Volume 5 — South Carolina Equity Reports

This case depended upon the construction of a deed in connection with the will of Henry Caloff. Caloff and his wife executed a deed, by which they divided their estate equally, leaving to each the disposition of the moiety.

This came on upon a petition, which set forth, That Thomas Scott, a citizen of the State of South-Carolina, died some time in the year of our Lord, 1782, intestate, seized and possessed of a real estate on James Island, and leaving a widow- and two daughters, Sarah and Ann; which daughters were, according to the law's of descents then of force, the sole co-heirs of the said Thomas Scott: that the said widow' hath since departed this life: that the daughter Sarah intermarried…

Bill states that the late Benjamin Dizell, by a post nuptial settlement, conveyed certain negroes,, and among others,the negro slave Morris, hereinafter mentioned, to the late Arthur Hughes, in trust for his wife, the complainant Hannah. 'The complainant, Valentine Ruger, has since been substituted in place of the said Arthur Hughes, dec’d. That the said Benjamin Dizell was indebted at the time of the settlement, but was possessed of property more than sufficient to pay all…

<p>I. A. conveyed to T. C. the undivided moiety of half of a lot of land, which he had held in common with complainants, and of which partition had been made. In 1817, complainants conveyed to I. A. and C. the other half of the lot, and took in payment two notes. 1. A. and T. C. afterwards erected a steam mill on the part of the lot of which the moiety had been first conveyed by I. A. using the other part as appendant thereto The business of sawing lumber was carried on jointly; bills for lumber were made out in the name of “A. &/• C.” and they sued and ivere sued as “A. C.” In 1820, A. 8f C. became insolvent, and the bill was filed to by complainants, to obtain payment of the notes mentioned, out of the mill and lot, as partnership property, in preference to the separate creditors of I. A. & T. C.</p> <p>A certificate of I. A. and T. C. dated 1822, declaring that they had held the mill and lot. as partnership property, was offered in evidence and held to be admissible.</p> <p> It was held that the circumstances were sufficient to establish that the mill and lot were partnership property, and that complainants were entitled to payment, in preference to separate creditors of the partners: subject however, as to the moiety of A. to the claims of creditors who had obtained judgments against him before his conveyance to i . who were bound nevertheless, first to'exhaust A’s. private estate. </p>

<p>J1 mortgage of negroes was proved, executed by defendant's. in~ testate in 1796, reciting that it was given to secure the payment of a bond for £715. 18s. 9c?. The intestate was afterwards appointed the executor of the obligee; and in 1810, the de-_ fendant, in a bill fled in this court for.an injunction, swore that he believed the bond to be lost Held that the existence and loss of the bond were sufficiently proved.</p> <p>The obligor being the executor of the obligee, and the defendant ■his administrator, raised a trust in defendant m favor of those ■entitled to the proceeds of the bond, under the will of the obligee; and this, as well as ‘the defendant's recognition of the debt by his bill of 1810, with the circumstance that complainants had long been endeavoring to procure evidence to establish their claim, rebutted the presumption of payment arising from lapse of time. :</p> <p>If the proceeds of the sale of the mortgaged negroes should not - be sufficient to satisfy complainants claim, defendant was ordered to account for their hire, from the time they had been in his possession.</p>

<p> Rule against the master, to shew cause ivhy he had not paid over, the proceeds of slaves sold by him. There being no order of court authorizing hm to malee the sale, it was held that if he had done so, it was an act in his own individual capacity, for which he is not liable on a rule. Evidence could not be received to establish the fact oj his having sold. </p>

The bill stated that Jesse Bearileld was in his lifetime seined of three tracts of land in St. Bartholomew’s'Parish, containing 9S3 acx-cs, and of the value of 2,000 dollars. That in .1812 he went oil’, and was absent some months, having leased part of the land and having a tenant on each of the tracts.

Complainant, William .Robertson, who married one of the daughters of John Freer, deceased, stated in his bill, that the said John Freer by his will, dated 30th November, 1781, gave to his wife a residence for life on his plantation on John’s Island, with liberty to plant it, in common with his children.

This case camebeforethe court on a petition, setting iorth that Mrs. Ann Coslctt executed a deed on the 17th April, 1816, by which she assigned to trustees certain shares in the Planters* & Mechanics’ Bank, of Charleston, “ in trust nevertheless, to receive the dividends on the same, and pay and apply the same half yearly, as they shall be received from the bank, unto the said Ann Grimke Rutledge and her husband, William Rutledge, to and for their joixt use, maintenance and…

<p>Bill to foreclose a mortgage, executed in 1788. Defendants offered evidence of various payments, soma of which were contested. and relied on the presumption of payment from lapse of time. The Circuit Court ordered an issue at law, to enquire-if any thing, and hoto much was due, which order was reversed on appeal. ,</p> <p> An order directing an issue, is a proper subject of appeal. </p>

<p>In 1804, P. one oj the defendants, purchased propertij at the sales of an intestate's estate, for which he gave bond with the other defendant M. as surety. In 1808, the first administrator having died, P. administered dé bonis non, and the bond came into his possession, and was afterwards lost: — Held that the next of kin might sue the administrator and his surety, and set up and recover the bond.</p>

The bill was filed to obtain tbe construction of tbe court, on a devise in the will of Edward Wilkinson, deceased, tbe brother of the defendant Mrs. Clement, and to set aside a settlement made by her late husband, William Clement, in trust for her. The will of Edward Wilkinson ivas as follows: — “in the name of god, amen.

The complainants filed their bill for partition of a tract of land. The defendant set up an adverse claim to the land.

The bill was filed bv the -administrator of an insolvent estate, against the creditors of the estate, to compel them to establish their demands, and to obtain a sale of the lands of the deceased. A reference to the commissioner was ordered, to report on the nature of the debts. The commissioner reported that there ivas due on judgments $ 575, and on sealed instruments $ 5,573, which amounted to more than the whole estate.

<p>as to the ground of jurisdiction, cited 1 Johns. Ch. Ca. 49, 91; Id. 320, 466; 1 Madd. Ch. 77, 107; 2 Eq. Rep. 623.</p> <p>contended that the complainant was under the necessity of coming into this court for discovery and account, and that the bill ought to be sustained on those grounds.</p>

<p> An administratrix purchased at her own sale, property of the estate to a large amount, at a high price. Her administration was afterwards, at her own instance, revoked, and complainant appointed administrator de bonis non. To him the administratix surrendered (as having been incapable to purchase on account of her character of administratrix,) all the property, concept a negro boy who had been levied upon by an execution of the defendant, for a debt of the administratrix in her ■individual capacity. Decreed thattheboy should be delivered up. </p>

The bill stated that the complainant brought an action against the defendant on a promissory note for $244, bearing interest from 1.810; that the jury before whom it was tried, found a verdict for the plaintiff for the principal, omitting the interest by mistake. The prayer of the bill was that the mistake might be corrected, and the defendant decreed to pay the interest so omitted.

The bill was filed for partition of a tract of land among the heirs of John Martin, deceased. The land, had been sold by virtue of an execution against the administrator of the deceased and purchased by the defendant, William Smith, which, sale was charged to be fraudulent. The bill prayed that the title deed might be delivered up and for an account of rents and profits. The answer denied the fraud.

This is a case of an uncommon com Hcation of circumstances and perplexity in the points brought into discussion. The fact's are of great extent. In substance they make the following case.

The complainants were the next of kin and heirs at law of Joseph D. Cox, deceased, and the questions in controversy arose out of his will.

<p>As the case of Gayle and Cunningham, which is referred to in the foregoing case, deciding that the issue of a female slave horn after the making of the will, pass under a bequest of the mother to the legatee, is of considerable importance and has never been published — -it is thought proper to annex it here. The reporter is indebted to T. Bee, Esq. of Charleston, for the subjoined report of that case with the remarks on it.</p>

The testimony which may be necessary to the understanding of this case is sufficiently referred to iii the decree of the piesiding chancellor. Chancellor James. The complainant has placed her claim to alimony, upon two grounds-: 1st. violence committed on her person by the husband; 2nd. adultery on his part: in the last she has failed, having adduced only a few suspicious circumstances.

<p> The hill was brought by a cr< ditoi', to set aside the sales of property of one of the defendants, charging that they were fraudulent, and the purchases made with the funds of said defendant. </p> <p> Held that it was not merely a bill for discovery, and that proof might be received to contradict the answer of defendant, denying the fraud. </p> <p>A husband may lawfully, by deed, constitute Ms wife a sole trader, under the recognition of the practice, by the A. A. 1744; but</p> <p> Having been made a sole trader when her husband’s affairs were embarrassed, having soon after purchased his property to a, considerable amount, and having pursued no separate business, by which she might have acquired separate property, she was bound to show from what source she derived funds to mas.e the purchases; and in default of such shewing, her purchases declared fraudulent. </p> <p> A house and lands conveyed, absolutely on the face of the deed, to secure a debt actually due, at a nominally high price, and of value far beyond the amount of the debt; but further intended to cover the property from creditors; the conveyance was declared fraudulent and void, and not allowed to stand as a security for what was actually due. </p>

<p>Complainant’s intestate being indebted to defendants on a judge tnent, executed to defendants a bill of sale for a slave. Defendants at the same time executed an instrument promising to “account for the amount in three years, without being accountable for wages;” if the slave should die in the mean time, the intestate to be the loser. Held that the transaction was in the nature of a mortgage; the slave ordered to be sold for satisfaction of the judgment, and defendants to account for his hire.</p>

<p>Bill to enforce ’performance of a parol, agreement, allcdged to have been made with defendants testator vn 1815, and performed on the part of Complainant, that testator should bid off the land of complainant at sheriff ’s sale and reconvey a part-Bill dismissed; the agreement being insufficiently proved, being within the statute of frauds, and the presumption being against complainant from, the lapse of time.</p>

<p>Testator devised to his daughter “the lands whereon she notó lives,” and after her death, to her children. She then lived, with her. husband, on land of the testator, in North Carolina. Testator had another parcel of land adjoining the above, in South Carolina, which ivas considered to form one with it, and both ware occupied together by the daughter and her husband. Held that the land in South Carolina passed under the devise.</p> <p>Testator claimed the land in South Carolina, under a lease from the Catawba Indians, for ninety-nine years, renewable forever. Defendant, (testator’s son-in-law) while residing on the land as his tenant, apprehending testator’s lease to be defective, procured a new lease to himself from the Indians, according to the provisions of the act of 1808 Held that the lease thus procured enured to the uses of testator’s will.</p>

The bill in this case was filed to coiripel the sheriff so to marshal the funds arising • from the sale of the property of Elihu Adair, as to satisfy a mortage given to Charles Fowler By said E. Adair, to secure a debt of E. Adair, for which the complainant, Joseph Adair, was surety. The property mortgaged was a negro man, Morris. The mortgage was subsequent to the judgment- and execution of ‘Dunlap, but senior to the other executions in the hands of defendant.

The defendant, Woodson Ligón, obtained a judgment at law, April 1822, against the complainant, James Wright, for the sum of ; on the ground that Wright, an attorney at law, having received from Ligón a note of hand, drawn by 'North & Hogg,’ partners, for collection, exchanged it fot other notes, and failed to rn.ake collection.

<p> Defendants administrators, were held not entitled to setoff against a balance found, on accounting, to be due by them to a dis-tributee of the estate, a debt due to one of them individuallyt by the distributee. </p>

The bill was filed to restrain the defendant from proceeding to sell four slaves, which had been mortgaged to him by Henry Hanion, dec’d. the late husband of the complainant.

<p> Bill to compel tenants for life of slaves, to give security for their forth coming. 2 he answerers denying allfraudulent intention to remove the property or defeat complainants'’ rights, the bill was dismissed. </p>

<p> The distributees of an estate having purchased property at the executor's sales and given bonds, the executor was held entitled to commissions on the amount of the bonds delivered to the distributees respectively, and set. off against their claims for shares of the estate. </p>

<p><3 legatee, under the will of which defendant was executor, drew an order on defendant, in favor of complainant, to be paid ont of the legacy: on a bill to compel the executor to account and pay the amount of the order, the pled of the statute of limita* tions was sustained.</p>

The debt in this case was contracted before 1808, and a decree that it should be paid out of the trust estate of Mrs. Isabella Mayrant, was made by the appeal court in 1815. This, decree directed the trustee, William Mayrant, and the agent,' -John Mayrant, to account before the commissioner, and pay out of the proceeds of the estate, the debts, the interest and costs. Some payments were made in 1815, leaving a balance due.

The bill stated that Daniel M‘Kie sold the land in dispute for ‡ 500 to Henry Edge, who paid ‡ 200 of the price sand took a bond for titles, and took and held possession of the land for tv?o years; that Edge sold the land and transferred the bond for titles to one John Vaughan, to whom he delivered the possession of the land, and he paid ‡ 250 more to Daniel M‘Kie, who received the same, which left a balance of only ‡ 50 to be paid, for which M‘Kie took Vaughan’s note of…

<p>The defendant J. G. one of the heirs and' distributees of the estate, purchased property at the administrator’s sale and gave his. note for the amount, $815. One of the administrators (the defnd’t II. J.)whowas indebted to G. ,$412 ona judgment. II. J. who was m embarrassed circumstances, as was known •to G. gave G. a receipt against his note, then in the possession of the other administrator, the complainant, upon his entering satisfaction on- the judgment and giving a new note for the balance, which II. J. disposed of to his private use. G. had a demand against the estate, on which he brought suit at law. The other administrator offered G’s note as a set off, which was rejected on the production of II. J’s. receipt, and G. recovered a judgment. Decreed that G. shoidd cometo an account with complainant, in which he should not be allotoed credit for the amount of his judgment against TI. J. that the entry of satisfaction should be vacated, and the judgment stand revived; against H. J.'</p> <p>The bill alledged that defendant G. was indebted to the in-, testate, in his life time, for cotton sold, &c. This the answer of G. admitted, but stated that he had accounted with the intestate and paid the debt. Referred to the commissioner: Com-, plainant to be at liberty to support the demand byprooj, and the Commissioner to receive G’s answer as evidence.</p>

Chancellor Desaussure. — This is a suit brought by complainant to be indemnified for the loss he has sustained on the purchase of a slave named Anthony, from John Evans now deceased. The complainant states, that the slave was conveyed to him by bill of sale, dated 8th April, 1818, but was recovered from him in an action at law, by John Cheatham, who claimed tinder a bill of sale made by Mrs. Evans, the wife of John Evans, and confirmed by him, before the sale to complainant.

Thomas Wadsworth, deceased, by his last will and testa* hicnt made the following provisions: — “ I do give and bequeath to my much respected friends, D. W. .Desaussure, John Hunter and John E. Calhoen, Esquires, in trust for the use and benefit of all that part of Laurens county in 96 district, known at this time by tha bounds of Major Dunlap’s Battalion, of the Saluda Regiment, all the remaining part of my lands, of every description and kind, for the sole purpose and use…

<p>J1 creditor of the estate oj which defendants "were executors, purchased property at the sale made by them, and gave credit for the amount. Held that the executors zvere entitled to commissions on the amount thus settled, though no money teas paid.</p>

Chancellor Desaussure. This case came up. on the commissioner’s report and exceptions thereto; and on various motions grounded on the facts of the case, which appeared upon the hearing. Held: was in trust for. the estate of Aaron Cates.

The bill .stated that Mary- Maples, the grand-mother of the complainant, by her will executed in 1793, and left of force at her death, bequeathed as follows, “Item, I give and bequeath unto my beloved grand-daughter, Susannah Stone, and her heirs forever, a negro girl named Hetty, with all her future issue and increase, and in no wise subject to.or liable for any debt or debts, contract or agreement of her father-in-law or any future husband, in any shape manner or form.”…

<p> Jl hill will not he to enforce the execution of a judgment of a court of ordinary, of a sum of money due by an executor: but the executor was decreed to account jor his administration. </p>

Charles Simmons, senior, died seized and possessed of a ¿ract of land, which upon his death descended to William Simmons, John Simmons and Charles Simmons.

<p> The inventory of an estate which might have been procured at the ¡ordinary’s 'office, cannot furnish ground for á bill of review, as newly discovered testimony. A receipt which could not have altered the original decree, cannot famish such ground. </p>

The complainant sold to the defendant a tract of land, for which he agreed to give her ‡ 400, in two promissory notes, of ‡ 200 each, payable at different times.

<p>Sheriff levied on a tract of land described as “ the plantation of' W. F. deceased, containing one hundred acres more or less which he. conveyed to defendant Y. but his description in the conveyance, included two hundred and sixty-five acres which the dt ceased had devised to his daughter, the complainant. It appeared that one hundred acres on which the testator lived had oeen ■•noivn as a separate tract, though it was included in a new grant for the whole of the lands devised, which testator had taken out on occasion of loosing his titles by fire. Defend ant Y. afterwards sold to two others of the defendants. The evidence affording reason to conclude, that defendant Y. had by-fraud induced the sheriff so to describe the land as to include the whole two hundred and sixty five acres', the sheriff’s, deed to him and his conveyance to the other defendants were decreed to be set aside except as to the hundred acres.</p> <p> The personal estate having been sufficient for the payment of the debts, and one of the executors of the will of deceased, having been indebted to estate, at the time of the sale, to more than the amount of the judgment under which the land was sold, he was decreed to pay to complainant the value of the land with interest. </p>

The bill was filed against A. Butler, as administrator de boms non, of John Butler, deceased, against M. James, the security to the ordinary for A. Butler, on his administration bond, and against other persons charged to have property of A. Butler in their hands.

This was a bill filed on behalf of the distributees of Lewis .Mitchell’s estate, against Lewis Conner, the administrator, who had left the state, and the sureties of his administration bond.

The complainants filed their bill for the recovery of a tract of land, which their grand-father, Moses Bond, devised to his son Isom Bond, their father, who devised the same to his mother for life, and to the complainants in remainder.

JamJe's- M'LestoRH made and duly executed his last wilt and testament, on die 7th day of September, A. D. 1820.

<p> The estate of a deceased executor, who obtained judgments for debts due to his testator’s estate, and afterwards gave credit to the debtors, who were perfectly solvent during his life time, became insolvent after his death,, was held not liable to the legatee for the loss so incurred. </p> <p> The boohs of the testator shewed an uncollected open account against an individual who was proved to have rendered him large professional services. Upon this fact; upon proof of the general great diligence of the executor, and the circumstances of the estate of the debtor (deceased) the executor’s estate ivas held not accountable. </p>

<p>In 1738 TV. TS. devised the land in question to his three sons, <&nd their heirs. Some years after testator’s death, the Attorney General of the province Jiled an information against the eldest eon, to which the executors of the other sons (then dead) toere made parties, charging that the dev>se was under a secret trust for a religious association; the matter was referred to arbitration, under a rude of court, and an award made directing a conveyance, and it appeared that the eldest son did convey: The association took and held possession of the land till its dissolution, in 1796, when defendants took possession, claiming the reversion -as heirs of the testator, through his oldest son and heir al law. Complainant claimed partition under the second son and devisee. It was held that</p> <p> Though a trust of lands cannot he established by parol, yet if the trustee execute the trust, he is bound by his act: </p> <p>If there ivas no trust, the possession of the society was ad--Serse, and the defendants protected by lapse of time and the ¿statute of limitations?</p> <p> If there ivas a trust, the reversion Was in the right heirs of the testator, and not of the devisees in trust. </p>

Susanna Lyle's filed her bill for partition of the estate of Aromanus Lyles; of which she claimed one third as widow.

Heard at Laurens, June, 18e4, before Chancellor í)esaussure.¡ The complainants in this case alledge in their bill that their father Richard Hodges, by several deeds of gift executed on 24th December 1819, gave to them certain negroes, the subject of the present suit, which deeds were recorded in the register’s office, on the 22d January following.

argued that the complainant, being executor as well as guardian, had a legal title, if any title, to the slaves in question, and might have recovered at law. ProGf of notice would not have been necessary to his recovery; and if it were, he might have established it by other testimony than the defendant’s answer.