Volume 41 — North Carolina Reports

Cause transmitted from the Court of Equity of Guilford County, at the Spring Term 1849. James Nelson died in the year 1844, having previously made and published in writing a last will and testament. By his will he devised.to his wife, the plaintiff’s intestate, a portion of his estate, both real and personal.

Cause removed from the Court of Equity of Guilford County, at the Spring Term 1849. The bill is filed for the purpose of having a construction put upon a clause in the will of the late Gavin Hogg, The clause is as follows : “ I direct, that my nephew Lindsay be educated at my expense at the Episcopal School in Raleigh: I mean that all the expenses of the school be paid by my executors. The other expenses, not belonging to his education, to be paid by his father.

Cause removed from the Court of Equity of Granville County, at the Spring Term 1849. The defendant contracted, in writing, to sell to the plaintiff a tract of land, supposed to contain one thousand acres, at the. price of six dollars per acre* It. was agreed between the parties, that Lewis Reavis should survey the land and ascertain the number of acres.

<p>In a bill to redeem a mortgage, the personal representative of the mortgagee is a necessary party.</p>

<p>Examining a party in a suit in Equity, as a witness, is an equitable release to him, ns to the matter to which he is examined.</p> <p>If the party examined be the one primarily liable, and the other defendant only secondarity, the plaintiff gives up his claim against both by the examination of the former.</p>

Cause removed from the Court of Equity of Halifax County, at Fall Term 1848. The facts of the case are sufficiently set forth in the opinion delivered in this Court.

Cause removed from the Court of Equity of Greene County, at the Spring Term-, 1849. , The bill alleges, that one Guilford Murphy, being much indebted, purchased of one Hooker a house and lot in the town of Hookerton, for the sum of 02750, and to evade the payment of his debts, procured the said Hooker to make the deed to Hannah Murphy, the wife of the said Guilford: That afterwards, many executions issued against the said Guilford ; among others an execution in favor of one…

James Coflield died in 1S43. By his will the defendant, Margaret, was appointed his executrix; and he bequeathed, that “Eugene Coffield, (the plaintiff,) should re» ceive a plain practical education at the expense of his estate.” The plaintiff was then a boy about eleven years of age, living with the testator, his uncle, in the County of Chowan.

Cause removed from the Court of Equity of Nash County, at the Spring Term 1849. The plaintiff is the administrator of Mrs. Mary Taylor, who died in 184S, at the advanced age of ninety.

Cause removed from the Court of Equity of Pasquotank County, at the Fall Term 1848. In June 1839, Thadeus Freshwater of Pasquotank» wrote, by Willis W. Wright, a letter to the plaintiffs in the following words: “Messrs. Hardy & Brother. Norfolk Ya.: “My friend, Mr. W. W. Wright, goes to yóur City for goods on a short credit. I am satisfied you will be safe in selling him any amount he may see proper to pur* chase.

This is an appeal from an order dissolving an injunction; and upon the pleadings the case is as follows : The plaintiff and George W. Brown and several other persons became co-sureties for one Waugh to the Bank of Capo Fear, at Salem, by a note for $450, and in April 1842 judgment was taken by the Bank against Waugh, Dobson, Brown and the other sureties; and from that time to the filing of the bill, in September 1848, writs of Fieri facias were regularly sued out and…

Cause removed from the Court of Equity of Granville County, at the Spring Term 1849.

Cause removed from the Court of Equity of Wake County, at the Spring Term, 1849. The parlies are the devisees and legatees of Jesse Powell, deceased. Two of the defendants are also executors. The bill is filed to obtain a construction of the will; and the plaintiffs pray for an account, and to have their shares allotted. Rosa Powell, one of the testator’s children, died under age. and would not now be of age. if living. There were nine children, including Rosa.

Cause removed from the Court of Equity of Caswell County, at Fall Term 1848. On the 30th of January 1827, Stephen Oliver made his will in which the residuary clause is as follows : ‘if there should be any remaining, after paying the moneys that I am security for him for, as for the balance of my estate, my desire is, that it shall be equally divided among the whole of my children during their natural lives.

Cause removed from the Court of Equity of Person County, at the Fall Term 1848. The plaintiff alleges, that he is the illegitimate child of Anderson Harris : and that his father had lent to the defendant, W. J. Hamlett, the sum of $838 94, and, being disposed to make a provision for him, took from the said Hamlett a bond, made payable to the plaintiff for that sum, and delivered it to his mother, Joan Stephens, for his use and benefit.

Cause removed from the Court of Equity of Edgcombe County, at the Spring Term 1849. Joseph R. Lloyd died in 1841, leaving a widow and four infant children ; to whom, by his will, he gave all his estate, real and personal, equally to be divided between them, with a power to his executor to sell the real estate and convert it into money for the purpose of division.

This was an injunction bill filed in May 1848. The' plaintiffs, Malcolm Munroe and David B. Melvin, executor of Robert Melvin, allege in their bill, that one Wiley M. Fort was a constable in the County of Bladen in the year 1839 ; that the said Malcolm and Robert were sureties to his official bond : that the defendant William McIntyre placed sundry papers in the hands of the said Wiley M. Fort, as constable, for collection, among which was a note under seal made by one…

Cause transmitted from the Court of Equity of Martin County, at the Spring Term 1849. William Corprew died in 1841. Wilson Corprew, one of the defendants, in October of that year was appointed his administrator and the plaintiffs were his sureties.

Cause removed from the Court of Equity of Randolph County, at the Spring Term 1849. In 1S33, the defendant purchased from Philip Horney a tract of land containing 400 acres, and took a conveyance in fee. Soon afterwards the defendant contracted to sell one undivided part of 200 acres of the land to one Gray, and executed to him a deed of bargain and sale, including a mill.

On the 4th of January, 1845, the plaintiff made an entry of “640 acres of land in the County of Cumberland, on the heads of Beaver and Big Cross Creeks, joining the Torrey and Murchison lands.” In December 1847, the purchase money was paid. In the year 1848 the survey was made; and a grant issued to the plaintiff in Septena* ber, 1848.

Cause removed from the Court of Equity of Chatham County, at the Fall Term 1848. The bill alleges, that Thomas J. Winter, in 1824, being indebted to sundry persons, executed a bill of sale for several slaves to Archelaus Carloss, the intestate of the defendant, in trust to sell and pay the said debts. In 1825 one Haroldson caused an execution to be levied upon the interest of the said Winter in the slaves.

The plaintiff is the administrator of John B. Turner, who had been the administrator of Thomas Rice, deceased. The defendant Watson is the administrator de bonis non of Thomas Rice, and the other defendants, his heirs. The defendant Watson sued the plaintiff, Powell, as such administrator, and recovered a judgment against him.

Cause removed from the Court of Equity of Anson County, at the Spring Term 1849. The bill was filed in September 1841, and prays to redeem four negroes and their increase. The negroes were conveyed to the defendant early in 1824, and consisted of a woman, aged 17 years, and her three female children— one of the age of six years ; another, four ; and the youngest, about one.

. The bill was filed in November 1848, and states, that the plaintiff adopted the defendant, Tunnell, in tender infancy, as his child ; he being a nephew of the plaintiff’s wife, and they having no children of their own ; and that the same defendant had resided with the-plaintiff in Edgecombe or near him, and on his land from 181S, to Octo* her 1848: that, in 1846, he made a will and therein gave to Tunnell a tract of land and six slaves, and to his son Isaac another tract…

In the year 1839, the plaintiff purchased from Joseph W. Hawkins a tract of land, belonging to him and to his brother Benjamin P. Hawkins, for whom he acted as an agent, at the price of $5000. Of this sum, $2000 were paid at the time, and the plaintiff, to secure the sum remaining due, executed three several bonds, each for $1000, and payable respectively on the 13 th of March 1841, 1842 and 1843, and each bearing date the 27th of September 1889.

<p>Cause transmitted from the Court of Equity, of Cleave-land County, at the Spring Term 1848.</p> <p>The Bill sets out, that one Benjamin Hieles, in the year 1821, was, by the County Court of Rutherford County, appointed guardian to the minor children, five in number, of Richard Blanton, deceased, and executed five several bonds, one for the benefit of each of his wards, as guardian, and each in the penalty of six hundred dollars, with one Achilles Durham and the defendant, as his sureties ; that, on the 16th of April 1823, the said Hicks renewed his said guardian bonds, by order of the Court, and gave, in their place, one bond in the penalty of three thousand five hundred pounds, with the conditions prescribed by law. To this bond Benjamin D. Durham, Achilles Durham and the plaintiff were sureties. The bill then sets forth, that, in 1S42, a bill was filed in the Court of Equity for Rutherford County, against the sureties to the bond of 1823, in favor of the children of Richard Blanton, and those who represented them or claimed their interest in the estate of the said Richard Blanton, and that a final decree was obtained, at the December term 1845, of the Supreme Court, against the defendants in that suit, for the sum of three thousand and eighty one dollars and four cents, with interest on one thousand six hundred and sixty-six dollars and three cents, from the 1st day of January 1816, together with the costs of suit ; which sum, amounting in the whole to three thousand two hundred and thirty-three dollars, was paid and discharged by the plaintiff, under an execution issued against him and the other sureties. The bill further charges, that Benjamin Hicks removed from this State, before the institution of the above named suit, and died intestate and insolvent; that, before the obtaining of the above decree, Achilles Durham, one of the defendants, became hopelessly insolvent and continues so, and that the said Benjamin D. Durham long since removed from this State to parts unknown, and continues, if alive, to reside abroad. The bill then charges, that the defendant is a co-surety with the plaintiff in the faithful discharge, by the said Benjamin Hicks, of his duties as guardian, and that he is the only one, from whom the plaintiff can receive any contribution ; that the plaintiff, after paying off and dis• charging the decree of the Supreme Court, notified the defendant of the fact, and demanded of him his part or portion of it, which he has refused to pay. It then prays, an account, &c.</p> <p>The defendant admits, that he executed the five several bonds, first set forth in the plaintiff’s bill. He alieges, that, having become uneasy at his situation, and with a view to become discharged from further liability for Hicks, he applied to him to give other security, which he accordingly did at April sessions 1823 of Rutherford County Court; that upon the records of the same Court is the following entry — “April sessions 1823. The Court took a new bond of Benjamin Hicks, guardian of the heirs of Richard Blanton deceased, in the sum of £3500 with Edmund Jones, Benjamin D. Durham and Achilles Durham, for sureties — done at the request of Burwel Blanton, former surety.” He farther alleges, that tbisproceeding was had by him, with a view to being discharged from his liability for Hicks’ guardianship, and that, at that time, Hicks was amply able to discharge all his liabilities as such guardian, and that he has since become insolvent; that Benjamin D. Durham has removed to, and still resides, in the State of Mississippi, and is a man of wealth, and well able to pay his share of the said decree, tie further alleges, that, at the time the heirs of Burwel Blanton instituted their said suit against the plaintiff, he was protected by the Statute limiting the time, within which wards shall bring their suits against sureties to guardian bonds ; as all or some of them had arrived at the age of twenty one years more than three years before. The defendant admits the decree set forth in the plaintiff’s bill, and its payment by the plaintiff.</p> <p>Replication was take to the answer.</p> <p>Remedy for surety of guardians — See Rev. Stat. ch. 54, sec. 20.</p> <p>That a surety need not file a petition to remove a guardian under the above section — sec Rev. Slat. ch. 46, sec. 30, and the case of Governor v. Goioan, 3 Ire. L. Rep. 342.</p> <p>The sureties oí a guardian are discharged after the ward has been three years of age. See Rev. Stat. ch. 65, sec. 7. Suit on bond must be brought to prevent the statute. See Johnson v. Taylor, 1st Hawks 271.</p> <p>Where a guardian gives one bond for several wards, each ward has a right of action when he becomes of age. See Rev. Stat. ch. 54, sec. G.</p> <p>Co sureties on’ different bonds are liable in proportion to their respective bonds. See Jones v. Hayes, 3rd Ire. Eq. 502.</p>

John Buchannan,the late father of the plaintiffs, on the 2nd of May 1836, entered 96 acres of land in Haywood County, and took out a warrant, on which he had the land surveyed on the 2d of September 1S37. On the 5th of December 1S38, he paid the purchase money imo the public treasury, as the bill charges ; but, as the surveyor had not returned the warrant and survey, he could not then get a grant.

<p>Cause removed by consent from the Court of Equity of Rutherford County, at the Fall Term 1S47.</p> <p>This Bill was filed in the Court of Equity of Rutherford Counly, by Mary Jane Suttles and Sarah Ann Suttles, infants, by their next friend George Suttles, against Martha Hay and George Hay, alias George Wesson, and staled, that George Hay, the elder, died in the year 1840, leaving the plaintiffs, in right of their mother. Sarah Sutiles, deceased, and George Hay, the younger, his only heirs at law and next of kin : that George Play, senior, was about ninety years of age at the time of his death, and was. at that time, and had been for many years before, of a very weak mind, incapable of transacting business and easy to be imposed upon ; that his son George Play, junior, lived with him, and, some years before his death, brought the defendant, Martha, to his house, and lived with her in adultery, until she bore a son, the defendant George Play, alias George Wesson, and married her ; that the sajd. George Play, junior, and the defendant Martha, obtained and exercised great influence over the said George Iiay, senior, by means of which they, for' several years, endeavored to procure from him a conveyance to the said George, j unior, ofatract of land, which lie then owned, of the value of about $2,500, and that,at last, by threatening to institute vexatious suits against him and by divers other artifices, false suggestions and undue influence, they procured the said George Play, senior, to execute a deed, bearing date the 8th of August 1S38, to his son, the said George, junior, for the tract of land aforesaid, upon the pretended consideration, that the said George, junior, was to support his father during his life. The bill charges, that the said deed was procured by fraud and undue influence practised upon an old man of very imbecile mind and was therefore void. The bill then states, that the said George Hay, junior, after the death of his father, took possession of the said tract of land and claimed it as his own, and, on the 23rd day of November, 1840, duly made and published his last will in writing, and therein devised the said tract of land to his wife, the defendant Martha, for life, with the remainder in fee to her Son, the defendant George Play, alias Wesson,, and soon thereafter died ; that the said Martha thereupon took possession of the said land and claimed it under the said devise. The prayer of the bill is, that the deed for the said tract of land should be delivered up and cancelled, and that the plaintiffs should be let into possession of the said land, as tenants in common with the defendants. The answer of Martha Hay admits all the material allegations of the bill, excepting those relating to the fraud and undue influence exercised over George Hay, senior, by herself and her husband, and to the manner in which the deed to her husband was executed by his father. With regard to these it denies expressly, that the defendant Martha, or her husband, George Hay, junior, acquired any influence over the said George Hay, senior, except what resulted naturally from their kind and dutiful attentions to him, and, denies also, that the said deed was procured by the means alleged in the bill. On the contrary, it avers, that the said deed was executed by the said George senior, freely and fair]}', to carry out a long settled purpose of conveying the said land to his son George, who was his.favorite child, as was manifested by his having willed to his said son the same tract of land in 1834 ; that the said George, senior, was at the time in his proper mind, and free from any undue influence whatever, and-that, In consideration of said conveyance, the said George junior, executed to his father an instrument, by which he bound himself to support his father during his life, and that he had faithfully performed the obligation. The answer of George Hay, alias George Wesson, who is an infant, is merely formal. Replications were put in to the. answers, proofs were taken on both sides, and the cause was set up for hearing, and transmitted by consent to this. Court-.'</p>

<p>A testatrix, by her last will, devised as follows : *Item 2nd. I will and bequeath to my nephew H, K. my negroes M. and N., and also to him my Glass plantation, the proceeds of which are to go to the support of M. and N. during their Uves, aud, at their dealh, it is to became said H. K’s. for his trouble in taking care of said negroes” Held, that the devise was of a present interest in ÍI.K. in the Glas3 plantation, and that the provision, that the proceeds of the land should be applied to the maintenance of these old negroes, was only a discharge of the duty, which the law would have imposed on her estate.</p> <p>She, also, in the 6th clause, devised as follows: “I will that my negroes, not otherwise mentioned in this will9 be valued by three disinterested men, at one fifth less than would be considered the rating price of such negroes ; and the negroes have the liberty of choosing their masters, and, if the persons chosen should not be willing to take them at the valuation, that the negroes have the liberty of choosing, until they get one, and Lucy’s family is not to be separated, nor the uegroes to be taken out of the country. The fund of this valuation Is to remain in the hands of my executors, and by them kept on interest, to be annually divided between the negroes so valued, for their own use. As each one of these negroes, so valued, arrives at the age of forty-five, they are to receive from my executors what would be their equal share of the principal; if any of the negroes die, their ■ share is to be given to those living,” #*e. Held, that the direction in the first part of this clause is void for uncertainty.</p> <p>She also, in the 8th clause, devised as follows: ‘T will that all the balance of my property, not herein disposed of, be sold by my executors, and, after, my debts are paid, the proceeds of the sale be divided into three divisions ; one third logo to the use of the associated reformed church at Sardis, in Mecklenburg County, North Carolina; one third to be equally divided between my brothers’ and sisters’ children ; the remaining third of the proceeds of the sale to be held by my negroes, A. J. and L. to be subject to the same regulations, as I have laid down in a former clause, relative to the proceeds of the valuation of the said negroes, and to be used in the same way.” Held, 1st. That the legacy to the Associated Reformed Church at Sardis, was good, that congregation having appointed trustees according to law. Held, 2ndly, that the property, attempted to be given to the slaves under this and the 6th clause, pass under the residuary clause, and that the slaves themselves mentioned in this and the 6th clause go to the next of kin.</p> <p>Held, 3rdly. That the legitimate children ol the brothers and sisters of the testatrix take under this clause, per capita, but one of them, being illegitimate, takes nothing — children being in law considered, prima facie, to mean legitimate childi en. unless it plainly appear from the will that illegitimate children were intended to be included in a bequest.</p>

<p>Where slaves are conveyed by a deed, absolute on its face, but with a secret confidence, that the donees should hold them in a qualified state of bondage, that is, that the donees were to consult the benefit of the negroes and not their own emolument, this trust is illegal and there Is a resulting trust to the donor.</p>

<p>A bill, founded upon an allegation of fraud, must not merely insinuate the fraud, but must charge it in positive and direct terms ; otherwise the plaintiff will not be permitted to prove it, and, of course, can have no relief.</p>

Cause removed from the Court of Equity of Iredell County, at the Spring Term 1848. In the year 1881. Adam Moore made his will, in which he gave to his wife, Hannah Moore, the whole of his property, after the payment of his debts, during hpr natural life, except such part as she might choose not to retain, and he directed such part to he sold by his executors, and the proceeds to be put out at interest, until her death, and then to be divided.

Cause removed from the Court of Equity of Cabarrus County, at the Spring Term 1847.

Canse removed from the Court of Equity of Gaston County, at the Spring Term 1848.

The bill charges, that, in the year 1845, the plaintiff purchased from the defendant a tract of laud in Henderson County, at the price of $395, and, to. secure the purchase money, executed his bond to the defendant with William Brittain, his surety, payable on the first day of January ]S47, and, at the same time, the defendant executed to him a bond to make a conveyance of the land1, when the purchase money was paid.

Cause removed from the Court of Equity of Wihk.es County, at the Spring Term 1848. This bill was filed in the Court of Equity for Wilkes County, by Joseph Vannoy against William PI.

Cause removed from the Court of Equity of Catawba County, at the Spring Term 1848.

Cause transmitted from the Court of Equity of Cleave-land County, at the Spring Term 1849. In October 1845, the defendant, Squire Simmons, then of Rutherford County, sold and conveyed to the defendant, Bedford, a tract of land situate in Rutherford, at the price of $950; of which he paid down the sum of $400, partly in cash and partly in the notes of other persons. For the residue he gave his bonds, by the direction of' Simmons, to his sons William and Joseph Simmons.

849, dissolving an injunction theretofore granted, his Honor Judge Bailey presiding. Isaac Ledbetter died intestate in 1836, siezed in fee of three tracts of land in Henderson County, one of which contained 883 acres, another 202 acres and the third 175 acres.

Cause removed from the Court of Equity of Rutherford County, at the Spring Term 1848. The case made by the bill and answers are as follows. In the year 1S3G, the defendants, James Miller, and his wife Frances, James Foster, and his wife Martha, and Susan Booker, were tenants in common of a tract of land, lying in the County of Rutherford, and, in the same year, procured a decree oí the Court of Equity directing its sale.

<p>Cause removed from the Court of Equity of Buncombe Count}’, at the Spring Term 1840.</p> <p>The bill charges, that the intestate, James Craige, and the defendants, were brothers, and lived together for thirty years, neither of them having ever married,- and that they were partners and held all their property in common, both real and personal, and traded upon it as partners, to ihc year 1846, when James died, and the plaintiff wasduly appointedhisadminislrator. Among other property, so held in partnership, the bill alleges was a sum of money amounting to six hundred dollars, a negro woman named Sue, purchased of Samuel W, Davidson at the price of three hundred dollars, a boy-named Joe purchased of Á. B. Chunn for the sum of four hundred and seventy five dollars, and-which were paid out of the joint funds, and that there were five bead of horses and much other property. The bill prays an account &c.</p> <p>The answer admits that the defendant and his brother James lived together and cultivated together, but avers that each held his own property in severalty, and denies expressly that there was any partnership between them either in working the land or in buying and selling any property. The answer denies that the negroes Sue. and Joe were purchased for the defendant and the deceased, or paid for out of the joint funds, but alleges that they were purchased by the defendant for his own use and paid for out of his own separate funds; that Sue was purchased on a credit and he gave his individual note for the purchase money, and that the intestate attested both the bill of sale and the note. The answer further admits, that the defendant and his brother James, the intestate, held certain tracts of land and a still as tenants in common, and that there has been no division, and, at the death of James, there w'ere on the plantation five horses and twenty two head of cattle, and avers that they were not held jointly nor as copartners, but that the stud and gray horse mentioned in the bill belonged to the intestate, and nine of the cattle and the rest of the horses and stock to the defendant.</p>

<p>Cause removed from the Court of Equity of Buncombe County, at the Spring Term 1849.</p> <p>Isabella Hamby, one of the defendants, being entitled to a dower in a tract of fifty acres of land, in consideration of one hundred and twelve dollars and fifty cents, executed a bond to William Melton, by which she bound herself to convey her interest and to procure her two infant children, who owned the land subject to her dower, to convey their estate to the said Melton, so as to vest in him the fee simple, as soon as they arrived at full age, provided the purchase money was paid.</p> <p>In 1840, William Melton, having paid a part of the purchase money, assigned his interest in the contract to the plaintiff, who undertook to pay the balance. In 1843, Isabella, having obtained judgment against Williaffi Melton for the balance of the purchase money, the execution was levied upon said Melton’s interest in the land. The land was sold by the sheriff and the defendant, Davidson, became the purchaser. Davidson afterwards procured the said Isabella and Jane Hamby, one of the children, who had arrived at .full age, to execute to him a deed for the land. The other child, Nancy, had moved from the State many years ago, and was supposed to be dead, intestate and without children.</p> <p>The bill alleges that Davidson, at the time of the sheriff’s sale, and at the time he took the conveyance from the said Isabella and Jane, had notice of the plaintiff’s right.</p> <p>The prayer is for a conveyance and for an account of the profits since Davidson had been in possession. The defendant, William Melton, admits the allegations of the bill. The defendants, Isabella and Jane Hamby, also admit the allegations of the bill, and Jane Hamby avers that she is willing to ratify the contract made by her mother, and believing that Davidson, by his purchase at the sheriff’s sale, had acquired the title, she joined with her mother in the deed to Davidson, upon his executing a bond to save them harmless.</p> <p>The defendant, Davidson, does not admit, that he had notice of the plaintiff’s right, at the time of the sheriff’s sale or at the time he took the deed from Isabella and Jane Hamby ; but he avers, that, if William Melton had assigned his interest in the contract to the plaintiff, who is his son, it was done to defraud his creditors. He also avers, that, to get possession, he was under the necessity of bringing an action of ejectment against William Ham-by, and Insists, that, if the plaintiff is allowed to redeem, by paying the balance of the purchase money, he should be required to' pay the costs of the action of ejectment, as William Hamby is insolvent.</p>

Cause removed from the Court of Equity of Buncombe County, at the Spring Term 1849. By the will of William Baxter, Mrs. Costin and W. G. M. Baxter, his only surviving children, were entitled to his estate. W. G. M. Baxter died intestate. The plaintiff William Costin is his administrator, and Mrs. Costin is entitled to his estate. The bill is filed against the defendant, Who is the executor of William Baxter, for an account.

The bill charged, that the plaintiff, Lackay, had a suit in assumpsit pending in the County Court of McDowell County against one G. W. Bradley, that the said suit abated by the death of the said Bradley, and that execution was issued by the Clerk of the said Court against the plaintiff, Lackay, for the whole amount of the costs of the said suit, being about sixty seven dollars, of which the plaintiff, Lackay. was, in law, only liable for about twelve or thirteen dollars,…

Cause removed from the Court of Equity of Rutherford County, at the Spring Term 1849. The defendants, John Edwards and George Edwards, gave a bond to one James McCarthy for $100, in the yearlS43, atad, in 1845, McCarthy died intestate infáouth Carolina, where he then resided.

In November 1843, the defendant, Anthony Bencini, conveyed to the defendants, Adams and McLean, several parcels of real estate, slaves and other personal effects, upon trust to' sell and pay his debts. The deed recites, that Bencini was indebted to 1).

Cause Removed from-the. Court of Equity of Cleaveland County, at the Fall Term IS49-.

<p>Appeal from an interlocutory order, made at the Fall Term 1S47, of Mecklenburg Court of Equity, his Honor Judge Pearson presiding.</p> <p>This bill was filed by Joseph H. Wilson, James P. Henderson, John Irwin and William W. Elms, agai.nst Henry Heathern, James Magnus, George D. Langstaff, John Penman, John B. S. Harris, Henry Blundell, Henry W. Olcott, Daniel Alexander, William H. Harris and John W. Morrison. The bill set forth that in the year 1835, an association, called the Anglo-American Gold Mining Association, was formed by certain persons, most of whom resided out of this State, together with the defendant, Penman, a citizen of this State, the object of which was to purchase and work gold mines in North Carolina ; that of this association the defendants Heathern, Blundell and Langstaff were members, besides other persons to the plaintiffs unknown : that the said Penman, in the year 1835, acting for the said association, purchased, among other property, a tract of land lying in Union County, known as the Washington Mine, and a smaller tract adjacent to it; that the said Penman, by deed of bargain and sale, dated in March 1836, conveyed the said lands to the defendants, John B. S. Harris, Olcott and Alexander, in trust for the said association, empowering and directing the said trustees to convey to such person or persons, as any three of the directors of the said association should designate. The bill further states, that the association commenced its operations in the year 1835 or 1836, worked their mines extensively and contracted large debts, on the faith of the property, of which they were in the possession; that in the year 1837 they were largely indebted, and, among others to the plaintiffs, Irwin and Elms, in the amount of $14,000 or $15,000; that, for the purpose of securing the payment of this indebtedness, a deed of bargain and sale for the land above mentioned was regularly executed by the defendants, Mag-nus, Heathern and Blundell, three of the directors of the said association, to the plaintiffs, Wilson and Henderson, as trustees, for the purpose of selling the same and discharging the debts enumerated in the deed, and authorizing and requiring the defendants, J. B. S. Harris, Olcott and Alexander, trustees as aforesaid, to convey the said estate to the plaintiffs, Wilson and Henderson, trus tees, as aforesaid, according to the provisions of the deed made by Penman to the first trustees ; that the said plaintiffs, Wilson and Henderson, took possession of the said Washington Mine and sold the same to the plaintiffs, Irwin and Elms, and executed to them a deed therefor. The bill further sets forth, that the defendants, Alexander, Olcott and J. B. S. Harris, trustees in the deed from Penman, instead of discharging their trust by making title to the said land to the plaintiffs, Wilson and Henderson, have refused to do so, although they had notice of the claim of the said plaintiffs and were often requested to make the conveyance ; but that, on the contrary,the defendant, J. B. S. Harris, designing to defeat the just claims of the said plaintiffs, to the land aforesaid, co operated with the defendants, Morrison and Harris, authorising them to make use of his name in an action of ejectment to recover the possession of the said land. The bill fuither state*, that the plaintiffs, Wilson and Alexander, delivered the possession of the said land to the plaintiffs, Irwin and Elms, after their purchase, and it has been held by them ever since. The bill further states, that, in pursuance of the combination, above mentioned, the said J. B. S. Harris, with the defendants, Morrison and W. A. Harris, instituted in the year 1840 in the Superior Court of Mecklenburg County, an action of ejectment against the defendaut, John Irwin, in which they claimed title under two counts, one on the demise of W- A. Harris and Morrison, and one in the name of Olcott, J. B. S. Harris and Daniel Alexander, the trustees above named ; that at the Fall Term 1840 of Mecklenburg Superior Court, the said W. A. Harris and Morrison obtained a verdict and judgment, andón appeal the judgment -was affirmed in the Supreme Court, and that the said W. A. Harris and Morrison now threaten to sue out a writ of possession on the said judgment; that the claim of title, set up by W. A. Harris and Morrison, is through Penman, and subsequent to his conveyance to Olcott, Alexander and B. S. Harris, and also to the conveyance to the plaintiffs, Irwin and Elms, by Wilson and Henderson. And the bill then prays for an injunction to restrain the issuing of a writ of possession on the said judgment in ejectment, for a conveyance of the legal title, and for general relief.</p> <p>The injunction prayed for was granted. At the return term, some of the defendants answered.</p> <p>W. A. Harris and J. M- Morrison answered, that they admit the action of ejectment instituted by them for the recovery of the land, and that they declared on two counts, one on the demise of themselves and one on the demise oí J. B. S. Harris, Olcott and Alexander; they say that the plaintiff, Irwin, caused himself to be made defendant in the place of the tenant in possession; that on the trial no evidence was offered of any title in the said J- B. S. Harris, Olcott and Alexander, and the recovery was effected on their own demise. They state that, at. February Term 183S, of Mecklenburg Superior Court of Law, they recovered a judgment against the said Penman for about five hundred dollars — that on this judgment they issued a fi. fa. which was levied on the land above mentioned, and at the sale by the sheriff these defendants became the purchasers and received a deed from the sheriff. They admit the suing out of the writ of possession on their judgment in ejectment. These defendants then say, that, inasmuch as they are purchasers at a sheriff’s sale, they have a right to bo placed in possession under their said recovery, whatever may be the claim of title on the part of the complainants. These defendants further state, that no copy of the exhibits mentioned in the plaintiffs’ bill was annexed to the copy of the bill served on them, and they do not admit the allegations of the bill as to them to be true.</p> <p>The defendant, J. B. S. Harris, filed a separate answer. He admits that his name was used, by his express consent, in the action of ejectment before mentioned, as one of the lessors of the plaintiff. He states, that the deed of trust, executed by the said Penman to this defendant, Olcott and Alexander, was made at the instance of the defendant, Olcott and others, at a time that the association, before referred to, was largely indebted to this defendant, and, he believes, also to Alexander and Olcott, and this defendant believes, that one great object of the said.trust was to prevent Penman from squandering the said pro*pe'rty, and thereby to enable said trustees to secure the debts due by the said association. This defendant further avers that the said association is still indebted to him, as executor of his father, and in his own right, to the amount of forty or fifty thousand dollars, and is also indebted to Alexander and Olcott in an amount, not known to this defendant; and that it was for the purpose of securing the large debt due to him from the association, that he permitted his name to be used in the action of ejectment above referred to ; and he insists, that, if a recovery had been effected on the demise of himself and his co-trustees, they would have been entitled, both inlaw and equity, to have taken possession of the said land, and to have held the same, as a fund for the satisfaction bf their debts ; and he insists, that if the legal title to the said land is still in him and his co-trustees, then they will, in equity, be entitled to hold said land, as a fund applicable to the payment of their debts. The defendant avers that no copy of the exhibits referred to in the plaintiffs’ bill was attached to the copy of the bill served on him, and does not admit such exhibís. He insists that, even if a request had been made to him to part with his legal title, which he denies, he had a right to require the payment of his debt, before he parted with such title.</p> <p>Judgment pro confesso, by due course of the Court, was taken against the other defendants.</p> <p>Upon the coming in of the answers, a motion was made to dissolve the injunction, which was refused, and, by leave bf the Court, the defendants appealed.</p>

The bill alleged, that, in March, 1844, the plaintiff executed to the defendant and Jacob Phillips, a mortgage for some slaves, to secure the payment of a debt of nineteen hundred dollars, which he owed them ; that the plaintiff at one time made a payment of four hundred dollars to the said Jacob, and at another time the said Jacob re ceived two negroes at the price of seven hundred and fifty dollars, and at another time there was a small payment of five dollars ; that he…

Cause, removed from the Court of Equity of Rowan County, át the Spring Term 1848. It appears upon the bill, that the defendant Nathan B. Taylor was indebted in two several bonds or notes to one John Murphey, amounting in the whole to @7000, and that the plaintiff and one Nathan Chaffin, who is dead, were his sureties.

This case came before the Court upon exceptions to the report of the clerk, to whom it had been referred at the last term. It is necessary to state only the ninth ex~ ception, as the others related entirely to matters of fact. The ninth exception was, that the Clerk had allowed two and an half per cent as commissions to the trustee, when there was no provision in the deed of trust, that the trustee should receive any compensation for his services.

<p>A testator, after making other devises and bequests, directed as follows . “It is my will that my land and negroes and all the icsidue of my property, both real and, personal, not heretofore expressly willed, be put to sale, at such credit as my executors may think proper ; out of the proceeds of which sale, it is my will that all my just debls be paid, and the balance or residue of said money, arising from such sale, after paying my just debts as aforesaid, I allow and it is my will shall be equally divided among’’ A. B. C.” 4"c. Held, that bonds and notes due to the testator, were not included in this clause, as not being the ordinary subjects of sale, and there being no general residuary clause, the amount of them went to the next of kin, as undisposed of.</p>

The case was this. The defendant, Canoy, brought an action of ejectment against the plaintiff in the Superior Court ol law of Cabarrus County, for a tract of land lying in that county, and recovered judgment therein. The plaintiff then filed this bill in the Court of Equity for • Cabarrus, in which he states himself to be of that county, • and one of the defendants tobe of Rowan, and the other defendant, Canoy, to be of Iredell.

Cause removed from the Court of Equity of Yancey County, at the Spring Term 1849. On the 15th of September 1S42, Thomas Shepherd conveyed to Edward Wilson three slaves “in trust for Elizabeth Wilson, the mother of the said Edward” and also the sister of the said Thomas, and the wife of George Wilson, The bill was filed in February 1843, by Elizabeth Wil-, son, against Edward Wilson and George A. Greenwood and Joseph Wilson.

Cause removed from the Court of Equity of Lincoln County, at the Spring Term 1849. The bill in this case was filed in September 1847, for the purpose of setting aside a release, obtained by the defendant from the plaintiff, and for an account against the defendant, as the plaintiff’s late guardian, and payment of the sum, which may be found due.

<p>An administrator has a right to sell the notes of his intestate, and the mere fact of selling is no breach of trust.</p> <p>But if a purchaser takes notes from an administrator, belonging to his intestate’s estate, in satisfaction of the administrator’s individual debt, or, if, otherwise, he has actual notice of a dishonest intention and purpose on the part of the administrator to missapply the funds, the purchaser is liable to . the persons entitled in equity to the notes.</p>

Cause removed from the Court of Equity of Rowan County, at the Fall Term 1848.

Cause removed from the Court of Equity of Henderson County, at the Spring Term 1849.

Cause transmitted from the Court of Equity of Ashe County, at the Spring Term 1849. On the.lSth of March 1834, the plaintiff made an entry of 100 acres of land, beginning at a forked black oak, a corner of the land of Adam Krous, dec’d, the South-west corner, on the long tract of Cane Camp Creek, &c. In September 1841, the plaintiff obtained a duplicate warrant of survey, upon which the land was surveyed and a grant issued in November 1841.

<p>Appeal from the Court of Equity of Lincoln County.</p> <p>In the year 1827, the plaintiff, Houston, sold to the defendant a negro girl, 17 years of age, for the price of three hundred and fifty dollars, for and during the life of the defendant, who, at the same time, executed a penal bond in the sum of three hundred and fifty dollars, with the condition, that the negro girl and her issue should be returned to the said Houston at her death, and if the defendant or his assignees, should remove the negroes out of the county, the said Houston should take immediate possession, as though the defendant was dead.</p> <p>In the year 1844, the defendant executed a bill of sale to one Grier for the said girl and her five children, for the life of the defendant, under which Grier took possession, and carried the slaves to South Caroline, whereupon the plaintiffs, Samuel and James Davis, agents of the said Houston, seized the negroes, alleging that the life estate was forfeited, brought them back to this State, and aftérwards sent them to the plaintiff, Houston, in the State of Mississippi. The defendant thereupon brought an action of trover against the said Samuel and James Davis, and, at the fall term 1847, recovered judgment at law for the sum of eleven hundred and twenty dollars, tpe value of her life estafe. On the trial of the action at law, the defendants in that action resisted a recovery, on the ground that the. defendant (then plaintiff) had forfeited her life estate, by having sent the negroes out of the State, and, to prove that fact, called the said Grier as a witness. Upon his examination Grier denied, that he had any knowledge, that the negroes had been sent out of the State by the defendant, and stated that he had no communication with her, except by the intervention of one Cunningham, her nephew, who was the subscribing witness to the bill of sale, purporting to be made by the defendant to the said Grier, and who delivered to him the bill of sale and the negroes; but Grier knew nothing of his own knowledge, as to the act or assent of the defendant. Grier stated that he and Cunningham carried the negroes to South Carolina, where they were seized and taken into possession by the plaintiffs Samuel & James Davis. He could not prove the mark of the defendant to the bill of sale to himself, exhibited in Court. The Judge, who tried the case at law, instructed the jury, that there was no evidence, that the negroes had been sent out of the State by the present defendants — and the jury found a rerdictin favor oí the present defendants — damages Si 150. A new triol was moved for by the defendants (who are now plaintiffs.) on the ground of surprise, as to the testimony of Grier, and also as to mis-direction as to the law. The Judge allowed the defendants, (now plaintiffs,) upon the motion for a new trial, to have the said Cunningham subpoenaed, and he was examined. He stated, that he was a witness to the bill of sale by the defendant to Grier, and delivered the bill of sale and the negroes to him, but that Grier was not present, when the bill of sale was executed The motion for a new trial, on the ground of surprise, was refused. The bill charges, that, shortly after the trial, the plaintiffs in this suit discovered, that the defendant had executed the bill of sale for said negroes to the said Grier, for the purpose of his taking them out of the State, and that those facts were suppressed and kept secret, by a combination between the defendant and Cunningham, (her nephew,) and the said Grier. The prayer is, that the defendant be perpetually injoined from collecting the sum recovered by her at law.</p> <p>The defendant admits, that she executed the bill of sale to Grier, but avers that she did so, because she was apprehensive, that the plaintiffs would seek some opportunity to get possession of the negroes and run them out of the State, as the plaintiff Houston had done on a former occasion. She denies any assent, expectation or belief' on her part, when she made the bill of sale to Grier for her life estate, that he would take the negroes out of the State. She denies that there was any combination between her and Grier to suppress and keep secret the fact, that she had made the bill of sale. On the contra» ry, she avers that the plaintiffs knew of the bill of sale, that it was exhibited on the trial at law, and that the said Grier did not have any personal knowledge of its execution, and, as the subscribing witness Cunningham had not been summoned by the plaintiffs, (altho' they knew he was the subscribing witness,) the presiding Judge before ' deciding the question for a new trial, allowed him to have the said Cunningham subpoenaed. He was fully examined and, although he proved the execution of the bill of sale, he also proved that Grier had a personal knowledge of the' fact, that it was made without consideration, that the defendant made it under an apprehension that the plaintiffs would deprive her of the negroes, and that they would be more secure, if held by Grier, and that it was surrendered to her before the negroes were taken from the State by the plaintiffs.</p>

Cause removed from the Court of Equity of Catawba County, at the Spring Term 184.8. The plaintiff and Philip H. Bennick were partners in a small retail store, under the. management of Bennick. In 1842, the concern became very much indebted, and, in February 1843, there were executions in the hands of the sheriff and constables to the amount of $2519 00. Of that amount Bennick paid $775, with the money of the firm ; and he was unable then to raise any more.

The bill states, that a certain tract of land, lying in the County of Rutherford and particularly described in the bill, belonged in fee to the defendants as tenants in common — that the said land was offered at public sale to the highest bidder, by the defendants, on the 20th day of May ES45, when the plaintiffs were the last and highest bidders and became the purchasers, at the price of two thousand! and eight dollars, for which the plaintiffs gave their bonds, according…

<p>Where a deed is absolute oil its face, it canuot be converted into a mortgage ©r security for a debt, merely by evidence of the declarations of the parties or the unaided memory of witnesses. There must be proof of facts and [ circumstances, dch&rs the deed, incompatible with the idea of an absolute purchase and leaving po doubt on the mind. There must be an allega* tion, that the clause of redemption was omitted, by reason of ignorance, mistake, fraud or undue advantage.</p>

<p>In this ease, a motion was made to remand the cause, because it had been set for hearing and ordered to be transferred to the Supreme Conrt, at a special term of the Court below ; Held, that the order of the Court below was right, and-the motion to remand, on the ground that the Court below had no right to make such order, was refused.</p>

Cause transferred from the Court of Equity of Johnston County, at the Spring Term 1849. Henry W. Stevens was entitled to real and personal estates, and died intestate on the 14th of February 1847, leaving no issue, but several heirs at law and next of kin ; of whom a sister, Amanda, then the wife of John B. Allen, was one.

Cause removed from the Court of Equity of Bertie County at the Fall Term 1849. Daniel Wynns died in 1813, leaving a will, by which he bequeathed to his daughter, Peggy, a negro boy. She afterwards married one Northcot, who was the father of the plaintiff and died intestate soon after his birth. One William Wynns administered upon his estate, and delivered the negro boy to the mother of the plaintiff.

<p>A bequest to legatees of all tlie debts they owed the testator does not include a bond due and payable to the testator as guardian to au infant, notwithstanding, upon a final settlement of the guardian accounts, the infant wa3 found indebted to the guardian in a larger amount than the bond in question;</p>

Cause removed from the Court of Equity of Mecklenburg County, at the Spring Term 1841L ' In 1S34, Henry Crump, being entitled, in right of his wife, to a distributive share of her father’s estate, con* •traded with one Medlin for the land described in the bill, to be paid for by an assignment of the distributive share, and Medlin, by his direction, executed a deed in fee simple to the wife, under which he and his wife lived upon the land several years.

<p>Where legatees under a wiii bring a suit in Equity against the executor for their respective legacies, and, upon an account taken, in which the execu. tor is charged with all he had received or ought to have received, a decree is rendered against the executor in favor of each legatee for the share due to him, a legatee who had given his bond to the executor for purchases, mode by him at the sale of the testator’s effects, can have no relief against a suit upon that bond, subsequently brought. He should have had it deducted from the amount ascertained to be due to him in the original decree.</p>

<p>Where a deed has been executed and delivered, and, the donor without the consent of the donee, obtains possession of it before it ip registered and suppresses it, the donee is entitled to call upon the donor for a conveyance of the legal estate.</p> <p>When a case is made out between defendants by evidence, arising from the pleadings and proofs between the plaintiff and the defendants, one defendant may insist, that he shall not be obliged to institute another suit against his co-defendant, for a matter that may then be adjusted between them.</p> <p>The widow of a man, to whom a deed for land had been delivered but from whom it had heen abstracted before its registration, has a right to her dower in such land, the husband having an incomplete legal title, but to recover her dower she must apply to a Court of Equity.</p> <p>A freeholder cannot now be disseised of his seisin, but by a dispossession aided by the act of law, which takes hway his right of entry. Therefore a disseizin, in this State, can only be a dispossossion, and a continued adverse possession for seven years, under color of title.</p>

Cause removed from the Court of Equity of Wayne County, at the Fall Term 184P. Bill and demurrer.

<p>On a motion to dissolve an injunction, there may be an order for its dissolution or for its continuance to the hearing ; but the bill cannot be dismissed before the hearing.</p> <p>When one of the next of kin of an intestate is entitled to a distributive share of an estate and is indebted to the administrator as administrator, the latter may require the former to take such debt, in payment pro tanto of the distributive share. And if the distributee assigns such share, the assignee is subject to the same equities as the distributee.</p> <p>If the debt so due to the administrator is a bond secured by a surety, the surety has a right in Equity to compel the administrator to apply such distributive share towards the satisfaction of the said bond.</p>

Canse removed from the Court of Equity of Richmond County at the Fall Term 1849. James Roper died in the year 1833, leaving a will’,, which was admitted to probate at July term 1833 of the County Court of Richmond. The testator left no children surviving him, but left a widow and two grand-ehildren, James C. Roper, one of tbe defendants, and' Sarah, the wife of the other defendant.

Cause removed from the Court of Equity of Orange County, at the Fall Term 1849. The bill was filed against two; one of whom put in an answer, to which replication was taken, and the other put in a demurrer, which was set down for argument; and the case was then sent to this Court.

Cause remoyed from the Court of Equity of Johnston County, at the Fall Term 1849. Elizabeth Bailey was the widow of Austin Bailey, by whom she had four children. He died intestate, and at the sale of his effects, she purchased two slaves and other things to the value of $500 or upwards, for which she gave a bond to the administrator.

<p>A bequest of “corn, foddeiyrfieat and other provisions, on hand,” includes wine and brandy, which the testator had laid in and provided for his own use.</p> <p>A testator gave two slaves to his wife for life, and after her death to B. R. One of the slaves died and the other became paralitic, so as to be a source of constant expense, and the legatee in remainder refused to accept the legacy. Held, that the expense of this slave must be defrayed out of the . residue of the estate not disposed of.</p> <p>A testator devised as follows: He gives to his executors certain lands, a number of slaves, bank stock, cf-C' “in trust to receive the rents, issues, dividends and profits, until J. M. arrives at the age of thirty-five years, and to apply the same to the comfortable support and maintenance of the said J. M. and family, and upon his arrival at the age of thirty-five years, if his habits are good and regular and he is attentive to business, then in further trust to convey the same to him absolutely. But in case his habits are bad, and he should be inattentive to business, then in trust to settle snch property, so as to give the use and profits of the same to the said J. M. for life, with remainder over to such child or children as ha may leave living at his death. But if he leaves no child, then remainder over to the children of Margaret Casey,” &e. J. M. died before he arrived at the age of thirty-five. Held, that, under this devise, J. M. took only a life estate, subject to be enlarged to an absolute estate on the contingency mentioned, and, that, on his death before the time for the happening of the contingency, the remainder took effect and the absolute estate vested in his children.</p>

<p>A legates cannot pay off the debts of the testator and then file a bill against the executor for re-payment-</p>

Cause removed from the Court of Equity of Orange County, at the Fall Term 1846. In the year 1811, the plaintiff purchased of the defendant a tract of land at a stipulated price, part of which was paid at the time and the balance secured by two bonds payable in one and two years; No title was made, but a bond binding the defendant to make one.

Cause removed from the Court of Equity of Franklin County, at June Term 1849. Harriet Green, a minor, now the plaintiff, Mrs, Freeman, being about to marry William D. Freeman, a marriage settlement was executed by the parties, whereby the property of Harriet Green was conveyed to the defendants, upon the trusts therein expressed. The property conveyed consisted of lands, negroes, money and securities for money.

Cause ■ removed from the Cour,t of Equity of Orange County at the Fall Term 1846, Sarah Freeman, by marriage articles with her intended husband, Richard Freeman, became entitled to her property to her separate use, with the power of disposing-of it by a will during her coverture.

One J. L. Harrison died seized of three acres of land, upon which, was a grist and saw mill, cotton gin, store house and out-buildings.

Cause removed from the Court of Equity of Edgecombe County at the Fall Term 1849, The bill alleges that the defendant, Eason, being indebted to one Pender, with the defendants Sugg and Robert Belcher as sureties, the said Eason, Sugg and Belcher entered into a fraudulent agreement, by which Eason was to execute to Sugg and Belcher, two notes for $500 each, to be held and appropriated by. them for his use, amd was then to convey the land described in the bill and his other…

Cause removed from the Court of Equity of Northampton County, at ihe Spring Term 1848. William B. Lockhart, of Northampton County, died in January 1S41. leaving a widow, Sally, and a son John J. Lockhart, of full age and residing in Alabama, and two other infant sons Benjamin F. and Joseph J., and also a grand-child, William F. Bell, who was the son of Ann E. Bell, a deceased daughter of the testator.

<p>Appeal from the Court of Equity of Beaufort Count}', at the Fall Term 1846, his Honor Judge Bailey presiding.</p> <p>The case is stated in the opinion delivered in this Court.</p>

Cause removed from the Court of Equity of Guilford' County at the Fall Term 1849, James Nelson, ofGuilford, made his will on the 12th of September 1S43, and died on the 6th of January 1844. He devised and bequeathed certain estates to his wife.

Cause removed from the Court of Equity oí Robeson County at the Fall Term 18 i5. John Council died intestate, in the year 1820, in Robeson County, and at November term of that year administration of his estate was granted by the County Court to Thomas Davis and John B. Johnson.

<p>An award for the payment of money merely can only be enforced at law— Equity has no jurisdiction over it.</p>

Cause removed from the Court of Equity of Montgomery County, at the Fall Term 1848.

Cause removed from the Court of Equity of Caswell County at the Fall Term 184& Jacob Henderson made his will on the 4th of April 1845, and died in June 1846.

<p>A. purchased a tract of land from B. and, afterwards supposing that B. had not a good title, procured a conveyance from C the original owner, under whom B claimed. Held, that if B.7s title was but an equitable one, . when A. was induced to believe that it was a legal oue, upon B *s refusal io procure and convey the legal title, A. had a right to havo the contract rescinded. But, as he chose to purchase the legal title himself, he cannot claim more from B. than to be reimbursed what it cost him to get the legal title.</p>

'Cause removed from the Court of Equity of Richmond 'County, at the Fall Term 1849. In May 1846, the plaintiff sold to the defendant a negro boy for the price of $S50, to be paid — $ 150 in cash, and •the balance by a transfer of three shares of stock in the Bank of Cape Fear, marked No. 32.

Cause removed from the Court of Equity of Rutherford County at the Fall Term 1846.

Cause removed from the Court of Equity of Richmond County, at the Fall Term 1849.

Cause removed from the Court of Equity of Anson County, at the Fall Term 184S. In the year 1833, Daniel Hailes died, leaving a will, which was duly proven, and Sarah Hailes qualified as executrix. Under the will Sarah Hailes took an estate for life, with a contingent bequest to Alexander Hailes in the event of his surviving her, but to his children, if he died during her life time, as is decided in the case of Hailes v. Griffin and wife, 3 Dev. & Bat. Eq. 425.

<p>A husband has a right to assign for the payment of his debts a legacy due to his wife.</p>

<p>Cause removed from the Court of Equity of Sampson County, at the Spring Term 1845.</p> <p>The plaintiff had some justices’ judgments against one Underwood, stayed by the defendant Carroll, and amounting to $628 70, principal and interest. In October 1841» executions issued and were levied upon a barouche, the property of Underwood, which was sold, and purchased by the plaintiff, at the price of $94. The executions were also levied upon the property of Carroll. Five horses were sold, and bought by the plaintiff, at the price of $1S, and the officer was proceeding to sell other property, when the defendant Carroll delivered to the plaintiff a note for $763, executed by himself and the other defendant Sellers; which was aecepted-by the plaintiff in fulbsatisfaction for the property purchased and of the judgments. which he held against Underwood and Carroll. The note ■was due on the 13th of October 1S41.</p> <p>The bill alleges, that the note has been lost by accident; and the prayer is, that the defendants be decreed to pay the principal and interest, upon being indemnified. There is an allegation of an offer of indemnity, before the bill was filed, and it is filed upon oath.</p> <p>The defendants deny the loss of the note. They admit its execution and contents, and rely upon the ground, that it was given for a usurious consideration. They allege, that before the sale of property of Carroll, there was an understanding, that the plaintiff would forbear the collection of the judgments, provided Carroll would give him a note for principal and interest, together with a further sum by way of usurious interest, and that as a cover for this agreement it was understood, that the property of Carroll, or some part therof, should be exposed to sale under the execution, and bid off by the plaintiff, when the note was to be delivered, the sale to be stopped, and the property re-delivered to Carroll; all of which was accordingly done. The answers also contain a general allegation, that the original notes, upon which judgments had been rendered, were tainted with usury.</p>

<p>Whore a conveyance has been made by a father to one of his sons of land and negroes to be managed under the direction of that son, in trust that he will apply the proceeds of such property to the support of the father and his family during the father’s lifetime, and after his death sell the property and divide the proceeds thereof among his heirs and distributees— Held, that the son was entitled to a reasonable compensation for his caro and trouble in the management of tire estate.</p> <p>Where in such a deed a negro was mentioned which had been previously conveyed by the father to his son reserving his life estate, and it was shewn that this fact was disclosed to the gentleman, who drew the deed( and the son was informed by the draftsman, that it was necessary to insert the name of the negro, as the father had a life estate, but this would not affect the son’s title ; Held, that the son was not precluded by his acceptance of the deed from asserting his right to the negro.</p> <p>Held, further, that, as, by the deed of trust, the proceeds of the persona! property, after the death of the father, were t¡> be divided among all his distributees in the same maimer as if he had died intestate, according to the statute of distributions, the gift of the remainder in this negro to the son must be accounted for, as an advancement to him, in the division of such proceeds ; and Held further, that the value of this advancement must be estimated at the time it was made, that is, the value, at the time, of the remainder.</p>

<p>Where a person authorized another to buy and sell negroes for him, this was a general authority, and the agent had a right to buy for cash or on credit, at his discretion.</p> <p>Where such agent bought a negro, with a view of carrying out his agency, and gave a note, under seal, in the name of his principal, and the principal repudiated the note, because under seal, Held, that the vendor was remitted to his original right against the principal for the price of the negro.</p>

<p>Appeal from a decree of ..the Court of Equity of Perquimans County, at the Spring Term 1850, his Honor, Judge Ellis, presiding.</p>

Ratcliff, It states that, in 1838, differences arose between the plaintiff and her husband for causes, which obliged her, as she conceived, to separate from him; and that she did so and put herself under the protection of her said brother, who undertook the office of her next friend, and to direet her and maintain and aid her in asserting her rights: and, in that capacity, he brought a suit in her name against her husband for alimony, and certain slaves of the husband were…

<p>Appeal from the Court of Equity of Alamance County, at the Spring Term 1850.</p>

Cause removed from the Court of Equity of Davidson County, at the Spring Term 1850. Henderson Wilson died indebted beyond the amount of his personal estate, and leaving an only child, Sarah Ann, an infant, to whom several tracts of land descended from her father.

<p>A purchaser of land cannot be compelled to pay the purchase money before he has obtained a title.</p>

<p>Cause removed from the Court of Equity of Granville County, at the Fall Term 1849.</p>

Cause removed from the Court of Equity of Currituck County, at the Spring Term 1849.

<p>Cause removed from the Court of Equity of Davidson County, at the Fall Term 1849.</p>

<p>When, in an injunction bill, the answer admits the equity charged in the bill, but brings forward a new fact in avoidance of it, the injunction must be continued until the final hearing.</p> <p>When a voluntary deed of her property is made by a woman, in contempla' tion of a marriage, afterwards consummated, without the existence of the deed being made known to the intended husband, this is in law a fraud upon him.</p>

<p>A creditor of an intestate has no right to be substituted in the place of the. heirs, in regard to a debt due to them as heirs, unless he shews collusion between the debtor and the heirs.</p>

<p>A testator devised as follows: :‘lt is my will and desire, that my whole estate, both real and personal, except, ¿re., remain together as joint stock of my beloved wife and children, and my farm continued under the management of my executor, for their support and education, and that each one, if a son, receive his distributive share, when he arrives at the age of twenty-one years, and, if a daughter, when she arrives at the same age or marries, always reserving my house lot, as a residence for my infant children and my beloved,wife, during her natural life or widowhood.” Held, that the widow was entitled to an equal portion of the estate with the children.</p>

<p>Where there is a tenant for life of slaves and a remainderman, and the tenant for life sells the slaves to a third person, who threatens to convey them out of the State, the remainderman is entitled to his writ of injunction, <5cc.</p>

Cause removed from the Court of Equity of Rockingham County, at the FaR Term 1849. Ruffin, C. J. Thomas Joyce died intestate, in Rocking-ham County, in 1822, leaving a widow and eight children surviving him, who were all of full age, and also the infant children of a son Joseph, who had removed and died in one of the Western States. The estate was small, and consisted of a negro man, named Dick, and othér chattel's to thé value of about $100.

<p>Cause removed from the Court of Equity of Onslow County, at the Spring Term 1550.</p> <p>On the 10th of April 1837, the plaintiff gave to the defendant, Franck, his promissory note for ÍS5000, payable January 1st, 1839, in part of a debt he then owed him ; and on the 13th of February 1838, Franck endorsed it to the defendant, John Tones. Battle and Franck then resided in Henry County, Alabama, where the transactions occurred, and Jones in Onslow County, in this State. In June 1839, and January 1840, Battle made payments ota the note, which together amounted to $3469 ; and on the 23rd of December 1840, Jones sued out an original attachment in Onslow County for the balance due on the note, and summoned the defendant, John A. Averitt, as garnishee, who was the general agent of the plaintiff in this State, and in his garnishment confessed that he had in his hands cash and effects of Battle to the value of $ 1158 67 ; and such proceedings were had therein, that in August 1841. judgment was recovered against Battle for $1732 36 for principal money, and $165 47 damages for interest,and also judgment against the garnishee for the sum confessed by him, which he, Averitt, paid.</p> <p>Previous to the year 1837, Franck was indebted to John Jones in two bonds, which together amounted to about $2800, which the latter deposited for collection with George Jones, also of Henry County aforesaid, and took his receipt therefor ; and he, George Jones, received from Franck, in part payment thereof, the bonds of other persons residing in that part of the Country to the amount of about $200, and then George Jones died. In February 1838, John Jones went to Alabama, for the purpose of getting the business settled with Franck and the administrator of George Jones; and then Franck, wishing to raise money and also to have again the use of the bonds be had transferred to George Jones, as aforesaid, proposed to John Jones to transfer to him the above mentioned note of Battle for $5000, and take in part for the same the receipt given for his bonds by George Jones, and the residue in money ; and it was so agreed, after consulting the administrator of George Jones, who said he -would return to Franck the bonds the latter had passed in payment, and surrender his, Franck’s, bonds, on which a balance was still due. Thereupon Franck endorsed to John Jones, Battle’s said note, and John Jones assigned to Franck the said receipt, which George Jones had given him' and returned to North Carolina.</p> <p>In June 1840, an original attachment was sued out in Henry County aforesaid, in the name of Franck, against the estate of John Jones for $1937, as due to Franck from Jones as guarantor and assignor of the .said receipt; which was served — the time notappearing — in the hands of Battle as garnishee, who at Autumn term 1841, made his garnishment, “that he was indebted to the defendant John Jones in the sum of @1082 10 as a balance on a. note for @5000, payable to the plaintiff, Franck, and by ¡him transferred to said Jones, on which said Jones had . sued said garnishee by attachment in North Carolina.’* At the same term a sui£ of enquiry was executed and the damages assessed at $2366, and judgment given therefor, and also judgment against the garnishee condemning the said sum of $1082 10 to the use of the plaintiff.</p> <p>In April 1848, this bill was filed in Onslow against John Jones, Franck, and Averitt, and it states that the plaintiff, Battle, had no due notice of the suit by attachment of Jones against him, and that he paid to Franck the sum of $1082 10, so condemned in his hands as garnishee, on account of his said debt to John Jones, and in part of' Franck’s recovery against said Jones ; and that Jones and Averitt had notice of such payment, and that, notwithstanding, Jones procured Averitt to pay to Jones the said sum, being part of the sum of $1158 67 so condemned in the hands of Averitt to the use of Jones. The bill further states, that in fact, the note for $5000, assigned by Franck to Jones, did not belong entirely to Jones, but that he took it upon trust in part for Franck, and to a greater amount than the said sum of $1082 10; and it insists that it is unjust that the plaintiff should thus be compelled to pay the debt twice, to the extent of $1082 10, and prays that the then defendants, or some, or one of them, may be decreed to pay the plaintiff the said sum with interest thereon from the time he paid the same to Franck.</p> <p>The answer of Franck disclaims and that of Jones de* nies, that he, Franck, had any interest in the note for $5000 after the assignment to Jones, or now has any in thejudgmentthereon. Franck also denies, that the plaintiff paid him the sum confessed in his garnishment, viz : $1082 10, or any part of it; and he says, lhat the attachment was taken out for the benefit of the plaintiff, and prosecuted by him, in order, if possible, to stop that sum in his own hands towards indemnifying him, Battle, • against his liabilities as the surety of Franck ; and that he, Franck, is not entitled to, or liable for, anything in the premises, as he became insolvent in 1840, and was duly discharged as a bankrupt on the 2nd of May 1843.</p> <p>The answer of Averitt denies any collusion with Jones, and states that he gave the plaintiff advice of the attach* ment soon after it was served in his hands, and received instructions from the plaintiff to employ counsel to defend it, upon the ground of the attachment of the debt in Alabama ; so as, if possible, not to allow judgment to be taken against him here, while he might be liable as garnishee there; and that, accordingly, this defendant spoke to counsel, who advised him that no plea could be put in, unless the then defendant, Battle, would replevy by giving bail' — which he did not do. This defendant annexes to his answer a letter from Battle to himself under date, April 5th, 1841, containing those instructions.</p> <p>The answer of Jones states, that the whole sum recovered in his attachment against the plaintiff was justly due and belonged exclusively to himself, and was recovered without any collusion with Averitt. This defendant further states, that he had no information from Battle, or suspicion, that the attachment had been taken out against him in Alabama, until the judgment had been rendered therein ; and he denies positively that he owed Franck or was liable to him for anything upon the demand for which the attachment was brought, or any other. He states, that, in fact, very soon after he transferred to Franck the said receipt of George Jones, the administrator of said George settled with and fully satisfied him, Franck, therefor, by returning to him the bonds Franck had before transferred to George Jones, and by cancelling or surrendering to Franck his bond, so as to extinguish the balance due thereon ; and the said administrator w*as a young man, inexperienced in business, and a nephew and under the influence of Franck, and omitted to take up the said receipt when he made such transfer and surrender. He further states, that, if such had not been the case, Franck would not have had any claim against this defendant on the receipt and his endorsement or guaranty ■^hereof; because the estate of George Jones was ample to make good the said demand to Franck and was immediately in his vicinity ; and, moreover, because, at the time of the transfer, he, Franck, was himself indebted to the estate of George Jones in a larger amount and cont inued so indebted up to the time of his bankruptcy aforesaid.— He further states, that he isjinformed and believes, that Battle became involved as the surety of Franck for large sums, which he was compelled to pay; and that upon ascertaining the insolvency of Franck, prior to suing out the attachment in Alabama, he, Battle, and Franck devised the plan of bringing that attachment in the name of Franck, but really for the benefit of Battle, with the view of effecting a recovery of a sum from this defendant, without notice to him of the suit, of which no part was due, as was well known to both of them ; and he denies his belief that the plaintiff ever paid to Franck or any other person any part of the sum condemned in his hands in that suit.</p> <p>A transcript of the proceedings in the matter of Franck’s bankruptcy is filed ; and the judgment against Jones does not appear in the inventory of his effects; while in the schedule of his creditors appears the estate of George Jones, deceased, for the sum of $1500 on judgments.</p> <p>The other material evidence is that of the administrator of George Jones, and of the attorney, who instituted and conducted the suit in Alabama, They support the answer of the defendant Jones; the former stating, that in 1838 he satisfied to Franck the demand on his intestate’s said receipt, and in the manner set forth in the answer ; and also, that, if any thing had remained due thereon, the estate was sufficient to discharge the whole thereof, and that in fact Franck owed the intestate $ 1500, and never paid any part thereof and also owed the witness about $1600 otherwise. The attorney likewise deposes, that he brought the suit at the instance of Battle, the garnishee, and prosecuted it under his direction and for his benefit, for the reasons stated in the answer; and that it was understood between the witness, Franck, and Battle, that Battle was not to pay any part of the condemnation money, but was to have the judgment as partial indemnity for what he was bound to pay as surety for Franck.</p>