Volume 27 — South Carolina Reports

Before Pressley, J., Richland, November, 1886. The opinion states the case. A deed, absolute on its face, cannot be shown to be a mortgage favor of one who, at the time of the conveyance, had no interest, legal or equitable, in the property. Jones Mori., §§ 331, 323; 96 III, 456 ; 45 2V. Y, 589; 97 U. S., 624; 1 Story Eq., 152; 1 Jones Mort., §§ 268, 269, 335, 327.

Before Pressley, J., Richland, November, 1886. Dr. Frank Green presented a claim to the county commissioners of Richland for his fees for-the examination of certain persons for lunacy. The board disallowed the claim, and the claimant appealed to the Circuit Court.

Before Fraser, j., Richland, April, 1886. The opinion states the case. The Circuit decree was as follows : The liability of certain defendants in the above stated case having been passed upon by the Circuit Court, an appeal was taken.

Before Aldrich, J., Union, March, 1887. This was an indictment against Ike Moorman for arson. The evidence consisted wholly of confessions made by the prisoner on the morning after his arrest. The witnesses for the prosecution proved these confessions after satisfying the presiding judge that they had not been extorted by any threats or promises on the part of these witnesses.

<p>Before Kershaw, J., Orangeburg, September, 1886.</p> <p>The opinion fully states tbe case.</p>

<p>Where one person pays the purchase money and another procures the deed to he made to him, if the insertion of his name was fraudulently procured, no title or interest vests in him, and if done by permission of-the purchaser, a trust results for him who paid the purchase money.</p>

<p>1. Excoptions should state specifically the errors complained of.</p> <p>2. Findings of feet by master and Circuit Judge approved.</p> <p>3. Defendant mortgaged land and chattels to secure advances not to exceed $3,000, and the mortgage stipulated that the mortgagees should have “a lien on all crude turpentinej rosin, and spirits of turpentine to he made or controlled by” the mortgagor during the year; and the mortgagor further covenanted that he would ship all his naval stores to the mortgagees ' to be sold by them on commission, the proceeds of sales to be applied to the payment of advances made by the mortgagees. Meld, that the naval stores were not mortgaged, there being no words of conveyance as to them, nor was this instrument an agricultural lien.</p> <p>4. The mortgagor having shipped naval stores to the mortgagees without any direction as to the application of payment, the mortgagees had the right to apply the proceeds of sale to advances made by them in excess of the $3,000 secured by the mortgage.</p>

<p>Complaint for the recovery of land is not bad on demurrer for failing to allege a right in plaintiff to the possession of the premises, the complaint having stated that the plaintiff was seized in fee, and that the defendant unlawfully withheld from plaintiff the possession thereof.</p>

Before Hudson, J., Spartanburg, January, 1886. The opinion states the case. The Circuit decree, omitting its statement, was as follows: The learned referee in this case has found from the evidence and the law controlling the ease, that the plaintiffs are entitled to recover six-ninths of the $2,500 with interest on so much of the respective instalments from the date of each payment.

<p>Before Hudson, J., Spartanburg, September, 1886.</p> <p>The opinion states the case.</p>

<p>Before Hudson, J., York, April, 1886.</p> <p>The opinion .states the case.</p>

<p>1. The continuance or non-continuance of a cause is a matter of discretion which must of necessity rest with the Circuit Judge.</p> <p>2. A demand by the prisoner for a copy of the indictment made after the trial had commenced, and more than three days after his arraignment, was properly refused.</p> <p>3. Under an indictment for murder, the panel having been exhausted without obtaining a single juror, the trial was adjourned over until the next week. Held, that the prisoners were not entitled to a discharge upon the ground of former jeopardy. State v. Shirer, 20 S. O., 393, approved and followed.</p> <p>4. The panel being exhausted by the challenges of the four prisoners on trial, the deficiency should have been supplied by issuing a venire for additional jurors as prescribed by law. Gen. Stat., $ 2255. It was. irregular to postpone the trial to another week before another original-jury; for a trial once entered upon should not be adjourned over except where extraordinary circumstances so require.</p> <p>5. The right of challenge is regarded as sacred; and where a prisoner was allowed only twelve challenges, because he had exhausted eight; of another jury the week before, the court committed error of law,, and the prisoner is entitled to a new jury.</p>

<p>Defendant being sued in a trial justice’s court for §9.20, made a written offer, before answering, to allow judgment to be taken against him for §5. This offer plaintiff declined. Plaintiff then obtained judgment against defendant for $7.95, but this judgment was reversed on appeal. At the second trial, plaintiff obtained judgment for $9.20, but this, too, on appeal was changed by the Circuit Court to a judgment final in plaintiff’s favor for $4.85 — which was less than defendant’s offer before the first trial. Held, that under section 88. ¶ 15, of the Code, the plaintiff was liable for all the costs of the case subsequent to defendant’s offer.</p>

<p>Before PRESSLEY, J., Barnwell, November, 1885.</p> <p>This was an action by Beda A. Bloom against W. Gilmore Simms, administrator of Joel McLemore, deceased, and John W. McLemore. The opinion states the case.</p>

<p>1. The court, in its discretion, may permit an amendment to a pleading, provided such amendment does not entirely change the nature of the action or defence.</p> <p>2. In action for the recovery of land, the defendant claimed the value of improvements erected by him thereon, alleging that he entered into possession under a purchase believed by him at the time to be in fee. After an oral demurrer to this claim, defendant was permitted by the Circuit Judge to amend his answer and allege that at the time both of purchase and of erecting the improvements he believed his title to be good in foe. Held, that the claim was for the value of improvements, and the amendment only alleged an additional fact in support of the same claim; and therefore the amendment was legitimate.</p>

Before HudsoN, J., Abbeville, October, 1886. This was an action by F. W. Wagener & Co., judgment creditors of W. W. Mars, against said W. W. Mars, T. W. Mars, and Lucy J. Mars, to vacate certain deeds for fraud. The case was referred to J. C. Klugh, Esq., master, who reported as follows: It was referred to me in this case to take testimony and report upon all questions of law and fact submitted.

<p>Before Aldrich, J., Laurens, February, 1887.</p> <p>The opinion states the case.</p>

<p>1. Defendant lent plaintiff $900, charging therefor a usurious rate of interest, and afterwards. the usury law was so amended that any person who received as interest more than the- amount allowed by law was liable to forfeit double the sum so received, to be recovered by a separate action. After the enactment of this law, plaintiff paid the debt in full, according to the letter of his contract, and then brought action against defendant to recover double the amount so paid in excess of the sum borrowed. Held, that he was entitled to recover. Statutes stated and cases reviewed.</p> <p>2. The penalty for charging usurious interest is, under the act of 1877 (16 Stat., 325), a loss of the right to recover interest or costs; and the penalty for receiving usurious interest is, under the act of 1882 (18 Stat., 35), a liability to pay double the amount so received. These penalties are different and distinct.</p> <p>3. In applying the penalty for receiving, after the act of 1882 prescribing such penalty, usurious interest on a usurious contract entered into prior to that act, the act is not made to impair the obligation of the contract, nor given a retroactive effect.</p> <p>4. Under a statute forbidding the recovery on a usurious contract of any more than the principal debt, only the repayment of the principal debt is the legal contract of the parties. As to the interest charged or reserved, the contract is void.</p> <p>5. Voluntary payment of usurious interest does not estop the debtor from suing to recover the penalty prescribed' in the act of 1882; for it is only by payme.nt that he acquires a right of action under this statute.</p> <p>6. An amendment to a statute has effect from the time it becomes a law, leaving the prior law still of force as to contracts entered into before the amendment was adopted.</p> <p>7. Imposing upon a creditor a liability to pay to the debtor double the amount of usurious interest received by the creditor, to be recovered by the debtor in a separate action, or allowed to him as a counterclaim, does not affect the liability of the debtor to pay the amount of his lawful contract — the- sum actually lent — and therefore does not impair the obligation of the only contract between the parties recognized by the law.</p>

Before Aldrich, J., Laurens, March 1887. The contract of rent in this case was as follows : State oe South Carolina — Laurens County. Articles of agreement between Amanda S. and James A. Monday and Lura C. Elmore and Berry Elmore. We, Amanda S. and James A. Monday, on the first part, do agree to rent our houses and all the cultivatable lands for them to cultivate for the year 1886, for the sum of sixty dollars, to be paid in money on or before the first of November, 1886.

Before Hudson, J., Abbeville, October, 1886. This was an action by Thomas W. Mars against Walter W. Mars and F. W. Wagener & Co., to recover $940.40, proceeds of a draft misapplied by defendants. The jury rendered a verdict in favor of plaintiff against W. W. Mars for the amount claimed, but they found in favor of the defendants, Wagener & Co. The opinion sufficiently states the case.

Before Aldrich, J., Richland, July, 1886. The appeal in this case was from the following order: This is an application for a writ of prohibition, to prevent the respondent from collecting a tax on the bridge of the petitioner.

<p>1. The judge may state to the jury the testimony of the witnesses, or the substance thereof, but he must not intimate his opinion upon the force and effect of the testimony.</p> <p>2. Where an assignment was denied in the answer but not in testimony, and was proved by the plaintiffs, the Circuit Judge did not err in charging the j ury that there was before them no denial of the assignment.</p> <p>3. An account may be proved not only by the book of original entry, but also by the personal knowledge of a witness or the admissions of the debtor.</p> <p>4. The statute of limitations is properly pleaded only by alleging the facts which would make the statute applicable. Where the pica was “the account is barred by the statute of limitations,” the Circuit Judge did not err in instructing the jury to disregard this defence.</p>

Before Cothran, J., Barnwell, April, 1886. This was an action by Mary Ann Brown against James S. Brown. The appeal came to this court upon exceptions by the plaintiff to an order directing the cause to stand for trial.

<p>Before Kershaw,' J., Greenville, July, 1886. .</p> <p>The case is fully stated in the opinion of the court.</p>

<p>An executor brought his action for partition and settlement of the estate, • and prayed that the share of A, one of the heirs, might be settled on his wife and children as permitted by the will. Held, that a judgment creditor of A was entitled to intervene by petition and be heard as to the disposition of A’s interest.</p>

<p>1. An answer is frivolous when it fails to deny any of the allegations of the complaint or to state any new matter by way of defence.</p> <p>2. The fact of incorporation pertains to the right to sue, and therefore where a plaintiff' corporation alleged its corporate existence and defendant answered such allegation by a denial of knowledge or information sufficient to form a belief, the plaintiff’s corporate existence or capacity to sue is not in issue.</p> <p>3. Plaintiff alleged the execution and delivery to it by defendant of four notes, which were set out in full. Defendant admitted the execution of certain notes, but said he did not know the date, amount, or terms of said notes, and he denied “each and every allegation of said complaint not hereinbefore admitted or denied.” Held, that the answer was not frivolous, but raised an issue for the jury.</p>

Before Fraser, J., Greenville, April, 1887. The note of Spillars is set forth in the opinion.

<p>1. A decree final on the issues having been rendered in a cause, the succeeding judge has no power to adjudicate any of the issues; he can only pass the administrative orders necessary to carry out such decree.</p> <p>2. No question having been made in the pleadings or evidence as to the order in which the mortgaged property should be subjected to the payment of the mortgage debt, and no such point considered by the Circuit Judge in his decree of foreclosure, a succeeding judge, in his order directing a sale of the property, cannot adjudicate thereon.</p> <p>3. Two parties, G. and T., indebted by note for $3,000, gave a mortgage on a town lot held jointly by them, reciting their indebtedness to be a joint penal bond to secure $2,000, and T. gave a mortgage on a town lot owned by him, reciting his indebtedness to be a penal bond to secure $1,000, but the real indebtedness was the note for $3,000, no such bonds being in existence — and this was the claim made in the complaint. Held, that under this mortgage the joint property was</p> <p>' liable only for the payment of $2,000 and interest, and the lot of T. was liable only for the payment of $1,000 and interest.</p> <p>4. It seems that a mortgage cannot be foreclosed for an amount exceeding the penalty of the bond secured thereby.</p> <p>5. In action for foreclosure, can judgment be rendered for the full amount of the mortgage debt and leave be given to issue execution therefor, before sale has been made and deficiency reported ?</p> <p>6. The judgment of this court having been more comprehensive than was intended, a petition for rehearing was granted.</p>

Before Hudson, J., Abbeville, October, 1886. This was an action by Wardlaw & Edwards against E. H. Ray-ford and James MeCelvey for the recovery of real property, commenced September 11, 1885. The case involved the question of the delivery of a deed by defendant MeCelvey to Mrs. Vaughn, under whom plaintiffs claimed, and the question of estoppel.

<p>Before Fraser, J., Fairfield, June, 1886.</p> <p>The opinion fully states the case,</p>

Before Fraser, J., Abbeville, February, 1887. This was an action by Cynthia J. Lessly against Jacob H. Bowie, commenced. December 17, 1886, for the foreclosure of a purchase money mortgage of a tract of land. The defendant answered, admitting the execution of the note and mortgage sued on, but alleged that said premises had been conveyed to him by plaintiff under a deed of the same date as the mortgage sued on, and that this deed contained a covenant of general warranty.

<p>Before Hudson, J., Union, June, 1886.</p> <p>The opinion fully states the case.'</p>

Before Fraser, J., Richland, April, 1886. At the hearing of this appeal Judges 'Witherspoon and Norton sat in the places of the Chief Justice and Mr. Justice McGowan. This was an action' by Rachel T. Macaulay and Christina E. Macaulay against the Central National Bank.

<p>1. The personal representative of a deceased mortgagor is not a necessary party to an action to foreclose the mortgage. The demand for judgment for deficiency does not affect the question, as the prayer for relief constitutes no part of the complaint.</p> <p>2. Where a mortgagor assigned all of his estate to an assignee for the benefit of his creditors, and then died, his heirs-at-law are not necessary parties to an action of foreclosure.</p>

<p>Before Fraser, J., Abbeville, November, 1886.</p> <p>This was an action by Joel W. Lites and D. J. Wardlaw against W. P. Addison. The opinion sufficiently states the case.</p>

<p>Before Hudson, J., Greenville, November, 1886.</p> <p>The case is fully stated in the opinion of this court.</p>

<p>1. A defendant who, in ignorance of plaintiff's claim to a horse, honestly purchased it from one who had tortiously obtained possession, is entitled to demand before action is brought against him for its recovery.</p> <p>2. Whether a demand was made is a question of fact which was properly left to the jury.</p> <p>3. The complaint alleged that defendant wrongfully detained a chattel, for the recovery of which the action was brought, and the answer was a general denial. Held, that the absence and necessity of a demand before action, is not an affirmative defence, but might be insisted upon by defendant under his general denial.</p>

<p>Before Witherspoon, J., Beaufort, September, 1886.</p> <p>This was an action by F. D. J. Lawrence against Henry Isear. The opinion states the case.</p>

Before Northrop, J., Union, June, 1876. The decree in this case, after expressing the opinion of the judge upon some of the issues involved, concluded as follows: “The receiver was appointed under these proceedings at the suggestion of the plaintiffs and by consent of the defendants. The court is therefore not prepared to dismiss the bill, nor yet prepared for a final order.

Before Fraser, J., Richland, April, 1886. Judges Witherspoon and Norton sat at the hearing of this appeal, in the stead of the Chief Justice and Mr. Justice McGowan. The appeal was from the following decree : This case was heard by me at the term of the court held in March and April, 1886, on the report of the master and exceptions thereto.

Before Fraser, J., Newberry, November, 1886. At the hearing of this appeal, Mr. Justice McGowan declined to sit on account of his relationship to one of the parties. The facts of the case sufficiently appear in the opinion of the court.

<p>Before Witherspoon, J., Berkeley, June, 1886.</p> <p>The opinion states the ease.</p>

Before CothrAN, J., Darlington, November, .1886. These were actions by Magovern k Co. against Gr. Richard and Bollmann Brothers, and by Bates, Reed k Cooley against the same defendants. The cases are fully stated in the Circuit decree, which was as follows: Gr. Richard was engaged in business as a merchant, at Darling-ton, in 1883. In the summer of that year he was insolvent, but purchased a large stock of goods at the north on credit.

<p>1. Where a statute declares terms upon which vacant lands of the State may be granted, the courts cannot limit this provision to lands recently acquired from the Indians in one section of the State.</p> <p>2. In action between private parties claiming a tract of land, a grant of State lands under ihe seal of the State and signed by her proper officers, cannot bo held void for failure to comply with the conditions prescribed by statute to her officers in making grants, where it does not clearly appear that the conditions were present and that the officers disregarded them.</p> <p>3. A statute prescribed that in granting vacant lands on navigable streams the grant should not include exceeding one chain on the river front for every four chains hack. Eor this statute to defeat a grant, the party assailing the grant must show that the land was not so located, and that there was hack vacant land enough to make a compliance possible; but where the grant is perfectly fair on ’its face, such testimony is inadmissible for the purpose of annulling it.</p>

Before Hudson, J., Charleston, March, 1887. This was an action by John C. Jaudon, assignee of Boy D. Sonnichsen and others, pecuniary legatees of Henry Williams, deceased, against the executor and other beneficiaries under said will. The opinion states the case.

<p>Before Witherspoon, J., Hampton, September, 1886.</p> <p>The opinion fully states the case.</p>

<p>1. In an action at law this court has no power to review a decision of the Circuit Judge refusing to grant a new trial, when the motion was based on an alleged insufficiency of testimony.</p> <p>2. Naked depositaries are liable only for gross negligence, or a lack of ordinary care; and where a party makes a special deposit of money in the safe of a merchant, whose known habit is to permit trusty clerks to open his safe, the Circuit Judge erred in instructing the jury that the depositary would be liable for the loss of this money if it was abstracted out of the safe by one of their employees.</p> <p>Mr. Chief Justice Simpson concurred in the result, and Mr. Justice McIver dissented.</p>

<p>Before Aldrich, J., Laurens, March, 1887.</p> <p>The opinion fully states the case.</p>

<p>Before Wallace, J., Chesterfield, February, 1887.</p> <p>This action was commenced in December, 1879. The opinion states the case.</p>

Before Wallace, J., Sumter, October, 1886. This was an action by Altamont Moses, assignee of F. H. McEachern & Co., against M. B. Hatfield, for the foreclosure of a mortgage. The opinion states the'case.

Before CothRAN, J., Marion, October, 1886. This was an action by Willis Turbeville and wife against the other distributees of Richard Brown, deceased, to which action C. D. Evans, administrator, was afterwards made a party plaintiff. The opinion sufficiently states the case.

Before Fraser, J., Newberry, November, 1886. This was an action by the State of South Carolina, a judgment creditor of Michael Foot, in behalf of itself and all other creditors of said M. Foot, against Michael Foot, B. Oderdorfer, Harry H. Samuels, Otto Klettner, and Mordecai Foot. The opinion states the case.

Before Kershaw, J., Newberry, February. 1886. The Circuit decree in this case was as follows: This action was submitted to be heard and determined by the judge without a jury, at the February term of the court, upon the testimony and arguments of counsel. The facts, as I find them, are as follows: On the 9th day of November, 1871, Elizabeth.0.

<p>Before Wallace, J., Georgetown, November, 1886.</p> <p>The opinion states the case.</p>

<p>Before Kershaw, J., Charleston, November, 1886.</p> <p>The opinion states the case.</p>

.Before Fraser, J., Richland, April, 1886. The appeal came to this court from the following Circuit decree: This case was heard by me at the term of the court held in March and April, 1886. As the case will be the subject of consideration in another court for the purpose of settling important questions involved, I will confine myself to a brief statement of the facts and the reasons for the conclusions reached by me.

<p>1. Interlocutory injunction is not a matter of right, but of grace, resting in the sound discretion of the judge ; and such an order having been granted to maintain matters in statu quo, pending an action by creditors to set aside certain transfers and assignments as fraudulent, this court refused to vacate it.</p> <p>2. The appointment of a receiver of property pending litigation, may be made by a judge at chambers; but the power of appointment is a delicate one and must be exercised with great circumspection, and if abused, may be corrected on appeal.</p> <p>3. Except in the cases mentioned in section 2016, General Statutes, the court has no jurisdiction to appoint a receiver of an assigned estate at the suit of creditors who have not exhausted their legal remedies.</p> <p>4. In action by unsecured creditors to set' aside as fraudulent a deed of assignment for the benefit of creditors and a transfer of choses in action a few days prior to the assignment, it not being shown that the defendants were insolvent or that the property was in danger of being lost or materially injured, the Circuit Judge erred in appointing a receiver pending litigation, and in adjudging defendants (who had appealed) in contempt for failing to turn the property over to the receiver so appointed.</p> <p>5. A Circuit Judge may, without consent of parties, refer a chancery case to vacate certain assignments for fraud, “to the master to take the testimony and report upon the issues of law and fact involved therein.” In such case, neither party has the right to a submission of the issues to a jury.</p>

<p>1. The Court of Common Pleas has original jurisdiction of such actions ex delicto as may, by law, be prosecuted against a county, where the act complained of is the result of alleged negligence on the part of the county commissioners.</p> <p>2. Municipal corporations are not liable in a civil action for damages, unless made so by statute. And where a county is made liable for damages caused by defective highways, causeioays, or bridges, it is not thereby made liable for injuries caused by a defective flat-boat on a ferry operated by the county commissioners.</p> <p>3. A flat-boat at a ferry connecting the highways on the opposite banks of a river, is not itself a highway within the meaning of this statute. Gen. Stat., 1087.</p> <p>4. Whatever may be the jurisdiction of county commissioners over ferries {Const., art. IV., \ 19), no action can be maintained against the county for damages except in cases specially provided for by law.</p> <p>5. Nothing done by county commissioners can operate by way of estoppel to subject a county to an action not authorized by law.</p>

Before Cothran, J., Darlington, October, 1886. This was an action by P. L. Bridgers, doing business as P. L. Bridgers & Co., against Edward Howell and Margaret E., his wife. The opinion fully states the case, but it may be added that the earnings of the wife in this case were derived from keeping a boarding-house and restaurant, selling ice cream, and sewing.

<p>Before Fraser, J., Newberry, November, 1886.</p> <p>The opinion fully states the ease,</p>

Before Fraser, J., Spartanburg, October, 1886. This was an action by Joseph P. Bridger against the Asheville & Spartanburg Railroad Company, commenced in December, 1883, to recover his damages resulting from injuries done his son, Edgar, while playing on defendant’s turn-table at Henderson-ville, North Carolina, on November 4, 1881.

Before Wallace, J., Horry, October, 1886. The Circuit Judge charged the jury in this case that the agreement was a conditional sale of the organ to be paid for in monthly instalments, the condition being fulfilled when these instalments were all fully paid; that in order to prevent the rights of subsequent creditors and purchasers for valuable consideration without notice from attaching, the paper should have been recorded; that the possession had vested in Franks; and that…

<p>1. A surety paid a judgment against his principal and himself, and then directed a levy on the principal’s property, who thereupon instituted suit to enjoin. A decree was rendered in the surety’s favor — that ho “have leave to enforce said judgment to the amount contained in his said execution, with interest from its date.” Under an execution issued and entitled of this latter cause, for the amount due and for the costs, a tract of land was levied and sold as the property of the principal. Held, that the sale could he referred to both judgments, and that the purchaser was protected by the lien of the old judgment as well as of that under which the sale was made.</p> <p>2. The court is not bound by the argument of an opinion, but only by what is decided by it.</p>

Before Kershaw, J., Charleston, November, 1886. This was an appeal from the following Circuit decree: The questions I am called upon to determine are: 1. What estate did Eliza C. Deas take in the said lot ? 2. Who take at her death ? 8. If the fee was not in said Eliza C. Deas, what portions of the property are liable to the mortgage above mentioned?

<p>1. Defendants accepted the agency to sell guano for plaintiffs, the stipulated price to he paid by the buyer “in middling cotton from the first pickings” of that year, and to be secured by “a special lien upon his entire crop of cotton and corn to be made during the year.” Held, that it would have been bad faith in the agents to sell to farmers who had given to strangers a prior lien upon their crops, but especially where the agents themselves held such prior liens are they liable to their principals for the uncollected notes of such buyers.</p> <p>2. The principals having the right, under their agreement, to take possession of all the guano notes, they did not, by taking possession, confirm the acts of their agents or thereby make a settlement of accounts; but having by so doing prevented their agents from collecting, and in one case accepted a compromise, they cannot hold the agents liable for the amounts uncollected on these notes.</p>

Before Hudson, J., Spartanburg, September, 1886. This was an action by John J. Brown against Jessie M. Thomson, commenced January 13,1886, on an account for goods sold in the years 1883 and 1884. A bill of particulars was served, giving items of account, some of which appeared to have been delivered to the husband of the defendant, and some to her children.

<p>1. Findings of fact by the Circuit Judge from testimony heard by him, approved.</p> <p>2. In 1874 land was conveyed to C. trustee for L. (a married woman), and her children (L. then having children), with power in the trustee “to sell, dispose of, and convey” on the written request of L. In 1876, money being needed to pay taxes and other expenses on this land, L. borrowed money for the purpose from A., which loan, at her written request, was secured by a mortgage of the land, executed by the trustee to A. Thereafter, at the request of L., who desired longer indulgence and a reduction in the interest, W. purchased this mortgage and afterwards brought action of foreclosure against C., L., and her children. Held, that the mortgage was valid as to the interest of L. in the land, which interest was that of a tenant in common with her children living ■ at the date of the deed; but that the interests of the children were not validly mortgaged.</p>

Before Fraser, J., Spartanburg, October, 1886. The appeal was from the following decree : Under section 2087, Gen. Stat., a married woman “may purchase any species of property in her own name * * * in. the same manner as if she was unmarried.” An unmarried woman may, under this law, purchase an interest in common, a joint interest, an interest in possession, remainder, or reversion. Why may not a married woman, under the terms of this act, do the same ?

<p>Before Hudson, J., Charleston, February, 1887.</p> <p>This was an action by Thomas Whaley against William S. Stevens, commenced in Berkeley County, and by consent transferred for trial to Charleston County. See 24 S. 0., 479, and also 21 Ibid., 221. The opinion states the nature of the action.' The charge of the Circuit Judge (omitting his charge upon requests not excepted to) was as follows:</p> <p>The plaintiff asks me to charge the following propositions :</p> <p>First. “That such a right of way as that described and claimed by plaintiff in his complaint is a right of way appurtenant to the Caneslatch plantation.” That is correct; the description in the complaint fulfils the description of a right of way appendant and appurtenant. * * *</p> <p>Ninth. “That if the jury find that the plaintiff’s father and plaintiff after him, have for twenty years continuously and ad-Tersely used the way over the defendant’s land, described and claimed in the complaint, their verdict must be for the plaintiff.” I charge you that that is correct. * * *</p> <p>The counsel for the defence asks me to charge you as follows :</p> <p>First. “Because plaintiff, in claiming a right of way by prescription over the defendant’s Seven Oaks plantation, as appurtenant to the Caneslatch plantation, as owned by his father before his purchase of three hundred acres from defendant in 1853, has laid his way in his complaint as one entire way from the plaintiff’s dwelling house on said Caneslatch plantation to the Stono River, part of which is alleged to be by means of a road beginning on Caneslatch plantation and through the land of the said plantation, and over the piece of land known as the three hundred acres, originally belonging to the adjoining Seven Oaks plantation, but afterwards purchased bv the said William S. Whaley, the father of the plaintiff, from the defendant, William S. Stevens, and now the property of the said plaintiff, out to the public road leading to John’s Island Ferry, and in so laying his way, and in offering proof of user of a way so laid, plaintiff has shown, as to so much of the way claimed, a way lying wholly on his own land, for which plaintiff cannot prescribe.” I cannot charge you that proposition. In so far as it recites matters of fact, it is left for you. I can tell you that a party cannot prescribe for a road over his own land, but in other respects that proposition is not correct.</p> <p>Second. “Because plaintiff, in claiming a right of way by prescription over defendant's Seven Oaks plantation as appurtenant to Caneslatch plantation, as it was owned by his father before his purchase of Seven Oaks, has laid his way in his complaint as one entire way from the plaintiff’s dwelling house on Caneslatch plantation to Stono River, part of which is alleged to be by means of a road beginning on Caneslatch plantation, and through the land of the said plantation, and over the three hundred acre tract purchased by his father from Stevens, out to and across the public road leading to John’s Island Ferry, and in so laying his vay and in offering proof of user of a way so laid, plaintiff has shown, as to so much of the way claimed, a way upon and through a public highway, for which plaintiff cannot prescribe.” If it is intended by this proposition to say that the public highway severs and destroys the private way at that point, I cannot charge you that; and the proposition here, in so far as it involves a question of law, I cannot charge you as correct.</p> <p>Third. “That either of the parts of the way, so far laid in the complaint, and claimed in proof, being beyond the power of plaintiff to acquire by prescription, the entirety and continuity of the way as laid in the complaint is broken, and the proof of user of the remaining part, viz., that over defendant’s land and creek, does not and cannot support the complaint or prevail as evidence of prescription of the entire way as claimed.” I cannot charge you that proposition, in so far as it contains a proposition of law, and, of course, the facts are all for you.</p> <p>Fourth. “That the connection between that part of the whole way as claimed, which lies on defendant’s land and that beginning on the Caneslatch plantation, being thus broken, the proof of user becomes reduced to user of a way lying between the public road and creek leading to the Stono River, a way wholly within the defendant’s land, and cannot be established by such proof of user as any more than a right of way in gross, and cannot be sustained as a way appurtenant to the Caneslatch plantation.” I cannot charge you that proposition. * * *</p> <p>Sixth. “That an indispensable element of a way appurtenant or appendant to a plantation or tract of land, is that it must be essentially necessary’ to its enjoyment, and that when plaintiff, proved that his Caneslatch plantation on John’s Island has a frontage on a public road leading to a public ferry, he proved, in his access to such public road, and by means thereof for all purposes, to market or elsewhere, which the occasions of said plantation might require, that plaintiff had the means of full and reasonable enjoyment of his said plantation, and that no other road can in law be regarded as ‘essentially necessary,’ and therefore appurtenant thereto.” What has been proved by the evidence in this case is a question of fact for you, and whether that public road leads entirely to a ferry on Stono River is a question for you. And I furthermore instruct you that a private right of way appurtenant to a plantation, if claimed on the ground of necessity, must be alleged and fully proved, but that the claim in the present ease is not upon the ground of necessity. * * *</p> <p>Ninth. “That the previous oivner being Gouverneur M. Wilkins, the life-tenant, and Ellen Screven, a feme covert, no adverse user could be maintained against them, or either of them, or be the means of acquiring title by prescription over Seven Oaks plantation.” I charge you, gentlemen, that if there be a life-tenant in occupation of a plantation, and that life-tenant should suffer one for twenty years continuously under a claim of right to open and use a road, the life-tenant, as against him, would lose the exclusive right — that is, the adverse right would be acquired against the life-tenant, but that would not affect the remainder-man. You may acquire an easement as against the life-tenant, but the moment the remainderman falls in there would be the beginning of a new possession, against which the adverse claimant would have to acquire an independent right. So that this proposition is correct.</p> <p>Tenth. “That even if Wm. S. Whaley could have acquired title by prescription to a way by means of a road over the Seven Oaks plantation against Gouverneur M. Wilkins, the life-tenant, or Ellen Screven, the wife of John Screven, a, feme covert, such prescription became extinguished as to the three hundred acres by the purchase of the same in 1853 by Wm. S. Whaley, the claimant.” That is, in one sense of the word, correct, but would not affect this case. As to the three hundred acres which he bought and acquired fee to, he would no longer be claiming over that three hundred acre tract by prescription, but that would not destroy the road over it, if the party continued to use it. It would not itself break the continuity of the road, or suspend the right to anything beyond it.</p> <p>Eleventh. “That such extinguishment of that part of the way claimed by prescription, which traversed the three hundred acre tract, extinguished the whole way so previously owned, as alleged.” That, gentlemen, is not the correct view of the matter, and I cannot charge you that proposition.</p> <p>Twelfth. “That the identity of the road previously acquired, as is alleged, as a road from the dwelling house on Caneslatch plantation over the three hundred acre tract to the creek on Seven Oaks plantation, was destroyed by sueb extinguishment, and could, after 1853, no longer be claimed or proved as such way by prescription in said Wm. S. Whaley.” That is not a correct proposition, and I therefore decline to charge it.</p> <p>Thirteenth. “That the appurtenancy of the way over defendant’s land, that is. between the public road and the creek to the Caneslatch plantation, was wholly destroyed by such extinguishment.” I decline to charge that. * * *</p> <p>Fifteenth. “That no proof has been offered showing that a way over defendant’s Seven Oaks plantation and creek is necessary, or essentially necessary, to the use and enjoyment of the plaintiff’s Caneslatch plaintation, and, in that particular, appurtenant thereto.” That is correct. It has not been proved, or attempted to be proved, that that way is essential to the enjoyment of the Caneslatch plantation, but evidence has been introduced tending to show that it is appurtenant thereto. ' I have deemed it best to pass separately upon these propositions, and I will now proceed as briefly as I can to give you what I conceive to be the law of this case.</p> <p>A right of way over the property of a private individual may be acquired under our law by grant, or it may be acquired by prescription, or it may arise from necessity, and briefly I will expound to you the three methods: By grant is where it is in actual writing, and if granted as appurtenant to a particular piece of land, covers a way which begins on that land and terminates elsewhere. Then it is a right of way appendant and appurtenant, acquired by grant, and the grant is binding. Suppose Dr. Stevens had owned Caneslatch as well as Seven Oaks, and had sold Caneslatch to Mr. Whaley, in which deed he sold him, amongst the appurtenances, a special right of way out of his plantation and across the Seven Oaks to that particular landing. Then that would be a right of way appendant and appurtenant by grant.</p> <p>A right of way from necessity may be illustrated as arising in a case of this kind: Suppose Dr. Stevens had sold to some one one hundred acres of land in Seven Oaks, with no road leading either to a water highway or public road, having, in short, no outlet. The man buying that land would acquire a right of way out, and he could have a private way established across the balance of Dr. Stevens’ land across to the public road. That is a case where it would arise from necessity, and if any dispute should arise as to that private way, then the question of its being essential would be a material question.</p> <p>Now, one can acquire a private right of way by prescription, and by that we mean the use continuously of that particular road for the period of twenty years or more, adversely to the claim of the man over whose lands it runs. And if that use continues unbroken for a period of twenty years, the man acquires just the same right as if it had originated in an actual grant in writing. Although it might be a trespass in the origin, and might continue as a trespass, yet at the expiration of the twenty years it becomes a right. Now, what do we mean by adverse use ? We mean either the construction of a road originally, the opening of it as and for the road of the party opening it, and the continuous, open, notorious adverse use of that road for a period of twenty years. That is what we mean by adverse. There need not be twenty years of wrangling and dispute between the parties. The whole proceeding might be friendly between the parties, but the use of that road must be as and for the property — the road of the property, and he must use it and claim it as his own.</p> <p>The claim need not be by actual word of mouth, but by such conduct as amounts to an advertisement to the party owning the land that the right to come and go over it is claimed as a right. Any one who permits that use cannot, after twenty years, recall it. He cannot defeat the right — the easement. It does not involve a fee in the soil, but it establishes a right of way for persons or vehicles, and for the passage over it of whatever is necessary to transact the business of the plantation.</p> <p>What we mean by a road appendant and appurtenant to a plantation, is that one of its ends or termini must begin on that plantation. It must proceed out of that plantation and then have a terminus elsewhere, and it must be continuous and unbroken. It must be a continuous road with one of the termini on the plantation of which it is appurtenant. It must be for the use of that plantation, and must be used for the benefit of that plantation. It is not necessary, as I tell you, that it should be essential to the use of the plantation. There might be an outlet elsewhere; yet, nevertheless, if the road begins on the place and crosses the land of another, as in this case, to a landing, and it is used for the purposes of that plantation, then it is a road which pertains to, is appurtenant to, the plantation, and after the lapse of twenty years, if acquired by adverse user in that time, has the same validity as if granted in writing. As I said to you before, if it is claimed on the ground of necessity, it is not necessary that there should be twenty years’ use. If it is claimed under express grant, it is not necessary that it should be used for twenty years; but where it is to be acquired by prescription, it must be by twenty years adverse, continuous, unbroken use.</p> <p>You h-ave had that diagram explained to you. The question I now ask is, is that road, beginning at A, testified to as the house of Mr. Whaley, running across the Caneslatch plantation and across the public road and on through the Seven Oaks to that landing ; is it appurtenant to that plantation ? ’ The testimony is that it begins at the residence on Caneslatch, and that it follows the track laid down on that diagram. Now, you will observe that it is crossed by the public road, and that it also runs across, not only Caneslatch, but also across the three hundred acres bought from Dr. Stevens. It is contended that this public road cannot be crossed by a private path. But I charge you that the public road does not sever the continuity of the private path necessarily. I charge you that a private path or way can cross a public way, as a public road can cross another. And, furthermore, I charge you that the three hundred acre tract that was bought by Mr. Whaley and was added to Caneslatch, and through which the road runs, does not break the continuity of the road. Whilst the plaintiff cannot prescribe for a road over bis own land, yet the road must begin on his own land and run over part of it in order to bo appurtenant. It must touch it and go into it. He does not hold this road to the public road by prescription, because he has the fee in the land, but the question is, is it the beginning of the road which goes to the landing ?</p> <p>I charge you that a private road can cross a public road which already exists, and have continuity on both sides of the public road, just as well as a private way already having continuity would not have its continuity broken by having a public road established across it. Suppose there had been no public road established when this private road was laid out, and that subsequently the public road was established across this private way already established ? That would not break the continuity of the private way. So it is for you to determine from the evidence ■in this particular case what were the original ends or termini of that road. Does the private path start at Whaley’s house and cross the public road, through the Seven Oaks, to the landing ? If it was established that way, then it has continuity across the public road and down to the landing.</p> <p>Now, is it appurtenant to the place ? Not merely that it has one terminus on the place, but was it established for the benefit of the plantation, was it used for the plantation, and did it become a part and parcel of it and appendant to it ? If so, and if the plaintiff has established that this was done adversely against the defendant for a period of twenty years, openly and notoriously, then the plaintiff has established his right to that easement. Now, suppose that Mr. Whaley had acquired title by twenty years adverse user against Ward, that would continue ; but if there is no evidence of the length of time, just throw that out. I do not care how long Mr. "Whaley used it as against Screven, so that brings us to 1853, when Stevens became the owner of Seven Oaks.</p> <p>Now, if this adverse use was kept up for twenty years from Whaley’s house through his plantation, across the public road, across Seven Oaks to the landing, and it was called the Canes-latch landing road, and was used by Mr. Whaley in his life-time, and afterwards by his son, as and for their road, as their property — their right continuously against the rights of the otvner of Seven Oaks, then Whaley has a title to the right of way. And if Mr. Stevens simply stood by and permitted it, if he remained friendly, but saw them using it, as and for their property, ditching and working it, and exercising acts of ownership over it, then Stevens is estopped the right to shut it up. But if before the twenty years ran out Stevens shut it up, and the shutting up was acquiesced in by Whaley, or if it was used by the Whaleys by permission of Stevens, then that would change the question. It is for you to say whether they were using it by permission, or as their own right; and whether it is as appurtenant and appendant to that plantation or not. It is for you to say whether it is a continuous road or not. You are to look at it as a mere matter of law as coming from me, and as a mere matter of fact as coming from the ■witnesses, and you must not be influenced by any ulterior reasons whatever.</p> <p>If there is any injury here which you can estimate in dollars and cents, you have a right to give damages for such injury. If you find for the plaintiff, you cannot give punitive damages, if the obstruction was done in a peaceful manner. You could not punish Stevens for shutting up, if he did so quietly, under a claim of right. But if he did not do so quietly, and not under a claim of right, then you can find against him damages to punish for the vindictiveness.</p> <p>The jury found for plaintiff the right of way.</p> <p>From the judgment entered on this verdict, the defendant appealed upon exceptions too numerous and lengthy to be inserted here, but alleging error to the Circuit Judge in his charges upon the requests above stated, and in other portions of his charge.</p>

<p>Before KeRSHaw, J., Newberry, July, 1886.</p> <p>This was an action by Julia F. Agnew against Marcellus A. Renwick and others, for dower. The opinion states the case.</p> <p>The Circuit decree was as follows :</p> <p>The respondents in this case appeal from the decree of the probate judge, allowing dower in the lands described in the petition to the extent of one moiety thereof, whereof the husband of petitioner was seized during coverture jointly with one Daniel R. Sartor. In so far as the appeal is based upon the fact that the land in question was purchased by Agnew & Sartor as partners and for partnership purposes, this court concurs with the judge of probate; that question is concluded against the appellants by the very recent decision of the Supreme Court in the case of Bowman v. Bailey (20 S. 0., 553], which case is on all fours with this in that respect.</p> <p>The chief difficulty in this case arises out of the defence of the existence of the mortgage given by Agnew & Sartor for the purchase money of the land, assigned to the Bank of the State of South Carolina, and by it released to Kinard & Renwick, who afterwards purchased the land in question from Agnew & Sartor, and thus united in themselves the rights of mortgagors and mortgagees; owners of the fee and of the encumbrance. The respondents here claim under Kinard & Renwick.</p> <p>In his conclusions this court cannot concur, in this regard, with the court below. It is admitted that whether the release of the mortgage was to operate as an assignment or a discharge of the mortgage, is a question of intention. The probate judge says,The release does not seem to be intended as an assignment.” An examination of the facts shows that the release ivas executed December 27, 1858, whereas the interest of Agnew was not acquired by them until April, 1859, and the interest of Sartor April 6, 1859. The consideration given to procure the release to them of the mortgage was $35,574.12, secured to the bank by the said Agnew & Sartor. Can it be imagined that it was their intention that the mortgage should be satisfied or discharged when in that case they would have had no security for so large an amount of money, other than possibly the mere verbal agreement on the part of Agnew & Sartor, that they would convey at some future time ? I cannot so conclude without doing violence to all the pi’obabilities. The intention could not have been otherwise -than to hold the mortgage as their security to compel a conveyance, or by foreclosure to secure the title.</p> <p>The next question is whether the mortgage merged into the legal estate in the land after it was acquired by Kinard & Renwick. This, too, is a question of intention. Says Mr. Pomeroy (2 Pom. JEq. Pur., § 790): “When the owner of the fee becomes absolutely entitled in his own right to a charge or encumbrance upon the same land, with no intervening interest or lien, the charge will, at law, merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity when no intention to prevent it has been expressed and none is implied from the circumstances and interests of the party.” The rule is stated on the authority of the case of the Insurance Company v. Murphy (111 TJ. S., 744), as follows : “If there is no reason for keeping the mortgage alive, such as the existence of another incumbrance, then equity will, in the absence of any declaration of his intention, destroy it. In short, when the legal ownership of the land and the absolute ownership of the incumbrance become vested in the same person, the intention governs the merger in equity.” Agnew v. U. C. A. R. R. Company, 24 S. C., 18. Mr. Jones, in his treatise on mortgages (sec. 848), says: “If the owner has an interest in keeping these titles distinct, or if there is an intervening right between the mortgage and the equity, there is no merger” — quoted in the opinion of the court in 111 U. S'., 744, supra. We cannot escape the conclusion that the mortgage did not merge in this instance, but that the title remained distinct.</p> <p>In answer to this view it is urged that nevertheless the mortgage is extinguished by lapse of time and the presumption of payment. It is replied that this presumption cannot arise, because after the transfer of the mortgage and the title to the land to Kinard & Renwick, no action could have been brought on the mortgage, and it was only held to protect their title. There was nobody to pay it. It was their interest that it should be kept open as a valid and subsisting lien upon their land. And they had a right to so retain it. They unite in their own persons the position of mortgagee and owner of the land subject to it: and have the same power to keep open the encumbrance as if the rights were held by different persons who agreed to keep up the encumbrance. While they are willing it should remain so, the demandant in dower cannot complain or have any advantage thereby. If she came forward with an offer to redeem, she might thereafter be in a position to complain of it. No presumption of payment can arise when the very object of acquiring the mortgage was, as we have seen, to protect the title, nor when the persons to receive the payment are the same who are to pay it. The position of payer and payee must be adverse, before there can arise the presumption of payment arising from lapse of time.</p> <p>The case of Agnew v. Railroad Company, already referred to, decides that where the intention to keep open a mortgage assigned to the purchaser of the land is expressed, a purchaser of the same land under execution against the mortgagor could not recover the land from the assignee and grantee, the judgment under which the plaintiff claimed being subsequent to the mortgage, but prior to the assignment thereof and conveyance to defendant. Here the intention is implied, and the result is the same as if expressed, and the mortgage remained open to protect the title.</p> <p>Under these circumstances what are the rights of the demandant? She had no legal right of dower, but only an equitable right to be endowed of the surplus, if any should remain after payment of the mortgage debt and full satisfaction thereof.</p> <p>It devolved upon her to show under these proceedings that there was a surplus of which she was entitled to be endowed. She has failed to do so. On the contrary, the evidence shows that there was no surplus. The land was put up for sale at public auction after ample notice of the sale on a credit of one, two, and three years, and bid off at a sum constituting but a small part of the mortgage debt. The price bid was $19,065, while the mortgage was given for $64,000. True, there was other property included in the mortgage, and other property bought with the land and forming a part of the consideration of the debt for which it was given, but it was held in Calhoun v. Calhou.n (2 S. C., 286), that “a widow can only take dower in land mortgaged by the husband at the time of the purchase, and as part of the same transaction, subject to the payment of the entire mortgage debt, whether the same was in whole or in part only for the purchase money of the land, provided the same is recoverable at law.” This was the language of Chancellor Johnson, concurred in by the court.</p> <p>It required the entire amount for which the land an cl personal property sold to satisfy the bank and to procure the assignment from them of the mortgage, and there could, therefore, be no surplus. There is no allegation or pretence that the property sold at an undervalue. In the absence of some proof tending to show that there might remain a surplus of which she might be endowed, the demandant’s action must fail. I think these propositions are fully sustained by the result of the authorities cited below, as well as many others: Grafts v. Grafts, 2 McCord, 54; Brown v. Duncan, 4 Id., 350; Stoppelbein v. Shulte, 1 Hill, 200; KUnclc v. Keckley, 2 Ilill Oh., 252; Rickard v. Talbird, Rice Oh., 169; Wilson v. McConnell, 9 Rich. Kq., 514; Tibbetts v. Langley Man. Go., 12 S. 0., 466.</p> <p>It is ordered and adjudged, that the judgment of the Probate Court be reversed, and that the cause be remanded to the Probate Court, to be there dismissed with costs to the respondents, to be paid by the demandant.</p> <p>Plaintiff appealed.</p>

Before Wallace, J., Georgetown, November, 1886. This action was commenced October 11, 1885. The order of reference was passed January 29, 1886, and the references were held during the summer of that year. The Circuit decree was as follows: From this state of facts, the only controversy in the case arises.

Before Fraser, J., Union, October, 1886. In this case, Hon. Joseph B. Kershaw, Judge of the Fifth Circuit, sat in the place of the Chief Justice, who had been of counsel in the cause. It was an action by Asa Smith, trustee of Janie E. Smith, and by Janie E. Smith and her husband, William, against the executors and distributees of William Long, deceased. Mrs. Smith was married prior to April, 1868, and her estate was transferred to Asa Smith as her trustee in April, 1869.

<p>Before Fraser, J., Orangeburg, May, 188T.</p> <p>The opinion states the case.</p>

Before Aldrch, J., Abbeville, June, 1887. The judge in this case was requested to make the charges, which, upon his refusal, are assigned as error in the first three exceptions. His general charge was as follows: The first question that you will consider when you go into the room is: Did the defendant, this little girl, give that child Blanche, the daughter of Mrs. Clinkscales, that assafoetida ?

<p>Before HudsoN, J., Anderson, October, 1886.</p> <p>This was a prosecution against Jasper Davis for murder. The opinion states the case.</p>

Before WITHERSPOON, J., Beaufort, October, 1886. This was a prosecution against Sye Robinson for murder. The defence was insanity. The portions of the charge excepted to were as follows: It is my duty to give you the law, and in giving you the law I cannot indulge in sympathy.