Volume 46 — South Carolina Reports

<p>Before Buchanan, J., Beaufort, September 11, 1895.</p> <p>Actions by J. Carson George and Wm. C. Brown against The American Ginning Company, on notes, commenced July 30,1895. Judgment for plaintiff. Defendant appeals.</p>

<p>Before Townsend, J., Chesterfield, February 12, 1895.</p> <p>Action by M. A. Perkins against D. Preston Douglass, for possession of personal property, commenced December -12, 1894, in Trial Justice Court. Judgment for plaintiff. Defendant appeals.</p>

<p>Before Aldrich, J., Greenville, July 5, 1895.</p> <p>Action by James O. Rosamond against John K. Earle, on account in Trial Justice Court, commenced March 9, 1895. Trial justice dismissed complaint for want of jurisdiction. Plaintiff appeals. The Circuit Court affirmed the judgment. Plaintiff appeals.</p>

<p>Before Aldrich, J., Greenville, August 5, 1895.</p> <p>Action by Adam Young against Edward Green, on account in Trial Justice Court, April, 1895. Judgment for defendant. Plaintiff appeals. Circuit Court affirms judgment below. Plaintiff appeals.</p>

<p>Before Buchanan, J., Hampton, October, 1895.</p> <p>Indictment against George Copeland for arson. Defendant sets up plea of autre fois acquit. Plea overruled. Defendant appeals.</p>

Before Benet, J., Edgefield, November, 1894. Action by W. G. Townes and H. H. Townes, jr., against the City Council of Augusta, for damages for erecting a dam on and overflowing plaintiffs’ lands, commenced May 28, 1894. Tried at Edgefield, November, 1894, before Judge Benet and a.jury.

<p>Before Benet, J., Chester, June 7, 1895.</p> <p>Motion by J. W. Boyd to dissolve attachment on his crop, issued January 31, 1895, at instance of W. R. Doty & Co. Motion refused. Defendant appeals.</p>

Before Izlar, J., Florence, February, 1894. Action by Randall McDaniel against T. J. Walker for removal of defendant’s mill-dam, and for damages for overflowing plaintiff’s land.

Before Townsend, J., Darlington, March, 1895. Indictment against James R. Kelley and J. Newton Kelley, charged with assault and battery with intent to kill upon C. D. Jenkins. Verdict, guilty, with recommendation to ■ mercy. The defendants appeal upon the 'following exceptions: Due notice of intention to appeal was given, and defendants appeal to this court for error in the presiding judge refusing defendants’ motion for a new trial: 1.

Before Benet, J., Edgefield, November, 1894. Action by J. L. Lanham against J. W. M. Glover to set aside certain conveyances, and for the possession of a tract of laud. Judgment for plaintiff.

<p>Before Benet, J., Yorkville, May 14, 1895.</p> <p>Action by General Electric Company against Blacksburg Eand and Improvement Company, on open account. Copy of account served with complaint. Commenced September 24, 1894. Judgment for plaintiff. Defendant appeals.</p>

Before Gary, J., Barnwell, March, 1895. Action by Sarah V. Curnow, as assignee of the fire insurance policy of A. J. Bevy, against the Phcenix Insurance Company of Hartford, Conn., to recover $2,500 insurance on a stock of goods burned 18th. October, 1889, commenced May 12, 1890.

Before Townsend, J., Lexington, June, 1895. Action by Samuel Howard and Sarah T. Able against C. P. Quattlebaum, as administrator of estate of Paul Quattlebaum, for an accounting by Paul Quattlebaum, as the trustee of the mother of plaintiffs, commenced April 24, 1894. Judgment for plaintiffs. Defendant appeals.

Before Earle, J., Columbia, spring term, 1895. Held: and should have granted the nonsuit. 8. Because his honor, upon the motion for a nonsuit, should have held that the defendant company, upon transporting the cotton in question to the city of Savannah, had a right to assume that it would be called for upon its arrival, and that it was under no obligation to store the cotton in a…

Before Earle, J., Yorkville, July 10, 1895. Held: and the clerk reported that on the day of sale there was due upon the judgment of Voorhies, Miller & Co. the sum of $2,259.84, and the report was confirmed.

Before Fraser, J., Spartanburg, October term, 1894. Action by T. M. Leonard against S. V. Brockmau and Marion Thomas, for possession of seven bales of cotton, commenced December 23, 1893. The cotton was in possession of the defendant, Marion Thomas, as special constable, having been attached by him under warrant on an agricultural lien.

<p>Before Buchanan, J., Charleston, August 26, 1895.</p> <p>Action by John H. Devereux against Edward McCrady and Thos. McGahan, as executors and trustees under the will of Wnr. McBurney, for injunction and accounting, commenced April 16, 1894. All issues were referred to Master Sass, who, upon close of plaintiff’s testimony, made the following order:</p> <p>The plaintiff having closed his testimony, and defendants thereupon having moved to dismiss the complaint upon the testimony taken, on hearing counsel and consideration therereof: It is is ordered, that the motion be refused, the court being of the opinion that the evidence presents a case for the jurisdiction of the court on an application for an accounting. Nothing herein, however, to be construed as in any way passing upon the effect of the statute of limitations in this cause, or as precluding the interposing of the same as to any claim presented.</p> <p>Erom this order the defendants appealed, and were sustained by the Circuit Judge in the following order:</p> <p>This case comes up from the order of the master refusing to dismiss the bill and to deny an accounting. Is the plaintiff upon the showing made entitled to an accounting? A Court of Equity cannot take cognizance of every action where there is an allegation of partial payments made and services rendered. Here'the proper jurisdictional grounds do not appear. I think the master erred. The appeal is sustained and the order reversed. The motion below should have prevailed and the bill dismissed for the showing made.</p> <p>The plaintiff appeals upon the following exceptions:</p> <p>1. Because his honor erred in sustaining the exceptions to the master’s order refusing to dismiss the complaint.</p> <p>2. Because his honor erred in dismissing the complaint herein.</p> <p>3. Because his honor erred in holding that the proper jurisdictional grounds did not appear herein for an action of accounting.</p> <p>4. Because his honor should have held that the evidence showed that there was a long and complicated account to be examined on both sides.</p> <p>5. Because his honor should have held that the taking of a long and complicated account was necessary for the information of the court before judgment.</p> <p>6. Because his honor should have held that the evidence showed there were mutual accounts between the parties, which were continuous, running, unadjusted accounts for many years.</p> <p>7. Because his honor should have held that the evidence showed circumstances of too great complication and difficulty to allow of adequate relief at law.</p> <p>8. Because his honor should have held that the evidence discloses a proper case for an accounting between the parties and within the jurisdiction of a court of equity.</p> <p>The defendants also move to sustain the decree, upon the following grounds:</p> <p>I. Because the plaintiff,, appellant, on the trial in the circuit, upon the preliminary question as to his right to an accoimting, failed to establish by evidence that he has any interest, present or contingent, in the premises described as No. 29 Broad street.</p> <p>II. Because the plaintiff, appellant, on said trial, failed to establish by evidence that the absolute deed from John H. Devereux to William McBurney, dated in June, 1872, but recorded in November, 1881, was in fact but a mortgage.</p> <p>III. Because the plaintiff, appellant, on said trial, failed to establish by evidence the claim of a mutual, open running account between himself and the defendants’ testator.</p> <p>IV. Because the plaintiff, appellant, on said trial, failed to establish that Thomas R. McGahan, the executor of William McBurney, and a party to the action (whom he, the plaintiff, examined on his behalf, against objection, under sec. 400 of the Code), had any personal interest in the event of the suit to be promoted or injured; and that said Thos. R. McGahan having, so far as the evidence discloses, no personal interest to be promoted or injtired, and his testimony relating to and solely affecting the interests of the deceased, should not have been allowed by the master to testify against objection.</p> <p>V. Because the great lapse of time sought to be carried by the accounting claimed — the death of one of the principals and the laches of the other, independent of the statute of limitations' — was sufficient to bar the plaintiff from an accounting.</p>

Before Watts, J., Barnwell, August 23,1895. Motion for reference to take testimony, by Charles Carroll Simms, administrator of estate of John J. Maher, in foreclosure, against E. V. Philips and W. H. Kennedy, made before Judge Watts while holding special term in Barnwell County. Motion granted. Defendant, Phillips, appeals.

Before Gary, J., Barnwell, May 30, 1895. Action by B. F. Haynes against Joseph B. Hoffman, John S. C. Hoffman, and M. E. Izlar, as assignee of Joseph B. Hoffman, to set aside a deed of assignment and a mortgage as a fraud against creditors, for the appointment of a receiver, for injunction, and for judgment on a note, commenced February, 1895. Judgment for plaintiff. Defendants appeal.

Before Townsend, J., Florence. Action by the Bank of Florence against Reese C. Gregg, Catherine W. Gregg, The Imperial Fertilizer Co., and M. A. Gregg, in foreclosure, commenced December 26, 1893.

<p>Before Benet, J., Spartanburg, August, 1895.</p> <p>Action by Amanda Floyd against A. D. Floyd, for possession of a tract of land. Defendant claims by equitable title as purchaser. Judgment for plaintiff. Defendant appeals.</p>

Before Witherspoon, J., Camden, September term, 1895. Action by Edward D. Elias, by M. Kalisky, his guardian acl litem, against the Enterprise Building and E°an Association, on a note. Commenced May 21,1894. The association paid the money into court, and by order, David Wolf, guardian for Julia Herman, payee of note, was substituted as defendant. Judgment for plaintiff. Defendant appeals on the following exceptions: 1.

<p>Before Buchanan, J., Abbeville, April 19, 1895.</p> <p>Action by Nannie Jones, J. R. Ellis, Annie Eangley, Susan E. Ellis, Rose Ellis, Clyde Ellis, and Eannie Dyke, against Joseph E. Hughey for partition, commenced December 23,1893. The Circuit Judge found that the plaintiffs were entitled to partition, but referred the case to the master to take further testimony and state the accounts between the parties. Prom this decree the defendant appeals.</p>

Before Gary, J., Bennettsville, September 24,1895. Action by Dudley & Caston against Jno. B. Green, sheriff of Marlboro County, for possession of a stock of goods sold by him under execution, after demand made by plaintiff, claiming the same under a past due chattel mortgage. Nonsuit granted.

Before Gary, J., Aiken, April term, 1895. Action by Emma Q. and George W. Brodie against the Carolina Midland Railway Company, commenced October 16th, 1893, on the following complaint: The complaint of the above named plaintiffs respectfully shows unto this court: 1.

<p>1. Evidence — Written Contract. — It is not competent for a party to testify as to the understanding which he had of a written contract, where the contract is not ambiguous, nor is it competent for him to testify as to the intention with which he signed such contract. Such writing must be construed by the court, and speaks for itself — following Asbill v. Asbill, 24 S. C., 359.</p> <p>2. Ibid.. — .Custom.—It. is not competent to explain by parol the terms of a plain written order for goods, by showing the custom among merchants in ordering that class of goods.</p> <p>3. Rescission of Contract. — A contract ordering goods cannot be rescinded after goods are shipped.</p> <p>4. Contract — Mistake.—In order tó relieve a party of the consequences of an honest mistake, it must be shown that the other party to the contract in some way caused the mistake, and that party making the mistake could not by due diligence have avoided it.</p>

Before Townsend, J., Columbia, August 30, 1895. Held: as a conclusion from the construction of the will, that the testatrix had directed a conversion of her entire estate into personalty, and adjudged, “That the will of the testatrix, Julia H. Clarke, worked an equitable conversion into personalty at the time of her death of all her real estate of whatsoever description, and wheresoever…

Before Townsend, J., Beaufort, June 1, 1895. Action by F. W. Wagener & Co. against John H. Pape, S. Guckenheimer & Sons, F. W. Sheper, and George A. Reed, as sheriff of Beaufort County, to set aside two confessions of judgment by Pape to Guckenheimer & Sons and Sheper, because they operated as an assignment of the whole property of Pape, who was insolvent, and, therefore, in violation of our assignment laws; for an injunction to prevent the sheriff, who had levied on the…

Before Earle, J., Laurens, October 3, 1895. Action by John B. Cleveland, as receiver of the Port Royal and Western Carolina Railway Company, against Geo. Held: that when the railroad company paid the taxes and penalties after levy, the commissions followed as an incident to taxes collected. 7th. Because he erred in refusing to charge the defendant’s requests.

Before Benet, J., York, spring term, 1895. Action b}' Ella Selrnan, Mary Burk, Josie Horn, Mattie A. Horn, and Willie Harrison, against William Robeitson, for partition of a tract of land, claiming under will of Thomas A. Robertson, dated August 4, 1847, and probated August 6, 1849. Judgment for plaintiff. Defendant appeals.

<p>1. Report op Sales — Parties—Foreclosure.—It is not error in a Circuit Judge to confirm the report of sales by the master in foreclosure, when there is an action pending by the defendant in foreclosure in possession of the property, against the purchasers at master’s sale, to set aside the sale, to’which action the plaintiff, mortgagee, has not been made a party.</p> <p>2. Evidence — Sale.—The testimony in this case is sufficient to support the conclusion reached by the Circuit Judge, that there was no combination or agreement to chill the sale.</p>

Before Watts, J., Barnwell, August 23,1895. The following is the petition and answer upon which this proceeding commenced: Your petitioner, the relator, respectfully shows to your honor: 1.

<p>Motion, November term, 1895, by Sarah J. Archer, plaintiff, appellant, in case of Sarah J. Archer against J. G. Long, as sheriff of Union County,'to reinstate appeal, dismissed by clerk under Rule 1.</p>

Before Buchanan, J., Charleston, July 20, 1895. Proceeding in the probate court for the county of Charleston, for the probate in due form of law of the will of Ellen A. Crawford, upon motion of Charlotte Hartnett.

<p>Before Townsend, J., Williamsburg, October 27, 1894.</p> <p>Motion for change of venue in case of Ella F. and P. C. Willoughby against the Northeastern Railroad Company. Motion granted. Defendant appeals.</p>

Before Watts, J., Charleston, March, 1895. Action by city council of Charleston against Doris Werner, to recover $1,517.10, the cost of filling a portion of her lot, under authority of city ordinances and special act. Circuit Judge granted a nonsuit. Plaintiff appeals.

Before Townsend, J., Marion, April, 1895. This action was commenced in July, 1893, by service of following complaint: The plaintiff, complaining of the defendant, alleges: First. That the plaintiff is a corporation duly created by and existing under the laws of the State of South Carolina aforesaid, under the name of the South Carolina Steamboat Company. Second.

Before Watts, J., Orangeburg, April 2, 1895. Action commenced March 15,1895, by Middleton & Ravenel, against Albert R. Taber and George W. Willard, as individuals and as firm of Taber & Willard, R. Goodwyn Murphy, as assignee, and Thomas R. Regare, as agent of creditors, to set aside the following deed of assignment: “The State of South Carolina, county of Orangeburg.

Before Aldrich, J., Spartanburg, April, 1895. This was an action in foreclosure commenced January 21, 1891, by Amanda C. Hunt and' Marie Hunt against W. R. Nolen. The case went to the Supreme Court {Hunt v. Nolen, 40 S. C., 284), which ordered that J. P. Cleveland should be made a party defendant, and the case now comes up in that condition, both parties appealing.

Before Earee, J., Edgefield, March term, 1895. The following is the charge of the Circuit Judge in the case of D. P. Lagrone against W. H. Timmerman, J. S. C. Carpenter, and J. W. Hardy: Mr. Foreman and gentlemen of the jury: After listening attentively to learned and eloquent arguments of counsel, it becomes our duty now to decide this case. It is my duty to give you the law, and it is your duty to pass upon the facts.

Before Gary, J., Barnwell, June 24, 1895. Action by Simon Brown against the Barnwell Manufacturing Company, J. W. Lancaster, as sheriff of Barnwell County, and C. M. Hires, commenced April 7, 1894.

Before Aldrich, J., Greenville, August 31, 1895. Action by C. C. Beasley against Thomas D. Swinton and Josephine S. Cuttino, for foreclosure of mortgage for balance of purchase money of certain lands in Greenville County, near city of Greenville, commenced September, 1894. The transaction was conducted by J. C. Smith, acting for the defendants, and by S. L. Beasley and Geo. H. Chapin, for plaintiff. The following is the correspondence: Charleston, S. C., June 20, 1895.

Before Gary, J., Barnwell, June 27, 1895. Held: and the defendant, J. E. Steadman, in obedience to the order of this Court, appeared and testified before said referee, and that H. C. Rice and S. D. M. Guess, in obedience to said order, were examined on the part of plaintiff; on motion of S. G. Mayfield, attorney for plaintiff, It is ordered, that testimony so taken and reported…

<p>1. Insurance Policy — Action—Limitation.—The clause in the policy of insurance in this case, requiring that the action for loss shall be brought within twelve months next after the 'fire, construed, in connection with other clauses in the policy, to mean within twelve months after the accrual of the right of action.</p> <p>2. Waiver. — The question of waiver is not material in this case, and is not adjudicated.</p> <p>3. Limitations — 20 Stat., P. 1042. — The act of December 16, 1891, 20 Stat., p. 1042, allowing six years in which to bring action on insurance policy, does not apply to a contract made in April, 1891.</p>

<p>Before Witherspoon, J., Camden.</p> <p>Action in foreclosure by the Bank of Camden against Mattie D. Thompson. Judgment for plaintiff. Defendant appeals.</p>

Before Aedrich, J., Abbeville, June 30, 1895. Action by A. J. Speer against E. C. Mescbine, on account for medicine and medical services rendered by plaintiff to tenants of defendant, as alleged at the request of defendant. Commenced before Trial Justice Hardin, February 20, 1895. Judgment for the plaintiff. Defendant appeals.

Before Aedrich, J.,Yorkville, November, 1894. ■ Action by Augustus W. Smith against Spratt Machine Company, based on two drafts aggregating $800, drawn on defendant by Tugaloo Iron Works in favor of plaintiff and accepted by defendant, to be paid by them whenever in funds, due Tugaloo Iron Works for work which they had contracted to do for the defendants. Judgment for defendants. Plaintiff appeals.

<p>Before Buchanan, J., Barnwell, November 19, 1895.</p> <p>Motion by Joe Dunbar to set aside warrant of attachment issued by Trial Justice J. M. Hair on agricultural lien, at instance of W. H. Kennedy & Son. Motion refused. Defendant appeals.</p>

<p>Before Watts, J., Aiken, August 3, 1895.</p> <p>Action by Wm. H. Foster against Mrs. M. M. Glover, George W. Foster, jr., Mary E. Foster, Geo. Wr. Foster, sr., G. K. Chafee, as receiver of the Aiken County Loan and Savings Bank, and B. F. Turner, for the partition of certain lands in Aiken County. The plaintiff and all the defendants, except the last two, who hold mortgages over interests of certain defendants, are the heirs at law of Sarah A. Foster, and the plaintiff alleges that the lands in question pass to them under the following trust deed:</p> <p>South Carolina, Edgefield County. . Know all men by these presents, that I, William Foster, of the county and State aforesaid, for, and in consideration of, the natural love and affection which I have for iny son, George W. Foster, and his family, and for the sum of fifty dollars in hand paid by me by William H. Foster, hereby constituted trustee for his mother, Mrs. Sarah A. Foster, and her children, the receipt of which is hereby acknowledged, have bargained, sold, and released, and by the presents do bargain, sell, and release, and convey unto the said William H. Foster, trustee as aforesaid, his heirs and assigns forever, all that tract of land, containing 278 acres, more or less, situate and lying in Beech Island, and county and State aforesaid, and bounded on the north by lands of Christopher Glover, on the east by lands of the estate of Whit Glover, deceased, on the south by lands of Thomas S. Price, and on the west by lands of Ulysses Wilson and Caroline Glover. Together with all and singular, the rights, members, hereditaments, and appurtenances to the same belonging. To have and to hold the premises above mentioned unto the said William H. Foster, trustee, his heirs and assigns forever, nevetheless, in trust for the sole and separate use of Mrs. Sarah A. Foster and her children. And my son, George W. Foster, is requested and desired to reside on the said premises during his lifetime, or as long as it may suit his pleasure or convenience. And I hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said William H. Foster, trustee, his heirs and assigns, against myself and my heirs, and against all' others lawfully claiming or to claim the same. And the aforesaid William H. Foster doth hereby signify his acceptance of this trust, and doth hereby covenant and agree, faithfully to discharge and execute the same, according to the true intent and meaning of these presents. In witness whereof, I hereunto set my hand’and seal, this 28th day of March, A. D. 1871. Wm. Foster, [l. S.] Signed, sealed, and delivered, in the presence of Charles Holley, Ulysses Wilson.</p> <p>The following Circuit decree fully states the facts:</p> <p>This ■ action was originally brought by the plaintiff against the defendants, Mrs. M. M. Glover, George W. Foster, jr., Mary E. Foster, and George W.’ Foster, sr., for the purpose of making partition of the tract of land hereinafter mentioned and fully described in the deed which is set forth in this decree. The defendants, Mrs. M. M. Glover, Geo. W. Foster, jr., Mary E. Foster, and George W. Foster, sr., answered jointly, alleging that G. W. Foster, sr., has the right of possession of the land described in the complaint during his lifetime or at his will and pleasure, and as he objects to the sale or division of the property, they deny the plaintiff’s right to have the same partitioned.</p> <p>G. K. Chafee, as receiver of the Aiken County Loan and Savings Bank, and B. F. Turner, intervened, and were accordingly both made parties defendants, and they both have filed answers herein. The first claiming a mortgage debt against the plaintiff, and the latter claiming a mortgage debt against the defendants, Geo. W. Foster, jr., and George W. Foster, sr. The case was referred to W. M. Jordan, Esq., master for the county of Aiken, to take the testimony, and report the same to the Court. The master has filed his report, together with the testimony, and it appears therefrom that William Foster, on the 28th day of March, 1871, made his deed to W. H. Foster, the plaintiff, upon certain trusts as contained in said deed, which said deed reads as follows: [See exhibit “A.”] This deed is properly probated, has a United States fifty cents stamp upon it, and was recorded at Edgefield on 2d day of May, 1871. It further appears, that William Foster, the grandfather, was the father of G. W. Foster, sr.; that Sarah A. Foster, was the wife of G. W. Foster, sr.; and the plaintiff and the defendants, Mrs. M. M. Glover, G. W. Foster, jr., and Mary E. Foster, are the children of G. W. Foster, sr., and Sarah A. Foster, his wife, and, therefore, the grand-children of the grantor.</p> <p>It also appears that G. W. Foster, sr., resided with his family upon the premises for a number of years; his wife is now dead; the married daughter, Mrs. M. M. Glover, and the sons, W. H. Foster, the plaintiff, and G. W. Foster, jr., have moved off the place, but the father and single daughter, Mary E. Foster, continued to reside upon the premises.</p> <p>The evidence shows that the plaintiff, on the second day of May, 1893, made his note to the Aiken County Toan and Savings Bank for the snm of $58, falling due on the first day of November, 1892, with interest after maturity at the rate of eight per cent, per annum, and ten per cent, on the amount due to be added as attorney’s fees for collection. That said note is secured by a mortgage of the plaintiff to said Aiken County Loan and Savings Bank, executed on the same day that his note was- given, and the mortgage covers the interest of the plaintiff in the land in question. That the Aiken County Loan and Savings Bank has been placed in the hands of G. EL. Chafee, as receiver, and as such he is the lawful owner of said note and mortgage, and there is now due him upon the same the sum of $72.40. It also appears, from the evidence, that G. W. Foster, jr., on the 30th day of July, 1894, made his note to the defendant, B. F. Turner, for the sum of $700, with interest from date thereof at the rate of eight per cent, per annum, with ten per cent, to be added as counsel fees for collection, which said note becomes due on the 30th day of July, 1895. This note is secured by a mortgage executed to B. F. Turner by G. W. Foster, jr., on the same day that the note was given, and it covers his interest (that is, the interest of G. W. Foster, jr., in the land included in the deed above mentioned). The mortgage is also executed by G. W. Foster, sr., and it, therefore, covers any interest which he may have in the same premises. There will be due upon this last note and mortgage on the 30th day of July, 1895, the sum of $756, besides counsel fees, which amount to $75.60, in all amounting to to $831.60. The facts as above stated are not controverted, and I so find them from the evidence. The rights of the parties hereto depend entirely upon the construction of the trust deed. I have given the same careful consideration, and conclude, as matter of law, as follows:</p> <p>1. That there are no active duties imposed upon the trustee under this deed; it is simply a dry trust, and, under the statute of uses, being sections 2089 and 2090 of the Revised Statutes of this State, the trust was at once executed and the fee vested absolutely in the parties entitled to the use. The statutes of uses has been repeatedly construed by our courts, and the general doctrine on this point may be briefly stated to be that, where the intention is that the estate shall not be executed in the cestiú qtie ttse, and any object is to be effected by its remaining in the trustee, then it shall not be executed; but, on the other hand, if there is no duty imposed upon the trustee, then the statute executes the use, and the fee vests in the person entitled to the use. The following authorities sustain this view: McNish v. Guerard., 4 Strob. Eq., 74; Porter v. Doby, 2 Rich. Eq., 53; Harley v. Platt, 6 Rich., 315; Pierce v. McClanaham, 5 Rich., 178; Lamar v. Simpson, 1 Rich. Eq., 71; Faber v. Police, 10 S. C., 376; Farrow v. Farrow, 12 S. C., 168. Howard v. Henderson, 18 S. C., 184; Covar v. Cantelou, 26 S. C., 488; McNair v. Craig, 36 S. C., 100; Reeves v. Brayton, 36 S. C., 384; Weston v. Timmons, 25 S. C., 488.</p> <p>2. I hold that, under the deed, Sarah A. Foster and her children take the entire estate. That G. W. Foster, sr., has no right or interest in the premises. After granting the entire estate to the use of Sarah A. Foster and her children, the following sentence occurs in the deed: “And my son, G. W. Foster, is requested and desired to reside on the said premises during his lifetime, or as long as it may suit his pleasure or convenience.” These words do not give any estate to G. W. Foster, sr.; they simply express a request or desire on the part of the grantor that his son should reside on the premises already granted as long as the son finds it convenient to so reside. These are mere precatory words, and the inclination of the courts of modern times .is not to extend the doctrine of recommendatory trust. Chief Justice Mclver, in the case of Rowland v. Rowland, says, 29 S. C., 58: “It is quite true that precatory words may sometimes be sufficient to raise a trust, and some of the earlier decisions went very far in this direction; but, as said by Mr. Justice Story (2 Eq. Jr., sec. 1069), the inclinations of the courts in modern times is not to extend the doctrine of recommendatory trust. And the rule is, that precatory trust or recommendatory words imply discretion, and must be so construed, unless a different sense is irresistibly forced upon them by the context. See, also, what is said by the same eminent writer, in the sections 1070 and 1073, as to the necessity for certainty and definiteness in the property to which such a trust is claimed to be attached. To same effect, see Jarm. on Wills, 329, 338.</p> <p>These views have been fully recognized in this State in the case of Lesesne v. Witte (5 S. C., 450), where it is said, though the language used may convey the wish or desire of the testator as to the use of the property devised, if it does not impose an obligation which can be enforced in a Court of Equity, it cannot be held to control or qualify the absolute interest which is conferred by the previous disposition. Where an absolute right is given words which are to annex a limitation to its free and uncontrollable exercise, must not only be mandatory but in themselves show the manner in which they are to operate, so that the purpose of the testator may clearly appear how or in what degree he intended to affect the original gift by restrictions entirely inconsistent with its independent enjoyment.” See, also, 2 Story Eq. Jur.,sec. 1068-70; 2 Minor’s Institute, 1082-246; Harrison, adm'r., v. Harrison, 2 Grat, 13; Eaton v. Watts, E. R., 4 Eq., 151; Bomar v. Kinnear, 2 Giff., 195; Bernhard v. Minshall., 10 Johnson Chan., 287; Ellis v. Ellis, 15 Ala., 29; Whipper v. Adams, 1 Mt., 445; Alston v. Lea, 6 Jones Eq. (N. C.), 27; Bttrt v. Heron, 66 Pa. St., 400.</p> <p>The recent case of Arnold v. Arnold, 41 S. C., 298-99, sustains fully the principle above announced. At page 298 the Court says: “Words of advice, recommendation or desire do not create a devise, nor will they operate so as to raise a trust in equity, unless the property is certain, and persons to whom it is given clearly described; and even in that case such words are not in general deemed imperative or legatory, where they are inconsistent with the antecedent rights or interest devised to that person to whom they are addressed; for in such cases the subject matter of the recommendation having been once absolutely devised away, it cannot be presumed that the testator intended to use the subsequent words of the recommendation in a legatory sense, which would be to construe his will as inconsistent with itself in one and the same sentence.”</p> <p>In the Arnold case, the words of the will were, “and I admonish and charge my said grand-children that this gift is made in the hope and upon the trust that they will provide for the parents during their lives.” In construing these words, Chief Justice Mclver, who delivered the opinion of the Court, says: “It seems to us that these words addressed to the children amount to nothing more than the expression of a^wish and hope that the children, after receiving their shares of the property, will provide for their parents, and that they cannot be regarded as creating any charge or affixing any trust in a legal sense upon the property previously devised to the children absolutely in fee simple, under the authority above cited.”</p> <p>It was contended in argument by the counsel for the defendant, G. W. Foster, sr., that Sarah A. Foster and her children took only a life estate in the land embraced in the deed, and that upon her death the fee reverted to G. W. Foster, sr., the only heir at law of the grantor. I cannot accept this view, for, although the word “heir” is not used in the deed in connection with the beneficiary under the deed, it is still a matter of what was the intent of the grantor to be gathered from the construction of the whole deed, and it is very plain to me, in this instance, that the grantor intended that Sarah A. Foster and her children should have an entire absolute estate in fee, without reservation or remainder to any one. The intent of the grantor could not be carried out unless we adopt this construction. ' In the case of Fuller v. Misroon, 35 S. C., 329, in passing upon a question precisely the same as that now under consideration, the Court uses the following language: “Mr. Wash-burn says, at page 40 of the same section, that there are some exceptions to such rule, one of which he states as follows: Another exception is, that the word heir is not always necessary in order to give an equitable estate the character of inheritability, if it requires that such an effect should be given to carry out the clear intention of the party creating it. Tims it is said, if land be given to a man without the word heirs, and a trust be declared of that estate, and it can be satisfied in no way but by the cestui qite trust taking an inheritance, it has been construed that a fee passes to him even without the use of the word heirs, citing the cases of Villiers v. Villiers, 2 Atk., 71, and Fisher v. Fisher, 10 Johns., 505, in both of which cases deeds, not wills, were being construed. To the same effect is the case of Bratton v. Massey, 15 S. C., 278.</p> <p>It, therefore, follows that Sarah A. Foster and her children took an absolute estate in fee under the deed. The share of Sarah A. Foster was one-fifth; upon her death it descended in equal shares to her husband and four children. McNair v. Craig, 36 S. C., 100. So that the plaintiff and each of the defendant children now own an undivided 6-25 interest in fee in the premises, and the defendant, G. W. Foster, sr., owns an undivided 1-25 interest in the same, and it is accordingly so adjudged.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the premises described in the complaint be sold by the master for Aiken County on salesday in November, 1895, or on some subsequent salesdajr thereafter, in front of the court house at Aiken. That the said master do give legal notice of the time, place, and terms of such sale. That the terms of such sale be for one-half cash, balance on a credit of one year from date of sale, to be secured by bond of the pur-_ chaser and a mortgage of the premises, with interest from day of sale; but the purchaser be at liberty to pay all cash if he so desires. That the purchaser be let into possession of the premises on complying with the terms of sale and the production of the master’s deed. That the master do pay out of the proceeds of the sale all taxes which may be then due, next the expenses of sale and the costs herein, to be taxed by the clerk of this court, and he then divide the balance of the funds arising from the sale as follows, to wit: the 6-25 part to the plaintiff and each of the defendants, G. W. Foster, jr., Mrs. M. M. Glover, and Mary E. Foster, and the 1-25 part to G. W. Foster, sr. That out of the share going to the plaintiff he do first pay to the defendant, G. K. Chafee, as receiver, or to his attorneys, the sum of seventy-two dollars and forty cents, with interest thereon from the 8th day of July, 1895. That out of the share going to G. W. Foster, jr., and G. W. Foster, sr., he do pay to the defendant, B. F. Turner, or his attorneys, the sum of $831.60, with interest thereon from the 30th day of July, 1895. That if there is any balance left to the plaintiff or said defendants last named, the master do then pay over the same to said parties or their attorneys. That the shares going to the defendants, Mrs. M. M. Glover and Mary E. Foster, be paid to said parties or their attorneys. That if there be not sufficient funds coming to the plaintiff and the defendants, G. W. Foster, jr., and G. W. Foster, sr., to pay the amounts herein decreed against them, then the master specify such deficiency in his report of sale, and the defendant, G. K. Chafee, as receiver as aforesaid, and the defendant, B. F. Turner, have leave to enter up judgment for the respective amounts that may be so reported due them. The premises herein ordered to be sold are fully described in the deed which is set forth in this decree.</p> <p>The defendants, Mrs. M. M. Glover, Geo. W. Foster, jr., Mary E. Foster, and Geo. W. Foster, sr., except to the decree of his Honor, Judge Watts, and submit that the same should be reversed, upon the following grounds:</p> <p>I. Because, it is submitted, his Honor erred in decreeing that the plaintiff was entitled to partition in this action, and in holding that the plaintiffs and defendants were entitled to estates in the land, in the proportions as set forth in the decree, in that it is submitted, that under the deed construed in his Honor’s decree, the plaintiffs and defendants as in like interest had no absolute estate in the land in question, but were subject to the right of the defendant, George W. Foster, sr., to the possession of the property during his lifetime.</p> <p>II. That his Honor erred in not dismissing the complaint, for the reason that the facts of the case and the deed construed by him, taken together, showed that the plaintiff had no right of possession in the property in question, which right of possession was necessary to enable him to be entitled to a decree for partition.</p> <p>III. That his Honor erred in not decreeing, if he decreed anything as to the quantity of the estate, that the estate of the plaintiff and those in like interest in the land was not an absolute estate but simply went for life to each of the said parties, and that the fee of the land after death of each of the said parties reverted to George W. Foster, sr., the only heir of the.original grantor, in the deed to William Foster, sr.</p> <p>IV. That his Honor erred in not decreeing, even if his decree is right, to George W. Foster, sr., a one-fifteenth interest in the land in question.</p> <p>V. That his Honor erred in allowing any counsel fees or commissions as against the defendant, George W. Foster, jr., under his mortgage to his codefendant, B. F. Turner.</p>

<p>Before Benet, J. Chester, S. C., March, 1895.</p> <p>Action by Simon P. Carpenter and James S. C. Carpenter, as administrators of the estate of Charles W. Carpenter, against The American Accident Company, to recover $2,500, the amount for which the defendant had insured Charles W. Carpenter against death by external, violent, and accidental means, On the 19th February, 1894, the deceased was kicked in the head by a mule, which he slapped on the rump with his hand, holding a lighted lantern in the other. Fie died February 22, 1894. Judgment for plaintiff. Defendant appeals. '</p>

<p>Before Buchanan, J., Florence.</p> <p>Action by the Farmers’ Mutual Fire Insurance Associa- ' tion of Florence County against Thomas S. Bunch. The facts are fully stated in the opinion. Judgment for plaintiff. Defendant appeals.</p>

<p>This case was argued at the November term, 1895, decided on the 24th day of March, 1896, and reported in this volume, page 356. After the filing of the opinion the respondents petitioned for a rehearing, upon ■ the grounds stated in the opinion.</p>

Before Witherspoon, J., Lexington, September, 1895. Indictment against Wm. J. Assmann, for failure to turn over to his successor as clerk of court certain funds collected by him while clerk. Verdict guilty. Defendant appeals.

Motion upon affidavit by Edward D. Green, defendant, appellant, in the case of The State v. Edward D. Green, to suspend the appeal, to enable the Circuit Court to hear a motion for a new -trial on after-discovered evidence.

<p>Motion to dismiss appeal.</p>

Before Aldrich, J., Abbeville, July, 1895. Action by J. W. McCaslan against P. W. R. Nance, for possession of three bales of cotton, taken from plaintiff by defendant under lien warrant. The cotton had been turned over to plaintiff by his tenants for rent for land and mule. W. T. Bradley & Co., for whom sheriff acted, had agricultural lien on crop for advances to tenants.