Volume 30 — South Carolina Reports

Before Norton, J., Abbeville, February, 1888. The appeal came to this court from the following decree: This action was begun by the plaintiffs on February 23, 1887, under.section 268 of the General Statutes, to recover three hundred dollars and five cents of taxes paid by the plaintiffs under protest, to meet the interest on the bonds issued by the county commissioners of said county as corporate agents of Ninety-Six Township under the provisions of an act entitled “An act…

This was a controversy submitted without action in the original jurisdiction of this court, inquiring whether the defendant, count}' treasurer of York County, should be enjoined from paying out moneys collected by him to pay interest on bonds issued in behalf of Cherokee Township of that county in aid of' the Charleston, Cincinnati & Chicago Railroad Company, under the act of December 19, 1883 (18 Stat., 367), the plaintiff being a tax payer of Cherokee Township.

Before Witherspoon, J., Richland, October, 1888. The appeal was from the following decree: The plaintiff, in his original complaint, sought to have a certain deed for a house and lot from George L. Dial, president of the Columbia Building and Loan Association to Charles Cavender, declared to be a mortgage to secure the payment of $300 by plaintiff.

Before Kershaw, J., Newberry, July, 1886. The case is thus fully stated by Mr. Justice McGowan in his dissenting opinion : This appeal was heard at the November term of this court, 1887, when a re-argument was ordered upon the following questions, to wit: “Whether the statute of limitations applies as a matter of defence by the defendants, principal and sureties, and especially whether it can be set up in action on bond, like that in this case. 2nd.

Before Kershaw, J., Charleston, November, 1887. This action was commenced April 30, 1886. The appeal ivas from the Circuit decree, which, having found as stated in the opinion, proceeded as follows : My reasons for the foregoing decision are these: The only defence set up is that of usury.

<p>Before Pressley, J., Williamsburg, October, 1888.</p> <p>The opinion states the case.</p>

Before Wallace, J., Pickens, July, 1888. The defendant, Thomas P. Alexander, was indicted for the murder of his wife, Jane, on the night of March 4, 1888. The deceased was killed with an axe, her body being found with three wounds, one severing the wind-pipe, another cutting the jugular vein, and a third cutting the neck-bone — either one of which was sufficient to produce instant death. The defendant had admitted that he killed his wife. The defence was insanity.

Before NORTON, J., Orangeburg, May, 1888. To the statement made in the opinion of this court, it is necessary to add only this : A witness for the State testified that the letter was written by Mr. Byuck and carried by witness to Carroll to sign. Carroll declined to sign unless the name of Laura Smoak was erased. Mr. Byuck declined to erase her name.

<p>1. A municipal corporation, under the powers conferred upon it to pass ordinances respecting police, may enact an ordinance to prohibit the sale of spirituous liquoi’s within the town limits; and under its grant of the same power to try and punish any person violating a town ordinance as trial justices have, the town council have jurisdiction of violations of such an ordinance.</p> <p>2. A municipal corporation having the power, under its charter, to impose a punishment not exceeding 8100 fine or thirty days imprisonment, passed an ordinance prescribing for an offence a fine not exceeding $100 or imprisonment at the discretion of the council. Held, that the ordinance, construed in subordination to the chartér, limited the discretion of the council to a period not exceeding 30 days, and so construed, was valid.</p> <p>3. A provision in the charter that “It shall not he lawful for any intend-ant or warden to issue a license to any person to sell any kind of spirituous liquors in said town. And any person selling liquors shall be subject to all the penalties imposed by the laws of this State, as if no such license had been granted,” subjects to indictment any person selling liquor with or without the license of the town, but does not prevent the town council from imposing its penalties for the violation ■ of a town ordinance prohibiting the sale of liquor.</p>

<p>Before Pressley, J., Abbeville, October, 1887.</p> <p>This was an action by J. L. Tribble, as assignee of W. M. Cooley, and by G. E. Prince, as agent of creditors, against Mary A. Poore. The opinion states the case.</p>

<p>Before WALLACE, J., Abbeville, June, 1888.</p> <p>The opinion fully states the case.</p>

<p>Before Aldrich, J., Beaufort, February, 1888.</p> <p>The opinion fully states the case.</p>

<p>Before Norton, J., Greenville, May, 1888.</p> <p>This was an action on seven notes given by defendant to plaintiff’s testator, four of which bore date August 11,1883, and three of which were dated February 5, 1880. April 23, 1880, and November 26, 1881, respectively. The first seven paragraphs of the complaint alleged the making and delivery of these notes; and its other paragraphs alleged non-payment, death of testator, &c. Other matters are stated in the opinion.</p>

<p>Before Norton, J., Greenville, May, 1888.</p> <p>This was an action by Whitfield, Powers & Co. against Hovey and Townes, the latter of whom resided in this State and was duly served. Attachment was issued against the interest of Hovey, the non-resident partner, who in December, 1887, moved to vacate this attachment. The notice of motion was as follows :</p> <p>“Please take notice that we have been retained by, and appear for, the defendant, Marius M. Hovey, in the above case, for the purpose of moving to vacate the attachment issued herein, arid the order directing a sale of the attached property, and that such motion will be made by us before Hon. J. J. Norton, at Walhalla, on the 26th day of December instant, at twelve o’clock m., or as soon thereafter on said day as counsel can be heard, and will be made upon the affidavits, of which copies are herewith served upon you, and the papers upon which the said attachment was issued, copies of which papers you are hereby requested to serve upon us at once and the attachment itself.”</p> <p>Other matters are stated in the opinion of this court.</p>

Before Witherspoon, J., Abbeville, October, 1888. This action was commenced January 11, 1887, by Sibley & Co. as plaintiffs, and upon the death of the senior partner continued in the name of the survivors of that firm. The opinion states the case.

<p>Before Pressley, J., Charleston, April, 1888.</p> <p>The opinion fully states the case.</p>

<p>Before Norton, J., Fairfield, June, 1888.</p> <p>The opinion' fully states the case.</p>

<p>1. In consideration of $500 paid by V to “P, agent,” he became a half-owner in a mercantile business conducted by “P, agent,” and was to share in its profits and losses. In action by creditors of the partnership thus created, held, that V could not show' by parol testimony that P was merely agent for his wife, who had never authorized or ratified the agreement; that V had never paid the $500, nor received any profits, and was not known in the business; for if these things wrere shown, still V would be liable for the partnership debts.</p> <p>2. The reception of profits is not necessary to make one a partner; it is the agreement to receive that constitutes a test of partnership.</p>

<p>Before NORTON, J., Anderson, February, 1888.</p> <p>Tbe opinion fully states the case.</p>

<p>Before Norton, J., Charleston, June, 1888.</p> <p>The opinion fully states the case.</p> <p>cited 18 Stat., 373; 5 Biss., 102; 1 Crunch C. C., 523, 451; 2 Id., 195, 235; 15 Wall., 161; 4 Wash. 0. 0., 219; Hemp., 689 ; 1 Peters, 351; 4 McLean, 240; 7 How., 693; 5 Peters, 617.</p> <p>cited 2 Branch C. 0., 31, 198, 259, 335; 7 Fed. Rep., 49.</p>

Before Norton, J., Orangeburg, May, 1888. This action was commenced June 2, 1887. and involved the validity of the following assignment executed by a married woman to secure her husband’s debt : Whereas I. the undersigned, M. C. Shingler. am indebted unto William 0.

Before Kershaw, J., Barnwell, March, 1887. This was an action by J. G. Guess to recover damages for a cow killed by defendant, the South Carolina Railway Company, on its track through plaintiff’s pasture, by a passenger train. The cow had a block and rope attached, and the block had caught in the track.

<p>Before Norton, J., Colleton, November, 1888.</p> <p>The opinion fully states the ease.</p>

Before Aldrioh, J., Clarendon, May, 1888. This was an action by John N. Riggs against Ben Wilson and Samuel C. Williams, commenced before John S. Wilson, Esq., trial justice, in December, 1887, for the recovery of an ox. The opinion states the case.

<p>Before Hudson, J., Darlington, March, 1888.</p> <p>The opinion makes a full statement of the case.</p>

Before Fraser, J., Sumter, December, 1888. This appeal was heard in January, 1889. It was from the following decree, rendered at chambers: This is an action for the specific performance of a contract for the sale of land, and has been heard by me at chambers, by the consent of all the parties to the cause.

Before Pressley, J., Orangeburg, January, 1888. This was an action by J. Regenstein and J. C. Biesentbal, partners under the firm-name of J. Regenstein & Co., against Pearlstein & Karosh, W. H. Reedish, and others, commenced December 6, 1887.

Before Fraser, J., Barnwell, November, 1887. This was an action by J. F. Sanders, as executor of Wilson Sanders, deceased, against F. J. Sanders. Verdict was for plaintiff, and defendant appealed. The allegation in the complaint that no part of the note had been paid, except $174, was an immaterial averment; and if the answer had set forth nothing else except its admissions, the plaintiff would have been entitled to judgment without evidence or argument.

Before Norton, J., Charleston, June, 1888. The judgment of the Circuit Court in this case, omitting its statement of facts, was as follows : The question is one of considerable practical importance, and the determination under the law and the facts difficult. The renting 1st of June, 1882, was, under the statute, to 1st of June, 1883. Defendant having held beyond that time, it became a tenancy from year to year, and terminated on the 31st of December in each year.

Before Aldrich, J., Barnwell, April, 1888. This was a summons by E. H. Frost to have renewed an execution on a judgment obtained by Adams, Frost & Co. against W. T. Richardson, he being now the sole owner of the judgment. The opinion states the case.

Before Kershaw, J., Edgefield, March, 1888. This was an action by Henry White against the Augusta and Knoxville Railroad Company to recover damages for injury done to himself, his wagon and team by defendant’s moving train at a railroad crossing. The judge’s charge to the jury was as follows: Negligence is the ground of this action; it is on that ground that the plaintiff is to recover, if at all.

<p>1. Where a judgment by default is vacated upon condition that defendant enter into an obligation with sufficient surety to pay whatever may be recovered of defendant “should the plaintiff finally prevail in the suit,” and such an obligation is executed, can the plaintiff, on recovery of a judgment on his debt, obtain an execution against the surety on mere motion ?</p> <p>2. But certainly no execution could issue until there was a final determination of the suit; and the suit was not finally determined while there was an appeal pending from the judgment of the Circuit Court.</p> <p>3. A refusal by the surety to pay this obligation according to its terms, would furnish no ground for an attachment for contempt.</p> <p>4. Where there is no error in an order appealed from, it is immaterial that the judge based his conclusion upon an erroneous ground.</p>

Before Pkessley, J., Charleston, August, 1888. This was an appeal by C. W. Kuhland, purchaser, from an order requiring him to comply with a bid made by him at a sale had under a decree in the main cause, which was an action for partition. The opinion states the case.

<p>1. It is the settled law of this State that in action to enforce a contract entered into by a married woman in 1881 and 1883, it is necessary to show that such contract was made with reference to her separate estate.</p> <p>2. The referee and Circuit Judge having differed in their findings of fact, the testimony was carefully examined by this court and the Circuit decree reversed.</p> <p>3. The purchaser of machinery from A gave three notes for the purchase money, all of which stipulated that the machinery should be A’s until paid for. B endorsed one of these notes and at maturity paid it. Holding this note as his own and another one of the notes, then past due, as attorney at law for A, B surrendered his note, taking a new note from the purchaser, secured by a mortgage of the machinery and also a mortgage of land belonging to the purchaser’s wife, and wrote to A that he had secured himself by a mortgage of land. This mortgage was duly recorded, but A having no actual notice of it, afterwards took new notes from the purchaser and a mortgage of the machinery, and marked the original notes “settled by making new notes.” Held, that A’s junior mortgage should be preferred to B's, because (1) B, as an attorney, could not secure himself at the expense of his client; and (2) when B took his mortgage, the mortgagor had no property in the chattels mortgaged.</p> <p>4. Equity requires an attorney to exercise towards his client the utmost good faith, and he cannot retain an advantage over his client which his position enabled him to acquire.</p>

Before Wallace, J., Abbeville, June, 1888. The decree of the probate judge in this case, omitting its statement of facts, was as follows : Testator has not expressly declared that the devise to his wife was in lieu and bar of dower. Did he intend by the devise to bar her right to dower? Would the scheme of the will be violated by granting the prayer of petitioner ? Unless this can be fairly gathered from the will, petitioner must prevail.

<p>1. In a proceeding to foreclose a mechanic’s lien, where there is no suggestion that there are other lions outstanding, and no motion by either party for inquiry on this point, an order of reference to the master to inquire and report is unnecessary ; and being made, it is not a legal ground of objection that the master based his report upon an ex parte official certificate.</p> <p>2. The registry act (Gen. Stat., $$ 1776, 1777), when construed in connection with the mechanic’s lien act (Gen. Stat., § 2354), does not require a mechanic’s lien to be proved by a subscribing witness ; and if it did, the mechanic’s lien law being of later date than the other, repeals so much of the registry law as requires probate of a mechanic’s lien.</p> <p>Mr. Justice McIver, dissenting.</p>

<p>Before Aldrich, J., Clarendon, May, 1888»</p> <p>The opinion states the case. The Circuit decree was as follows :</p> <p>Section 1906 is the old act of 1839, allowing the ordinary (now judge of probate) to cite before him persons who illegally take possession-of the effects of deceased persons as executors de son tort to make them discover and account. In this case the parties in possession are rightfully in possession as heirs at law and distributees of the deceased. They are liable to account to the heirs and distributees, but must do so in an action for that purpose, and not as trespassers under this summary proceeding. The demurrer, or more properly plea to the jurisdiction, is well taken. The appeal is sustained, with ten dollars costs, and the proceedings before the Probate Court set aside.</p>

This was an application for mandamus, submitted to this court in its original jurisdiction. The opinion states the case.

Before Aldrich, J., Union, March, 1887. Action by John C. Richards, as executor of James A. Tucker, against James Munro, administrator of William J. Tucker. ' The judge charged the jury as follows: This case has excited some interest in the community, and it is an interesting case to the parties concerned. A jury have heard' this case before and failed to come to a conclusion as to what was the intent of this old gentleman in that will.

<p>1. In 1872 the limitation of actions for the recovery of land hold adversely was 20 years, but in 1873 the time was reduced to 10 years. This amendment in the law was not retroactivo, and an adverse possession commenced before the act of 1873, and uninterruptedly continued, would not ripen into a right until the expiration of full twenty years.</p> <p>2. Whether a possession taken in 1872 assumed an adverse character before the act of 1873, or after that act, was a question of fact for the jury; and it depended upon the determination of that fact whether or not the adverse possession had ripened into right by 1887.</p> <p>8. In actions in tort, as well as in actions on contract, the currency of the statute commences when the cause of action accrues ;1 and the limitation in force at the accrual of the right governs the case.</p>

Before Witherspoon, J., Fairfield, February, 1888. The appeal in this case was from the following order : The defendant, John S. Swygert, sr., moved the court at the February term, 1888, for Fairfield County to vacate a judgment of foreclosure rendered against him by said court in the above entitled case, and for leave to file an answer.

<p>Before Pressley, J., Hampton, Juno, 1888.</p> <p>The opinion states the case.</p>

<p>1. After plaintiff had done certain grading for a railroad company under contract, the value of which was fixed by its" chief engineer, this company sold out to defendants, who undertook to pay its debts, “provided the work done should be measured and valued.'1 Plaintiff and defendants then agreed that this work should be remeasured and the value computed by two engineers to be selected by the parties, plaintiff to await further payment until this was done. Held, that plaintff had no action against defendants until the terms upon which defendants assumed this liability were complied with, unless these terms — the femeasurement and revaluation — were shown to be impossible of performance or to have been defeated by defendants’ fault.</p> <p>2. If the two engineers failed to act under the agreement between ■plaintiff and defendants, without the fault of either party, it seems that the plaintiff could not fall back upon his rights under the contract between defendants and the railroad company until he had refunded to defendants the cash payment made to him by defendants under the terms of the agreement between them.</p> <p>3. Whether parol evidence is admissible to show a mistake in the designation of the engineers as written into this agreement, raised but not considered.</p> <p>4. One of the engineers named being unable to act, plaintiff sued defendants for the amount as fixed by the chief engineer of the railroad company before the sale, alleging that the work was reasonably worth that much. The Circuit Judge referred the cause, with instructions to require a remeasurement by suitable engineers to be appointed by the parties, or, they failing, by the master, field, that such order ' was proper — certainly the plaintiff has no ground for complaint.</p> <p>5. The amount due plaintiff being still unascertained, he is not entitled to ipterest.</p>

Before Hudson and Fraser, JJ., Spartanburg, June and October, 1886. The oral demurrer in this case was overruled by Judge Hudson at June term, 1886, and the case was tried before Judge Fraser in October of the same year.

<p>Before Fraser and Kershaw, JJ., Sumter, March, 1888.</p> <p>Upon the points adjudicated, the opinion sufficiently states the case.</p>

Before Witherspoon, J., Kershaw, September, 1887. The Circuit decree (omitting its statement, substantially restated in the opinion of this court) was as follows : Plaintiff in this action seeks to obtain judgment against the defendant, Kate E. Meroney, for alleged indebtedness growing out of an agreement between plaintiff and the defendant, John S. Meroney. acting as the agent of the defendant, Kate E. Meroney, for the manufacture of brick. The fact of the agency is denied.

<p>Before Kershaw, J., Laurens, September, 1888.</p> <p>The opinion fully states the ease.</p>

Before Fraser, J., Kershaw, September, 1888. The appeal in this case involves questions as to the rights of mortgagee, and vendee of mortgagor, of land, growing out of an undertaking given by the latter to stay sale under decree of foreclosure pending an appeal, which was afterwards dismissed. The Circuit decree was as follows : This was an action to foreclose a mortgage given by W. C. Gerald, one of the defendants, to plaintiffs. Witte Bros., a firm composed of Geo.

<p>Before Aldrich, J., Marion, October, 1888.</p> <p>The opinion fully states the case.</p>

Before Pressley, J., Colleton, June, 1888. This was an action by W. L. Utsey against Josiah Hiott, sr. The decree of the Circuit Judge was as follows : By section 1184 of General Statutes, all owners of stock are prohibited from letting them wander outside their own land, and they are liable to pay damages to persons upon whose land the wandering stock may trespass.

Before Kershaw, J., Richland, April, 1888. This case has been once before in this court on appeal. See 22 S. 0., 42. The question here was whether the evidence was sufficient to make out a. prima facie case of seizin in demandant’s husband. The testimony is given in full. Mrs. Eliza Stark, the demandant, being examined by commission in her own behalf, testified as follows : My name is Eliza 0. Stark, and I reside at Waco, Texas; I am the petitioner in this proceeding.

<p>Before Witherspoon, J., Chester, March, 1888.</p> <p>This was an action by Sarah R. Knox against Samuel Knox, Elizabeth Knox, and James S. Drennan, committee. The grounds of appeal were as follows :</p> <p>1. Because his honor erred in admitting in reply testimony tending to show that the defendant, Elizabeth Knox, was competent to understand and transact business on or about March 5, 1884 — the date of the contract sued on, when such testimony was not in reply and was also irrelevant — no such fact having been alleged in the complaint or put in issue in the pleadings.</p> <p>2. Because his honor erred in refusing to charge the jury as requested by said defendants, “that Mrs. Elizabeth Knox having been adjudged to be of unsound mind in October, 1885, and to have been in that condition for thirty years prior to said finding, such judicial finding is presumptive evidence of her unsoundness for said thirty years, and is binding on the court in this action; no allegation of her competency having been made in the pleadings, and it is my duty to charge you that your verdict must be for the defendants, Elizabeth Knox, a lunatic, and James S. Drennan, her committee.”</p> <p>3. Because his honor erred in charging the jury that it was for them to determine whether or not Elizabeth Knox was competent to make a legal and binding contract on March 5, 1884, and whether or not she had such mental capacity as to understand the nature of the contract which it is alleged she entered into that day.</p>

Before Witherspoon, J., Abbeville, October, 1888. This was a summons by Sallie G. King, executrix, to revive a judgment against W. P. Belcher, administrator. 'The opinion sufficiently states the case.

<p>1. A question of jurisdiction may be raised at any time. Being first raised in this case in an exception to the judgment of the Circuit Court, it was considered.</p> <p>2. The law provides that the Court of General Sessions shall open at S. on the 3rd Monday in March, and the Court of Common Pleas on the Wednesday following ;• but if the business of the General Sessions is not then completed, the judge may adjourn the Common Pleas until the sessions business is concluded. Held, that all the officers and machinery of the Court of Common Pleas being present in the court house on Wednesday, that court was then opened by operation of law, notwithstanding no formal announcement or entry on the journal, to that effect, was made until the following Friday.</p> <p>3. The constitutional requirement, that the Court of Common Pleas shall sit at stated times, does not require the statute to name a precise day for its opening.</p> <p>4. Under a statute which provides' that any person who shall receive as interest any greater amount than is therein permitted, shall forfeit double the sum so received, the forfeiture exacted is only double the sum received in excess of the interest allowed by this statute.</p>

Before Peessley, J., Charleston, March, 1888. The indictment in this case was as follows : The State oe South Caeolina.

Before Fraser, J., Marlboro, June, 1888. This appeal was from the following decree: This case ivas heard by me at the term of the court held in June, 1888, upon the pleadings and testimony taken in open court, the answer of the defendant being read by consent as his testimony. It was agreed by consent that the whole case should be heard by the court, trial by jury being waived as to any issues in the case properly triable by a jury.

<p>Before Wallace, J., Laurens, February, 1888.</p> <p>Action by George P. Copeland, executor, against Mary C. Todd, executrix. The opinion states the case.</p>

<p>1. Defendant’s crop having been levied upon under a warrant to enforce a rent lien in favor of A, defendant reclaimed his crop under section 2404 of General Statutes. This same crop was afterwards levied upon under a warrant to enforce a lien for supplies in favor of B. A then ruled the sheriff to show cause why he had failed to obey her (A's) warrant. B intervened, claiming priority, and the court adjudged that A had the superior lien; and there was no appeal. Afterwards, by the same judge, in another Circuit, and out of his own, an order was passed, without notice to B or the sheriff, requiring the sheriff to pay to the debt due to plaintiff so much of the crop levied upon as was sufficient. Held, that defendant had no status in court that would entitle him to resist this order, for it was directed to the sheriff under a rule to which defendant was no party.</p> <p>2. Held, further, that B could not object, the only issue between him and the other parties having been settled against him by a decree from which he had not appealed. If there be a surplus in the sheriff’s hands after paying A, B must look to the sheriff for redress.</p>

Before Wallace, J., Laurens, February, 1888. • This case is elaborately stated in the special master’s report, which was as follows: The master for Laurens County being related by blood to some of the parties to the above stated action, all the issues of law and fact herein were, by consent of all the counsel, referred to me by order of his honor, Judge I. D. Witherspoon, dated 30th September, 1885.

<p>Before Kershaw, J., Spartanburg, October, 1888.</p> <p>This was an action by Martha I. Bomar and her husband against The Asheville & Spartanburg Railroad Company. The opinion states the case.</p>

<p>1. Where a tract of land was assigned to the widow of an intestate at a certain valuation, and the rest of the real estate was appraised and ordered to he sold, the widow’s share is one-third of the sum of the appraisement of her tract plus the price for which the other lands sold, and not one-third of the appraised value of all the lands. And she having purchased a part of the other lands for $500 and given her bond for §786, when her share in all the real estate, as above decided, was §286 less than the appraised value of the tract assigned to her, it follows that her bond must have been given for equality of partition, as well as for the land purchased.</p> <p>2. Under an execution issued upon a judgment obtained on this bond, this widow (or, she being dead, her children) are entitled to claim homestead in the tract of land so assigned to the widow, (1) because there was no endorsement on 'this judgment to the effect that the judgment was for the purchase money of such tract, which is the only way, under the law, by which the homestead can be sold to pay the purchase money ; and (2) because no such endorsement could have been made, as the bond was not given for that purpose and “no other,” but was given only in part for the purchase money of such tract.</p> <p>3. There was no statutory lien under the act of 1791 (in force at the date of the bond) because (1) the amount due on the tract assigned was not ascertained by the commissioners in partition or by any order of court; (2) no sum of money was assessed by these commissioner’s, to be paid by the widow; and (3) no such lien on a tract assigned existed in favor of the officer of the court, the plaintiff here, who made the sale of the other lands of the estate.</p>

<p>Before Pressley, J., Spartanburg, July, 1887.</p> <p>Action by Thomas J. Gaston against H. Ashmore Bennett. J. K. Jennings, Esq., referee, reported as follows:</p> <p>Having been appointed referee by order of this court, to hear and determine the issues in this action, and having had such reference, I submit the following report.</p> <p>On April 29, 1885, the plaintiff executed and delivered to the defendant a deed of conveyance for the tract of land described in the complaint, containing two hundred and seventy acres, more or less, the consideration being five dollars, natural love and affection, and a proper support and maintenance' for plaintiff for life. This action is instituted to set aside this deed on the ground of undue influence, &c., on the part of the defendant, and on account of mental weakness and incapacity to contract on the part of the plaintiff. The answer alleges that the defendant had an interest in said land under the will of Samuel Gaston, deceased, the father of the plaintiff and grandfather of the defendant, and that this also was part of the consideration and inducement which led to the execution of the deed.</p> <p>Under the will of Samuel Gaston, the plaintiff received this tract of land after the death of his mother, valued at $1,700, and the mother of the defendant, the only other child of Samuel Gas-ton, received property to the amount of $612, and the will provides that they be made equal on final settlement of the estate. The defendant is the only child of his mother, and the land in dispute is the only property out of which he could have been, made equal with the plaintiff under the will of Samuel Gaston. A. P. Wakefield, the executor of Samuel Gaston, provides in bis will that the defendant shall receive an amount from his estate sufficient to make him equal with that received by plaintiff under the will of Samuel Gaston. This amount has been paid to the defendant by the executrix of A. P. Wakefield. Under these circumstances we do not think that the defendant could have disturbed the title and possession of plaintiff to the lands in dispute.</p> <p>The principal questions involved in the case, then, are: Did the plaintiff have mental capacity to make the deed, and if not, did the defendant take advantage of his relationship and superior knowledge to induce him to make the deed by undue influence, persuasion, or overreaching ? And was the consideration adequate ? The testimony is full on these points and very conflicting. There can be no doubt that at the time of the execution of the deed, the nature of the transaction was fairly, freely, and fully explained to the plaintiff, and that he unhesitatingly consented to the same. He was satisfied at the time and apparently understood what he was doing. Some of the witnesses say they think he understood it, while others say he did not have capacity to do so; and \vhile they are pretty equally divided on this point, I am satisfied from the examination of plaintiff and his conduct on the stand, that he did not understand it, and that his mental capacity was not sufficient to take in the nature of the transaction.</p> <p>It was a bargain that no ordinary man in the full possession of his faculties would have made, and one that no man who was fully acquainted with his circumstances and his mental capacity ought to have accepted at his hands. The defendant and a few of his friends and relatives seem to have been extremely anxious to consummate the bargain. Undue advantage was unquestionably taken of the plaintiff’s ignorance and extreme mental weakness by the defendant, who, with his full knowledge of the plaintiff’s circumstances and mental capacity, should have used his superior knowledge for the benefit and protection of his uncle’s property, rather than to have induced him to transfer to himself, by such a bargain, all the land he possessed. It seems to me that the mental weakness of the plaintiff was of such a character as to be easily taken advantage of by the defendant without any apparent violation of honesty and fair dealing, and it was of that degree of weakness that ought to have been notice to the defendant, who was familiar with him, that he did not have sufficient capacity to enter into such a bargain and sale of his land. The price paid or agreed to be paid was inadequate, although it was not grossly inadequate.</p> <p>I find as conclusions of fact: I. That the price was inadequate. II. That the value of the land is three thousand dollars. III. That the defendant has expended a certain amount in permanent improvements on the place.</p> <p>I find as conclusions of law: I. That the defendant should be required to surrender the possession of the place to the plaintiff and deliver up his deed for cancellation. II. That the land should be charged with the amount of money expended by the defendant in permanent improvements, after deducting therefrom the value of the rents, less the amount paid to the plaintiff.</p> <p>The cause came up before the Circuit Judge on exceptions by defendant, when the following decree was filed:</p> <p>In this action plaintiff seeks to set aside a conveyanco of land made by him to defendant on April 29, 1885. Complaint alleges plaintiff’s incapacity to make a deed, and also that he acted in that matter under undue influence. The referee finds for the plaintiff on both allegations, and also that the consideration was inadequate, though not grossly so.</p> <p>I do not concur in any one of these findings of the referee, but regard the preponderance of the testimony vastly on-the side of defendant. The land was bequeathed to plaintiff by his father, Samuel Gaston. It is a'tract of 270 acres, valued in said will at $1,700. It is fair to assume that if testator had regarded plaintiff as incapable of managing his own business, a trustee for him would have been provided by the will, and that rvas not done. After the death of Samuel Gaston, plaintiff lived with his mother on said land, and, as she was old and feeble, he managed the business for her. After his mother died he managed his own business — rented land and collected the rents, bought his own supplies and paid for them, and all who had any business transaction with him, who testify in this case, say that he was “a close buyer” — shrewd in his bargains, and not easily cheated. No one of plaintiff’s witnesses testify to their ever having had any business transactions with him. They express the opinion that he had not capacity to make a deed, but they state no fact whatever of any business transaction by him within their knowledge whereby incapacity was manifested. None of these witnesses are experts in the matter of mental capacity, and the three physicians who testify on this point, claim to know plaintiff well, and say that he had capacity to make a deed, and understood what he was doing, though some of them regarded him as weak-minded. My finding of fact, therefore, is that plaintiff was not incapable to make said deed.</p> <p>On the matter of undue influence, plaintiff is the only witness who testifies to that, and he is positively contradicted by all the witnesses who profess to know anything about it. Mr. Carlisle drew the deed, and as attorney for both parties, was present when the deed was executed, carefully reading it aloud to plaintiff and all the others, amongst whom was the judge of probate. Plaintiff went alone to Spartanburg to have the deed executed. He had gone once before, but the judge of probate was absent, and the parties desired his presence. Defendant testified that the proposal for said deed was not made by him to plaintiff, but the reverse. After it was made, plaintiff married a wife, and before and up to the time of his marriage, as testified by several witnesses, he spoke of the making of said deed and its terms, and said he was satisfied with it.. No witness except himself has testified that he was dissatisfied at any time before his marriage. My finding is that said deed was not made under any undue influence.</p> <p>The consideration for said conveyance is that defendant support the plaintiff during remainder of his life. He was over 40 years old. Defendant is his nephew. Plaintiff had manifested no inclination at that time to marry, and so have lineal heirs. He might well prefer, so situated, to have a home with his nephew and cease from care and labor. The father had valued said land at $1,700. The testimony in this case leads me to the conclusion that though said land was in very bad condition when the deed was made, it was worth about $3,000. But it did not produce rents equal to a fair interest and taxes on that yalue. The average rent for 4 to 5 years up to date of the deed was not $100 a year. The value of maintaining plaintiff is variously estimated at $150 to $200 a year. Some witnesses place it much higher. Those who say $12 per month do not include such additional expense as may arise from fevers or other sickness, nor do they allow for additional needs in the advance of old age. At present the plaintiff is a hale, hearty man, with the promise of long life. Under all the circumstances, my finding is that the consideration for this deed is more than the great majority of prudent men would give for the tract of land in question, unless inclined thereto by affection or kind feeling towards plaintiff.</p> <p>It is ordered and adjudged, that the report of the referee be overruled, and that the said deed be established as good and valid.</p> <p>The plaintiff appealed from this decree on the grounds that his honor erred: I. In overruling the referee and in finding that the plaintiff had sufficient mental capacity to make the deed. II. In overruling .the referee and finding that the plaintiff did not act under undue influence in executing said conveyance, and in not finding that he was further induced to make said deed, by being made to believe by defendant that defendant had an interest in the land. III. In overruling the referee and finding that the consideration for the deed was adequate. IY. In overruling the report of the referee and adjudging that the deed be established as good and legal.</p>

<p>1. An action against a railroad company to recover damages for grading and trespass on lands claimed by plaintiff, and to enjoin any further appropriation of these lands for the construction of the railroad, is not an action “for the recovery of real property or the recovery of possession thereof,” within the meaning of section 98, subd. 2, of the Code, allowing two actions for such recovery.</p> <p>2. A second action for the recovery of real property, brought within two years after the judgment for defendant in the first action, and after the</p> <p>. payment of the costs thereof, cannot be defeated by the fact that defendant in neither action claimed anything more than an easement in said land. The court will not look beyond the form of the action as disclosed in the complaint.</p>

Before Fraser, J., Kershaw, September, 1888. The case is fully stated in the report of J. D. Dunlap, Esq., master.

Before Wallace, J., Spartanburg, March, 1888. Action in claim and delivery by Nancy Owens against L. M. Gentry and Oscar Gentry, commenced January 28, 1887. The plaintiff, among other matters, requested his honor to charge: I. That the affidavit in evidence was not sufficient to authorize the issuance of the warrant, and such warrant was null and void. II.

<p>Before Wallace, J., Spartanburg, March, 1888.</p> <p>Action by W, A. Anderson and L. S. Anderson against S. M. Pilgram. The opinion states the case.</p>

Before Kershaw, J., Union, October, 1888. This was an action by William T. Betsill against his brothers and sisters, commenced April 27, 1888.

Before Norton, J., Charleston, July, 1888. This was a petition for mandamus instituted by the Port Royal Mining Company against Johnson Hagood and the other members of the Board of Agriculture, in June, 1888.

<p>Before Wallace, J., Spartanburg, March, 1888.</p> <p>The opinion states the case.</p>

<p>Before Pressley, J.. Spartanburg, July, 1887.</p> <p>The case is stated in the opinion of this court.</p>

<p>Before Kershaw, J., Laurens, September, 1888.</p> <p>The opinion fully states the case.</p>

Before Hudson] J., Richland, July, 1888. This was an action by the South Carolina Steamboat Company against the South Carolina Railway Company. The judge sustained an oral demurrer to the complaint in the following order: The motion before me is one to dismiss this complaint because it does not state facts sufficient to constitute a cause of action.

Before Nohton, J., Charleston, July, 1888. This was an action by the children of Thomas B. Chapman, deceased, against the city council of Charleston and the children of Robert B. Chapman and James Chapman, both deceased.

Before Wallace and Witherspoon, JJ., Fairfield, September, 1887, and February, 1888. The order of Judge Wallace was a short order granting the motion for leave to amend, on the' authority of Savings Bank v. Strother, 22 S. C., 552. Judge Witherspoon’s decree fully states the case, and was as follows : This is an action for contribution among sureties.

This was a petition to this court by the Charleston, Cincinnati & Chicago Railroad Company, The Massachusetts & Southern Construction Company, and The Boston Safe Deposit and Trust Company for a writ of mandamus to compel the chairman and the clerk of the board of county commissioners of York County to affix their signatures to a certificate by the chief engineer of said railroad company that said railroad had been completed through Broad River Township in York County.

<p>This was a proceeding for mandamus against the county commissioners of Lancaster County, in every particular the same as in the next case ante against the chairman and clerk of the board of county commissioners of York County, except that the return raised the additional point that the bonds in question had never been “issued” within the meaning of the act of December 22, 1888.</p>

This was a petition, presented to this court in its original jurisdiction for a writ of mandamus. Held: under which said election said bonds were issued; and that at said election a number of votes were cast against the subscription of said bonds; that this honorable court has already solemnly adjudged that the townships in this State, along the line of the Charleston, Cincinnati and Chicago Railroad, were without any legal authority…

This was a motion to reinstate an appeal which had been dismissed by the clerk because of appellant’s failure to file his return within 40 days.

This was a motion to reinstate an appeal which had been dismissed by the clerk for failure by appellant to file his return within the time required by rule 1 of this court. Appellant submitted, as the reason for such failure, that within the forty days a motion had been made on Circuit to vacate the judgment, and he supposed that the pendency of such motion prevented him from proceeding with his appeal.