Volume 32 — South Carolina Equity Reports

BEFORE DUNKIN, CH., AT BARNWELL, FEBRUARY, 1859. After the final decision of this cause in the Appeal Court, 10 Rich. Eq., 253, the commissioner for Barnwell taxed the costs of the defendants. The complainants objected to the taxation, and in September, 1858, his Honor, Chancellor Dargan, made an order directing the commissioner for Rich-land to tax the costs.

BEFORE WARDLAW, CH., AT LAURENS, JUNE, 1858. This case will be understood from the circuit decree, and the opinion delivered in the Court of Appeals. The circuit decree is as follows: Wardlaw, Ch. Robert Tucker, late of Laurens district, died April 19, 1855, leaving, as his next of kin, a brother, Peter Tucker, of Alabama, and many nephews and nieces, most of whom are absent from the State.

<p>Injunction — Jurisdiction — Absent Defendant — United States Court.</p> <p>An absent defendant, having an interest under an assignment for the benefit of creditors, may be restrained by injunction from enforcing his judgment by seizure and sale of the assigned estate — the judgment having been recovered against the assignor after the execution of the assignment.</p> <p>A party who obtains judgment in the United States Court, may be restrained by the Court of Equity of this State, from enforcing his judgment by levy and sale of property not liable to levy and sale under his execution.</p>

BEFORE DARGAN, CH., AT CHESTER, JUNE, 1858. John McKelvey and Elizabeth, his wife, on the 23d of June, 1847, executed two deeds, whereby the said John McKelvey, reserving the use to himself and wife during their lives, conveyed all his real and personal estate to the defendants, Valentine Atkinson and wife. Elizabeth McKelvey died in September, 184S, and John McKelvey died in July, 1852.

BEFORE WARDLAW, CH., AT PICKENS, JUNE, 1858. The decree of his Honor, the Circuit Chancellor, is as follows : Wardlaw, Ch. On March 6, 1854, William Kirksey, Jr. released and conveyed to W. L. Keith, uncle of grantor’s wife, three houses and lots in the village of Pickens, and the distributive share of said William in the estate, real and personal, of his brother, Silas Kirksey, deceased, in the hands of said W. J_i. Keith, as administrator, in trust for the use of said…

BEFORE LARGAN, CH., AT RICHLAND, JUNE, 1858. The decree of his Honor, the Circuit Chancellor, is as follows : Dargan, Ch. On February 21, 1833, James Fenton executed a mortgage to John Bryce, of a lot in Columbia, to secure a bond given by said Fenton to said Bryce for $500, dated 21st February, 1833, payable the 1st of January, 1834, and bearing interest from the date. The iuterest on this debt was paid annually, and with great punctuality, up to 1st July, 1855.

BEFORE JOHNSTON, CH., AT CHESTERFIELD, FEBRUARY, 1859. In this case, it is deemed proper to publish the petition and all the affidavits upon which the case was heard. The petition is as follows: The State ox South Carolina.

BEFORE JOHNSTON, CH., AT NEWBERRY, JULY, 1858. J. P. Caldwell died in October, 1848, leaving a last will and testament, of which the following is a copy : I, James P. Caldwell, of the District of Newberry, in the State aforesaid, do make the following disposition of my estate, to take effect at my death, as and for my last will and testament, viz: First.

<p>Promissory Notes — Jurisdiction.</p> <p>A promissory note, drawn payable to the drawer or bearer, is void at law as against the drawer, but in Equity the holder may be entitled to recover.a</p>

<p>Testamentary Taper — Advancements—Mother—Grand-son.</p> <p>A paper writing* by a mother, saying, * I wish all I possess in this world to belong to my dear son W., and his heirs forever, both personal and real; and everything in my press and wardrobe to my dear sister M., and to take all she washes of my things ; my diamond ring and little watch to IC. *, my large watch (that was my dear son’s) to my grand-son J.” Held to be testamentary and void, for want of attestation.</p> <p>The provision in the Act of 1791, in relation to advancements, applies as well to gifts made by a mother as to gifts made by a father.</p> <p>Where a parent having a son, and a grand-son, issue of a deceased child, makes a gift to the son, it will be treated as an advancement in favor of the grandson.</p> <p>Where a parent holds a bond against her son, and destroys the bond, intending to discharge the debt, it will be an advancement to the amount of the bond. Whether property given by a parent to her son shall be considered an advancement, is not a question of intention — no matter what the parent intended, if she leaves no will, it will be considered an advancement, if otherwise proper to be so considered.</p>

<p>Jlppeal from Ordinary — Duress.</p> <p>Where proceedings are instituted before the ordinary, against an executor, for account, and a dispute arises between a legatee and his assignees of the legacy, as to the validity of the assignment, an appeal from the ordinary’s decision holding the assignment to be invalid, lies, under the Act of 1839, to the Court of Equity.</p> <p>A deed is not necessarily void because the party was, at the time, under restraint — the restraint must be illegal.</p>

<p>Fraud — Judgment—Father and Son — Consideration—Evidence — Vendor’s Lien.</p> <p>Where there are strong circumstances of suspicion against a judgment confessed by a son to his father, the father, on bill filed by creditors impeaching the judgment for want of consideration, should show the consideration by other evidence,than his own oath.</p> <p>Where a judgment is set aside for fraud and want of consideration, and a reference is ordered for creditors to come in and prove their demands, evidence taken before the commissioner on the reference will not be considered by the Court of Appeals on the appeal from the decree.</p> <p>The doctrine, that the vendor has an equitable lien for the purchase money of land sold, has never, it seems, prevailed in this State.</p>

<p>Mortgage — Delivery — Partnership — Interest — Surety— Joint Tenant — Use and Occupation.</p> <p>An unrecorded mortgage produced by one of the mortgagees, after the death of the mortgagor, held, under the circumstances, to be invalid for want of sufficient proof of delivery.</p> <p>One partner, who puts in his proportion of the capital, is not entitled to charge interest because the other partner has failed to put in his proportion; the articles of partnership not stipulating for the payment of interest.</p> <p>Where two persons purchased a tract of land as joint tenants, and gave their joint bond tor the purchase money, and one of them paid beyond his proportion, held, that, for the amount paid over his proportion, he was surety, and entitled to set up the bond as a specialty debt against'the estate of his co-tenant.</p> <p>Where one joint tenant used and occupied the land for several years after the death of his co-tenant, and on bill to marshal the assets of the co-tenant, was allowed his demands as creditor, held, that he must account for the use of the land, and deduct from his demands a reasonable amount for the use of such proportion as he occupied, over his share.</p>

<p>Wills and Testaments — Devise to Corporations.</p> <p>Testator, being the owner of two large estates, each embracing real and personal property, made disposition of the greater part of one estate in the first part of his will, and in a subsequent part, relating to the “disposal” of the other estate, directed his executors to sell “the whole estate,” and then proceeded to dispose of the proceeds of the sale: Held, that the direction to sell related only to the estate mentioned in that part of the will, and did not embrace some portions of the other estate, which the will did not dispose of.</p> <p>Where a testator owned a large real and personal estate, which he had inherited from a deceased brother, and to which he had added a large tract of land, purchased with the proceeds of the crops of that estate, held, that his devise “of the estate of my respected and greatly lamented brother,” embraced as well the estate he had inherited as the land he had purchased.</p> <p>A bequest of a negro woman “and her descendants,” will include all her issue born before or after the date of the will; so, also, a bequest of a negro woman “and her children,” will include all the children ; but a bequest of a negro woman simply, by name, will not include her children born before the death of the testator.</p> <p>Testator directed a sum of money to be placed at interest in a bank, “which sum, when thus placed, I do hereby cheerfully give to J. M. And do hereby so settle it, that no person or persons whatever, under any circumstances or pretext whatever, can deprive him of it during his natural life. That J. M., himself, shall not be allowed to touch, or use, or squander one cent of the principal: but only to draw and make use of the lawful interest annually, as may seem to him best.” £eld, that J. M. took an absolute interest in the money, with right to dispose of it as he pleased.</p> <p>Where there is no charge of insolvency or misconduct against an executor, the Court will not deprive him of the privilege, which the will gives him, of selling lands, and direct the sale to be made by the commissioner.</p> <p>A devise of lands, to be sold by the executors, with directions to distribute the proceeds among certain religious corporations, is a devise of personalty, and is not prohibited by the Act of 1733. (3 Stat., 341,) excepting corporations from the objects of the devises of land.</p>

BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 1858. The decree of his Honor, the Circuit Chancellor, is as follows: Dargan, Ch. Benjamin F. Hunt many years ago became the purchaser of a plantation on the Pee Dee river, in Georgetown district, called “ Richfield,” and of the negroes thereon, for the sum of $120,000; one-sixth of the purchase money was paid in cash, or its equivalent: the rest of the purchase money was payable in five equal annual instal-ments of $20,000 each,…

BEFORE WARDLAW, CH., AT CHARLESTON, FEBRUARY, 1859, This case will be sufficiently understood from the circuit decree, and the copy of the agreement. The circuit decree-is as follows: Wardláw, Ch. This is a bill, by the vendor, for the spe*-cific performance of defendant’s agreement to conclude at trade for the purchase of the plantation called the Mims-P tract.

<p>Mortgage — Fraud—Jurisdiction—Parties.</p> <p>A purchaser in Florida of a mortgaged slave, removed the slave to this State, and here sold him to one who carried him beyond the jurisdiction: — Held, that the purchaser, who bought with notice of the mortgage, was liable in equity to the mortgagee : and that the mortgagor was a necessary party to the bill.</p>

<p>Wills and Testaments — Emancipation—Slaves.</p> <p>A bequest of slaves to four legatees, “ and the survivors and survivor of them,” “with a request that they will extend to the said slaves all the indulgence, privilege and consideration which the law will allow them, in the character of owners, to extend to them, is not void under the third section of the Act of 1841.</p> <p>A bequest of money to the same four legatees “and the survivors and survivor of them,” “ to enable them to support the said slaves, when they, from age or sickness, may become chargeable upon them,” is not void under the fourth section of the Act of 1S41.</p>

BEFORE DUNICIN, CH., AT BEAUFORT, MARCH, 1859. Dunkin, Ch. Mr. Dayant reports that on 23d of November, 1855, proceedings were instituted in this Court, under the title of McBride vs. Kirk, for the purpose of marshalling the assets and administering the estate of Rollin H. Kirk, deceased. On 8th December, 1855, the commissioner was ordered to call in the creditors, by public notice, in the usual way.

<p> Limitation of Estates. </p> <p>By marriage settlement, the. property of the wife was settled to the joint use of husband and wife during coverture, and if the husband survived, to his use for life, with remainder to “the legal heirs and representatives” of the wife. The husband survived, and upon his death, held, that the persons entitled to take were the heirs and distributees of the wife, including the husband, at her death.</p>

<p>Trusts and Trustees — Implied Trust — Lapse of Time— Common Fund.</p> <p>H. being attorney on record in a judgment, of which he owned one-half, purchased, at sheriff’s sale, a tract of land, sold under the execution on the judgment, and without paying the purchase money, received from the sheriff a deed of conveyance for the land: — Held, that H. must be presumed to have purchased as trustee, and that he held the land as equitable tenant in common with the other owners of the judgment.</p> <p>Lapse of time, more than twenty years, held, under the circumstances, not to rebut the presumption that H. had purchased as trustee.</p> <p>The land having been sold by the master and the proceeds being in Court, held, that the other owners of the judgment, who had another demand against H., growing out of a similar transaction, had the right, as against other creditors of H., to look to the proceeds of the sale as a common fund for payment of both of their demands.</p>

<p>Presumption of Payment — Judgment — Levy — Sovereign State.</p> <p>Levy, under execution, on a house and lot, with other circumstances; held sufficient, after a lapse of near twenty years, to raise the presumption that the judgment was satisfied.</p> <p>A sovereign State, coming in as a creditor, under a bill to marshal assets, stands as other creditors, and is liable to the ordinary presumptions of payment.</p>

<p>Parties — Account—Administrator—Rents—Agent.</p> <p>To a bill, against an administrator, for account of the estate of the intestate, received by a deceased agent and attorney of the administrator and heirs, for whose professional services a large amount was claimed, held, that a representative of the attorney was a necessary party to the bill.</p> <p>H was the agent of B, an administrator, to receive the rents of a certain lot. After some years, a son of H claimed the lot as his own, and received the rents for many years, but permitted his father to use them: held, that the son was liable to account to B for the rents received by him.</p> <p>Where an administrator receives, himself or by agent, the rents of real estate of the intestate, though his sureties may not be, he is liable to account to the heirs for the rents thus received.</p>

BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 1S5S. Dargan, Ch. The facts stated in the bill are not disputed.

BEFORE DARGAN, OH., AT CHARLESTON, FEBRUARY, 1858. This case was referred to the master, and was heard on exceptions to his report. The report is as follows: “ This case was referred to me to take an account of the partnership of Drs. J. W. Schmidt and Robert Lebby, and to report thereon. “ The articles of partnership have been submitted to me.

BEFORE DARGAN, OR, AT CHARLESTON, FEBRUARY, 1853. This case will be understood from the circuit decree. Dargan, Ch. Madame Leopoldine Szemere, née Turko-vics, a Hungarian lady, residing in Paris, wife of Barthelemy Szemere, became the owner, by purchase, of fifty shares in the State Bank of South Carolina, in Charleston; which shares were transferred upon the books of the bank, according to the custom of that institution.

BEFORE ING-LIS, CH., AT CHARLESTON, FEBRUARY, I860. This case will be sufficiently understood from the circuit decree, which is as follows: Inglis, Ch. Catherine Dunn, widow of George Dunn, by her last will, which was admitted to probate on the 5th December, 1846, and of which James Dunlap, one of the defendants in this cause, became the qualified executor, devised a lot of land with the improvements thereon, consisting of a dwelling house, &c., situate on Lynch street, in'…

BEFORE INGLIS, OH., AT CHARLESTON, FEBRUARY, I860. This case will be sufficiently understood from the circuit decree. Inglis, Ch. In January, 1856, Edmund W. Petit, one of the defendants in this cause, being under the necessity of raising a sum of money wherewith to meet demands then pressing upon him, applied to J. E. P. Lazarus, a broker, who had been in the habit of doing business for him, to negotiate on his behalf, a loan of $5,000.

<p>Nuisance — Public Landing — Injunction—Evidence.</p> <p>Bill for special injunction to compel the City Council of Charleston to re-establish a public landing, which they had obstructed, or substitute another, equally as good, in its place, dismissed for want of clear and satisfactory evidence that the right existed.</p> <p>Courts of Equity will not, it seems, grant an injunction to restrain a public nuisance, unless the right be established by clear and determinate evidence.</p>

<p>Lunacy — Practice.</p> <p>Inquisitions of lunacy are ustuilly executed at the residence of the supposed lunatic, or in the vicinage; but that is a matter within the discretion of the Judge or Chancellor ordering the commission ; he may order it to be executed in another district.</p> <p>The traverse of an inquisition of lunacy should, as a general rule, be tried in the district where the commission was executed; but that, also, seems to be a matter of discretion with the Judge or Chancellor ordering the traverse.</p>

<p>Wills and Testaments — Slaves—Emancipation.</p> <p>In 1854 E. W. executed his will, by which he directed his executors to take his slaves Amy and her seven children, to Ohio, and there emancipate them ; and the rest of his estate, real and persona], he devised and bequeathed to his executors in trust, for Amy and her children. In 1S55, E. W. left this State for Ohio, taking with him Amy and her children, and intending to emancipate them there himself. He arrived at a wharf in Cincinnati, and, in a few minutes after landing, died betwixt the landing and the hack in which he was about to proceed with said negroes to his lodgings: — Held, That by the act of E. W. in taking Amy and her children to Ohio, with a view to emancipate them, they became ipso facto free, and, therefore, that the trusts of the will in their favor were valid.</p> <p>There is nothing in the policy of the laws of this State against a master’s taking his ylaves to a free State, and there emancipating them himself.</p>

BEFORE DUNICIN, OH., AT MARION, FEBRUARY, I860. Franklin A. Miles filed his bill on the 13th day of February, 1860, stating, among other things, that on the 3d day of February, 1849, he purchased from Joseph Bird, Hugh G. Bird, John Blackman, Jr., and wife Ann, Mary Owens, Wilson Herrin and wife Maria, a negro woman named Hannah and her child Dick — that they represented themselves as the rightful owners of said slaves, under the will of their mother, Elizabeth Bird; that…

BEFORE DUNKIN, CH., AT COLLETON, FEBRUARY, 1859. Paul W. Spell, being seized and possessed of a plantation known as his Ash Hill plantation, and of some slaves and other personal estate, died in March, 1857, leaving a last will and testament, as follows : “ In the name of God, Amen.

BEFORE WARDLA.W, CH., AT ANDERSON, JUNE, 18f>8. The facts of this case are stated in the circuit decree.

<p>Fraud — Statute of Frauds.</p> <p>B, for the purpose of prosecuting certain trespassers in his own name, received from A an absolute conveyance of a tract of land, under a verbal promise to reconvey the land as soon as the purpose for which the deed was taken should be answered, and afterwards fraudulently refused to execute a reconveyance: He/d, that B was not protected by the statute of frauds, and he was ordered to execute a reconveyance, according to the terms of his verbal promise.</p>