Volume 42 — North Carolina Reports

<p>Injunctions to prevent persons from working a gold mine, to which the plaintiff claims title, are not put upon the same footing with injunctions to stay executions on judgments at law, Where the legal rights of the parties have been adjudicated.</p> <p>in cases of the former class, where it appears, that, if the defendants’ allegations be true, the injunction can do them no harm, but, if the plaintiffs’ allegations be true, he may sustain an irreparable injury, the injunction should be continued to the hearing, that the facts may be investigated.</p>

Richard Lewis died, seized of lands in fee, which descended to his five children, of whom his daughter, Mary, married John McDowell. In May 1840, a suit was instituted between the heirs for partition ; and a decree was made therein for a sale of the land by the Clerk and Master for the purpose of partition.

<p>Appeal from the Court of Equity of Buncombe County, at the Spring Term 1850, His Honor Judge Caldwell presiding.</p>

<p>The plaintiff was a poor, ignorant old man, -who had never had a law-suit in his life. He was arrested on a groundless charge of conspiracy at a late hour of the night, and having his fears excited by the falsehood and artifice of the defendant’s agent, for the purpose of being released, executed a note for a certain sum. Held, that this note was procured from him by fraud and duress, and that he was entitled in Equity to have it can-celled:</p> <p>It is as much against conscience, to attempt to avail one’s self of the iniquity of an agent, after it is known, as if there had been preconcert.</p> <p>The case of Heath v. Cobb, 2 Dev. Eq. 191, cited and approved.</p>

<p>A deed, absolute on its face, may be converted into a mere security for money lent, by an allegation that such was the intention, and that the condition was omitted by mistake or surprize, or by the fraud or oppression of the party, who procured its execution, provided the allegation is clearly established by parol evidence of admissions and declarations of the party, aided and confirmed by facts and circumstances.</p> <p>Where, in a case of that kind, the admissions of the party were proved, and his answer to a bill filed against him was unfair and equivocal, and where it was also proved that the sum paid was grossly inadequate as a consideration for an absolute sale — that the plaintiff was in need of money, and was in the power of the defendant, who held executions against him —and that the plaintiff retained possession for some short time, made a contract to sell the land and put a tenant in possession to hold for him, who did so, until the defendant expelled him; Held, that under these circumstances the deed should be held merely as a security for the money actually advanced.</p>

<p>Cause removed from the Court of Equity of Buncombé County, at the Spring Term 1850.</p>

<p>Where a person fraudulently conveys property to another, with the view of defeating his creditors, Equity will not assist him to procure a reconveyance.</p>

<p>A Court of Equity will restrain, by injunction, the assignor of an equitable claim from dismissing a suit at law, brought by the assignee in the name of the assignor.</p> <p>It has been repeatedly decided, that, on a motion to dissolve an injunction, it must appear that the answer fully meets the plaintiff’s Equity — it must not be deficient in frankness, candor or precision, nor must it be illusory-</p> <p>The cases of Little v. Marsh, 2 Ire. Eq. 18, and Miller v. Washburn, 3 Ire’ Eq. 161, cited and approved.</p>

<p>Cause removed from the Court of Equity of Rowan County, at the Spring Term 1850.</p>

Cause removed from the Court of Equity of Wilkes County, at the Spring Term 1S50. Samuel F. Patterson and William H. Martin were partners and carried on the mercantile business in Wilkes-borongh, and, in September, 1830, they borrowed from Benjamin S, Martin, a brother of William H., the sum of $300, for which they gave their promissory note.

<p>Where two copartners give a bond to a third person, as between themselres each is considered in Equity as surety for the other, and, as sush, is regarded as a creditor and has a right to all his privileges as one.</p> <p>If A. one of the copartners becomes insolvent, and B., the other partner, has to pay a debt from the firm, B. has an equitable lien upon a bond, which he had given to A , before the commencement of the copartnership, and if A. assigns this bond to another person, the assignee is liable to the same equity, which B had aga-inst A.</p> <p>When a note or bond is assigned, after it becomes due, the assignee, though for valuable consideration and without notice, holds it, subject to all the equities, which the debtor has against the assignor.</p> <p>The oases of Williams v. Helme, 1 Dev. Eq, 151, and Little v. Marsh, % ire. Eq. 18, cited and approved.</p>

Cause removed from the Court of Equity of Mecklen-burg County, at tltc Spring Term 1S50. Held: that the slaves and the funds given to them in the sixth and residuary clauses did not pass by the will; and the executor, considering that they constituted the proper fund for the payment of debts and charges, as being a surplus not disposed of, was proceeding to administer the estate on that principle, when he was forbidden by the…

Stith Mayes devised and bequeathed certain real and personal estate to his wife for life, and then over to his son, James F. Mayes, and nine other children, equally to be divided among them.

<p>Where an injunction has been dissolved and the money has been pollected by an execution at law, and paid into the Court of law, the Court of equity will, upon proper affidavits, direct the money to be paid into the office of the Cleric and Master of the Court of Equity; and where the interests of the plaintiffs at law are several, the Court will direct, that the parts belonging to those, who are insolvent or removed out of the State, shall not be paid to them until they have given bond and security respectively , that they will refund the money, if the Court of Equity shall ultimately make a decree in favor of the plaintiffs in equity. And if the said bonds shall not be, given after due notice, the Clerk and Master of the Court of Equity shall lend out the money upon bond and ,good security, to be subject to the future orders of the Court of Equity.</p>

<p>Where a bond has been given for the conveyance of land, and the administrator of the obligor, after his death executes a deed for the land, by vir- • tue of our Statute, any equitable defence against the bond may beset up •against the deed, which rests upon the bond. .</p> <p>Where a deed is assailed on the ground of fraud and the allegation is not-made good, plaintiffs are not in general allowed to fall back upon any secondary equity; and they are never allowed to'do so, unless such secondary equity is distinctly set out in the bill and relied on as an alternative, so as to give to the defendant full notice, and an opportunity to. meet the bill in both its aspects. . . ■</p>

<p>.Cause removed from the Court of Equity of Richmond County, at the Fall Term 1850.</p>

<p>If an administrator gives a preference to a creditor, who is not entitled to it¡ he commits a devastavit, and is chargeable for the same assets to another, ' whose debt is of higher dignity or whose diligence gives him priority ; and this, though it may have been done through an honest mistake. And the rule is the samejn Equity, in this respect, as at law.</p> <p>Where A. and.B. were eo sureties on a bond of C , and C. died and A. administered on his estate; and then B., in a suit against A. as administra-, for, recovered the amount ofndebt due to B. by the principal, A.’s intestate, and fixed him with assets upon the ground that A. had paid the debt ■•to C. voluntarily, while B.’s suit was pending; and A. alleged, in a bill of injunction to restrain B from collecting his judgment and for contribution, that he had no assets of his intestate out of which he could pay the debt to C., but that he paid the same out of his own funds, which was denied by B. in his answer; Held, that the Court could not determine the question of contribution, until an account of the administration of A, should be taken; and that for that purpose a reference be bad, and the injunction continued over.</p>

<p>A testator bequeathed to his sons as follows, “I give and bequeath to my sons A., B., C. and D., and their heirs, 440 acres of land lying, <jc., my two negroes, #c., all of whicli I wish sold and the proceeds to be equally divided among my said (our sons, $-c., after my funerni expenses and debts are paid out of the same. Held, that the sons did not take such an estate in either the land or negroes, as was subject to execution or attachment, but they were only entitled to divide the proceeds of the sale of the proty, which the executor was directed by the will to make.</p> <p>The eases of Blanton v Mor eon, 7 Ire. E. 47, Vunwooddie v Cmririgtcm, 2 Law Rep. 469, and Elliott v Newby, 2 Hawks 21, ciled and approved.</p>

<p>W’here it is alleged that a note, belonging to an estate, has been, fraudulently and in breach of trust, transferred by the executor, there must be au inquiry into the state of the assets; for if a balance was duo to the executor to the amount of the note, it was not a fraud in him to appropriate it to the payment of his own debt.</p> <p>Plaintiffs are not allowed to impeach a single item in the administration of assets. It can only be reached by a general account, which will be final, not only as to the item particularly complained of, but as a settlement of a whole subject.</p> <p>The cases of Hinson v McKinzie, 1 Dev. Eq 463, and Baird v Baird, I-Dev. & Bat. Eq. cited and approved.</p>

<p>A deed in trust to secure creditors, thus described one of the notes intended to be secured; “A note to John Ricks for about twonty three hundred and fifty dollars, now in possession of D. A. T. Ricks, given several years since, to which Bennett Bonn, B. D. Battle and Robert Ricks arc sure ties.” Held, that parol evidence could not be received to shew that this description was given by mistake, and that the note intended was as follows.- ‘'$2412 26 cents. With interest from the 10th of January we or either of us promise to pay D. A. T. Ricks, guardian, two thousand four hundred and twelve doliarB twenty six cents, for val, rec’d. Witness our hands and seals I8th February 1849. Redmun Bunn, Bennett Bunn, B. D..Battle.”</p> <p>Equity never interferes to aid one creditor against another, on the ground of mistake. _ '</p> <p>The cases of Simpson v Kir>g, 1 1 re. Eq. 11, and Barnes v. Simms, 5 Ira Eq. 292, cited and approved.</p>

<p>The plaintiff in Equity must, to entitle himself to a decree, sustain his own allegations. It will not be sufficient for him to rely upon any equity, dis- , closed in the answer, other than that alleged in his hill.</p> <p>The case of Crawley v. Timberlake, 1 Ira. Eq. 346, cited and approved.</p>

<p>Appeal from an order overruling a demurrer, made at the Spring Term 1S50, of Wayne Court of Equity, his Honor Judge Bailey presiding.</p> <p>The bill in this case was filed by John J. Hooks, William R. Hooks, and Franklin II. Hooks, and set forth in substance : That on the-day of March 1837, Mary Hooks, of the County of Wayne, being a widow and the mother of the plaintiffs, was addressed by the defendant, and proposals of marriage were made and accepted — that the said Mary was seized and possessed of a valuable real and personal estate, consisting of lands, slaves and other personal property, and it was, -among other things, agreed, upon the treaty of marriage between- the said Mary and Blackman, that all the estate of the said Mary, real and personal of the said Mary, should be so secured to the said Mary, by deed of marriage settlement, that, notwithstanding the said marriage, she should not be deprived of her right, title and property in and to the said estate, real and personal, but that she should have, hold and enjoy the same, free and exempt from any claim, right or interest, either in law or equity, which, by operation of law, the said Blackman might acquire or derive by reason of the said intended marriage, and neither the said Blackman nor his creditors should acquire by said marriage any right, title or estate in said property, except that the said property might remain, during the marriage, in the occupancy and tase of said Blackman, he paying therefor an annual rent of one dollar, if demanded.</p> <p>The bill further set forth, that, before the solemnization of the said marriage, an instrument or deed of settlement, bearing date the 14th of March 1837, was made and executed by the said Mary and Blackman, which was duly proved and registered, a copy of which hereunto annexed, marked, A., was made a part of the bill. And the bill further set forth, that the female slaves, named in the said deed, have had several children, since the execution of the said deed, which are now in the possession of the said defendant, and whose names, as far as known, are Thereby, &c.</p> <p>And the bill further set forth, that the said marriage was solemnized immediately after the execution of the said indenture — and that the said Blackman, for many years thereafter, always admitted the separate estate and property of the said Mary in the said lands and slaves, and, in particular charges, as a clear indication of the view, which the defendant had of the operation and effect of the said settlement, that, in February 1841, the negro Pompey was sold by the said Mary, and she permitted the said defendant to receive and use the money, but the said defendant made and delivered his note to the said Mary, payable to her, for three hundred and forty dollars, the price of the said negro, and the said note was in possession of the said Mary in the Fall of the last year, since which time it is supposed it has come to the hands of the said defendant; and, also, that, on the 8th day of February 1848, and on the 21st day of March 1848, the said Blackman distinctly recognized the right of the said Mary to sell and dispose of the said settled property, he being a party to certain deeds to the plaintiffs, John and Franklin, whereby the said Mary conveyed te them certain lands, being a part of the said real estate contained in the said settlement, which deeds the said plaintiffs have ready to produce, &c.</p> <p>And the bill further set forth, that the said Mary departed this life on the-day of June 1849, leaving the plaintiffs and the defendant her surviving, and that the defendant hath, as the plaintiffs are informed, taken out letters of administration upon the estate of the said Mary, at August Term 1S49, of the County Court of Johnstonf and claims to hold, for his own use and benefit, all the personal estate of the said Mary, although the same is included in the said deed of settlement, aud denies that he is accountable for the same or any portion thereof to the plaintiffs, who are the children and next of kin of the said Mary, as aforesaid.</p> <p>And the plaintiffs in their said bill say, that they are advised, that the said deed is informal and defective, as a marriage settlement, because the said property was not conveyed to a trustee for the uses and purposes therein expressed; yet the said agreement, being made between the parties for a valuable consideration, and the intent and meaning thereof being apparent, this Court will not suffer the same to fail and become nugatory, for want of a trustee, and that, although the covenants and agreements in the said deed may be extinguished at law, by the marriage of the parties thereto, yet the said defendant will be decreed and held a trustee for the uses and purposes, declared in the said deed, according to the just construction of the same and the rules and principles of this Court; and that the plaintifFs are further advised, that, by the true construction of the said deed, the said Mary was entitled to her estate in the said real and personal property, unaffected and unimpaired by the said marriage, and that, upon the death of the said Mary, the same, with the increase of the said negroes, devolved upon the plaintiffs, as the next of kin of the said Mary, and that they are entitled to call upon the said defendant to surrender the said negroes and their increase, and the proceeds of any t hat may have been sold, and also to such account of the rents, profits and hires of the said property, as the Court may deem just and proper.</p> <p>The plaintifFs then, in the said bill, pray that the defendant may answer the interrogatories therein propounded touching the premises, and that he may be decreed to surrender the said negroes and their increase, and the pro • duce of the sales and hires, if any, and pay to the plaintiffs what may be due and owing on the said account and settlement, and may have such other and further relief as the nature of the case may require, and pray process, &c.</p> <p>Upon the return of the process, the defendant appeared and filed a general demurrer to the plaintiffs' bill. On argument it was ordered by the Court that the demurrer be overruled and that the defendant answer, &c.— From this order the defendant, by leave of the Court, appealed.</p> <p>STATE OF NORTH CAROLINA, ?</p> <p>Johnston County. 5</p> <p>This Indenture, made and entered into this 14th day of March 1887, between Blackman W. Lee, of5the County of Sampson and State aforesaid, of the first part, and Mary Hooks, of the first named State and County, of the second part, witnesseth: That whereas the said Black-man W. Lee and Mary Hooks, having entered into an agreement of marriage, which marriage is soon to be legally solemnized, and the said Mary Hooks, being of her own right seised and possessed of a large real and personal estate, is willing and anxious so to execute, that the said Mary Hooks shall not be deprived of the use, benefit, and profit of the said estate, real and personal, by reason of their intended marriage, and the said Mary Hooks being of lawful age to be her own agent; now, therefore be it known, that for and in consideration of the premises, and for and in consideration of the sum of one dollar to me the said Blackman W. Lee by the aforesaid Mary Hooks, before the sealing and delivering of these presents, the receipt whereof is hereby acknowledged, I, the said Blackman W. Lee, do hereby sell, assign, and deliver, alien and confirm, and have by these presents sold,assigned, aliened, delivered, and confirmed unto Mary Hooks aforesaid, all the right, title, estate, interest, and benefit, which I may by operation of law acquire, derive or receive at law orequity in and to the following real and personal estate, now belonging to the said Mary Hooks, by reason of the said intermarriage between the said Black-man W. Lee and Mary Hooks, viz: Twenty slaves; named, Owen,about 27years; Pompey, 60years; Charles, SO; Elijah, 24; Harry, 26; Baltimore, 14; Cader, 10; Henderson, 7; Isaac, 5; Simon, 5; Alvin, 2; Sawney, about one month ; Patience, 40; Amoritt-, 25-; Rane, 24; Teney, 19 ; Ginny, 10 ; Margaret, 8 ; Manny, 3 ; Martha 2 r also one tract of land in Sampson County containing 830 acres, lying in the fork of Big Cohara and Ward’s Swamp, adjoining A. Fleming and Joshua Craddoe ; also, two tracts of land in the County of Johnston, being the place whei;e the said Mary now lives, containing eight hundred and seven acres, bounded as per deed from Su* sannah Blackman to said Mary, dated the 21st day of February 1829 ; also one other tract of land, joining the above, containing thirty acres as per deed from John Eason to said Mary Hooks, bearing date the 10th day of December 1832 ; also one close carriage and two horses — to have and to hold all and singular the aforesaid lands, ne-groes, carriage, and horses to the only use and benefit of the said Mary Hooks, her executors and assigns forever ; and the said Blackman W. Lee doth solemnly covenant, promise, and agree to and with the said Mary Hooks, that he will, upon the solemnization of the said marriage, or at any time thereafter, when requested by the said Mary, make, execute and deliver all*and every necessary title, deed, or conveyance, advised and directed by counsel learned in law, more completely and effectually to secure the intention of this indenture, which is entirely to divest himself of right, title, and estate in and to the above mentioned lands, negroes, carriage and horses ; so that he nor his creditors shall have any right to sell or contract the same or any part of said lands, negroes, or their increase, carriage and horses. It is further agreed and understood by and between the ccntracting parties aforesaid, that the lands, negroes and chattels may remain in the use and occupancy of the said Blackman W. Lee, he paying thereforby way of hire or rent the sum of one dollar on the first day of January in each and every year, if demanded. It is further agreed by and between the parties to this indenture, that, if it shall be desirable to sell or exchange the whole or any part of the above mentioned real or per* sonal property, the said Mary may transfer and lawfully convey the whole or any part of said real or personal property to any person whatsoever, receiving a fair and full consideration for the same ; which consideration, whether it be money or property, she shall hold, possess, and keep in the same manner as the property hereby conveyed is to be held and kept; and this indenture to be as binding and legal as if a third person had been appointed as agent or trustee, the said Mary acting as her own agent and trustee.</p> <p>In witness whereof the parties have hereunto set their hands and seals, the day and year first above written.</p> <p>BLACKMAN W. LEE, [seal.]</p> <p>MARY HOOKS, .[seal.]</p> <p> Signed and sealed in presence of </p> <p>John Eason, ?</p> <p>Young Budridge, S</p> <p>submitted the following argument:</p> <p>The demurrer admits the case as stated by the bill, which is, that Mrs, Hooks was a widow, with three children, that the property settled was entirely her own, that the object of the settlement was not only to preserve her rights to the property unimpaired, but that the property itself should not he affected by the marriage, nor rendered liable either to the contracts of the husband or to the rights of his creditors.</p> <p>The property settled consists of lands and negroes — personal chattels in possession.</p> <p>It is declared that the husband shall not acquire any interest whatever by the marriage, and he sells, assigns and confirms unto Mary Hooks all right, title, estate, interest and benefit which he may, by operation of law, acquire, derive or receive, either in law or equity, to the property, &c.</p> <p>Upon the construction of this settlement, the question is emphatically, as was said by Lord Thurlow, in Woodcock v. Duke of Dorset, 3 Bro. C. C. 569, “what is the truth and honor of the case V’ and that is to be answered by ascertaining by a liberal construction what is the true intention of the settlement.</p> <p>The defendant, if he have any claim, has it as husband; it is they’ws mariti — the settlement is not to be construed by what has subsequently happened ; but its meaning now is what it was on the day of its execution ; it cannot be affected by the fact of the wife pre-deceasing the hus* band.</p> <p>Upon the marriage, there being no trustee, the husband became possessed of the slaves absolutely as the legal owner — and upon his death, they would have devolved upon his executor or administrator — they were personal chattels in possession; they were not dioses in action, which could only be reached by administering upon his wife’s estate — his claim upon the death of the wife was still jure mariti and not ás administrator.</p> <p>The husband is not next of kin and cannot claim as such. Bailey v. Wright, 18 Yes. ’49. Tyson v. Sugg, 2 Hawks 472. Oliver and Jones, 3 Ire. Eq. 369.</p> <p>The defendant, therefore, if he claim here, must be allowed by this Court to claim against his express conveyance, renunciation and release.</p> <p>The intention of the settlement is rendered more apparent from the fact, that not only the defendant, but his creditors, are excluded from deriving any benefit from the settlement, and this is an argument against his holding the property for his own use in any capacity; for if he bolds it for his own use, his creditors must necessarily be ¡entitled to subject it.</p> <p>But the words, “to have and to hold all and singular the property, &c., to the only use and benefit of the said Mary, her executors and assigns,” do not contemplate or allow the claim of the defendant, as her administrator. It is im* possible that the words, “her executors and assigns,” can here be regarded as words of limitation, for they embrace valuable real estate as well as personal — they embrace the whole property as one corpus — the Court must hold them to be words of purchase; and then their true meaning is to be ascertained, which, especially in marriage articles, depends upon the intention, and, to ascertain that, a liberal interpretation (as is said by Judge Gaston in Gause v. Hale, 1 Ire. Eq 241.) is to be given.</p> <p>“Taking the whole instrument together what is the intention of the parties,” as is said in Smith v. Dudley, IS E. C. R. 132.</p> <p>That the Court will make technical words yield to what they believe the intent of the agreement, is shewn by the cases of Bulmer v. Jóly, 5 Sim. 51, 8 E. Cond. Ch. Rep 345. 3 M. & K. 197. Palin v. Hills, 1 M. & K. 470. Haines v. Hames, 2 Keen 048.</p> <p>In this Court, the wife may have a separate property with all its incidents, and this settlement will receive the same construction, as if there had been a conveyance to a trustee. In that case, upon the death of the wife, it is submitted that the husband could not have claimed against his covenants, but the trustee would have held for the heirs and next of kin of the wife.</p> <p>There is a special provision made here for the husband by the settlement — he is to have the use and enjoyment of the property, paying a nominal rent, if demanded.— This is entirely inconsistent with his taking the entire interest and estate — this would be taking “part (of) the whole.” And.where would be the estate of the wife? — = The whole object of this anxiously executed settlernent would be to secure her one dollar per year of her property, during the coverture, and upen its dissolution by her death the whole would go absolutely to the husband.</p>

Cause transmitted from the Court of Equity of Rock-ingham County, at the Full Term 1850. This was a bill for the sale, for partitior, of a tract of land, alleged by the plaintiffs to belong t.o them and the defendants, as tenants in common. The case appeared from the pleadings tobe this: William Mateer died intestate in 1835, seised in fee of a tract of land containing 100 acres, and described in the bill.

<p>A testator devised to liis son H. several tracts of land, and to his son John several tracts of land, including the home place after the death of his ■wife. He gave to each of his daughters, E. and M. a negro woman and four children. He gave to his wife absolutely six negroes, and lent to her during her widowhood four other negroes, and gave her ploughs, horses, cattle, Ac. and lent her the home plantation, with the privilege of fire wood and rail timber on any of his lands for the use of the plantation. He then directed as follows “I will that my negroes all to be hired out in common, except those given to my wife and also loaned to her, and the hire, and interest of my notes, to go for clothing and educating of my children, and the rest of my lands also.” At the time of the testator’s death, his son H. had just arrived at age. E. was 14, J, 10, and M. 8 years of age.</p> <p>Held, 1st. That the widow was entitled to the immediate possession of the negroes, and the stock, farming utensils, §-c., which were bequeathed to her; and also to the immediate possession and use of the home plantation.2ndly. That H., having arrived at age, was entitled to the immediate possession of all the land devised to him, and the one fifth part of the undis-posed of property, leaving the balance as a common fund for the support and education of the three other children, to be applied to that purpose at the discretion of the executor; 3rdly; Thatwhen M. arrives at age or marries, she will be entitled to draw, out of the common fund, the negroes given to her and one fifth of the property undisposed of; so, also, J., when he arrives at age, will be entitled to the land devised to him, subject to the life estate of his mother in the home place, and to one fifth of the un-disposed of property ; and 4thly, that when M. arrives at age ormarries, she will be entitled to the negroes given to her and one fifth of the property undisposed of; and the widow will then take the remaining fifth of the property undisposed of.</p>

<p>Under some circumstances, a trustee, although restricted to the expenditure of the profits of the trust property, may be at liberty to anticipate, by spending, under an emergency, more than the profits of the current year; ns if there he a dearth and a consequent failure of crops, or some extraordinary sickness, malting it necessary to incur heavy medical bills ; but, in such case, the evidence of this emergency must be averred and proven, and a full account rendered.</p>

Cause transferred from the Court of Equity of Rutherford County, at the Spring Term 1842.

Cause removed from the Court of Equity of Greene County, at the Fall Term 1850, This was a bill filed against an executrix for a settlement of the estate of her testator. The facts, upon which the questions submitted arose, are sufficiently stated ia the opinion delivered in this Court.

Cause removed from the Court of Equily of Perquimons County at the Spring Term 1850. This was a bill filed by certain devisees of John Wood, dec’d, claiming to have sold some lots and improvements in the town of Hertford, directed by the will to be sold for a division among these devisees.

<p>By marriage articles, it was stipulated, that, “all the right title and interest of the property, now belonging to S. (the intended wife) shall not be changed or so-altered as to become subject to the control of J. (the intended husband,) as respects being subject to the payment of any debts of the said J., which he may now owe or may hereafter contract in any way whatever, or be subject or liable to be sold by the said J. to his use and benefit, without the consent of the saidS. Nevertheless the said J. has full power and authority to and the property of the said S at all times in such manner as shall be most conducive to the said S. and that a reasonable portion of the property as aforesaid shall be made use of by the said J.for the better support of the said S.” Held that the wife had no power, by virtue of these marriage articles, to dispose of the property by will.</p>

Cause removed from the Court of Equity of Caswell County, at the Fall Term 1850.

<p>Where a father put into the possession of his son a slave, not as an advancement hut expressly as a loan, and the slave remained several years in the possession of the son, without any claim on the part of the father, and then the slave died, and afterwards the father died intestate; Held that the slave was not an advancement, but the value of the hire of the slave, while in the son’s possession, was an advancement.</p> <p>A father sold to one of his sons a tract of land and took his bonds for the purchase money. Afterwards he surrendered one of the bonds to his son, and then died intestate; Held, that the amount of the bond so surrendered was an advancement to the son.</p> <p>In the case of advancements, interest should not be calculated on them from the time of the intestate’s death; as the administrator is not chargeable with interest on the assets, until two years after that period.</p> <p>The case of Cowan v Tvcier, 5 Ire. 78, cited and approved.</p>

This was a bill, filed in 1848, by the plaintiff, John W. Rasberry, against the .defendants, Owen W. Jones and William A. Brant, and set forth in substance : That the plaintiff sometime in the year 1S47, was indebted to the defendant, Owen H. Jones, in several promissory notes* amounting, with-interest, on the 7th of December in that year, to $280 27 cents ; that being very much embarrassed and unable to meet the payment of these debts at that time, the said defendant…

<p>It Sa an.inflexible role, that, v?ben a trastee buys at.his own sale, even If ba gives a fair price, the cestvi que trust has his election to treat that sale as a nullity, not because there is, but because there may ie, fraud.</p>

<p>Before the assignment of dower, a widow is not seized of any portion of the real estate of her husband, and cannot, therefore, convey any title at law to it. She can, however,make such a contract concerning it, as equity can and will, under certain circumstances, enforce.</p> <p>Mere inadequacy of price is no ground for setting aside a contract, unless it be such as amounts to apparent fraud, or the situation of the parties be so unequal, as to give one of them an opportunity of making his own terms. In such a case, equity would not lend its aid to execute the contract, but leave the party seeking it to his remedy at law.</p> <p>Where a deed is attacked on the ground of fraud, it is competent to shew, in addition to the consideration expressed, the motives of the grantor in making the deed ; such, for instance, as the relationship of the parties or the great degree of affection in the grantor for the grantee.</p> <p>The cases of Hoyle v Moore. 4 Ire. Eq. 175, and Archibald v Means, 6 Ire; Eq. 230 cited and approved.</p>

<p>A. died, intestate, in 1848, leaving a widow and six children surviving him, to-wit; John, Susan, Rachel, Temperance, Elizabeth and Dolly.— Three other children died in his lifetime, Sarah, Mary and Rebecca, each of whom left children, surviving the intestate. The intestate in his life time gave and conveyed to J ohn two slaves, and a tract of land in fee.-— The slaves were of less value than one tenth part of his personal estate; but they and the land together exceeded one ninth of the whole estate, real and personal. The intestate also by deed conveyed certain slaves to his daughters. He also put other slaves, without conveying them in possession of his three daughters, who afterwards died in his lifetime, and after ■> their death conveyed them to his daughters’ children respectively. There is a surplus of money and slaves remaining for distribution.</p> <p>Held, first; that the grand-children, taking in right of their mothers, were not bound to bring into hotchpot the slaves put in possession of, but not conveyed to, tbeir mothers, but conveyed to themselves, but they were bound to bring in those conveyed to their mothers respectively. The statute of distributions is restricted to gifts from a parent to a child, and does not include donations to grand children.</p> <p>Held, secondly ; that under the act of 1844, ck. 51, in the distribution of the personal estate of an intestate among his children or those who represent them, advancements, made to one of the children, of real as well as o f personal property, are to be brought by such child into hotchpot,-even where the intestate has not died seized of any real estate; and that in this case, J ohn, having received in real and personal property more in value than his share of the personal estate remaining for distribution, is entitled to claim nothing more.</p> <p>Held, thirdly; tliattkough the widow is entitled to the benefit of advance ments of personalty, made to the children ; yet she is not entitled to any benefit from- advancements of real property, bat, in estimating her distributive share, advancements of personalty are alone to be reckoned.</p> <p>Held, therefore, that, iti this case, the widow’s share is to be first asder-tained, upon the basis of a division of the personalty, by itself (including,. partial advancements,) between her and allthe children, under the Act of 1784; and, after taking out her share, the remaining fund is divisible among the other eight children or such of them as were not fully advanced, and their representatives.</p>

<p>Where it was complained, that a deed! which appeared oh its‘face to' ha for an absolute sale of land, Was, in reality, intended as a mere security for money loaned or advanced, it was held by .the Court, that the following facts established by the proo.fs were entirely inconsistent with the fact of an absolute sale and showecLthat the conveyance could only liávé been intended as a mortgage ; 1st. that the consideration expressed was less'than' one third of the' value of the land ; and' the grantor could then' have sold it for the value ': 2ndly. Under the same arrangement, unde's-which the land was conyeyed, and about the same time, the grantor took á' bill of sale, absolute on its face, for some perishable property, as corn, §-e? and.it is admitted this was only a security for. the loan of money • '¿d’iyj The grantor remained in" possession of the land for nearly twcryears,'bfe-' fore it was claimed by the grantee, without any charge of rent; dtlily. the sum paid on the mortgage of the. perishable .estate.exceeded the amount due on that mortgage,.- 5th. .The. precise,and peculiar.fraction in the sum alleged as the value of the land and the purchase money, $31 40,</p>

<p>A. by bis will bequeathed all his personal property to his widow He died, leaving surviving him, bis widow and eight children, who were born before the making of the will, and ono child born afterwards, for whom no provision had been made; Held, that the latter was entitled to one tenth part of the personal estate, though no petition was filed by such child within the time prescribed by the Act of Assembly, the adminstratrix having herself filed this bill under the provisions of the Act.</p>

<p>Equity trill not enjoin a tenant for life from removing the property, or compel him to give security for its forthcoming, unless good ground be shewn' that it is in danger of being removed beyond the jurisdiction of the Court.</p>

<p>A residue of goods, which are given for life, with a remainder over, ought to be sold by the executor, and the interest on the amount of sales should 'be paid to the legatee for life, the principal being kept Ijy the executor for the remainder men.</p> <p>When the property is delivered over to the tenant for life and by him wasted or consumed, the remainder men are entitled in Equity to recover its value either from the executor of the original testator or from the executor of the tenant for life.</p> <p>The case ot Smith v. Barham, 2 Dev. Eq. 420, eited and approved.</p>

Cause transmitted by consent to the Supreme Court from the Court of Equity of Cumberland County, at the Spring Term 1851. In 1842 the plaintiff sold to the defendant Mason apiece 1 of land in fee for $700, payable in three annual instalments, for which the purchaser gave his three promisory notes. In a few months afterwards the plaintiff let Mason into possession and made him a deed, and the latter then agreed to give new notes with sureties for the price in some short time.

Cause transmitted to the Supreme Court from the Court of Equity of Halifax County, at the'Spring Term, 1851.

Cause transmitted by consent to the Supreme Court from the'Court'ofEquity of Wake County, at'the Spring Terbi .lSsl, The facts of this case are thus stated in the pleadings. David Hinton departed this life in the year 1850, having first made and published his last will and testament, which was duly admitted to probate.

Cause removed to the Supi-eme Court, by consent of the parties, from the Court of Equity of Franklin Couniy,. at the Fall Term 1850.

<p>When, in a contract for the conveyance of land, the land is described as “ lying on the South west side of Black River, adjoining the lands of William "Hofford and Martial.” Held, that the description was sufficiently certain to entitle the bargainee to a specific performance óf the contract.</p> <p>Though it appears that the land contracted for is chiefly valuable on account of the timber, yet Equity will decree a specific performance.</p> <p>The principle of specific performance is adopted, not because the land is fertile or rich in minerals, or valuable for timber, but because it island — a favorite and favored subject in England, and in every country of Anglo-Saxon origin.</p> <p>The case of Williams v. Howard, 3 Mur. 1, cited and approved.</p>

Cause transmitted to the Supreme Court from the Court of Equity of Northampton County, at the Fall Term 1850.

<p>When a widow has dower assigned to her in a tract of land, the reversion of which is divided among several different reversioners, she has in general a discretionary right to get wood for repairs, fire wood &c , from what part of the land she pleases. But it seems, that, in au exti'eme'case, where the widow acts out of mere caprice and partiality, with a view to favor one' at ' the expense of the other, a Court of Equity might be induced to interfere. - 1</p>

<p>A testatrix, by her will,’devised as follows: “I desire that, at my decease, after my just debts are paid, my property maybe divided as follows, “To the Bible Society, Education, Colonization and Home Missionary Societies, each fivd hundred dollars.” It was admitted by the claimants of the respective legacies,that the Bible and'Oolonizalion Societies were not described by their proper corporate names, though they were well known and usually called by the names used in the description — and so also as to the two other Societies.</p> <p>Held, by the Court, that the descriptions not being correct pn the face of the will, so as to designate with certainty who were the objects of her bounty, the legacies are void for uncertainty in the description of the persons, who were to take.</p> <p>In the same will is the following clause: “ As to my slaves, if I could any way effect it, I would emancipate them. I do not wish to entail slavery upon them. G. P. has been promised if I ever sold 'him, to, let him have a chance to buy himself. If this can be done, I desire it may, by his paying my estate one hundred dollars.” Held, that ijy this clause there is no direction for the emancipation of any of them.</p> <p>The case of jBridges v. Pleasants, 4 Ire. Eq. 30, Barnes v. Simmons, 5 Ire Eq. 392 cited and approved.</p>

Cause removed by consent from the Court of Equity of Onslow, at the Spring Terr». 1851.

<p>An agent, who renders no account, is entitled to no compensation for his services, nor is he entitled to charge for the particular payments made for hi® principal, without showing that, upon a settlement of the transactions of his agency, such an amount is due to him.</p> <p>Where A. claimed title to a slave as a legatee, and one of the'other: legatees conveyed certain other slaves to A. in consideration that he would suffer the slave claimed by him to he sold as a part of the fund for distribution, and it turned out that A. was not in fact entitled to such slave, the' agreement that the slave should be so sold did not form a valuable and sufficient consideration for the slaves conveyed by the other legatee.</p> <p>T|)e principle is well settled, that if an agent, or trustee convert the property confided to him, the principal or cestui que trust may, at his, election, ratify the transaction and claim whatever profit is made by it.</p> <p>The cases of Downey v. Bulloch, 7 Ire. Eq, 102, Ward v. Turner, 7 Ire. Eq. 73, and Turnage v. Turnage, 7 Ire. Eq. 127 cited and approved.</p>

Burton, the testator of the plaintiff, a tract of land on the Catawba rivei\ and six negroes, at the price of $15,325.

<p>wbere it appeared that, upon a treaty for the sale of a tract of land, quantity ' entered essentially into the treaty, and the parties meant to contract for the . land, as containing a certain quantity, and not as supposed to contain-it or thereabouts; and it turns out that the deed, executed in pursuance of this treaty, Conveys more or less than the quandty bclieve.d to exist, a Court of : Equity, though there be no fraud, ought to relieve either party, upon the ground of surprise and mistake of both the parties.</p>

Upon the pleadings, and by the written admissions of the parties, the case is as follows : Moses Starnes died intestate in Union county, and Alexander W. Richasdson, one of the defendants, administered on his estate, and. in May, 1843 sold it, and toot bonds for the amount of sales, payable to. himself, as the administrator of the intestate Starnes, on- the 22d day of May, 1844.

Robinson, of Mecklenburg, married Nancy, the widow of Jno. Polk. By her first marriage she had issue, the plaintiff, John A. Polk, and a daughter Mary B., who in after life married one Weeks and died. By her second marriage she had issue, Matilda D., Rosinda, and James B. Robinson.

The bill states that in 1815, George Ashford, Mary Ash-ford and Anna Ashford were seised in fee in possession of an undivided moiety of a tract of land, containing 700 acres, and Martha McCarson was seised of the other moiety, as tenants in common ; that said Mary married Henry Richards and Anna manned James A. Tucker, and that on the 19 th of December 1826, the said George, Henry and Tucker made a deed of bargain and sale, to 3amuel McCarson purporting to convey to him the…

<p>Appeal from the Court of Equity of Union county, Fall Term, 1851.</p>

The bill states, that the plaintiff, being indebted to the defendant in a small sum of money, to wit, twenty-two-dollars and fifty cents, gave him his note for the amount: That some short time thereafter, the defendant called on the plaintiff and requested him to secure the payment of the debt by conveying to him the land, on which he then lived, to which he agreed ; and accordingly a.deed of.con-veyapce was drawn, which is absolute on its face.

<p>X man, who is sued in an action of debt, and does not prove, on the trial at law, payments which he alleges he has made, can have no relief in equity, unless he can show some fraud or circumvention practised, to prevent hie making the proof.</p> <p>Ill regard to nów matter, introduced by a defendant in his answer to in injunction bill, thefe is this distinction : Where tile bill charges the receipt of money, and a general accountability, and the answer admits the reeéipt; and seeks to account for the money by alleging its application to some particular purpose, then the injunction will not be dissolved on the answer; but whero the bill charges a paynieht 'on a particular account, and the answer denies ‘ that any payment was made on that account, and accompanies the denial with an admission that a certain sum was received, as a payment on some other account; for there is no conlession and avoidance by new matter, but a positive denial of the allegation, together with an explanation of u ci'r-'cumstance, relied on to give color to the allegation.</p>

<p>Appeal from the Superior Court of Equity of Buncombe County, Spring Term, 1851, his Honor Judge Settle pre* siding.</p>

. The bill was filed in' April, 1800, against Alexander Duckworth-and his. wife, Nancy, and it states that the defendant, Alexander, was indebted ’to Charles McDowell, as the guardian of an infant, in the sum of $767, and, to secure the same, that he, and John Vanhorn, as his surety, executed their bond therefor to McDowell, as guardian, on the 18th of April, 1843; and that, in order to indemnify Vanhorn, and save him harmless, Duckworth, at the same-time, conveyed to…

. In 1839, Bedient Baird died, having previously duly made and published his last will and testament, in which he devises as follows: “2ndly.

John Davidson died in the year 1845. After his death a paper-writing, purporting to be his last will and testament’ was offered for probate in the County Court of Haywood, where he lived and died, by the defendant Potts, who was therein appointed its executor. It was proven in common form, and without notice to any of those interested.

<p>Dealings between a trustee and a cestui que trust, in reference to the trust fund, are not prohibited ; but are watched in this Court with great jealousy, and the trustee is required to shew affirmatively, that the dealings were fair and for a reasonable consideration, so as to exclude all suspicion that any advantage was taken of the influence, which the relation in most cases creates.</p> <p>The cases of Turnage v Tumage, 7 Ire. Eq. 127, and Boyd v Hawkins, 2 Dev. Eq. 195, cited and approved.</p>

' Appeal from the Court of Equity of Yancy County, Spring Term, 1851, his Honor Judge Settle presiding. *• The bill is for the redemption of a slave, Maria.

<p>A. made a parol contract for the purchase of land from B.,- for which he paid by delivering a horse, and also a bond on one M, which he caused to be ■ made payable to B. M. died died insolvent, the bond remaining uncollected. Held, on a bill for specific performance or compensation, to which B. pleaded the Statute against parol contracts for land, that A. was entitled to compensation ; that so far as related to the horse, if that had been the only subject of controversy, A. would have had no claim to relief in Equity, as he could have had complete redress at law, upon the recision of the , contract; but as he had no legal redress as to the bond, the Court would entertain jurisdiction as to that matter; and, thus taking jurisdiction of part of the case, would take jurisdiction of the whole and grant the relief prayed for.</p> <p>The cases of Ellis v Ellis 91 Dev. Eq. 341, 398, and Albea v Griffin, 2 Dev. and Bat. Eq*. 9, cited and approved.</p>

<p>The principles in relation to dealings between trustee and cestui que trust, as adopted by Courts of Equity, do not apply to the case of mortgagor and mortgagee. Dependence and the duty of protection are not involved in v this relation, and they may deal, subject only to the ordinary principios j with tliis difference, that the relation is a circumstance, which always creates suspicion, and aids in the proof of an allegation of oppression and un- - due advantage, when there is a gross inadequacy of price, and other circum* stances tending to show fraud.</p>

The bill is filed for an injunction and sequestration, and states, that John Logan died about the year 1835, and by his. last will devised the whole of his estate, real and personal, after the payment of his debts, to his wile Mary Ann Logan, the defendant, during her life, and, after her death, to be divided, as therein directed ; except one half; which was to be at hep absolute disposal.

<p>Appeal from the Court of Equity of Union county, Spring Term, 1851, his Honor Judge Battle presiding.</p> <p>The facts of this case are set forth in the opinion of the Court.</p>