Volume 27 — South Carolina Equity Reports

Before Dunkin, Ch., at Union, June, 1853. The bill was filed by James K. Brandon and French T., Nethers, partners trading under the style of Brandon & Nethers, Benjamin H. Rice, executor of Sarah Rice, and John North, survivor, on behalf of themselves and all other judgment creditors of Charles Gowing, who shall come in and contribute to the expenses of the suit: and alleged that the said Sarah P. Rice, in her lifetime, and in the year 1846, recovered two judgments in the…

<p>Testator, by his -will, made certain provisions for some of his slaves, which were void under the Act of 1841, (11 Stat. 154.) He bequeathed to his sister J. M., $2,000 ; made her one of his residuary legatees; and then provided as follows: “ Should any of my legatees, under this my will, complain, or express any dissatisfaction with any disposition of my estate herein made, X hereby direct and empower my executors, -in their discretion, to revoke any and all legacies such complaining legatee or legatees might have been entitled to, and to dispose of the same between my other legatees, as to my executors may seem just and proper.” He appointed three executors, two of whom renounced, and one qualified. J. M. filed her bill, calling in question the validity of the provisions made for the slaves; and thereupon the acting executor, alone, executed a deed revoking the legacies to J. M., and assigning them, in certain proportions, to the other legatees : Held, that the power could not be exercised by the acting executor alone, the other two, who were still living, not joining with him.</p> <p>A condition that a legatee shall not dispute the will, when to be regarded as in terrorem merely, and when not, considered.</p> <p>Such a condition subsequent is void, whether there be a devise over or not, as trenching on the “liberty of the law,” and violating public policy. Per Waudlaw, Ch. i Johnson, Ch., concurring.</p> <p>At the common law, a joint power altogether independent of the office of executor, conferred by the will upon several executors,, must be executed by them all, even though some have renounced.</p> <p>Where a legatee seeks to set aside a provision in the will for slaves, as void under the Act of-1841; he is not bound to elect, or make compensation to the disappointed legatees.</p>

Before Dargakt, Ch., at Marion, February, 1853. Held: in cases of this sort, to refer to the period of the testator’s decease.” The learned author then proceeds to cite and comment on a number of cases in which the survivorship was held to refer to the death of the testator, though a precedent life estate was interposed, at the termination of which distribution was to be made.

<p>Testator devised property to a trustee for the use of his five daughters " in equal proportions, share and share alike, and not subject to the debts, contracts, or sale of their present or future husbands Held, that each daughter took a separate estate in her share.</p> <p>One of the daughters being unmarried, and mi juris received from the trustee a negro as part of her share, sold him, and invested the proceeds in other negroes, taking a bill of sale in her own name. She afterwards married, and her husband received a sum of money as further part of her share under the will: Held, that the marital rights of tho husband attached upon the negroes purchased by the wife before the marriage, but not upon the money received by tho husband.</p> <p>Where a single woman has an absolute interest in property for her sole andseparate use, the marital rights of no husband whom she afterwards takes, will attach upon it; but she may before marriage, and while sui juris, sell it, and dispose of it as she pleases, and hold the proceeds discharged of all trust or restraint.</p> <p>The maxim de minimis not curat lex does not apply to money demands.</p>

Before Wardlaw, Oh., at Orangeburg, February, 1853. A sufficient statement of this case is contained in the decree of the Circuit Court which is as follows : Wardlaw, Ch. In this suit, the plaintiffs, in behalf of themselves and such other creditors of Edmund J. Felder as may come in and contribute to the expense of the suit, seek to make liable to the payment of his debts, the undivided interest of said Edmund J. Felder in the estate of his late half brother, John M.…

<p>Where one enters under a written contract to receive titles on payment of the purchase money, and, after payment, under a hill for specific performance, to which his creditors are parties, the premises are sold as his property for payment of his debts, his widow, after his death, willnot be entitled to dower therein, he never having had a legal seizin.</p> <p>The possession of one who enters under a contract to receive titles on payment of a note for the purohaso money, is not adverse until he makes the payment.</p>

<p>Testator Raying a wife, E., two sons, and a daughter, S., who had been the wife of 3?. B. deceased, by whom she had three children, made his will by which he gaye to his wife for life, certain negroes, and directed them at her death to be sold 1 with their inorease (if any) and equally divided between his two sons or their heirs, and the surviving children of 3?. B., deceased.5 The three children of P. B. by S. were all that ho ever had — they survived him and the testator also, but two of them died in the life time of E., the tenant for life, one or both leaving issue : Held,</p> <p>That by the words ‘ surviving children of JP. B.,1 the testator meant such as survived E.; and, therefore, that the one who survived her was alone entitled to the share given to the children of P. B., in exclusion of the two who died in her life time.</p> <p>The circumstances by which a testator is surrounded when he attests his will, will always be allowed an influence in the interpretation of dubious words or phrases in it; though they cannot be resorted to to prove his intention apart from his language.</p> <p>As a general rule, words of survivorship are to be referred to the period of division and enjoyment.</p>

Before Wardlaw, Ch., at Newberry, July, 1852. The facts in relation to the only point decided in this case by the Court of Appeals, are fully stated in the opinion delivered in that Court.

<p>Where a bill impeaching a transaction on the ground of fraud, alleges, in order to avoid the bar of the statute of limitations, that the fraud was discovered within four yearsi the onus of showing want of notice is not on the plaintiff. The defendant, in order to avail himself of the statute, must show that the plaintiff had notice more than four years before the filing of the bill.</p> <p>In such a case it is not sufficient to prove that the plaintiff had a suspicion of the fraud. It must be shown that he had knowledge of the facts constituting the fraud, or possession of a clew by which with proper diligence he might have come to a knowledge of those facts.</p>

<p>Bill for partition. At the hearing it appeared that the suit was defective — all parties not being before the Court. The Circuit Chancellor refused to give plaintiff leave to amend, and dismissed the bill without prejudice : — On appeal, his decision was sustained.</p> <p>When at the hearing it appears that the suit is defective from the default of the plaintiff, it is a matter of discretion whether leave shall be given him to supply the defect.</p>

<p>A distributee absent from this State, but within the United States, who has been properly made a party, by publication, to a bill for distribution of the estate of the intestate, is concluded by the decree for distribution, unless he appear and petition for re-hearing within two years — the time allowed by the Aot of 1784, (7 Stat. 2Í0,) — although the decree excludes him altogether from the share of the estate to which he was entitled; and it makes no difference whether he had actual notice of the suit or not.</p>

<p>Testator devised and bequeathed certain property, real and personal, to bis mother for life, with remainder toR. A. in fee, and “if R. A. should die without a lawful child, his legacy, both real and personal, shall go to” five persons, naming them, “or the survivor or survivors of them, or their lawful children, if any they may have.” R. A. died before the testator, never having had a child: — Held, that the lapse of R. A.’s interest did on affect the limitation over. i a</p> <p>The question, whether the limitation over is void for remáteness, referred to the Court of Errors.</p>

Before Dunkin, Ch., at Spartanburg, June, 1853. The decree of his Honor, the Circuit Chancellor is as follows: Dunkin, Ch. Drury Parham, being the owner of a tract of land on Dutchman’s Creek, containing some two hundred and eighty acres, on 23d July, 1836, made a deed of gift of the same to his son, Young Parham, reserving the use and possession during the life of the donor and his wife. The deed was duly proved and recorded on 25th October, 1836.

<p>BeforeDunkin, Ch., at Union, June, 1853.</p> <p>The brief on which the appeal in this case was brought before the Court, is as follows:</p> <p>“ On the eighteenth day of June, eighteen hundred and fifty-two, the following order was made by Chancellor Johnston, viz:</p> <p>ELISHA PALMER, ) vs. > Bill for Partition, &c. SARAH PALMER, et. al. )</p> <p>“ On motion of Herndon, Solicitor for complainant, Ordered That he have leave to amend the bill in the above stated case, upon the payment of the costs occasioned by the amendment.</p> <p>(Signed) J. JOHNSTON.</p> <p>June 18, 1852.</p> <p>“ The above is certified by the Commissioner, D. Goudelock, to be a true copy of the order.</p> <p>“ The Commissioner further certifies as follows, viz :</p> <p>“ Mr Herndon lodged an amended bill in the office of the Commississioner, on the 20th May, 1853, which the Commissioner did not file for reasons stated at the hearing.</p> <p>D. Goudelock.”</p> <p>“ At the hearing of the case, it appeared that the amendment had not been marked “ filed” by the Commissioner. The Complainant’s Solicitor moved that it be filed nunc pro tunc, which motion was refused by Chancellor Dunkin, presiding, and he dismissed the bill; from which ruling the plaintiff appeals, on the following grounds, viz:</p> <p>“ 1. Because it is submitted that there is error in the ruling of the Court, That the plaintiff should not have leave to file the amendment nunc pro tunc, as it was the accidental omission of the Commissioner to file it when lodged in his office, and the plaintiff should not be prejudiced by such omission,</p> <p>“2. Because, under the circumstances, the decree should be vacated, and the cause sent back for a re-hearing, with leave to amend the pleading.”</p>

<p>Where a deed offered in evidence as an ancient deed, is proved to be thirty years old, it is not necessary to show that it is produced from the proper custody, and that possession has been had under it.</p> <p>Where a deed is admitted in evidence as an ancient deed, it must be admitted as formally executed by signing, sealing and delivery.</p> <p>To sustain a plea of purchase without notice, it must appear that the legal title was purchased.</p> <p>The interest of a cestui que trust in slaves cannot be sold under Siji.fa.</p> <p>A father had a life interest as cestui que trust in slaves, with remainder to his children. The slaves were levied on and sold by the sheriff as his property. So attended the sale, and represented that his title was good: — Held, that the children, who were not present, were not bound by his misrepresentations, altho.ughthey knew of the intended sale; and further, that they were not bound to appear at the sale and make proclamation of their interest.</p> <p>Where a father makes a gift of slaves by deed, in trust after his (the father’s) death, for his son for life, with remainder to his son’s children, the rights of the children, the remainder-men will not be defeated by any constructive fraud supposed to arise from the son’s ostensible ownership, and the circumstances that the deed was not recorded in the Secretary of State’s office, and that the creditors of the son and purchasers from him had no notice of it.</p> <p>A deed of gift of slaves in trust is not required to be recorded in the Secretary of State’s office.</p> <p>A conveyance of all the slaves of whioh a grantor is possessed is good, and will carry all which ho is proved by extrinsic evidence then to possess.</p>

Before Wardlaw, Ch., at Charleston, June, 1853. The circuit decree is as follows : Wardlaw, Ch. On February 11,1825, Benj. Held: or which might be found m his possession ; these he transferred to the children of his debtor for as much as they might be worth; It was thus rendered an account easy of adjustment; it was a peace offering which the Court would be solicitous to respect, and which any other construction might very easily convert into a firebrand of…

Before Dunkin, Ch., at Charleston, February, 1853. Dunkin, Ch. This cause was formerly heard on demurrer. This admitted all the allegations of the bill, and was overruled by the Court on the authority of Kinloch vs. Meyer, Speers’ Eq. 427, and Bowden vs. Schatzell, Bail. Eq. 360.

<p>Bill by the widow, in the occupation of the premises, against a purchaser after the death of the husband, with notice of the widow’s claim, for an assignment or assessment of plaintiff’s dower in a lot in the city of Charleston. The Commissioners certified that the lot could “bo fairly and justly divided, having regard to the true and fair value ” thereof; and they assigned to the plaintiff the houses and most of the highland, leaving to the defendant a much larger portion, of market value equivalent to her interest, but yielding no rent. It was referred to the Master to take evidence and report upon the facts connected with the assignment, and upon his report of the evidence, the Chancellor on circuit confirmed the return: — On appeal, the circuit decision was sustained.</p>

<p>Before Wardlaw, Ch., at Chambers, Charleston.</p> <p>A sufficient statement of the facts will be found in the circuit decree, and in the opinion of the Court of Appeals. The Circuit decree is as follows :</p> <p>Wardlaw, Ch. Mrs. Eliza Laurens died in 1842, leaving a will and several codicils, whereby after directing the principal part of her estate to be kept together until her grand-son, John Laurens, the plaintiff, should attain the age of twenty-one years, and her negro slaves (with the exception of a few that were specifically bequeathed) to be then sold and her debts paid out of the proceeds of sale, she devised her plantation on Cooper river, called Mepkin, to the plaintiff, to be taken by him at a certain valuation ($37,000). But inasmuch as the value of this plantation greatly exceeded the plaintiff’s distributive share, and the intention was not to give him a greater proportion of her estate, but only to ensure to him the refusal of the family seat, at a fair valuation, she directed that previous to his taking the said plantation he should execute bonds and a mortgage of the same to certain members of her family for certain proportional parts of the valuation. The testatrix further directed that in the event of the plaintiff dying or declining to accept the devise on the terms mentioned, her son, Edward R. Laurens, and her daughter, Harriet Ingraham, should successively have the refusal of the plantation on the same terms; and in the event of all of them declining, then the plantation should be sold by her executor, and the proceeds be similarly divided. And, lastly, it was provided that in case the fund designated for the payment of her debts, viz: the sales of the negroes not specifically bequeathed, should be insufficient to pay the full amount, the residue of debts should be " paid out of the proceeds of Mepkin, whether taken at the valuation or sold.”</p> <p>Edward R. Laurens, the sole executor named in the will, proved the same. The plaintiff came of age in the latter part of 1845, and accepted the devise oí Mepkin, and went into possession. The negroes were sold about the same time, but the proceeds of sale were insufficient for the payment of the debts, and the whole amount at which Mepkin was valued was required in addition. The plaintiff accordingly paid it to the executor, who disbursed it ail in the payment of debts. Having thus paid the price of the plantation in full, the plaintiff did not execute the bonds and mortgage mentioned in the will. On November 25, 1851, the plaintiff agreed to sell the plantation to the defendant, Edward S. Lucas, for thirty thousand dollars. A written agreement was duly executed between them, and Mr. Lucas took possession on the day of 1851, without any examination of the title. Upon that examination being made afterwards, he was advised that the title was liable to objections, and he refused to fulfil the agreement; and this bill was filed for a specific performance of the same. There are no disputed facts between the parties, and the cause was heard on the bill, and answer:</p> <p>The defendant is satisfied with the chain of title down to Mrs. Laurens ; but he contends, in the first place, that the devise by her to the plaintiff depends on a condition, to wit: the giving bonds and mortgages to the parties mentioned in the will for proportional parts of the valuation of Mepkin, and that the condition is precedent, and consequently necessary to be performed before the title could vest. The words of the will are, that “ previous to taking the plantation he shall execute bonds,” &c. These terms do not necessarily import that the title shall not vest until this condition is performed, and the nature of the condition itself precludes such an interpretation: because the condition is that the devisee shall execute a mortgage — a thing which he could not do before the title had vested in him. Besides the devise is first to the plaintiff in direct terms, which, if the will had stopped there, would have been an absolute devise, so that the following condition annexed must be a subsequent, not a precedent one. Peyton vs. Bury 2 P. ffm. 627. In Porter Shephard, 6 T. R. 668, Lord Kenyon says, “ Conditions are to be considered to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument, and technical words, if there be any such, should give way to the intention.” Take the intention of the testatrix as our guide in this case ; and it is manifest that she never designed that this devise should fail, because the performance of the condition attached to it became impossible. A prominent desire in her will evidently is that this grand-son should be the proprietor of the family seat, and her meaning was simply that-Mepkin should be charged with certain legacies, and those charges be recognised by the devisee in the form of bonds and a mortgage, and not that the ceremony of executing those papers should be a prerequisite to the vesting of the title.</p> <p>But the provisions of the fourth codicil render it unnecessary to consider the question of conditions precedent or subsequent; that codicil was executed in 1842, more than four years after the will, and probably after the testatrix had incurred new liabilities which made it likely that Mepkin would be needed in aid of the fund set apart for payment of her debts, and it expressly provides that, in that event, the same should be “ paid out of the proceeds of Mepkin, whether taken at the said valuation, or sold as aforesaid.” The entire proceeds of Mepkin, as we have seen, were required for the payment of her debts, and were accordingly paid by the plaintiff to the executor, and so applied by him. This payment to the executor was under the circumstances in accordance with the terms of the will, and it cannot be said that the testatrix intended the plaintiff to pay to the executor the entire value of the property, and give the bonds and mortgages spoken of besides. But it is further objected that there are still outstanding specialty demands against the estate of Mrs. Laurens, which, having received no share or dividend of the assets, now constitute claims against Mepkin, in the hands of the plaintiff. The only demand which has been presented, it seems, is that of the heirs of Timothy Street, who are creditors of Edward R. Laurens, as Master in Equity, Mrs. Laurens having been one of his sureties for the first two of the four successive terms for which he was elected to this office, and they do not seek to subject Mepkin to their demand, but only the legacy left by Mrs. Laurens in the hands of the legatees. If the plaintiff, like those legatees, were a volunteer, there might be force in the objection ; but he is not a volunteer, he must be regarded as a purchaser. It has not been decided yet whether Street’s claim is good against the bonds of the first two terms; but whether or not, it was not presented before the estate had been closed after due notice to creditors, according to law, so that even the executor, if he were not himself an obligor on the bonds, could not be held liable in his own estate to these, or other like demands, and the plaintiff stands in a better position than the executor, inasmuch as he was not bound to see to the proper application of the money paid for Mepkin.</p> <p>It is ordered and decreed that the agreement in the pleadings mentioned dated November 25, 1851, and filed with the bill, be specifically performed, and carried into execution. And upon the plaintiff executing and delivering to the defendant at the expense of the defendant, according to the said agreement and conditions of sale, a proper conveyance of said plantation called Mepkin, as heretofore tendered by him, it is ordered that the defendant pay to the plaintiff the amount of cash principal and interest and execute and deliver to the plaintiff the bond or bonds, and mortgages, arid pay the commission of two and-a-half per centum on the amount of the purchase money, and do and perform the other acts and things required by the said agreement, according to the true intent and meaning thereof. Either of the parties to be at liberty to have a reference to the Master to determine the amount of cash to be paid, and the securities to be given, and the other things to be done by the defendant in case the said parties do not agree. Costs to be paid by the defendant.</p> <p>The defendant appealed on the grounds:</p> <p>1. Because the devise to the complainant could only take effect, even according to the terms of the will, after the payment of the debts of the testatrix; and was, besides, conditional upon his complying with the other directions of her will, and that whether precedent or subsequent such condition would operate as a lien or charge upon the estate, both in the hands of the complainant and all others claiming under him with notice.</p> <p>2. Because the defendant cannot be bound as a purchaser to look into the administration of the estate of Mrs. Laurens to ascertain that the money paid by complainant to the executor was applied in the proper course of administration.</p> <p>3. Because it appears that there are still outstanding specialty obligations of the testatrix which would be entitled to be satisfied out of her real estate in preference to any debts that appear to have been paid by the executor.</p> <p>4. Because under all the circumstances of the case the title is a doubtful title, and such as the Court will not compel a purchaser to take.</p>

Before Dtjnkin, Ch., at Charleston, February, 1853. Dunkin, Oh. Held: that to make good this representation, all the persons who applied for, and accepted the charter, were responsible ; and that in case of the insolvency of any, the deficiency should be made up by the pthers.

Before Wardlaw, Ch., at Charleston, June, 1853. Wardlaw, Ch. William D. Shaw, late of Charleston, made his last will and testament, bearing date December 31, 1817, whereby he constituted his wife Eliza, during widowhood, and his friends, Thomas Blackwood, Alexander Black and Timothy Street, his executors; and after some specific and pecuniary legacies, directed the residue of his estate to be sold and disposed of by such of his executors as should qualify and act, and the…

Before Wardlaw, Ch., at Chambers, Beaufort, October, 1853. Wardlaw, Ch. The contestation of the parties in this case is concerning the custody and control of Wm. H. G. Townsend, an infant of about thirteen years of age. Maria, wife of defendant, and sister of plaintiff, died in June, 1840, soon after giving birth to said infant.

<p>The bill having been taken pro confesso, the defendant first moved for a continuance, and that motion being overruled, he then moved to set aside the order pro confessol and for leave to plead, answer or demur, which was granted on condition that the tria, should not be retarded. He then put in a general demurrer and a plea, which were overruled, and a decree was pronounced against him on the merits. He appealed and moved for leave to answer: Meld,</p> <p>That the Chancellor had the right to require as a condition of setting aside the order pro confesso, that the case should not be retarded;</p> <p>Thai, under the circumstances, his discretion was properly exercised.</p> <p>Where a party permits a bill to be taken pro confesso, he subjects himself to the discretionary power of the Court, and he should not be relieved from this condition without coming up to what the merits of the case and convenient practice require.</p> <p>A general demurrer to a bill which has been taken pro confesso, is unnecessary, as under such order the defendant may, without demurring, take advantage of any matter which would be good cause of demurrer.</p> <p>The Court sees no reason to recede from the judgment pronounced in the case of Walker vs. Grassland, 3 Rich. Eq. 23.</p> <p>Where the Ordinary has taken a void administration bond, and the administrator has removed beyond the limits of the State, a bill may be filed against the Ordinary to account before decree had against the admnistrator; and the recovery will not be limited to the amount of the bond.</p>

Before Dargan, Oh., at Horry, February, 1853. Except that the statute of limitations was ihterposed by the defendant in his answer by way of plea, everything necessary to a full understanding of this case appears in the circuit decree, which is as follows : DargaN, Ch. Harmon Cox, the deceased husband of the plaintiff, was the owner of a tract of land situate in Horry district, known as Cox’s Ferry. It contained about 950 acres, and was worth 800 or 900 dollars.

Before Wardlaw, Ch., at Charleston, June, 1853. Wardlaw, Ch. By this bill, which was filed March, 11, 1847, the plaintiff seeks to enjoin judgments at law against him obtained separately by the defendants, at Fall Term, 1846, for, Georgetown, upon an award signed and sealed by George C. Munro, James G. Henning, and Benjamin King, bearing date January 16, 1845.

<p>W. M. gave five bonds to J. S., and at the same time gave him a> certificate -that tho bonds were given for valuable consideration, and that he had no offsets or discounts against them. J. S. afterwards assigned two of the bonds to S. H-, in discharge of a precedent debt — the agent of S. H. in taking the assignment placing some reliance upon the'cortificate. The five bonds were then put in suit by J. S. in his own name, and judgment was recovered at Law. IT. M. then filed a bill in Equity against J. S. to be relieved from payment of the bonds on the ground of fraud, and after the death of W. M. a decree was rendered in favor of his executor, the bill having been revived. Pending the suits at Law and in Equity, no notice Was given to W. M. or his executor of the assignment, although S. H. was informed of those suits, and through his agent watched their progress: — Rdd^ that S. H. was estopped by the decree from afterwards pursuing the executor of W. M. for payment of the two assigned bonds.</p>

Before Dunkin, Oh., at Charleston, February, 1853. Held: to be the first mortgage, &c., and be good, firm and substantial, in all Courts of Judicature within South-Carolina. (P. L. 3.) This law was particularly recognised and enforced in Barnwell vs Por-teus, 2 Hill, Ch. 219.

Before Waudlaw, Cb., at Charleston, June, 1853. On the 10th of July, 1850, Richard F. Smith purchased from Bishop Gadsden a low water-lot, for $10,000, payable as follows: the interest semi-annually, the principal in five instal-ments — the first, on the 1st day of July, 1855, and the others on the 1st day of July, 1856, ’57, ’58 and ’59; and to secure the purchase money, he mortgaged the premises, which mortgage is duly recorded.

<p>Before Dunkin, Ch., at Darlington, February, 1854.</p> <p>This suit was brought by the children of Nancy H. Herron, who died in 1848. The plaintiffs claimed from the defendant William H. Herron, a delivery to them, with an account of hire, of the slaves and their increase, included in a deed, executed by William H. Herron, which is as follows :</p> <p>STATE OF SOUTH-OAROLINA, ? . Darlington District. $</p> <p>Know all men by these presents, that I, William H. Herron, for and in consideration of the natural love and affection which I have towards my wife and children hereinafter named ; also for and in consideration of the sum of ten dollars by Newitt Delk, to me .in hand paid at the delivery of these presents, have bargained, sold and delivered, and by these presents do bargain, sell and deliver to the said Newitt Delk, the following negroes : a girl named Ann, about fourteen years of age, a negro boy named Belford, about twelve years of age ; a negro boy named Charles, about eight years of age ; a woman named Maria, about twenty-eight years old ; a negro girl named Cherry, about eight years old; and a negro boy named Ralph, about three years old: to have and to hold all and singular, the said ne-groes and their increase to the said Newitt Delk and his heirs forever: In trust, nevertheless, that the said Newitt Delk shall hold the said negroes and their increase in trust for the use of myself and wife Nancy A. Herron, during our joint lives, and after my death, for the use of my said wife during her life; and after the death of my wife, for the use of my children which I have begot, or may beget on the body of the said Nancy H. Herron which may be living at her death, the issue of any deceased child being entitled to represent their parents in the division: also, for the use of any children of the said Nancy, which she may have on a second marriage. In witness whereof, I have hereunto set my hand and seal, this 2d January, A. D. 1837.</p> <p>WM. H. HERON, [l. s.J</p> <p>Signed, sealed and delivered in the presence of — the concluding lines, commencing “ also for the use of,” &c., interlined before signing.</p> <p>Peter C. Coggeshall,</p> <p>John W. Lide.</p> <p>Dtjnkin, Ch. Whatever may have been the purposes of the grantor, or whatever his instructions to counsel, the Court, in this form of proceeding, can look at the deed of January, 1837, only as it stands, and give effect to it according to the legal construction of the terms used. Judging in this manner the slaves were to be held for the joint use of Wm. H. Herron and Nancy his wife, during their joint lives; and upon the death of the wife, for her children absolutely.</p> <p>Mrs. Herron died in 1848, and the plaintiffs are her children, and became thereupon entitled to the possession and enjoyment of the estate.</p> <p>These slaves, or those from whom they descended, were originally the property of Newitt Delk, the father of Nancy Her-ron. By a deed dated March, 1830, he gave two of the slaves to his daughter in the terms therein stated. By another deed of March, 1833, he gave her another slave in the same terms— and by a deed of December, 1836, he gave her two slaves in different terms.</p> <p>The defendant says he was advised that under these deeds he took an absolute estate, and that therefore, and “ for the purpose of conciliating Newitt Delk,” he executed the deed of January, 1837.</p> <p>As to the deeds of 1830 and 1833, it might, with great reason, be maintained that the limitation over was valid, and in that view the plaintiffs are entitled under that limitation ; but assuming that the limitation was invalid, as was clearly that of December, 1836, then the wife took an absolute estate, which vested in her husband by virtue of his marital right, and passed under his own deed of January, 1837.</p> <p>In any view it appears to the Court that the plaintiffs are entitled to the slaves and their increase, and to an account of the hire since the death of Nancy Herron. It is ordered and decreed, that the slaves be delivered up and that a writ of partition issue to divide the same among the parties entitled, and that it be referred to the Commissioner to take an account of the hire and services of the slaves, and that he report thereon.</p> <p>The defendant appealed on the grounds :</p> <p>1. Because by proper construction of the deed of January, 1837, the defendant, after the death of his wife, was entitled to a life interest in all of the negroes in which before January» 1837, he had an absolute estate.</p> <p>2. Because no hire should be decreed in relation to any of the negroes.</p>

<p>Before Dunkin, Ch., at York, June, 1853.</p> <p>This case will be sufficiently understood from the circuit decree, which is as follows :</p> <p>Dunkik, Ch. This is a bill preferred by the judgment creditors of Elisha Jaggers, deceased. It seems that on 2d February, 1842, Jaggers purchased from the defendant a tract of land in York district, containing six hundred and forty acres, for three thousand three hundred dollars. The purchase money was to be paid in four successive annual instalments from March 1, 1842; for which Jaggers gave his four several promissory notes; and to secure the payment thereof, executed a mortgage of the premises. The first note of eight hundred and twenty-five dollars became due 1st March, 1843. At the time of the sale, the defendant had received from Jaggers a note on Thos. M’Lure for four hundred and sixty-one dollars, which was taken by him in part payment of the first note. On the 1st April, 1842, Jaggers also placed in defendant’s hands, as collateral security for the performance of his contract, certain notes of Harvey Jaggers for nine hundred dollars, not then due, and three notes of George W. Bell for three hundred and seventy-five dollars, also not then at maturity.</p> <p>On 11th March, 1843, the defendant took from Jaggers a confession of judgment for three hundred and sixty-one 31-100 dollars, being the balance due on the first note. He caused a levy to be made on a negro of Jaggers’s on I8th July following, which was sold, and the proceeds of. sale, to wit, two hundred and fifty dollars, were applied in payment of the execution.</p> <p>On 20th October, 1843, Jaggers died, intestate, leaving a widow and children. On 20th November, 1843, the defendant took out letters of administration on the estate, and on the 8th December, the personalty was sold by him for one hundred and eighty-two dollars twenty-five cents. Two days before this sale, the defendant caused his execution to be levied on the land. A sale was accordingly made by the sheriff on the 1st January, 1844, and the defendant became the purchaser at nine hundred dollars.</p> <p>Many observations were submitted at the hearing as to the very prompt manner in which the defendant had enforced his demands against the estate of this intestate ; and in the view which the defendant’s counsel takes of the effect of the sheriff’s sale, it might be necessary to enter into a very close inquiry of the amount then due to the defendant, and of other antecedent and accompanying circumstances. But in the judgment of the Court this inquiry may well be pretermitted.</p> <p>After the decisions in ex -parte City Sheriff, 1 M’C. 399, and M’Clure vs. Mounce, 2 M’C. 423, it would seem superfluous to raise a question as to the effect of the sheriff’s sale. It is precisely the same whether the mortgagee became the purchaser or a third person. The thing sold, that on which alone the sheriff had any authority to levy the execution, was the mortgagor’s equity of redemption.</p> <p>The proceeds of sale are payable not to the mortgagee,- qua mortgagee, but to the eldest judgment creditor, or to the mortgagor himself after satisfaction of such judgments. In this case, it appears that the money was paid to the sheriff, the execution of defendant was satisfied, and about eight hundred and forty dollars, the surplus, was paid to the defendant. Some evidence was relied on to shew that the entire premises, and not merely the equity of redemption was sold. But the answer to this is anticipated by the judgment of the Court in M’Clure vs. Mounce. Besides, whatever may have been the impression of the defendant, the price at which it was knocked down and on a credit sale, would lead to the conclusion that this impression was not very general.</p> <p>As has been intimated, it makes no difference whether the mortgagee is the purchaser at sheriff’s sale or a stranger; and this furnishes a solution to the only remaining inquiry. Purchasing the equity of redemption, a stranger would take the land subject to the obligation to discharge the incumbrance. That was the condition of the defendant on 1st January, 1844. It was ruled in Schnell vs. Schroder, Bail. Eq. 334, (and the doctrine has been since repeatedly recognized) that a purchase of the equity of redemption by the mortgagee extinguishes the mortgage debt; and that the effect was the same, whether the purchase was directly from the mortgagor or from the sheriff under an execution against him. Whatever amount remained unpaid on the mortgage debt on 1st January, 1844, was then extinguished and satisfied. The sum of nine hundred dollars, as well as all collateral securities, such as the notes of Harvey Jaggers and George W. Bell, as well as the sales of the personalty (which became due in September or October, 1844,) were assets in the hands of the defendant as administrator, and applicable to the payment of other creditors of the intestate. It is stated that Harvey Jaggers was insolvent; of course the defendant will be at liberty to make proof on this subject.</p> <p>It is ordered and decreed, that the defendant account for his administration of the estate of Elisha Jaggers, deceased, upon the principles of this decree, and that it be referred to the Commissioner to state such account. It is further ordered and decreed, that the Commissioner cause to be published once a month, in York and Chester, a notice to the creditors of Elisha Jaggers, deceased, to establish their' demands before him prior to the first day of April next, and that the Commissioner report thereon, as well as on the accounts of the administrator, and that he -file his report at least three weeks prior to the next meeting of this Court for York district.</p> <p>The defendant appealed on the grounds:</p> <p>1. Because it is submitted that the purchase of the equity of redemption by the defendant, under the circumstances could not operate as an extinguishment of the mortgage debt.</p> <p>2. Because it was held that nothing but the equity of redemption could be sold ; when it is submitted that the defendant had the right, and did sell the whole interest in the land.</p> <p>3. Because even if the purchase by the defendant amounted to an extinguishment of the mortgage debt, the defendant would only be liable for the balance of the sale after satisfying the execution under which the sale was made.</p> <p>4. Because it is unnecessary to obtain an order of foreclosure when there is no intermediate jndgment between the mortgage and the judgment on the mortgage debt.</p> <p>5. Because the defendant had the right to the proceeds of the sale under the executor’s Act.</p> <p>6. Because if the purchase of the equity of redemption by the mortgagee extinguished the mortgage debt, the defendant was entitled to the proceeds of said sale — his being the oldest execution against the intestate.</p> <p>7. Because the complainants, if entitled to any thing, were only entitled to redeem the land by paying up the mortgage debt, or to have the land re-sold for that purpose.</p> <p>8. Because the defendant is not liable to account for the personal estate of Elisha Jaggers, the same having been applied to his judgment before the sale of the land.</p> <p>9. Because all the complainants, except the minors, were barred by the statute of limitations.</p> <p>10. Because if the purchase by the mortgagee did operate as a satisfaction of the mortgage debt, and he is bound to account for the purchase money, yet he ought not to account for the Bell & Jaggers notes.</p> <p>11. Because if the purchase operated as a satisfaction of the debt, the defendant would be entitled to the proceeds of sale.</p>

Before Johnston, Ch., at Richland, June, 1853. Johnston, Ch. This is a bill in which the plaintiff, Lucretia Johnston, seeks for the re-conveyance of real estate, purchased by the late Wm. Beard, as her property; and for an account of rents and profits ; and 'for general relief.

Before Dargan, Ch., at Barnwell, February, 1854. These were bills for the specific delivery of slaves. By the decree of Wardlaw, Ch., at February Sittings, 1853, the defendants were ordered to deliver up the slaves, and account for their hire ; and on appeal, the decree was affirmed. (Vide ante p. 155.) The Commissioner reported the sums due„by the defendants, respectively, for hire, and no exception was taken to the report.

<p>Application for leave to file a bill of review, or bill in the nature of a bill of review, refused.</p> <p>A bill of review, or bill in the nature of a bill of review, cannot be filed without the previous leave of the Court.</p> <p>To obtain such leave, the applicant must satisfy the Court, by Ms affidavit or otherwise that new matter, which might probably have occasioned a different determination, has been newly discovered by him, which could not be produced for use when the decree was made.</p> <p>It must be shown that the new matter is so material that it would entitle the petitioner to a deoree, or at least would raise a question of such difficulty as to make a determination in his favor very probable.</p> <p>It is not enough that the new matter came to the knowledge of the party after the fit time for use of it, but he must show that he could not have acquired knowledge of the fact, in time for effective use, by the exercise of reasonable diligence.</p>

Before Waedlaw, Ch.; at Edgefield, June, 1853. Waedlaw, Ch. Brantly Tompkins died in Abbeville district, in September, 1850, when he lacked a few months of being twenty-one years of age. His father, surviving his mother, died in 1836, in Edgefield district, where he always resided and was domiciled.

<p>In February, 1836, I. K. was found of unsound mind by inquisition of lunacy. He never traversed the inquisition. In August, 1838, a marriage took place between him and L. in due form of law, and in 1850, he died, leaving issue of the marriage surviving him; who claimed to be his heirs at law, and distributees: JScld} that the inquisition of lunacy, though prima facie evidence, was not conclusive upon the issue of the marriage as to the mental incapacity of J. K. at the time the marriage took place; that the issue had the right to try the question as to his capacity to contract the marriage; and that an issue at law was a proper mode of trying it.</p>

<p>Testator devised and bequeathed property, real and personal, to his mother for life, and at her death, to R. H., andjif he “ should die without a lawful child f then to the five children of J. A., naming them, “ or the survivor or survivors of them, or their lawful children, if any they may have” R. H. died without ever having had a child:— Held, that the limitation over to the children of «X. A. was not void for remoteness.</p>

Before Dargan, Ch., at Darlington, February, 1854. For a full and proper understanding of this case reference should be had to it as reported 5 Rich.

<p>Equity has jurisdiction to enjoin a plaintiff at Law in an action of trespass to try title from executing his writ of habere facias possessionem so as to dispossess the defendant of the whole land — plaintiff being entitled only to an undivided part.</p> <p>Where plaintiff, in trespass to try title, has a verdict for an undivided fourth part of the land, the proper form of the writ of habere facias possessioiiem is to command the Sheriff to cause him to have possession of the said undivided fourth part.</p> <p>And the proper mode of executing the writ, is for the Sheriff to cause the plaintiff to have possession of one undivided fourth part, and to leave the defendant in possession of the remaining three-fourths undivided.</p>