Before Wardlaw, Ch. at Union, June, 1851. Wardlaw, Ch. This is a bill filed by the plaintiff, as administrator of Lewis Bowers, against the defendant, as surviving partner, for an account of the assets of the partnership of Thom-sou & Bowers, as attorneys and solicitors. The partnership was formed in the beginning of the year 1841, and continued until October, 1844, when it was dissolved by the death of Bowers.

This cause was heard at Union, June 1852, before Johwston, Oh., who made the following decree : JohnstoN, Ch. From the pleadings and the proof taken before the Commissioner, and the evidence taken at the hearing, and appearing on my notes, which fully disclose the case, I shall extract only so much as will serve to explain the judgment I am about to render.

This cause was first heard before Wardlaw, Ch., at York, June Sittings, 1851, who made the following decree: Wardlaw, Ch. As I have formed the opinion that all proper parties are not before the… Held: that the statute did not alter the form of pleading. That if an agreement or contract is stated in the declaration to have been made, it is not necessary to allege that it was in writing, as that will be presumed until the contrary appears.

Before DargaN Ch. at Charleston, June, 1852, This case came up upon the report of Mr. Tupper, one of the Masters, and exception thereto. The report is as follows : “ The late George Henry appointed the defendants, Ker ■ Boyce and John Magrath, the executors of his last will and testament, both of whom qualified. In January, 1847, the complainants filed their bill in this Court, praying, among other things, an account of the estate of the testator.

This cause was heard at Colleton, extra sittings, July, 1852, before Dargan, Ch., who made the following decree : Dargan, Ch. Isaac P. Droze departed this life in the month of October, A. D., 1850, intestate, and in the possession of real and personal estate. The complainant, Benjamin Perry, is his administrator.

Before Dargan, Ch. .at Charleston, July, 1852. Edward E,. Held: by Mr. Laurens, in trust for the distributees of Street. The default occurred in 1849, during a term subsequent to the period for which Mrs. Laurens was bound. The defendants, I think, are entitled to the benefits of the above investments.

<p>The late William Gibson, jun., died possessed of real and personal estate, which, by his last will, he devised to his three children, and to the defendant, Louisa F. Marshall. He made no provision in his will for his widow, who is the complainant, and-at the time of his death was living with him and their children in one of his houses. Soon after his death, his exe-tors, under one of the provisions of the will, sold the real estate, subject to her claim 'of dower, (of which the purchasers had full notice,) and the defendants, Marshall and Rodgers, became the purchasers. This bill was filed by his widow, for an account of the rents, and for an admeasurement of her dower. Upon hearing of the case, at Charleston, September, 1851, before Dunkin, Ch., the following decree was made:</p> <p>Dunkin, Ch. It is ordered and decreed, that a writ do issue for the admeasurement of complainant’s dower in the premises described in the pleadings, situate in Franklin-street and in Smith-street, respectively. That the writ be directed to Thos. D. Condy, David Lopez, C. C. Trumbo, M. McBride and Thos. Farr Capers, requiring them, or a majority of them, to execute the said writ, according* to the provisions of the Act of Assembly, in such case made and provided, and that they make a return of their proceedings in the premises, under their hands and seals, as therein directed, for the final judgment and determination of the Court.</p> <p>The complainant, Catherine B. Gibson, appealed from so much of the decree as directed the Commissioners to execute the writ for the admeasurement of dower “ according to the provisions of the Act of Assembly in such case made and provided,” on the grounds:</p> <p>1. Because the several Acts of Assembly, in relation to dower, merely give the doweress an additional process and remedy, if she chooses to accept their provisions, and file her petition in Common Pleas; but without that, do not deprive her of any right she previously had, of pursuing her remedy by writ of dower at common law, or by bill in this Court, in which case the admeasurement of dower is governed by the common law, and not by statute.</p> <p>2. Because, having elected to proceed in this Court, she declines to accept the provisions of the statute law, and is entitled to have her dower admeasured accordingly, and cannot be compelled to accept a commutation in money under the statute, which she had the privilege of doing by petition in Common Pleas.</p> <p>The case was not reached during the sitting of the Appeal Court in January, 1852. Pending the appeal, the plaintiff sued out a writ of dower, requiring the Commissioners to admeasure and assign one-third of the lands specifically to the plaintiff, for her dower, without any reference to the discretion of the Commissioners, under the Act, to assess a sum of money in lieu of dower, if, in their opinion, the lands could not be fairly divided without manifest disadvantage. For this defect, a motion was made by the defendants, at March sittings, 1852, that the writ be set aside. The motion was made before Johnston, Ch., who made the following order:</p> <p>Johnston, Oh. The motion now made by the defendants stands upon a different footing from the one made a few days ago. Then it was moved that it be referred to one of the Masters, to take testimony, whether the conclusions to which the Commissioners in partition had come, were not unreasonable and unjust. The motion was refused, because it proposed to transfer the functions properly belonging to the Commissioners to the Master.</p> <p>The present motion is to set aside the writ, for irregularities and imperfections upon its face, calculated to influence the return of the Commissioners.</p> <p>The order of Chancellor Dunkin was, that a writ issue, for the admeasurement of the plaintiff's dower, under the statute.(a) The plaintiff, on that occasion, contended that she was entitled to have an actual assignment of her dower, at common law, and not such an assignment, or an assessment in lieu of it, (in the alternative,) under the statute; and an appeal was taken from the Chancellor’s order, because it directed the proceeding to be had under the statute.</p> <p>The form adopted by the plaintiff, in issuing the writ of partition under the order, was such as to give her all the advantages she would have possessed, had the order been granted her for which she contended : or if her appeal had been heard and sustained : and I think the writ should be recalled, for this irregularity-.</p> <p>The proper form of the writ presents a very important question of practice, because the Commissioners are required to take an oath to execute it, according to its mandates. If these be limited, so as to set forth but a part of their duties, the necessary consequence is, that they are compelled, by their very integrity, to fall short of their whole duty.</p> <p>The form of this writ is such as to require the Commissioners to make ah actual admeasurement and assignment of the dowerl without more ; and by swearing to execute the writ, the Commissioners were made to bind and confine themselves to the specific act of admeasurement: and it may be, that their return of an actual assessment has followed from the limit thus set to their powers.</p> <p>The form adopted, which is contrary to that which has ever prevailed under the statute, is sought to be justified by what appears to me to be a very narrow construction of its provisions. It is said that it requires a writ to be issued, commanding the Commissioners to admeasure the dower, etc.,, and ■ that the writ must go forth with that mandate alone. And that, although the statute proceeds to empower the Commissioners to assess a sum in lieu of dower, in case they cannot admeasure the latter without disadvantage to some of the parties, this power should not appear in the directions contained in the writ.</p> <p>The necessity for the full power of the Commissioners (in the alternatives contemplated by the Act) being set forth, by way of directions, appears from the fact that the Commissioners are required to take an oath to execute the writ. If, as was argued, the Commissioners, though sworn to admeasure the dower, are at liberty to notice their power under the statute not to admeasure it, but to assess a sum as a compensation for it, this plainly amounts to this, that the Act contains a dispensation to them, absolving them from the only specific act, which, it is said, the writ can properly direct them to do, and which the statute specifically binds them by oath to do. This cannot be.</p> <p>If the writ is intended to leave the Commissioners at liberty to perform their whole duty — if it is not intended to entrap and mislead them in the performance of it — let the writ go forth describing their duty to them. This can in no case do any harm; and it may in some cases obviate mistakes and injustice. The writ, as a matter of sound practice, should conform to the scope and true intention of the statute; and not be restricted to part of the duties it intends to authorize and require.</p> <p>Such, as I have said before, is the form of writs of this description heretofore: and a departure from it should not be encouraged.</p> <p>It is ordered, that a writ be framed by Mr. Tupper, one of the Masters, in conformity with this opinion; and issued to five Commissioners, two to be named by the plaintiff, two by the defendants claiming the land, and the fifth by said Master, requiring them, or a majority of them, to execute said writ. If either party, after notice, refuses or neglects to name Commissioners, the said Master to name them in his place.</p> <p>It is further ordered, that the writ in partition, heretofore issued, be set aside.</p> <p>The injunction, heretofore ordered, to be continued until further order. And as it appears that the plaintiff has a decree, entitling her to have her dower laid off and assessed, the security required for the said injunction, in the previous order, is limited to the amount of damages and costs recovered against the plaintiff at law.</p> <p>In the order of Chancellor Johnstow all parties acquiesced.</p> <p>The new writ thus directed was issued and executed. The Commissioners made their return, meting out and assigning the plaintiff’s dower in the lot in Franklin-street, and assessing a sum of money, in lieu of her dower, in the lot in Smith-street. As to the assessment in the latter lot, the parties were satisfied; but the defendant, Marshall, contested the return as to the lot in Franklin-street, and submitted affidavits, showing that the portion assigned to the plaintiff exceeded in value her interest, and embraced all the houses and improvements, and left a part of the- lot, covered by water and mud, for the defendant’s share. These affidavits, while they imputed no corrupt motive to the Commissioners, exhibited error of judgment, as to values, in distributing the lot.</p> <p>Upon these affidavits, Chancellor DargaN, at July sittings, 1852, on motion of defendant, Marshall,</p> <p>Ordered a reference to one of the Masters, to take evidence and report, whether the admeasurement made by the Commissioners, in assigning the plaintiff’s dower in the lot in Franklin-street, was not contrary to the Act of 1824, illegal and inequitable.</p> <p>From this order the plaintiff also appealed, objecting to the reference to the Master on ex parte affidavits ; and further, that the affidavits impute “ no malpractice or error of principle to the Commissioners,” and nothing beyond a mistake in valuation.</p> <p>Payne vs. Payne, Dud. Eq. 127; Brown vs. Duncan, 4 McC. 346; Wright vs. Jennings, 1 Bail. 280; Lesesne vs. Russell, 1 Bay, 459 ; McCreary vs. Cloud, 2 Bail. 344; Scott vs. Scott, 1 Bay, 506 ; Hawkins vs. Hall, 2 Bay, 449 ; Beaty vs. Hearst, 1 McM. 33 ; 1 Des. 110, 115; Stock vs. Parker, 2 McC. Ch. 382; Davidson vs. Graves, Bail. Eq. 272; Brown vs. Caldwell, Sp. Eq. 322; and Woodward vs. Woodward, 2 Rich. Eq. 23, were cited.</p>

This cause was first heard at Charleston, March, 1851, before Wardlaw, Ch., who made the following decree: Waudlaw, Ch. Of the voluminous pleadings in this case, a brief abstract may suffice for the questions now presented for decision.

Before Dargan, Ch., at Charleston, June, 1852. Dargan, Ch. William M. Eddings was a young man of large expectancies. Held: that a person furnishing necessaries to an infant, under these and the like circumstances, is bound to make inquiry whether the infant be not otherwise supplied. Cook vs. Deaton, 3 Car. & P. 114; Story vs. Perry, 4 Ib. 526; Ford vs. Fothergil, 1 Esp. 21.

Before Dargan, Ch., at Charleston, June, 1852. ^The bill, in this case, was for the specific performance of a contract. His Honor dismissed the bill, and the plaintiff appealed.

<p>Tenant of trustee not allowed compensation, from the corpus of the estate, for improvements put upon the premises.</p> <p>Trust property was sold, and bonds for tho purchase money given to the Master, and assigned to the trustee: the purchaser made payments to the cestui que trust for life, without the consent of the trustee : the payments were allowed to the extent, only, that the cestui que trust would have been entitled to receive them from the trustee, had they been made to him, as they should have been.</p>

<p>A tenant for life, who puts improvements on the land, is not, as a general rule, entitled to compensation from the remainder-men.</p> <p>Testator devised lands to trustees, for the use of J. H. for life, with contingent remain der to her surviving issue: then declaring his ccintent and purpose" that E. H. should hold the land devised to her “on similar and cori’espondent uses and trusts,” in order <c to effectuate his intent and puipose" he devised lands to the same trustees, “in trust for the use of E. H. for life; and on her decease, then intrust forthe use of the lawful issue of E. H., to he equally divided among them, share and share alike; and if it so happen on the death of E. H., she leave no issue then alive, to take the said estate, then in trust for the use of J. H. and S. It., their heirs and assigns for ever — Held, that E. H. took an estate for life, with contingent remainder to her surviving isSue.</p> <p>Held, further, that all the descendants of E. H., grand-children as well as children, were embraced by the term issue, and took pen' capita.</p> <p>"Where one tenant in common is in possession of the premises,, the right of his co-tenant to an account of the rents and profits, is barred by tho statute of limitations, except for the last four years beforo the filing of the bill.</p>

<p>A motion made before the Circuit Court for Charleston, after the Court had been in session several weeks, to set aside an order pro corfesso, refused — the defendant, making the motion, having in no particular complied with the 85th rule of Court.</p> <p>A party against whom a bill has been taken pro confessoi not being entitled to introduce evidence in defence, as if he had pleaded or answered to the bill, is not ontitled to require the production of title deeds.</p> <p>Upon a motion to set aside an order pro corfesso, it may be imposed as a condition, that the testimony of certain witnesses taken before the Master, without notice, should be read — the defendant to have the right to produce them and treat them as plaintiff’s witnesses.</p> <p>Testatrix devised to G. E. cc all that lot lying and being at the corner of St. Philip and George-streets, being on St. Phillip-street 15l£ feet, and on George-street 57 feet; also, that lot being and lying next to the aforesaid lot, fronting on George-street 57 feet, and 15l£ in depth;” the rest and residue of her estate, real and personal, she devised and bequeathed to her four children, G. E. being one; testatrix owned but one lot at the corner of St. Philip and George-streets, which fronted 151& feet on the formor, and was in depth 171 feet on the latter: — Held, that the devise to G. E. did not carry the whole lot, but only two-thirds thereof, next to St. Philip-street, to be cut off in two lots, each fronting 57 feet on George-street; and that the remaining third part passed under the residuary clause.</p> <p>The Court of Equity has no authority, in general, to try questions of title to lands, where the parties claim by distinct titles; but where the whole dispute is upon the construction of a will, or other written instrument, under which both parties claim, the Court has jurisdiction to determine the rights of the parties.</p>

Before Johnston, Ch., at Charleston, March, 1852. Joseph E. Cole, then a resident of Beaufort District, executed, March 2, 1832, a post-nuptial marriage settlement, by which he conveyed to Thomas Talbird, the elder, his distributive share of his father’s estate, (afterwards ascertained to consist of negroes,) in trust, “for'his wife and her children, should there be any, to be equally divided at his death ” — reserving to himself “ the right to the income, or to the…

<p>Bill filed by a stockholder against the President and Directors of a banking corporation, to compel them to re-transfer to the Bank certain shares in the stock of the Bank, which the Bank itself had owned, and which the defendants had sold and purchased themselves, at less, it was alleged, than the market value: — Held, that the corporation should have been made a party to the bill.</p>

<p>where, in casos of dower, injunction to stay waste, or of partition, the title to the land is involved, the approved practice of the Court is, not to determine upon the title, but to leave, or send, that matter to a jury, by directing an action at law, or ordering an issue.</p>

<p>On a bill for tbe specific delivery of slaves, the Court is not bound to refer the question of title, where it is disputed, to the Law Court: It can determine the question of title itself.</p>

<p>Six co-heirs make an informal división of their ancestor’s estate, and a plantation falls to the exclusive share of 0.: no conveyances are made, and W., one of the co-heirs, dies intestate, leaving an infant child his sole heir : the infant is a trustee for C. and hound to convey to him under statute, 7 Ann, c. 19.</p> <p>It is not every interest that puts an infant trustee beyond the operation of the statute of Ann.</p> <p>A conveyance made by an infant trustee, under a decree of the Court, is good, until the decree is reversed, and the conveyance avoided.</p> <p>A good marketable title is all that is required of the vendor — plaintiff in a suit for spociiic performance : it is not enough for the defendant to shew that the title may, possibly be defeated.</p> <p>Early in 1847, defendant agreed to purchase plaintiff’s plantation, and to pay for the same $1,000 in March, 1848; $2,000 in March, 1849; and $3,000 in March, 1850, without interest, — the plaintiff and defendant each to plant part for the year 1847, and full possession to be given to defendant on January 1, 1848. Plaintiff had a good equitable titlo, but his legal title was defective. Defendant took possession according to the agreement. In April, 1847, he discovered the defects in plaintiff’s title, and from that time till December, 1848, repeatedly importuned him to cure the defects, and execute a conveyance. On December 11, 1848, ho informed plaintiff, that he had been advised good titles could not be made, and on December 23, gave him notice, that, unless good titles were tendered by January 1,1849, he should consider the negotiation for the sale at an ond. On January 1, 1849, he, accordingly, abandoned the premises* — having paid no part of the purchase money. There were considerable difficulties in the way of the plaintiff in getting in the legal title. In 1848, he took some steps towards gotting it in. In August, 1849, he filed his bill for specific performance ; and in July, 1851, when the Master submitted his report, he had perfected his title : — Held, that, although there had been delay on the plaintiff’s part, it did not amount to such laches as deprived him of his right to a docreo for specific performance.</p> <p>Principles on whieh the Court proceeds in granting or refusing relief, in suits for specific performance, where the party seeking relief is wanting in diligence.</p> <p>Where no time is fixed in the contract, or time is not essential, it will not, however, be permitted to the party who is to make the conveyance, to trifle with the interests of the opposite party by unnecessary delay: it is in the powor of tho latter to fix some reasonable time, — not capriciously or with intent to surprise, but a reasonable time according to the circumstances of the case, — within which he will expect the title to bo made at tho peril of rescinding the agreement.</p> <p>Notice on December 23, that unless good titlos were tendered by January 1, the purchaser would consider the contract at an end, held, under the circumstances of the cass, not to be reasonable.</p> <p>The embarrassing state of tho title has always been recognized, as affording a reasonable excuse for delay.</p>

<p>Bill by creditor to set aside a judgment against the debtor for fraud. The bill prayod relief on other grounds, against other parties. Tho creditors of the debtor were called in, and one object of the bill was to marshal his assets among them. A decree was made dismissing the bill, so far as it sought to set aside the judgment — ordering now parties to be made, and referring the case to the commissioner. At another term, a decree was made upon the report of the Commissioner, and exceptions thereto: — Held, that it was thou too lato to appeal from, the first decree refusing to set aside the judgment.</p> <p>Where there is a final decree as to any one of the parties, or any distinct branch of litigation, so that nothing remains to be adjudged as to that party, or that branch of the litigation, the appeal must be taken, within the time, and in the manner prescribed by the rules of Court, or the right of appeal will be lost.</p> <p>Where the decree adjudges the liability of a party, and refers the matter to the Commissioner to ascertain the amount due, or where something remains to be done , requiring the further judicial action of the Court, the appeal may be taken at once, or the party may wait the final judgment of the Court, and then appeal.</p> <p>Petition to the Court of Appeals to rehear a ease, in which a Circuit decree, not appealed from, had been made, on the ground of newly discovered evidence : — Petition dismissed, with an intimation of opinion, that application should be made to the Circuit Court for leave to file a supplemental bill, in the nature of a bill of review.</p> <p>A petition for a re-hearing is the proper mode of proceeding before the decree has been rendered: but where, after the filing of the decree, a party wishes to avail himself of newly discovered evidence, his application should be for leave to file a bill or review, or a supplemental bill, in the nature of a bill of review, (a)</p> <p>The Court of Appeals having only appellate jurisdiction, an original application there to re-hear a Circuit decree, not appealed from, cannot be entertained.</p>

Before Dargan, Ch., at Williamsburg, February, 1853. D'argan, Ch, The will of William Taylor bears date the 4th March, 1821. He died in 1822, leaving the said will unre-voked.

<p>Before Dunkin, Ci-i., at Abbeville, June, 1852.</p> <p>Dunkin, Ch. It is admitted that Christiana Hamilton, the mother of the complainants, and of some of the defendants, became, while a widow, the proprietor in fee of the premisés described in the pleadings. She afterwards married Joseph A, Hamilton. In the early part of 1849, the premises were levied on by the sheriff of Abbeville district, under executions against Hamilton, and sold to Nathaniel J. Davis, at public outcry, for the sum of two hundred and thirty-three dollars. On 5th February, 1849, the sheriff executed a conveyance of the premises, together with the appurtenances, “ and all and singular the estate, right, title, interest, property, claim or demand, which the said Joseph A. Hamilton, at the time of the sale of the said house and lot, had in the same.” According to the proof, the house and lot were then worth fifteen hundred dollars; and it was announced at the biddings, that the sheriff sold only “ Hamilton’s interest in right of his wife.” It appears, also, that neither Hamilton nor his family were living on the premises during the year 1849.</p> <p>On the 19th November, 1849, a conveyance of the entire premises was executed by Nathaniel J. Davis, Joseph A. Hamilton, and his wife, Christiana Hamilton, to the complainants, in trust for the purposes therein declared. The rights of Nathaniel J. Davis are recited, and, on his part, the deed purports to warrant the premises only during the joint lives of Hamilton and wife. On the part of Hamilton and wife, there is a general covenant of warranty in fee. *The trusts are, that the grantees should make sale of the premises, and from the proceeds pay, in the first place, to Nathaniel J. Davis, the amount of his bid at sheriff’s sale, with interest thereon, and hold the surplus to the sole and separate use of Christiana Hamilton, not subject to the debts, contracts, control or engagements of her husband; and “to effect and carry out such end, the said Joseph A. Hamilton,” should he have “ any. interest in said proceeds of sale, thereby assigned, transferred, and set over the same ” to the complainants. (a)</p> <p>It seems from the evidence, that Hamilton was sold out early in 1849, and that he, with his family, removed to a rented place. The complainants were not inmates of his family, but they furnished the family with two negroes, and purchased a horse, to work in the crop, and made other advances. The witness, N. J. Davis, says that the deed of November, 1849, was made with a view to cover the expenses of living of 1849, incurred by complainants, for Hamilton and wife; that the negro hire was part of the expenses; that “ when the deed was executed, the accounts for hire, &c., were spoken of, and estimated, in making the deed. Witness did not know exactly the amount of complainants’ accounts for rent of land, hire of negroes, horse, furnishing provisions, &c., but he thinks thejr were reimbursed, for their outlay for Hamilton and family, except as to the horse and as to the negro hire.” It uppers to the Court, competent to show by parol evidence, as in Banks vs. Brown, (2 Hill, Ch. 565,) additional considerations besides that set forth in the deed. But the complainants specially undertook to reimburse N. J. Davis for the sum paid by him at sheriff’s sale, in February previous. A note of one of the complainants was accordingly given to him, when the deed was executed, for the sum of two hundred and fifty-nine dollars, with interest; which note has been fully paid to him by the complainants. As has been said, both N. J. Davis and Joseph A. Hamilton, and his wife, joined in the deed to the complainants of 19th November, 1849. Six weeks afterwards, to wit, 30th December, 1849, Christiana Hamilton departed this life, and the complainants had made no sale of the premises. In January, 1850, the sheriff again levied on the premises, under an execution against Joseph A. Hamilton, whose interest was purchased by the defendant, David Keller, (with notice of the deed of November, 1849,) for the sum of one hundred dollars.</p> <p>The deed of November, 1849, was supported by a valuable consideration; and Joseph A. Hamilton, or any one claiming under him, is estopped from disputing its validity for the purposes therein set forth. But the ulterior trusts of the deed ceased with the life of Mrs. Hamilton. No provision is made for the appropriation of the fund after her death. If she had executed a formal release of her inheritance on the deed of November, 1849, and the complainants, having sold the premises for two thousand dollars, and reimbursed themselves, had held fifteen hundred dollars for her sole and separate use, and she had then died, her husband would be entitled to his distributive share of what was left. His deed only estops him to the extent of the purposes therein declared. But those purposes were, to reimburse the complainants, and then secure the fund to his wife during her life. Mrs. Hamilton, however, never parted with her inheritance. Joseph A. Hamilton’s interest, which accrued on the death of his wife, was affected by his covenant in the deed of November, 1849. (1 Inst. 476.) Bútthe.complainants can only be regarded as incumbrancers to the extent of their claim ; and, subject thereto, the interest of Hamilton, vested in the defendant, Keller, under his purchase at sheriff’s sales. (2 Story, Eq. § 790.)</p> <p>It is ordered and decreed, that the house and lot be sold by the Commissioner, at such time and on such terms as the parties interested, or their solicitors, may agree upon ; and in default of such agreement, as the Court may fix by a future order; that from the proceeds of sale the cost of these proceedings be first paid; that two-thirds of the residue to be distributed among the children of Christiana Hamilton, deceased ; that out of the re-retaining third, the complainants be reimbursed the amount paid to Nathaniel J. Davis, with interest thereon; as also the value of the services of the two slaves for the year 1849, and of the horse furnished; upon which several amounts the Commissioner is directed to report; that the surplus of the said third be paid to the defendant, David Keller.</p> <p>The defendant, David Keller, appealed, on the grounds:</p> <p>1. Because, at the first sale by the sheriff, N. J. Davis purchased the right to the usufruct during the joint lives of Hamilton and wife, which he enjoyed; and he is not entitled to be reimbursed from any source.</p> <p>2. Because the deed of 19th November, 1849, is a mere nullity. N. J. Davis never executed it. Joseph A. Hamilton had no right which he could convey; all his interest, during the life time of his wife, having been previously conveyed by the sheriff to N. J. Davis; and Mrs. Hamilton, being a feme covert, could not convey, without relinquishing her inheritance.</p> <p>3. Because the distributive share of J. A. Hamilton in his wife’s estate, which had no existence until her death, is improperly charged with the purchase of N. J. Davis, and the expenses of the family of Hamilton for the year 1849.</p> <p>4. If the deed of November, 1849, is held to be good as against Hamilton, that will not authorize the incumbering of his share with what N. J. Davis paid for the usufruct during the joint lives of Hamilton and wife.</p> <p>5. But if the purchase of N. J. Davis is an incumbrance upon the estate, it is an incumbrance upon the whole estate, and not a charge exclusively upon the share of Hamilton; and whether it constitutes a charge upon the whole, or upon Hamilton’s share, that incumbrance has already been more than discharged by rents and profits received exclusively by the complainants.</p> <p>6. The deed required the complainants to sell the lot, and from the proceeds to pay to the said N. J. Davis the amount of his bid, &c. The sale has not been made, but the rents and profits, since the death of Mrs. .Hamilton, will more than pay Davis the amount of his bid at the first sale.</p> <p>7. Because, at the time of the execution of the said supposed deed, Hamilton was largely indebted, by judgments, to defendant, Keller, and others; and any attempted conveyance by him of any interest he had, or might have, in the premises, would be fraudulent, and void as to creditors.</p> <p>8. If the share of J. A. Hamilton is affected by his covenant in the deed, it can only be so to the extent of the consideration received by himself and family, and. that is limited to the expenses of 1849, already reimbursed. If his share is to be burdened with the bid of N. J. Davis, complainants should be required to account for the rents and profits of the premises, of which they have been in possession.</p> <p>The plaintiffs also appealed:</p> <p>Because the deed of 19th November, 1849, founded on a good consideration, was a valid conveyance of the possibility of Joseph A. Hamilton to complainants, and an estoppel to him, and all claiming under him, or was an assignment of all his possible interest to complainants.</p>

Before Dargan, Ch., at Darlington, February, 1853. Held: that when the donee had issue capable of inheriting the estate, he had performed the condition. By this, his estate became enlarged, so as to admit of its being alienated in his life, though it could not be the subject of devise. Upon the failure of heirs capable of inheriting the estate, it reverted to the donor.

<p>3?or any residuo undisposed of by the Trill, the executor is a trustee for the distributees, and liable to account directly to them.; — no administration is necessary.</p> <p>The statute of limitations does not commence to run, in favor of a general agent, until the termination of tho agoncy.</p> <p>An executor, claiming slaves under a gift (declared fraudulent) from the testator in his life time, not protected by tho statute of limitations — his adverse possession not having continued four years before the death of testator.</p> <p>A deed of slaves and other personalty, reciting the consideration to be money advanced, &c., and love and affection, from a grandfather, ninety years of age, to his grandson and agent, sot aside as obtained by fraud and undue influence.</p> <p>The donor had at the same time executed his will, appointing the grandson an agent executor: tho will had boen impeached on the same grounds on which the deed was now impeached: — Hold, that there was no variance between the decree setting aside the deed, and the judgment sustaining the validity of the will.</p> <p>Principles upon which the Court proceeds in determining whether a gift by a principal to an agent, impeached on the ground of weakness of mind, fraud and undue influence, is valid or invalid — the same principles apply to all the variety of relations in which dominion may bo exorcised by one person over another: it should be made to appear, in order to support the gift, that the confidence has not heen abused; that all was fair; that the agent received the bountyfreely and knowingly on the giver’spart.</p>

Before Dunkin, Ch., at Abbeville, June, 1852. This was an appeal from the judgment of the Ordinary. N. M. Ware, deceased, the intestate, and William Ware, were, at the death of the former, indebted to the representatives of Thos. Kirkpatrick, by two joint and several sealed notes. N. M. Ware was the principal, and William Ware his surety. The notes were paid by William Ware after the death of his principal.

<p>The statute 22 and 23, Car. XI, o. 10, making it the duty of the Ordinary, in granting administration, to take sufficient bond, “with two or more able sureties, — respect being had to the value of the estate,” is not repealed by the Act of 1789, requiring that “ every administrator shall enter into bond, with good security, to be approved by the Court, in a sum equal to the full value of the estate.” The two Acts are to be construed together.</p> <p>In determining the sufficiency of the bond, the responsibility of the administrator himself is not to be considered. The ability of the sureties is alone to be looked to.</p> <p>It is the duty of the Ordinary to take bond, with at least two sureties; and each surety must be alley in a pecuniary or property point of view, respect being had to the value of the estate to be administered.</p> <p>The Ordinary, in determining upon the ability of the sureties, acts ministerially, and not, judicially.</p> <p>If the loss, which has been sustained from the insufficiency of the bond, has not resulted from negligence on the part of the Ordinary, but has arisen from causes, which, acting faithfully, he could not foresee or control, he is not liable.</p> <p>The evidence as to the ability of the sureties to an administration bond considered, and the Ordinary held liable to distributees for taking an insufficient bond.</p>

This was an appeal from the decision of his Honor, Chancellor Wardlaw. The Equity Court of Appeals ordered the case fo this Court, where it was now heard.

The bill in this case was filed in Orangeburg; and this was an appeal from the decision of his Honor, Chancellor Wardlaw, made, at Chambers, December 3, 1852. The Equity Court of Appeals, in December, 1852, ordered the case to this Court, where it was now heard.

The petition in this case, which was filed December 30,1828, in the Circuit Court for Charleston, states, “ that about the first day of June, 1824, a bill was filed in this honorable Court, by the firm of Davidson & Simpson, of London, merchants, against Admiral Richard Graves, the father of your petitioner, Louisa Catharina, and against your petitioners, and the other children of the said Richard Graves, and their husbands or representatives therein named, the object of…

This cause was heard at Edgefield, June sittings, 1851, by Chancellor Johnston. Held: — came into the possession of them. That, for certain causes, which rendered such a proceeding necessary for the protection of her remainder in said slaves, and their increase, the plaintiff’s husband, James Reese, then alive, filed a bill in the Court of Equity for Edgefield, against Rachel Holloway, her mother, and others, in the…