Volume 43 — North Carolina Reports

This opinion was delivered at December Term, 1843, of this Court, upon exceptions to the Master’s report, but, be* ing accidentally, overlooked at the time, has not heretofore been published.

<p>Where a bill of Injunction is filed to prevent irreparable injury, and tiio ease, as it appears on the bill, is a proper one for the interference of the Court, if any of the material facts are denied in the answer, the Court will not dissolve the injunction upon the bill and answer alone, but hold it over, until proofs are taken, or the matters in dispute, if questions of law, are decided in a Court of law.</p>

<p>Appeal from an interlocutory decree of the Court of Equity of Forsythe County, at the Fall Term, J85U, his Honor, Judge Manly presiding.</p> <p>The case is stated in the opinion delivered in this Const,</p>

Cause removed from the Court of Equity of Chowan County, at the Spring Term, 1850. • The case as .fully stated in the opinion delivered in -this •Court. contended, that the bill could be sustained, either upon the ground that Courts of Equity have jurisdiction in all eases of actual fraud, or, on the ground, that the plaintiff, while the testimony can be had, has a right to have the cloud, that is overhanging his title, removed.

<p>Where two partners agree to dissolve their copartnership, and divide according to their separate interests, &c., and the division is made, the property •allotted to each becomes his separate property, and neither of them, upon his liability for the debts, or his payment of them, has any hen upon the property which he agreed the other might take, as his separate property. He has no remedy, therefore, in equity.</p> <p>The case of Clements v Foster, 3 Ired.E q. 213, cited and approved.</p>

<p>When the estate devised is a legal one, and the question of construction-, disputed between the parties, is a legal one, a bill for partition of land, will not lie.</p> <p>Nor can a bill for partition of land be sustained, which states a legal controversy between the plaintiff and the defendant.</p> <p>A bill for partition of land should allege a seisin or possession in the defend-ant, and in the plaintiffs themselves.</p>

<p>’Where a Creditor has a lien upon alifeestate, either in alavea or money,-held by a trustee in trust'for the debtor, 'the Court may order a sale of such life interest in satisfaetion of the claim.</p> <p>"The cases of Hicks v Pitch ford, 1 Dev.-and Bat. Eq. 480, and Battle v Pet-•■way, 5 Ire. 576, cited-and approved.</p>

<p>The principles formerly laid down in this case, 6 Ire. Eq. 3S0, affirmed on a rehearing of the decretal order then made.</p> <p>Evan where a will expresses a trust, that slaves shall be sent to a foreign , country, there would be nothing illegal in that, even if it were illegal to direct their emancipation abroad without complying with our act on the subject of emancipation of slaves, because it would be intended the meaning was that the law was to be complied with.</p> <p>A general direction in a will is to be taken as intended to be consistent with the law.</p> <p>Subsequent acts of the trustee cannot affect the intention.</p> <p>A trust in a will that slaves should be taken out of this State, for the purpose of emancipation, is not forbidden by the laws of this State, nor is it against the policy of the law, nor the public interest, but is lawful and valid.</p> <p>The cases of Worth v McAden, 1 D and B. Eq. 199, Ralston v Telfair, 2 Dev. Eq. 255, Cameron v Commissioners of Raleigh, 1 Ire. Eq. 436, White v White, 1 D, and B. 260, Cox v Williams, i Ire. Eq. 15, cited and approved, and of Pendleton v Blount, 1 D. and B. Eq. 491, commented on and approved.</p>

<p>On the death of a feme covert, entitled to dioses in action, administration should be taken out on her estate, lor the purpose of paying her debts, if there he any, and for distributing the residue of her assets as the law directs.</p> <p>The husband has a right to such administration, but he may assign hia right to another.</p> <p>It has long been the established law in this State, that the increase of slaves belongs to the remainder-man, and not to the tenant for life of the mother.</p> <p>The cases of Timms v Potter, 1 Hay. 234-, Glasgow v Flowers, 1 Hay. 233, and Erwin v Kilpatrick, 3 Hawks. 436, cited and approved.</p>

<p>Although a husband is entitled exclusively to administration on his wife’s estate, yet he cannot recover, as administrator, a chose in action, for which he had received full satisfaction previously to the grant of administration, unless it appears there are debts due from the wife’s estate, and then an account will bo directed.</p> <p>So, if he has, intentionally, and with his privity and concurrence, permitted another to receive the amount of such chases in action of his deceased wife.</p>

<p>In an account between tenants m common of land, used for getting timber, the value of the timber, while growing, is to be taken as the. rule of valuation. See the case at law decided at this term, Bennett «*. Thompson, 13 Ire. 141.</p>

This cause came on, on exceptions to the report of the Clerk. The nature of the exceptions is set forth in the opinion •of the Court.

<p>Where a testator directs,by his will, that “a negro woman and her future increase and issue" be sent out of this State to some free State, for the purpose of emancipation; Held, that the words “ future increase and issue’ ’ should here include children, born between the making of the will and the ■. death of the testator.</p> <p>A trust in a will to carry slaves out of the State, for the purpose of being set- - tied in a free State, as free persons, is a lawful and valid trust, which the executors are bound to perform. And this the executors may do, without any application to the Courts of this State — under our Statute.</p>

■Cause 'removed from the Court of Equity of Craven County, at the Spring Term, 1851. submitted the following •argument: 1. Held: that the emancipation was good and effectual, and entitled them to their freedom in Tennessee ; held also, that if the design in going to Illinois was to emancipate said slaves and evade the law of Tennessee, and that such slaves should immediately return to Tennessee, the emancipation would be good and entitle the negroes to their…

Cause removed from the Court of Equity of Jones county, at the Fall Term, 1851. The facts are stated in the opinion delivered in this Court.

<p>The declaration and decretal order, made in this cause at December Term, 1850, (see 1 Ire. Eq. 11,) affirmed on a petition to rehear.</p>

<p>Appeal from au interlocutory decree of the Court of Equity of Randolph County, at the Fail Term, 1850, his Honor, Judge Battle presiding.</p>

<p>"When a paper is signed and sealed, and handed to a third person, to be handed to another, upon a condition, which is afterwards complied with, the paper becomes a deed, by the act of parting with the possession,, and takes effect presently ; unless it clearly appears to be the intention, that it should not then become a deed.</p> <p>The enquiry always is, whether the delivery to the third person, under all the circumstances, is a departing with the possession of the instrument, and of the power and control over it; or whether it was delivered merely as a depository, and subject to the future control and disposition of the maker of the instrument. If the former, the delivery, as an escrow, is complete: if the latter, it is not.</p> <p>Where an instrument, signed and sealed by A, purporting to convey certain negroes to B, was placed in tbe hands of the subscribing witness, and at the time, A said “ she wished it to be kept secret until her death, and if C., lier grand-daughter, should marry a man who was able to buy the ne-groes mentioned in the deed, she wished the witness to let him have them at their worth, and the proceeds arising from said sale to be secured to B : the deed of gift she wished given up, in case he should pay,or secure te be paid, the worth of the negroes — the deed to be kept until the death of the said A : and further, “ that if she ever wanted it, she would call for it on the witness:” and if she had, file witness said he would have delivered it up to her. And she further directed the witness, “ if the husband of C. refused to purchase the negrees, or C. was not married, to prove the paper:” Held, that this wae not a sufficient delivery of the instrument to constitute it a deed.</p>

<p>■A testator directed that the income of certain property should he applied . by his executor to the support and education of bis children, but that nothing more than the annual income should he advanced for that purpose. Tho widow of the testator married again, and her second-husband, out of his own funds, for several years maintained and educated the children, the •executor not paying to him their income. ‘Held, that he was entitled to ■ ‘recover from the executor the amount of the income accruing to the-children during the time they were so supported by him, but that he could not ‘recover any part of the income accruing afterwards, though what did accrue was not sufficient to defray the necessary expenses advanced by him.</p>

Cause removed from the Court of Equity of Craven County, at the Fall Term, 1851. This was a bill, filed by the executors of Mrs. Mary Mc-Kmlay, to obtain directions from the Court as to the proper execution of the will. The only point of law submitted arose upon the following facts. Certain premises in the town of Newbern, were, by the said will, devised to Mrs. Elizabeth Daves for life, and after her death to her children, John, Edward and Graham.

<p>Appeal from the Court ©f Equity -of Granville County, at the Spring Term, 1850.</p>

Cause removed from the Court of Equity of Craven County, at the Fall Term, 1851. submitted the following argument: 1. The Court of Chancery has a concurrent jurisdiction by injunction, equally clear and well established in cases of private nuisance ; Finch v Resbridger, 2 Vernon 390, Bush v Western, Free in Ch. 530.

<p>The objection, that the equity of a plaintiff’s bill to have a division of slaves is barred by long adverse possession, may be token by a demurrer.</p> <p>The fact, that the adverse possession, relief upon to bar a plaintiff, was commenced and continued under a mistake as to the rights of the parties, is not an “ avoidance” of its legal effects.</p> <p>Where a mistake, made by au administrator in the distribution of his intestate’s effects, has been csmmen to him and to those really entitled, there is no ground for charging the administrator with “ gross negligence or fraud.”</p>

<p>Cause removed from the Court of Equity of Halifax County, at the Fall Term, 1851.</p>

<p>Where a man, domiciled in another State, dies intestate, leaving personal property in this State, this property shall be distributed according to the law of the State, in which the iutestate had his domicile.</p> <p>But, if a citizen of another country dies, indebted to citizens of this State, and owns personal property here, it will be appropriated to the payment of his creditors, in the order prescribed by our law, and not by that of hia domicil; but the surplus will be disposed of according to the law of his domicil.</p> <p>The distinction is this: Our citizens, as creditors, have rights, winch we are bound to protect; we will not sacrifice justice to comity. But,as kinsmen, they have no rights. Consequently, it depends, not on the laws of this country, but on the laws of his country, how His property shall be disposed of; and, although it happens to hem our own State, yet, by the comity of nations, it is considered the same as if it had been at home.</p> <p>The case of Allen v Allen, 6 Ire. Eq. 293, cited aud approved.</p>

<p>In the case of co-executore, each is accountable for vhe due administration of the assets, which come to his own hands.</p> <p>He is not bound to see to the application of the assets received by his co ex-, acutor, nor is he hable for his devastavit, unless the commission of it is eu-.couraged by himself.</p> <p>The case of Ochiltree v Wright, 1 Dev. and Bat. 333, cited and approved.</p>

<p>An executor, ■who, in his cash account, is in advance for the estate, may hold on to the specific property for reimbursement.</p> <p>So, if the profits of property, given for life, and then over, be taken for payment of debts, the tenant for life may claim from the remaindermen a contribution, in proportion to the values of their interests.</p> <p>The Court cannot, on grounds of public policy, permit accounts to be carried . on, when the party, who otherwise might have been entitled to them, has been guilty of such laches, as to make it impossible to take the accounts . fairly and justly, or, at least, with any reasonable reliance on their being so taken.</p> <p>Therefore, on a bill by the administrator of an executrix, against tire legatees, to be reimbursed for moneys advanced by the executrix, the Court will order no account, when the original testator has been dead forty years, and no inventory, account of sales or account current has been left by the executrix.</p>

<p>Where a plaintiff alleged that he had placed a note for collection in the 'hands of a constable, who had transferred it to a third person, upon his promise to pay it; Held, that he could not support a bill in equity, either against the original debtor or the third person.</p>

<p>Where slaves are given by parol, the bailment ceases upon the death of the donee; and the possession of the slaves, for three years, by those claiming in their own right under the will of the donee, vests in them the-title. The case of Powell v Powell, 1 Dev. and Bat. Eq. 37 cited and approved.</p>

<p>Marriage articles are Dot considered as settlements, and, as such, to be taken as fully and duly expressing the well considered and filial family arrangements by persuns about to enter the marriage state.</p> <p>Such contracts are considered, in a Court of Equity, as but notes of the heads of an agreement, In its nature executory, and the trusts created by it are to be favorably moulded by the Court, so as to effectuate the intention of the parties, in reference to the provisions for themselves for the issue of the marriage, and such other persons, as are apparently within the contemplation of the parlies.</p> <p>They may be modified, so as even to have the chasms in them, in not providing, for example, for particular events, supplied, when requisite to effectuate the general intention, if it can be collected, either from the language of the instrument, or from the stipulations usually inserted in such agreements, or from the condition of the particular contracting parties.</p> <p>The opinion given in this case, at December Term, 1850, (see 7 Ire. ITq. 83.) re-examined and confirmed.</p> <p>The eases of Gause v Hale, 2 Ire. Eq. 241, and Murphey v Avery, 1 Der. and Bat. 25, cited and approved.</p>

<p>Cause removed from the Court of Equity of Moore County, at the Spring Term, 1851.</p>

<p>A term for years does not exclude the actual seisin of the husband and wife, • whether they receive rent or not, since the possession of the term is that of the reversioner; and, therefore, in such a case the husband is entitled to curtesy.</p> <p>A devised “ that his plantation, called Eagle falls, remain in possesion of his wife during her widowhood, or until his son B arrived at the age of twenty oneand that his negroes should be kept on the plantation during that period, or until one of his daughters M or C should marry. He then directs, how his negroes shall be divided among his wife and children, upon the happening of either of these events. He then proceeds, “ I also give my three children all of my tract of land, called Eag'le Falls, one third part of which is hereafter devised to my wife during her life, to them and their heirs to be equally divided ; the two thirds of which is to be taken possession of immediately upon the marriage of my wife, and the other third at her death. I give to my wife one third of the plantation called Eagle Falk, during her natural life, it being in lieu of her dower. Should either of my children die, my will is, that the portion or portions of the child or children dying shall be divided between my wife and my surviving child or children.” After the death of her father, the daughter M married, had issue, and died before her brother B arrived at the age of twenty one, and in the lifetime of her mother.</p> <p>Held, that, as to the one third of the plantation left to the widow of the testator, M never had any seisin and therefore her husbaud has no right by curtesy/ that, as to the other two thirds, the widow had only a term for years, a? her estate was determinable at all events upon her son’s arrival at the age of twenty one; that the seisin in the free hold was therefore in M, as one of the devisees, during her lifetime, and consequently her husband was entitled to his estate in curtesy therein ; and that the survivorship, mentioned in the last clause of .the will, must refer to the death of the testator.</p> <p>The case of Cox v. Hogg, 2 Dev. Eq. 121 cited and approved.</p>

The facts relied upon in this case, are the same as those in the case at law between the same parties, reported 9 lied. 163.

<p>If a deed of trust provides for the payment of ene creditor, in the first place, and then provides for the payment of other creditors as a second class, the first creditor may call on the trustee for an account and for payment, to the extent of the trust fund, without making the creditors of the second class parties.</p> <p>But when the deed provides, that any payment, made by the bargainor, is to he credited, in extinguishment of the debt, on which it is ¡oaid, the creditors of the second class are interested in the amount of such payment, and are, therefore, necessary parties, in order that they may be bound, and the trustees protected.</p> <p>Where an objection, for the want of parties, is taken in the Supreme Court for the first time, it is almost “a matter of course,” to remand the case at ttie costs of the plaintiff. But where the defendant is a trustee, answers fully, states the conflicting claims of the plaintiffs and others to the trust fund, and asks that, for his protection, these others may he made parties, but the plaintiffs urge the case to a hearing, without making such parties, this Court will not remand for that purpose.</p> <p>Creditors, secured by a deed of trust, accepted by the trustee,'may require, the execution of the trusts, though not privy to the execution of the deed.</p> <p>The case of Ingram r Kirkpatrick, 6 Ire. Eq. 463, cited and approved.</p>

<p>What facts are sufficient to show, that a .deed, absolute on its face, was intended as a mere security for money.</p> <p>Where a bill is filed for the purpose of having a deed, absolute on its face, declared merely a security, and the answer denies directly an agreement for redemption, and avers positively a purchase, such a deed and answer constitute a defence, not, indeed, conclusive under all circumstances, but, at the least, not to he repelled, but by the clearest and most cogent proofs from facts and circumstances.</p> <p>The cases of Blackwell v Overby, 6 Ire. Eq. 38, and Kemp v Earps, *1 Iro. Eq. 16T, cited and approved.</p>

<p>The general rule is, that, that an administrator cannot purchase at his own Bale, but this rule does not apply, when he fairly bids, with the privity and consent of the next of kin, having a full knowledge of the condition of the estate and the value of the property.</p> <p>A widow cannot claim her year’s allowance in a Court of Equity. It is a legal right and must be prosecuted in a legal Court, as prescribed by the Statute.</p> <p>The neglect to prosecute a legal claim within the proper time, though arising from mistake, amounts to laches, and the party must abide the consequences, unless the other party either agreed not to take advantage of the delay, or contributed to bring about the delay.</p> <p>where an administrator has advanced to the widow a sum in part of her year’s allow anee, and, in consequence of a mutual mistake as to the law, the allowance is not afterwards directed by the Court, he cannot charge her with the sum so paid, in accounting with her for her distributive share.</p>

<p>When a contract for the sale of land is rescinded, the vendee is entitled to ho discharged from the payment of the purchase money he had promised, and, consequently, to have his bond he had given to secure it surrendered; as the consideration for it had thus failed. For, although the failure of the consideration of a bond is not a discharge of it in law, and cannot be inquired into there ; yet it is otherwise in equity, because, here, the debt is considered to arise out of the original contract of purchase, and the bond to be only a security for it.</p> <p>Where a suit is brought at law against two persons, a finding of the Jury, that one of the defendants is principal, and the other surety, if binding a^ all between the parties, does not m equity establish the relation of surety-ship.</p>

<p>'The increase of the personal property, except in the case of slaves, belongs to the tenaDt for life, as a compensation for the trouble and expense of taking care of the original stock.</p> <p>©ut it is settled in -our State, that, where such property is of a perishable nature, or may be consumed in the use, it is the duty of the executor to sell it, and pay over the interest only to the tenant for life.</p> <p>■Where that is not done, but the property itself'is delivered to the tenant for life, the increase, such as of -cattle, etc., belongs to him, and the remainder man is only entitled to the original stock.</p> <p>The cases of Smith v- Barham, 2 Dev. Eg. 42S, and Janes v, Simmons, 1 Ire. Eg. -líS, cited and approved.</p> <p>The case is stated in the opinion delivered here.</p>

This cause came on to be heard upon exceptions to the Master’s report on the accounts of the Trustee. It is unnecessary to state any of the exceptions, as they embrace merely matters of fact; except the third, upon which the Court delivered its opinion.

<p>A receipt under seal will not avail as a defence to a bill brought to have an account against a guardian, by his former wards, on the ground of a mistake, which the defendant admits.</p> <p>Nor will the lapse of time .bar such a bill, when, during the greater part of the time, the plaintiff's were under age and under coverture; and especially where the defendant, claiming the benefit of such lapse, was the trustee of the plaintiffs.</p> <p>A cestui que trust may call the trustee to account without making any person a party, with whom the trustee, in violation of his duty, has seen proper to divide the fund: or he znay, if he thinks proper, join such person as a party defendant.</p>

<p>Where a party obtained goods, under an assurance that he would secure the payment by a deed of trust on a house and lot, conveyed to him by hia mother-in-law, and he accordingly executed such a deed ; but, on the day of sale, according to the trust, the mother-in-law forbade the sale, and the debtor refused to have the conveyance, which he had received from her, proved and recorded. Held, that this was a clear case of fraud on the creditor, for which he was entitled to relief in Equity.</p> <p>A bill is multifarious, where several plaintiffs demand, by one bill, several matters, entirely distinct and separate, or when, in the same bill, several .matters of distinct natures, are demanded against different defendants. Rut when all the matters charged, constitute but one whole transaction, then the bill is not multifarious ; and all the persons, mixed up in the transaction, and having an interest in the subject matters, mull be made parties, o avoid multiplicity of suits.</p> <p>One who, acting solely as an agent, receives a deed m his own name, and theii conveys to his principal, need not be made a party to a bill by his principal.</p>

<p>Cause transmitted from the Court of Equity of Moore county, at the Spring Term, 1852.</p>

<p>A bequest of personal property to tbe testator’s wife for life, and “ after her death, to be equally divided among his lawful heirs,” is a vested legacy in those who were his heirs at the time of his death, and, upon the death of one of his daughters, during the lifetime of the widow, survives to her administrator.</p> <p>The words “after,” or “upon,” the death of the wife, or the like expressions, do not make a contingency, but merely denote the commencement of the remainder, in point of enjoyment. •</p>

<p>If, in the institution of a suit, or in its progress, the course of the Court requires a party to make an affidavit, the fact of his being infamous does not make him incompetent to do se ; as an affidavit to continue cause, &c.</p> <p>On the other hand, if a party offers himself as a witness in his own case, (as, for instance under the hook debt law,) the fact of his being infamous will make him incompetent.</p> <p>A party, though he is infamous, is competent to make affidavit to the truth » of the facts alleged in his bill, seeking to recover the amount of a lost bond.</p> <p>The cases of Hall vs. fiox, Mart. 24, and-vs. Kimbrough, Mart.. 25 cited and approved.</p>

<p>A judgment at law and a decree in Equity, in cases of partition, are both equally conclusive, in respect to the thing in which the parties had, or admitted, or it was declared they had, an estate in common, and also in respect to the share, to which each was entitled, and to the parcel allotted to each, as his share in severalty.</p> <p>Wherefore a bill cannot be supported, to set aside a decree formerly made between the parties, though it be alleged, that the facts then admitted and found by the Court, and on which the decree was founded, did not in fact exist.</p> <p>The case of Mills v, Wilherington, 2 Dev. and Bat. 433, cited and approved.</p>

<p>An administrator, in this State, eannot, by virtue of his appointment, collect the assets of his intestate in another State, and is under no legal obligation to procure administration out of the State.</p> <p>But if an administrator pays over to one of the distributees, residing in another State, his share of the personal property in this State, without charging him with advancements made to him by the intestate, the administrator becomes personally liable to tbe other next of Mn for the amount so misapplied.</p> <p>The cases of Butt vs. Price, Conf. Rep. 68, Plummer vs. Brandon, 5 Ired. Eq, 190, Governor vs. Williams, 3 Ired. 154,cited and approved.</p>

<p>Although a deed from a husband to his wife, for slaves, cannot have the cf— fact of vesting a title in her, yet it amounts to a declaration of trust in her-favor.</p> <p>‘Where, by agreement, property is to be held in trust, the trustee is not at' liberty to assume the position-of an adversary, and cannot make a title to himself by the length of his possession; because he holds for another, and» not for himself, and continues to be bound by the original agreement.</p>

<p>A testator bequeathed, as follows: “ I desire that my two negroes, A. and S, shall continue to labor for the benefit of my estate, for three years after my death, or pay the sum of seven hundred and fifty dollars each, to ray executor. At the expiration of that time, (three years), I desire that they may be permitted to select their masters; and do authorise and empower my executor to sell them to such person or persons as they may select, at a nominal price, or to liberate them, if it can be done consistently with the laws of North Carolina, as they may prefer : my intention being to have them kindly treated, and properly taken care of, for the remainder of their lives, etc.” Held, that the first part of (he bequest was void, as being substantially for their emancipation; and that, therefore, if the negroes chose to remain in this State, it would be the duty of the executor to sell them as slaves; but, in doing so, be is not obliged to put them up at auction, but way sell them as slaves at private sale, for a fair price, to any person at bis discretion. If they prefer being emancipated, the executor may send them out of the State, by giving bonds or without giving bonds.</p> <p>The testator also bequeathed, as follows: Should my negro woman H. desire to be sold in the neighborhood of Washington, where she was raised, I authorize and request my executor to sell her and her child S. to such persons as she may select in that neighborhood, and for such prices as be may think proper. My executor is further authorized, requested and empowered to hire out said H. for six or twelve months, to such person as she may select, thus giving her au opportunity of choosing her master; or she may remain with her mistress eight or ten years, if she wishes.” The woman preferred remaining with her mistress, but, having had several children, had become expensive, and her mistress declines to keep her, without some compensation being allowed from the estate. Held, that the executor could not make such allowance, and if the mistress will not keep and support the negroes, the executor must sell them ; and, in doing so, he may exercise his discretion, according to the testator’s intention, and may sell in the neighborhood of Washington, to any person at private sale, for a reasonably fair price.</p> <p>An executor, who has entered upon the discharge of his trust, caunot after-wards resign it.</p> <p>The cases of Thompson v. Newlin, Ire. Eq. S2, Wooten v. Becion, 8 Ire-Eq. 66. cited and approved.</p>

This was a bill filed in 1851, by the Trustees of the University of North Carolina, alleging, that one Charlotte Rouse, of Columbus county, died intestate in the year 1841; and that administration on her estate was granted to Josiah Maultsby, at August Term, 1841, of the County Court of the said county ; that the said administrator still has in his possession a large amount of the estate of his intestate, remaining unclaimed ; and the bill prays for an account of such…

<p>Whether an infant female can or cannot bind her land by marriage, yet, if lands to which she is entitled, with ethers, as tenant in common, he sold for partition, under an 'order of a Court of Equity, a contract made by her, she being still an infant, for the conveyance of the fund arising from such sale, in consideration of marriage, will not be supported, where it appears that she was under a misapprehension of her rights, and believed that the fund constituted personal and not real estate.</p> <p>An infant female may settle her personalty at marriage, on the ground that it cannot be to her prejudice, but must be to her advantage, if it secure to her or her issue anything, since, without the settlement, the whole wousMg® to the husband, absolutely, on the marriage.</p> <p>The case of Freeman v. Cook, 6 Ired. Eq. 8*73, cited and approved.</p>

<p>A. by his will, gave to his wife, “ for her Ufe, a tract of land, called the Red House, and three slaves; and after her death, the land to he sold by my executor, and the negroes to be lured out, until my youngest grandchild arrives at lawful age, and then sold and divided equally between my grandchildren, B. H. M., B. M., J. B. M. and M J. M.; the proceeds of the land to be divided equally among the above-mentioned children, or ai> many as may be living, as they come of age.” He then directs, other land, and 11 all the residue of my property, of every description, to be sold, at such time as my executor shall think most advantageous, the whole to be equally divided among my eight grandchildren as they come to lawful age, to wit, S. M.,” etc.</p> <p>■’Held, that the gift of the residue to the eight grandchildren, was a legacy, vesting at the death of the testator, and payable on their arriving at full age ; but that the gift of the proceeds of the “ Red House.,” did not Vest at that period, but was contingent, and would vest only in those of the four grandchildren who attained their full age, the expression, or as many as may he living as they come of age,” .qualifying .the .previous absolute gift</p>

<p>The law requires no particular words, whereby a slave is to be conveyed in a bill of sale. If the words clearly evidence a : Re, it is sufficient.</p> <p>A, by deed, conveyed a slave t ■ J. and E. ; “ and in case the said J. and E. both die without leaving any child or children, then, and in that case to go to C.’’ Those expressions create no cross-remainders between J. and E. > but the estate is a vested interest in each, subject to be defeated, only upon the contingency of both dying without children.</p> <p>The cases of Satterwhite v. Fortescve, 1 Ire. 571, and Picot v. Armistcacb 2 Dev. Eq. 226, cited ®nd approved.</p>

<p>Cause removed from the Court of Equity of Bladen county, at the Fall Term, 1851.</p>

<p>Cause removed from the Court of Equity of Buncombe county, at the Fall Term, 1826.</p>

<p>Whether a Court of Equity will interfere in a ease at law, where the verdict was obtained by the testimony of a witness, which was known to be false by the party using it, and which the opposite party had no means of contradicting at the trial, or in time to support a rule for a new trial, and with the further ground offered, that the false witness has been prosecuted for perjury, or has absconded so as not to be answerable to the process of the law: Query ?</p> <p>When the answer to a bill of injunction is responsive to its allegations and not evasive, and positively denies the truth of the facts set forth in the bill, the injunction must be dissolved.</p>

<p>Where the vendor of a slave has been informed, that the slave has been -unsound, he is not bound to disclose it to his vendee, if he believes that the unsoundness does not still exist. Moral turpitude iá necessary, to constitute the fraud.</p> <p>The case of Hamrick v. Hogg, 1 Dev. R. 350, cited and approved, j</p>

<p>Even if a contract between an attorney and bis client for a conditional fee dependant on success in a cause can be sustained at all in Equity, yet where the condition was that the attorney should attend to the cause, the fee to be dependant on the event of the party’s success, and the attorney neglected or abandoned it without trying it and a term or two before the trial, it is unprofessional and uncon-seientious in him to claim such fee, although his client was success-full. In such a caso, a Court of Equity will interfere to prevent the collection of the claim.</p>

<p>A motion to dissolve an injunction, until the defendant has filed his answer is irregular: At all events, such a motion ought not to ho entertained, after a general demurrer has been set down for argument and before the argument.</p> <p>The rule in Equity is, that a vendor cannot, with a good conscience, coerce the payment of the whole purchase monejq when there was fraud in the sale, and leave the vendee to pursue a personal action at law for the uncertain damages, which a jury might assess, for the fraud in selling what did not belong to the vendor, but, on the contrary, the vendee has the right of withholding so much of the purchase money, as will re-imburse him for his loss, because, to that extent, the consideration has failed in his own hands against the loss impending over him.</p> <p>In such a case, the contract remaining unexecuted, the Statute of Limitations has no application.</p>

<p>When parties reduce a contract to writing, the instrument is strong-evidence, that what it speaks is the truth; nor ean that conclusion he repelled by any evidence, which is not clear and cogent.</p> <p>Case transmitted from the Court of Equity of Cherokee county.</p>

<p>In the ease of a breach of contract of sale, the injured party is entitled, at his election, to a hill for specific performance, and is not bound to bring an action at law for damages.</p> <p>As a general rule in Equity, time is not the essence of a contract, and is therefore not material, except so far as costs may be concerned.</p>

<p>-The words “ sole and separate ose ” aro those most appropriate, to create a separate estate in a married woman, independent of her husband.</p> <p>indeed each of those terms, “ sole,” “ separate,” has been held sufficient for that purpose, and especially when coupled with that of “ disposition” by the wife.</p> <p>The trust will not be allowed to fail for the want of a trustee ; if necessary, the executor of the will devising such an estate, would be held to be the trustee. But, on application of the wife, a Oourt of Equity would appoint any other fit and proper person to be trustee.</p>