Volume 34 — South Carolina Equity Reports

BEFORE CARROLL, OH., AT SUMTER, JUNE, 1866. Held: placed her without the pale of the Constitution and laws of the United States, and denied to her even a standing in their Courts. The principles and rules of international law are altogether in the interest of humanity, and are designed to mitigate the evils incident to a state of war.

BEFORE CARROLL, OH., AT SPARTANBURG, JUNE, 1864. Tbe decree of bis Honor, tbe Circuit Chancellor, is as follows: Carroll, Cb. At tbe bearing three questions were discussed, and tbe whole argument, on both sides, was directed to them exclusively.

BEFORE OARROLL, OH., AT CHARLESTON, 1866, Tbe bill was filed by James C. Meggett, administrator of J. J. Mikell, against Samuel C. Black, administrator of Josiah Mikell.

BEFORE DUNKIN, OH., AT DARLINGTON, FEBRUARY, 1860. The parties are the heirs at law of Jesse Gilbert, Sr., late of Darlington District, who died intestate; and the chief purpose of the proceeding is to have partition of his estate. The bill states that a tract of land, on which the intestate was residing at his death, is part of his estate, and, as such, liable to partition.

BEFORE LESESNE, OH., AT CHAMBERS, CHARLESTON, APRIL, 1866. The decree of his Honor, the Chancellor, is as follows: Lesesne, Ch. The City Council of Charleston, by an ordinance ratified on the sixteenth day of January, 1866, laid a tax of one dollar and seventy-five cents on every hundred dollars of the value of all landed estate in the city.

BEFORE CARROLL, CH., AT SUMTER, JUNE, I860. The bill in this case was exhibited-by W. H. B. Richardson, administrator de bonis non of John R. Spann, Sr., deceased, Henry L. Pinckney, Jr., who had succeeded to the whole beneficial interest in the estate of the said John R. Spann, Sr., and Richard Russel Spann, plaintiffs, against Joseph S. Inglesby, John R. Spann, Jr., Hastin Jennings, S. Porcher G-aillard and Henry Spann, defendants.

BEFORE DUNKIN, CH., AT ANDERSON, JUNE, 1860. Andrew Calhoun Pickens, one of the defendants, was entitled to certain contingent interests in lands and slaves under the will of his father, the contingency being that he should survive his mother, who had a life-estate in the same lands and slaves.

BEFORE JOHNSON, OH., AT CHARLESTON, NOVEMBER, 1866. This was a bill for specific performance. The following is a brief of the bill: Elias Horlbeck, of Charleston, physician, complains, on behalf of himself and all other persons, having similar interests and rights with himself in the. matters in bill stated, who shall come in and seek relief by and contribute to the expenses of the' suit.

BEFORE LESESNE, OH., AT WILLIAMSBURG, MARCH, 1866. The facts of the case sufficiently appear in the Circuit decree, and in the opinion delivered in the Court of Appeals. The marriage settlement which was before the Court for construction,! bore date December 10th, 1850.

BEFORE LESESNE, OH., AT UNION, JUNE, 1866. The decree of his Honor, the Circuit' Chancellor, is as follows: The intestate died on the 11th of April, 1859, and his personal estate was sold by the administrator on the 29th and 80th November in the same year, on a credit of twelve months, by order of the Court of Ordinary.

BEFORE CARROLL, OH., AT SUMTER, JUNE, 1863. The decree of his Honor, the Circuit Chancellor, is as follows: Carroll, Ch. Upon the death of Hastin Jennings, intestate, the Ordinary made due grant of the administration of his estate.

<p>Legacy — Interest—Answer not Evidence — Investment.</p> <p>A legacy to one child of an equal share with the other children of testator’s estate is not a pecuniary' legacy which bears interest from the end of one year after testator’s death: the interest should be carried into the common fund until apportionment is made.</p> <p>On bill for account against an executor and trustee, the answer alleged that funds of the cestui que trust, the plaintiff, had been invested in certain bonds which the defendant held: — Reid, that the answer, being in avoidance, was not self-proving, and that the investment must be shown by evidence aliunde: — Reid, further, that the evidence adduced was insufficient to prove ■ the alleged investment.</p>

BEFORE JOHNSON, OH., AT GREENVILLE, JULY, 1866. The decree of his Honor, the Circuit Chancellor, is as follows : Johnson, Ch. Many years ago, Benajah Dunham, after haying duly executed his last will and testament, departed this life, leaving the same unrevoked and of full force, in which he appointed the defendants the executors of the same; and soon after his death they had the same proved, and qualified as the executors thereof.

BEFORE JOHNSON, CH., AT CHARLESTON, JANUARY, 1866. Tbe decree of his Honor, the Circuit Chancellor, is as follows: Johnson, Ch. On the 25th day of April, 1864, Ephraim M. Baynard, of the District of Charleston, by a deed, for good consideration, conveyed to Thomas H. Willingham and Benjamin L. Willingham his plantation in Beaufort District; thirty-eight negro slaves, by name; eighty-one bales of sea-island cotton; all the money due him by his factors, William M. Lawton &…

BEFORE OARROLL, OH., AT CHAMBERS, COLUMBIA, DECEMBER, 1866. The decree of his Honor, the Chancellor, is as follows: Carroll, Ch. The motion made in December last was to rescind the order of the Commissioner for an attachment against the defendant, William Steen.

<p>Mortgages — Instrument in nature of Mortgage — Recording Acts — Sheriff and Sheriff's Sales — Subseguent Creditors and Purchasers without notice.</p> <p>A having become surety for B on a promissory note, the latter executed and delivered to the former a paper writing, by which, “ for the full and better securing A from all liability” as her surety, she “bargained, sold and delivered” unto A two negroes, “ to have and to hold the same as his own right and title until he shall become relieved from all indebtedness ” as her surety “ as aforesaid.” The negroes remained in B’s possession until they were seized by the Sheriff under executions against her : — Sold, that the paper writing was a mortgage, or “instrument in writing in the nature of a mortgage,” within the terms of the Recording Act of 1843.</p> <p>there a mortgage of a chattel is not recorded, and a creditor, whose debt was contracted before the mortgage was executed, afterwards recovers l judgment and issues execution against the mortgagor, and under such ' execution the chattel is sold by the Sheriff to one who purchases for valuable consideration and without notice of the mortgage, such purchaser is a “ subsequent purchaser” within the meaning of the Act of 1843, and is entitled to its protection.</p> <p>A purchaser at Sheriff’s sale takes his title, not mediately, but immediately, from the defendant in execution, as whose agent, constituted and appointed by law, the Sheriff sells and conveys.</p> <p>The Act of 1843 protects, from an unrecorded mortgage, two distinct classes of purchasers at .Sheriff’s sales : (1) Those who purchase without notice even where the debt was contracted before the mortgage was executed; and (2) Those 'who purchase, for satisfaction of debts contracted with a subsequent creditor without notice, and here it is immaterial whether the purchaser had notice or not.</p> <p>"Where a Sheriff has authority, in fact, to levy and sell, his acts, in levying and selling, will not be invalid because he refers them to a supposed authority, which does not exist; as for instance where the levy and sale are made under a satisfied ft. fa., there being unsatisfied ones, at the time, in the office.</p> <p>It is not clearly settled in this State whether the mortgagor of a chattel has such an estate as is the subject of levy and sale under a junior ft. fa., but the practice has been to make levies and sales in such cases, and the better opinion seems to be that he has such an estate.</p>

<p>Specific Performance — Statute of Frauds.</p> <p>A •written memorándum of an agreement for tire sale of land, which does not describe the land, but refers for its identity to a verbal agreement between the parties, either subsisting or afterwards to be made, does not satisfy the requirement of the Statute of Erauds, and cannot therefore be enforced on bill for specific performance*</p>

<p>“ Dollars ” — Evidence—Payment—Ordinance of 1865.</p> <p>Where a promissory note was executed in this State in 1862, payable in “ dollars,” two years after date : Held, that proof of the state of the currency, and of what it consisted at the time, and that part payments, at different times, were made in Confederate treasury notes, was insufficient to show that by “ dollars ” the parties meant such notes, and thus vary or add to the terms of the contract.</p> <p>A creditor who received part payments in Confederate treasury notes is not entitled, under the Ordinance of 1865, to have the amounts reduced.</p> <p>In a bill to enforce payment of a note made in this State in October, 1862, and playable in “dollars,” the defendant, for the purpose of obtaining a reduction of the amount, may, under the Ordinance of 1865, show “the true value and real character of the consideration.”</p> <p>The mode of applying the relief intended by the Ordinance, in a case where there had been payment before the Ordinance was adopted, stated.</p>

<p>Assets, what are — Power of administrator to sell or pledge— Cannot sell chattels without leave — May sell or pledge choses in action, bona fide, without leave — Purchaser talcing with notice of intended misapplication cannot hold against creditors and distributees — -Surety on administration bond, his rights — Case overruled.</p> <p>An administrator, who held single bills, which he had taken for chattels of his intestate sold by him by leave of the Ordinary, and which, on their face, were payable to him as administrator, wishing to raise money for his private purposes, purchased negroes on credit, intending to sell them for cash, and in that way raise the money he wanted, and, to induce P to become his surety for the purchase-money of the negroes, offered to transfer the single bills to him as -indemnity, representing that they were his own property, that he was in advance to his intestate’s estate, and that when it was wound up the distributees would be in debt to him. P became his surety on the terms proposed, and the single bills were transferred to him. It turned out that, instead of being in advance, the administrator was at the time largely indebted to his intestate’s estate, and a decree was shortly afterwards rendered against him for a large balance due the distributees : Held, that the single bills were, in P’s hands, unadministered assets of the estate of the intestate, and that P could not hold them, nor any money he had collected on them; as against a surety on the administration bond for whose indemnity it was necessary that they should be restored to the estate.</p> <p>No valid alienation of an intestate’s personal chattels, or visible effects, can be made by an administrator without a previous order of the Court of Equity or Ordinary.</p> <p>A valid alienation by way either of sale or pledge of the ehoses in action belonging to the intestate estate may be made by the administrator of his own motion, to any one who takes them bona fide and for full value, not grossly inadequate, and upon such alienation will be discharged of all equities which attach upon them merely as assets.</p> <p>An appropriation by an administrator of the assets of his intestate to his own private use is, prima facie, a breach of trust, and a fraud upon the rights of those interested in the estate, and he who, knowing the purpose of the administrator so to appropriate them, purchases them from him, or advances him money upon their pledge, whereby the fraud is actually consummated, takes them mala fide.</p> <p>The securities taken by an administrator at a sale by him of the intestate’s estate, for the assets sold, payable to himself, are equally, with the ehoses in action which the intestate held at his death, under the protection of this restriction on his power of alienation.</p> <p>The creditors and distributees of the intestate have an equity, as against the administrator, that the assets shall be applied exclusively to the purposes of the administration, which in the Court of Equity will be specifically enforced when necessary for their protection, and this equity follows the assets, or their value, into the hands of any one who takes them from the administrator mala fide, or without valuable consideration.</p> <p>The surety of an administrator who has been compelled to answer to the creditors and distributees, or either, for the default of the administrator resulting from his misapplication of the assets, is entitled to be subrogated to this equity, and have it enforced, for his indemnity, against one who has knowingly contributed to the default, by taking from the administrator the .assets mala fide, or without value.</p> <p>When once it appears that the purchaser, &c., knew that the administrator was applying the assets to his own use, he is prima facie concurring in a breach of his trust and a fraud upon the creditors and distributees, and if there is any thing in tie facts which justifies such a use of the assets, the burden is on such purchaser, <fec., to show it. He takes the risk of the truth of any representations made by the administrator of the existence of such facts, and if those representations prove false, he must bear the consequence's.</p> <p>The ratio clecidendi of the judgment in Thacltum vs. Longworth, 2 Hill Cb. 267, to wit, that 'an executor, or administrator, accounts, not for the moneys collected by him from time to time on the securities taken at a sale on credit of his decedent’s estate, but for the amount of the sale-bill as so much cash received at the time of the sale, being no longer, if it ever was, the rule, the decision itself is not evidence of what the law now is; and the case is overruled.</p>

BEFORE CARROLL, CH„ AT CHAMBERS, COLUMBIA, APRIL, 1867. Held: that it was the duty of a party, seeing a nuisance in progress, to give notice to the party creating the nuisance of his intention to object. Appeals to the preventive jurisdiction of the Court are required to be made promptly and without unnecessary delay.

BEFORE LESESNE, OH., AT CHESTER, JULY, 1866. The decree of his Honor, the Chancellor, is as follows: Lesesne, Ch. Philip H. Pickett died in the month of July, 1862, intestate, leaving a large estate, consisting of lands, negroes, and some other personalty, and leaving as his heirs and distributees, his widow, Mary Jane Pickett, now the wife of the defendant, John H. Wilkins, and five brothers and sisters, to wit, John H. Pickett, William L. Pickett, (the plaintiff,) Susannah…