Volume 28 — South Carolina Equity Reports

<p>A purchaser of personal property at an administrator’s sale, "who has paid the money, cannot recover it back, either from the administrator or distributees, on the ground of an implied warranty of title or soundness.</p>

BEFORE •WARDLAW, OH., AT GREENVILLE, JUNE, 1854. Waedlaw, Ch. The plaintiffs in this bill, in right of the wife, seek specific delivery of the slaves Judy and her child Noe, alleging a parol gift of the slaves to the wife by her late mother, Elizabeth Earle, who died intestate in 1852.

BEFORE WARDLAW, OH., AT ABBEYILLE, JUNE, 1854. WARDLAW, Oh. This bill was originally instituted March. 20,1854, by Oollin Oampbell and Arthur S. Gibbes, as trustees under a postnuptial settlement, executed by Archibald 0.

BEFORE DUNKIN', OH.,’ AlT SUMTER, JUNE, 1854. The plaintiff was the administrator of the goods and credits of Mary Wells, who died intestate in the Fall of 1851, and the defendant is Ordinary of Sumter district and administrator of the derelict estate of Charles W. Wells, (a son of Mary,) who died intestate in the Spring of 1851.

BEFORE WARDLAW, CH., AT ABBEYILLE, JUNE, 1854. WARDLAW, Ch. The points undetermined in this case, upon which it was remanded to the Circuit Court for hearing, relate to the partition which the plaintiff claims by his bill.

<p>An administrator who kept on hand the share of a deceased distributee waiting for the appointment of an administrator, and who notified those interested in the share that he was ready to pay it over, and who tendered it to the administrator as soon as he was appointed, held excused from the payment of interest.</p>

BEFORE JOHNSTON, OH., AT FAIRFIELD, JULY, 1854. JohnstoN, Ch. This cause was heard upon the single question made by the amended bill, as to the construction of a deed executed by Henry Moore on 19th December, 1839, conveying certain property, real and personal, to William Moore, “in trust, however, that the said William Moore shall apply the uses, issues and profits of the above mentioned property, both real and personal, to the support and maintainance of my daughter,…

<p>BEFOSE JOHNSTON, OH., AT UNION, JUNE, 1854.</p> <p>The facts of this case are fully stated in the opinion, delivered in the Court of Appeals.</p>

William E. Swain left tbe State considerably indebted, and this bill was filed to subject a fund to which he was entitled in the hands of the executor of his father, to the claims of his creditors. In June, 1853, his Honor Chancellor Dargan made an order for the creditors to present and prove their demands; and that the commissioner report thereon on the first day of October. John Williams presented and proved a demand of the following character.

BEFORE DUNKIN', OH., AT WILLIAMSBURG, MARCH, 1854. Robert Strong died September 19th, 1845. Pie left nine children, all of whom were minors except his eldest son, the defendant — the youngest being a helpless infant. The plaintiff was at that time about thirteen years of age.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1854. Dargan, Ch. Thomas Barksdale, senior, by his last will and testament bearing date the 22d May, A. D. 1800, inter alia, devised and bequeathed as follows : “I give, devise, and bequeath to my friends, Joseph Legare, Thomas Jones, Dr. Thomas H. McCalla, Dr. William S. Stephens, and Nathan Legare, and the survivor or survivors of them, and to the heirs, executors, or administrators of such survivor of them, a house and lot in…

BEFORE DAR GAN, OH., AT CHARLESTON, JUNE, 1854. DaR&an, Oh. The plaintiff, who sues for himself, and the other creditors of Thomas Heyward Thayer, who may make themselves parties in this cause, some time in the early part of the year of our Lord 1851, by verbal contract, entered into a copartnership with the said Thomas Heyward Thayer, for the purchase and sale of stocks, with a view to the speculative profits to be derived from sucb business.

<p>Where husband and wife have a joint interest in property, under marriage settlement, with remainder to issue, &c., “necessaries furnished for the family” are a charge against the husband — not against the trust estate — and the creditor can subject only the husband’s interest to his demand.</p> <p>Demands for the food and clothing of negroes, overseer’s wages, and other annual expenses of the plantation held in trust, should be borne by him who is entitled to the annual income, and is not chargeable to the corpus.</p>

<p>Trustee for sale purchased the land for one thousand five hundred dollars, and the sale was confirmed by the Court — the cestui que trusts being parties to the proceedings. Trustee afterwards sold the land for two thousand and twenty-five dollars, and the money was paid to the surety on his trust bond to be applied to that bond, the surety at the same time undertaking with the purchaser to procure the relinquishment of dower of the trustee’s wife. Trustee died, and afterwards cestui que trusts filed this bill against the surety for the money: — Reid, that the surety might retain, for a reasonable time, a part of the money, to meet the claim of dower, (whioh the Court considered doubtful,) in case it should be made.</p>

<p>J. S., who had had possession of his children’s property, in 1826 made a deed by which he conveyed to trustees, in fee, certain real estate, for the use of himself for life, and after his death for his children, with a proviso, that the share of any child who should call him to account for the property of theirs which he had in possession, should be forfeited, and revert to him. In 1846, J. S. republished his will. In 1848, on bill filed by J. S. against his children, it was adjudged that the deed of 1826, was intended merely as a security, that J. S. had accounted with his children, that the trusts were satisfied, and J. S. reinstated in his original estate: — Held, that J. S. had such an equitable interest in 1848, when his will was republished, in the real estate embraced in the deed of 1826, that it passed under the will.</p> <p>Held, further, that a distributee of J. S., a child by a second marriage, was, as his privy, estopped by the decree of 1848, from showing that the deed of 1826 was not intended as a mere security.</p> <p>A testator’s equitable estate will pass by his will, whether he afterwards acquires the legal title or not.</p>

<p>P. F. was trustee under marriage articles by which husband and wife covenanted to settle the share of the wife in the estate of her late husband, “as soon after said estate is divided as may be practicable,” to the joint use of husband and wife during the coverture — then to the use of the survivor, and on the death of the survivor, to the issue of the wife by her late husband, and the issue of the then intended marriage. Under bill after-wards filed, to which the trustee was no party, the estate of the wife’s late husband was divided, and her share therein, consisting of money and choses, paid over to her husband. No settlement was ever made and the husband died some fifteen years after the division, insolvent: — Held, that the trustee, by his neglect to have the wife’s share settled according to the provisions of the articles, had made himself liable to the remaindermen.</p> <p>The bill stated, that the money and choses went into the hands of the trustee or his agent or agents, and the prayer was that he might account for what was received, or, but for his wilful neglect or default, might have been received by him: — Held, that, under the statement and prayer, relief might be given on the score of the trustee’s neglect to have the share settled.</p> <p>The marriage articles were executed in 1832, — the husband received the wife’s share in 1836, and in the same year the wife died. The trustee died in 1849, — the husband in 1851, and in 1852, this bill was filed by the remain-dermen — the eldest of whom was then twenty-eight years of age: — Held, that the claim could not be regared as stale — the remaindermen not being bound to file their bill until after the death of the husband, the surviving tenant for life.</p>

<p>A case had been called once on the docket, and afterwards, on motion of defendant’s solicitor, a day was assigned for its hearing, of which complainant’s solicitor had notice. On the day assigned, complainant’s solicitor did not appear in Court until near the hour for adjournment, and before he came in the bill was dismissed because of his not appearing, on motion of defendant’s solicitor: — Held, that the discretion of the Chancellor in dismissing the bill, was properly exercised.</p> <p>The Chancellor is required to call the docket but once, and parties are required to be ready and present their causes for trial when they are called. After calling the docket through, the Chancellor obtains control of the order of business, and may prescribe when a cause shall be tried.</p>

<p>Bonds taken under the order of tlie Court, pending litigation, for security of the rights of the litigants, as creatures of the Court are within its judicial control, and should not be employed vexatiously.</p> <p>On such a bond suit at law had been brought by leave of the Court, and plaintiff was nonsuited on the merits, and the nonsuit was sustained by the Court of Appeals. Application for leave to bring a new suit on the bond was refused — the applicant not showing that he could now make a different case from that made on the former trial.</p> <p>The Court will not order such a bond to be cancelled on the mere motion of the obligors.</p>

<p>After notice, in April, 1850, that vendor renounced the agreement, vendee’s delay, in filing his hill, until July, 1852, held to oust him of his remedy in Equity hy decree for specific performance.</p>

BEFOSE JOHNSTON, OH., AT OHAELESTON, MARCH, 1854. The second of these cases was a creditor’s bill, in which the plaintiff (no other creditor having come in) obtained by consent, in June, 1853, a decree for about $26,000 on two bonds of defendant’s testator — the decree to be paid at the rate of $2000 annually until the whole amount should be paid.

<p>A mortgage given to secure future advances, if free from aetual fraud, is valid against the creditors of the mortgagor.</p> <p>Future expenditures by the mortgagee will be protected unless made with the intent to defraud some other creditor of the mortgagor.</p> <p>Voluntary payments by the mortgagee, made before bill filed by other creditors of mortgagor, protected; but such payments after the bill filed held fraudulent.</p>

<p>Testator devised his whole estate to his wife for life, with remainder to his brother N., absolutely; “provided that N. do pay unto my brother T., or his heirs, the sum of five thousand pounds — one moiety thereof to be so paid at the expiration of one year from the decease of my wife, and the other moiety thereof to be paid at the expiration of two years from her decease.” T. died in the lifetime of the widow, tenant for life: — Held, that the legacy to T. was not an absolute one, but that, in the event which had happened— T.’s death before the tenant for life — his heirs took directly under the will and as substitutes for him.</p> <p>Held, further, that T. could not receive or discharge the legacy so as to defeat his substitutes.</p>

<p>A codicil held to be sucb a re-publication of the -will as to pass to the residuary-devisee a farm purchased by the testator after the date of the will, and before the date of the codicil, although the farm was purchased with the proceeds of a plantation which was otherwise disposed of by the will, and which the testator had in the meantime sold.</p> <p>The will directed that the estate be kept together during the life of testator’s daughter; that she be paid three thousand dollars annually, from the net proceeds of the crops, and the net residue of the crops be applied to his debts: — Said, that the farm afterwards purchased was subject to this provision of the will.</p> <p>Meld, also, that the net residue of the crops was the primary fund for the payment of debts in exoneration of the residuary estate.</p> <p>Meld, further, that after payment of debts, the net residue of the crops, during the life of the daughter, would go to the residuary legatee, although the will directed that after the death of the daughter the corpus be sold, and the proceeds divided among certain legatees.</p> <p>The Court refused to break in upon the scheme of the will by directing a sale of the property, for payment of debts, distribution, &c., during the life of the daughter.</p>

BEFOSE DABGAN, OH., AT MABLBOEOUGH, FEBBUABY, 1855. Amongst other matters of defence insisted on by the defendant in his answer, he submitted, whether he was “ not protected 'by the lapse of time since the bond was taken, from accounting with the complainantsand he prayed to be allowed the same benefit of that defence, as if preferred in a different form of pleading. In January, 1864, after the decree in this case bad been pronounced by the Court of Appeals, (see 5 Rich.

BEFORE JOHNSTON, OH., AT SPARTANBURG-, JUNE, 1854. Johnston, Oh. The hill in this case was filed by the plaintiffs, to enforce an alleged agreement on the part of the late James Edward Henry, to give them a lot, for tl^e site of an Episcopal Ohurch, and for a burying ground, to contain one acre. To establish their case, they produced a subscription paper in the following words, viz.: “June 18th, A. D. 1849.

<p>By marriage settlement', R. B., the husband, was entitled to receive the rents, income and profits for the joint maintenance of himself and wife during their joint lives; “and in case any creditor of R. B. should attempt to charge the said income and profits with any debt of the said R. B., then, from the issuing of any process to charge the same,” the said rents, income and profits were to be paid to the wife, to her own separate use: — Held, that an attempt by a creditor to charge the income and profits with a debt of R. B. by filing a bill in Equity, and causing sub. ad resp. to be issued and served, did not determine R. B.’s interest under the settlement — that it could only be determined by the issuing of final process to charge the income and profits with a debt due by him.</p>

<p>A creditor by judgment recovered in a foreign court, who comes in under a creditors’ bill and proves his demand, is entitled to interest on the amount of the judgment from the time it was rendered, although it does not appear whether the judgment bears interest by the law of the country where it was rendered, or not.</p> <p>The question reserved, whether the foreign rate of interest, or what rate of interest, shall be allowed.</p>

<p>In a devise of lands to two or more persons to be equally divided among them, “to them during their lives, and after their death to their lawful issue followed by a provision, that if any of the said devisees should die, “ leaving no lawful issue, the portion or portions of him or her so dying shall be equally divided among the survivorsheld, that the first takers or devisees named in the direct bequest, took a life estate with remainder to their issue as purchasers.</p> <p>TrevilU vs. Ellis, Bail. Eq. 40; commented on and approved.</p>

BEEOEE JOHNSTON, OH., AT UNION, JUNE, 1854. Johnston, Ch. — This is a bill for relief against a fraud alleged to have been perpetrated by John Ashby and his brother Stephen, upon the plaintiffs, as creditors of the latter.

BEFORE JOHNSTON, OH., AT LANCASTER, JUNE, 1854, It was referred to Mr. Moore, as special referee, to ascertain and report, to what executions in the Sheriff’s office against Wm. Gr. Raines, a fund of about four thousand dollars in the . Commissioner’s hands, arising from sales of the property of Raines, was properly applicable. Of the executions produced at the reference, the eight oldest were owned by the hank of the State of South Carolina.

BEFORE JOHNSTON, OH., AT SPARTANBURG-, JUNE, 1854. The defendant had been the agent of the plaintiffs for about six years prior to December, 1843, when he was dismissed from their service; and this bill, filed the 20th April, 1844, was for an account. On the 1st February, 1842, the plaintiffs, on settlement of defendant’s accounts, had given him their note for twelve thousand two hundred and twenty-eight dollars, as for a balance then due him, payable one day after date.

BEFORE WARDLAW, CH., AT GREENVILLE, JULY, 1854. This was a petition by the Trustees of the Greenville Academies, a body corporate, in which the petitioners prayed “ that they may be allowed to transfer their land which they hold in trust for the Academies, to the Baptist Society, for the purpose of endowing a Female College, on condition tbat the said Baptist Society will forever keep up in the village of Greenville, both a male and female school, wh'ere all the branches…

BEFORE WARDLAW, OH., AT CHARLESTON, JUNE, 1853. Wardlaw, Off. Held: that sheriff was justified, he having been notified by attaching creditors of defendant in execution not to pay over as they intended to file a suggestion to set asido plaintiff’s judgment as fraudulent and void. The reference is chiefly for the inference from the reasoning of the decision as more pertinent to the present inquiry.

BEFORE WARDLA-W, CH., AT FAIRFIELD, JULY, 1851.- Waedlaw, Ch. The principal matter of litigation in this case is as to an alleged parol gift of slaves. Malinda Keith is the mother of the plaintiffs, Nancy and Priscilla, the widow of Samuel Boyd, and sister of the defendant, J. B. Coleman. She and the defendant administered upon the estate of Samuel Boyd, the defendant taking the principal management.