Volume 52 — South Carolina Reports

Before Witherspoon, J., Charleston, April, 1897. Action by The South Carolina Terminal Company v. South Carolina and Georgia Railroad Company on the following complaint: First.

Before Benet, J., Darlington, August, 1897. Action by F. W. Wagener & Co. v. M. C. Kirven. Held: and sustained defendant’s plea of res judicata. 3d. That the allegations of the complaint in the present action constituted an inseparable, indivisible, and essential element and part of the contract alleged and sued on in the former action, and cannot now be permitted to be taken from that contract and sued on separately in a second…

Before Aldrich, J., Richland, April, 1897. Action by James T. Comer v. the Columbia, Newberry and Laurens Railroad Company. The following is so much of the charge of the trial Judge as is necessary to show the points raised: The defendant has presented numerous requests to charge, and it is my duty to explain them, as well as to explain any written instrument. There are in this case two papers submitted to the Court for construction.

Before WITHERSPOON, J., Spartanburg, July, 1896. Action by J. C. Petty v. C. Q. Petty and Henry Jenkins. Judgment for defendants. Plaintiff appeals. cite no cases. cite: Comparison of handwriting is to be resorted to only in doubtful cases: 5 S. C., 478; 18 S. C., 509. Finding by master and Circuit Judge should not be disturbed tmless against zveight of evidence: 45 S. C., 509; 47 S. C., 347.

Petition in the original jurisdiction of this Court by Abbeville County for mandamus v. J. L. McMillan, J. B. Haltiwanger, and T. A. Graham, as commissioners to apportion the indebtedness of Abbeville, Edgefield, and Greenwood Counties. The following are the findings of fact by R. W. Shand, Esq., special referee: 1.

Before Watts, J., Spartanburg, spring term, 1897. Action by C. C. Hampton v. James B. Ray and Joseph Lewis.

Before Watts, J., Abbeville, June, 1897. Action in magistrate court by J. W. Wideman v. F. V. Pruitt. Judgment for plaintiff. Defendant appeals. Judgment affirmed. Defendant appeals. cite: Summons must fix day of trial: Code, 88, sub. 16; 22 Tex., 398; 25 Minn., 41; 8 S. C., 115; 29 S. C., 31. Summons does not state place of issuance: Rev. Stat., 856.

Before Benet, J., Florence, August, 1897. Action by the executors of S. W. Kennedy v. Emily M. Gregg et al. The following is the Circuit decree, omitting the quotations from the will of Malvina Howe, because it is fully quoted in the opinion: The son, James Arnold Howe, did contract debts amounting to nearly $3,000.

Before Buchanan, J., York, May, 1897. Action by Jane C. McKenzie v. Stanhope A. Sifford and George W. S. Hart, as executors of Joseph S. McKenzie. Judgment for plaintiff. Defendant appeals. cites: Dower can only be renounced as required by staüite: 16 S. C., 95; 33 S. C., 194. No laches here: 43 Am. Dec., 653; 1 Strob. Eq., 65; 39 Am. Dec., 745; 5 East., 449; 21 S. C., 240.

Before Watts, J., Greenville, August, 1897. Action by W. H. and M. J. Jacobs v. The Mutual Insurance Company of Greenville, on the following complaint: I. That the defendant is a corporation duly chartered and organized under and by virtue of the laws of the State aforesaid, and was such at the times hereinafter stated. II.

Before Witherspoon, J., Orangeburg, April, 1897. Action by Bank of Orangeburg v. Matilda E. Kohn, Daniel Miller & Co. and Elhart, Joyner & Co. The following is the Circuit decree: All of the issues in the above case were referred to a special referee, and the cause came on to be heard upon the exceptions by the defendant, Mrs. Matilda E. Kohn, to the report of the special referee, dated November 13th, 1896.

Before Aldrich, J., Chesterfield, October, 1896. Action in claim and delivery by M. A. Perkins v. D. Preston Douglass, in magistrate court. Judgment for plaintiff. Defendant appeals. Appeal dismissed. Defendant again aippeals. cites: Debtor cannot prefer one creditor to another, if he receives benefit therefrom: 32 S. C., 171; 1 Hill, 16; 20 S. C., 232. Sale by insolvent debtor of his property to one creditor in preference to others is void: Rev. Stat., 2147, 2148.

<p>Before Aldrich, J., York, August, 1897.</p> <p>Action by J. F. Wallace, I. D. Witherspoon, and C. E.' Spencer, trustees, v. Wm. J. Langston, Samuel M. Grist, J. Andy Tate, William Dobson, and Horace E. Johnson, trustees. The Circuit decree is, omitting formal parts:</p> <p>The defendants submitted in evidence a number of pamphlets, purporting to be “minutes” of the sessions of the associations above named, and as containing testimony or evidence supporting the position assumed by defendants, to wit: that they were a committee acting for and under the authority of said associations. The earliest session held by either of the associations, the minutes of which were submitted in evidence, began on September 28th, 1893, a full month lacking one day, after the committee had bought the property, accepted their deed therefor, and executed the bond and mortgage in suit. Defendants seem to rely upon “reports” as to the “school,” the approval of the association of the acts of the “committee,” and the fact that the association elected “trustees” of the “school.” If the view of the defendants is correct, then their acts were “ratified,” not directed, by the associations, so far as these minutes show. But I cannot discover any clear, explicit action on the part of the associations to purchase, as the property of the associations, the school- property. It would seem that the advertisement of the “Baptist High School, Yorkville, S. C.,” appearing on the last page of the “minutes” of the Moriah Association for 1893, and specially put in evidence, and marked, more clearly expresses the true status of affairs, to wit: that said school was “under the auspices,” not ownership, of the association. Under the order of reference herein, the referee has taken down the testimony of witnesses upon several subjects, such as what was done and said by conferences, associations, and members of the Baptist denomination, prior to the purchase; what was said and done by the committee in negotiating the purchase; what was said and done by the committee, the individual members thereof, and Mr. C. E. Spencer, at the time the bond and mortgage were executed and delivered. Plaintiffs duly objected to all such testimony, and the referee has very properly noted these objections. He had no authority to. rule upon these objections, and they are properly before this Court for consideration. It is very clear that what was said and done in the said conferences and associations could not be — unless in exceptional instances, of which there is no evidence here — proven by a gentleman who was present at such conferences or associations. The best evidence of what was said and done in these meetings, if admissible in evidence at all, was the minutes or records of these meetings duly proven. These objections are sustained, because theminutesof the meeting was the best evidence — indeed, the only proper evidence — and these witnesses cannot be allowed to give secondary testimony as to the actions of these meetings, and that, too, without even an attempt to prove any fact or facts which would even tend to make such testimony admissible. I do not think that the evidence or testimony detailing the negotiation for the purchase, and as to what was said and doné prior to and at the time of the execution and delivery of the bond and mortgage, is competent or admissible. These negotiations ended in contract, reduced to writing and under seal, and these instruments contained the contracts, and constituted the evidence thereof. “It is a general rule of evidence, long since established and now well settled, that parol testimony cannot be introduced to vary, add to or alter a written instrument, which in itself is plain and free from doubt. The parties themselves having reduced their contract to writing, they are supposed to have done so, in part, at least, with the view to exclude everj'thing else but the writing itself in determining their contract, which writing must be interpreted by the Court according to certain well-established rules not necessary to be here considered. This rule, it will be observed, is directed only against the admission of any other evidence of the language employed by the parties in making the contract than that which is furnished in the writing itself. ' 1 Green. Ev., sec. 277. It, therefore, does not prevent the writing from being read in the light of surrounding circumstances, if need be, in order the more clearly to understand the intent and meaning of the parties. The writing, however, being the act and instrument of the parties finally and solemnly agreed upon, no other words than those found therein can be added to it or substituted in its stead by oral testimony. Nor can oral testimony of a previous colloquium, or of conversations or declaration at the time when completed or afterwards, be offered to explain it. On the contrary, the instrument must stand upon its own terms.’.’ Railway Co. v. Seigler, 24 S. C., 128. The ruling in the case of Drake v. Steadman, 4G S. C., 474, cited by defendants, does not even purport to vary or in any wise change the law. That was an action to set aside a mortgage, because fraudulent and void under the assignment law. The testimony introduced was relevant to those issues; but neither of these issues involved the salutary rule stated in Railway Co. v. Seigler, supra. Further on, in discussing the alleged trust, I will refer to this question, and cite authorities bearing thereon.</p> <p>Defendants, in their answer, deny that as individuals they made the bond, or the payments thereon, above stated; but admit that, as trustees and agents of the four Baptist associations aforesaid, they executed said bond, having first made known-their principals. They, in like manner, deny the making of the mortgage as individuals; but admit that they did so as trustees and agents of said associations. The answer. alleges also that the deed, bond and mortgage are part and parcel of the same transaction, and that the deed of the plaintiff to them simply conveyed the legal title to defendants upon the uses and trusts named in said deed. The answer, so far as referred to, raises the real issue in this case. The counsel of defendant contends that the papers themselves, apart from the oral testimony, showed that they were executed as part and parcel of the same transaction— citing Barrett v. Cochran, 8 S. C., 49, and Elliott v. Mackorell, 19 S. C., 242. He next contends that the trusts are created and declared in the deed of plaintiffs to defendants, and that the grantees are therein recognized as trustees of the associations; “that thus construed, the burden [¶] on the trust estate was created by the very act calling the trust into existence, and the imposition must be deemed consistent with the purposes of the trust.” The words referred to in the deed as creating the trust are: “To have and to hold * * said premises * * * unto the said Wm. J. Langston, * * * trustees, the survivors of them, their successors and assigns, forever, in trtist for such board of trustees, and for such uses and trusts, as York, Chester, Union, and Moriah Baptist Associations, or a majority of them, may hereafter appoint, and designate and declare.” This, to say the least, is a very peculiar trust, if it can be so considered. These defendants are to hold the property as “trustees,” not for the “board of trustees,” a board then and there existing; but for “such board” as the associations “may hereafter appoint, and designate and declare.” This “board,” or the parties for whom they were to hold the property, then, is the cestui que trust, and not the associations. Neither at the creation of the alleged trust nor now is the “board” in esse, and it never will be, unless the associations have the power to create it, and do create it, because it rests in the pleasure of the associations. Not only is the “board of trustees” a prospective and most uncertain body, but also the “uses and trusts” are likewise prospective and uncertain, depending upon the will, action and power of the associations. We have already discussed these associations individually, unincorporated bodies, and here we have four such bodies acting together. Under this view, defendants, as trustees of a possible and prospective board of trustees, are to hold this property “for .such uses and trusts,” as four separate associations unincorporated, each composed of an aggregation of unincorporated churches, each made up of congregations of individuals, “may hereafter appoint and designate and declare.”</p> <p>In the last analysis, and looking at the matter from a practical point of view, this so-called trust means this, that the defendants bought the property for a school to be run in the interests of the Baptist denomination; that they intended it to be under the auspices of the four associations— that is, run with their sanction and under their guidance. Doubtless, as the testimony shows, these defendants confidently expected their “brethren” in the four associations to help them to pay for the property. If this were the purpose, the reason for appending the word “trustees” to the names of the defendants, is apparent and easily understood. But the cause of action is the bond and mortgage, not the deed of conveyance, and we will pass on and consider them. In their answer, “These defendants deny that as individuals that they, or any of them, ever executed the bond or obligations described in paragraph 1 of the complaint, or that as individuals they made any of the payments alleged to have been made in said paragraph; but these defendants admit that as trustees and agents of the four Baptist associations of York, Chester, Union and Moriah, they executed the said bond or obligation mentioned in said paragraph, haying first made known their principals.” The same allegations follow as to the mortgage. Somebody is personally bound for the money due to plaintiffs, and evidenced by the bond in suit. That is plainly apparent upon the face of the bond. It is hardly necessary to discuss, rather to cite, the law upon this issue prior to the well considered case of Robertson v. Pope, 1 Rich., 501. In this case Judge O’Neall, with characteristic vigor and clearness, considers it upon reason and authority, and as the results of that consideration, the case of Flash v. Ross, 2 Hill, 294; Taylor v. McLean, 1 McM., 352; and Moore v-. Cooper, 1 Speer., 87, were overruled, and the law clearly enunciated. So far as I am aware, Judge O’Neall’s decision has never been questioned; but, on the contrary, has been cited and followed in numerous decisions, from 1845 down to the present. Flash v. Ross (overruled) was an action on a promissory note, signed: Jas. L- Ross, for I. Inabneth Ross, held liable. Taylor v. McLean (overruled) was also an action on a promissory note, signed: Danl. McLean for John McLean. The action was against John McLean, and on the authority of Flash v. Ross, plaintiff was nonsuited, the Court holding that it was the agent’s personal note. Moore v. Cooper (overruled) was also an action on a promissory note, signed: “Loring Cooper, for L. S. Co.” Held that it was in form Cooper’s note; and that parol testimony was inadmissible to prove agency. It was overruled upon the ground that in promissory notes and other parol contracts, not under seal, proof of agent’s intention to bind principal, and not himself, may be gathered from any part of the paper, and Judge Story and Chancellor Kent are cited (1 Rich., 503,) as authority. Judge O’Neall, in Robertson v. Pope, as the numerous quotations and the reasoning show, holds that in sealed instruments, the rule laid down in the overruled cases is proper and applicable; that in sealed instruments, the agent binds himself, and not his principal, unless he uses the name of his principal in the execution; whilst in parol contracts, it is sufficient if it appears anywhere in the contract that he acted as agent, and that he meant to bind his principal. The reason is apparent; in either case, he must show authority to sign the name of the alleged principal, and in the case of a sealed instrument, he must show authority under the hand and seal of the alleged principal. As supporting these views, see Colgan v. Philips, 7 Rich., 361; Sullivan v. Susong, 40 S. C., 163. In the case now under consideration, the bond and mortgage are not only under the hands and seals of the defendants, but also it does not appear in the contract that the alleged principals were bound, or intended to be bound. Edings v. Brown, 1 Rich., 255, had been decided four months, when Robertson v. Pope was decided in the Court of Errors. Edings v. Brown was an action against the agent for breach of warranty on a contract signed: “Catharine Brown (seal), per R. E. Brown, trustee.” Principal was feme-covert, and the question was whether the agent was liable in an action on the deed itself, even if liable in some other form. Held liable on the deed. See citation from Kent, 630, at page 256; also, Story on Agency; that agent is liable personally, (1) if the principal is not known; (2) if no responsible principal; (3) when he makes the undertaking in his own name; and (4) when he exceeds his authority.</p> <p>It will be observed, that as to the third ground, the application of the rule is more rigid in the case of a sealed instrument than in an unsealed paper. In the former, he must use the principal’s name in execution; in the latter, he need only show by the paper (conceding that he had authority), that he meant to bind his principal. See, also, Bank v. Wray, 4 Strob., 90. When it does not contradict the terms of the contract, the same being in writing, the agent would, of course, be excused, when it can be shown that the other party was willing to give the credit to the nominal or irresponsible principal. And the alleged agent “must so disclose his principal at the time of the contract as to enable the opposite party to have recourse to the principal, in case the agent had authority to bind him.” 2 Kent, 631; Waddell v. Mordecai, 3 Hill, 26. The rule affirmed in Edings v. Brown (1 Rich., 255), is stated by the Circuit Judge (Evans, J.), with precision in the application to this case, when he instructed the jury that, “if one sign a note or indorse a bill, as agent, when he is not agent, he is personally liable, although he do so bona fide, and does no other act to deceive or mislead the person with whom he deals, except by the assumption of agency, when he is not agent.” Bank v. Wray, 4 Strob., 90.</p> <p>If the Baptist associations were incorporated, and endowed with the usual powers, they could do certain acts through agents appointed by vote, or other act sufficiently expressive of corporate will and intention, and would be bound by the act of the agent, within the scope of his authority; for example, they could, through such agent, transfer a promissory note. Garvey v. Colcock, 1 N. & McC., 232-3. They could not, however, bind themselves by so solemn a paper as a deed or mortgage, without giving to the agent a paper of equal solemnity, duly executed -under its corporate ■seal. Miller v. Ford, 4 Strob., 215-6. Undoubtedly, somebody is personally bound for payment of the money to plaintiffs. Sumner v. Williams, 8 Mass., 5 Am. Decs., 92-4. “Had he made the sale as executor or as administrator, acting in alieno pire, any .covenants he should have made would have bound him personally.” Washburn on R. P., book 3, ch. 5, 672. To the same effect, see CPNeall v. Abney, 2 Bail., 318; Rover on Jud. Sales, sec. 458; and Young v. Lorain, 11 111., 52; Am. Dec., 473. In this connection we must bear in mind what a mortgage is, and what it is not. In the face of these radical changes in the nature and effect of a mortgage, made by statute, it is difficult to understand how a Court can now attribute to a mortgage qualities of which it has been deprived by legislative enactment, for it is essential to the idea of a mortgage being an alienation that it should be the conveyance of an estate, and that the statute expressly declares that it shall not be.” Simons v. Bryce, 10 S. C., 369, affirmed in Warren v. Raymond, 17 S. C., 188. In the latter case it is said, that “under our law” a mortgage “is generally a security for a debt” * * * “A mortgage is the imposition of a lien on certain property therein mentioned, given to secure a contract; but it is something independent of the contract itself, and is collateral thereto.” Aultman v. Rush, 26S. C.,526. The mortgage, in this instance, was given “to secure a contract,” and that contract is evidenced by the bond — Cleveland v. Cohrs, 10 S. C., 225; and that contract, thus shown, is to pay a certain sum of money, at a stated time, with interest, etc. Who is to pay it? Defendants admit that for a trustee to apply money, then impressed with a trust, in part payment of land, and to give a mortgage for balance due, would be a breach of trust. Mathews v. Heyward, 2 S. C., 239. But such is not the case, however, when the trust is created by the deed executed contemporaneously with the mortgage. Barrett v. Cochran, 8 S. C., 49; Elliott v. Mackorell, 19 S. C., 238. This position, if correct, is clearly at variance with the plea of agency, because the latter implies an agency for an existing principal; and even if, for the sake of argument, we regard the four associations as the principals of defendants, there is no evidence, as we have seen, showing that said principals authorized defendants to create the trust in question, or to encumber it. In McDowall v. Reed, 28 S. C., 468-9, it is said: The general rule, undoubtedly, is, as stated by Judge Story: “In general, a trustee is only suable in equity in regard to any matter touching the trust. But if he chooses to bind himself by a personal covenant in any such matter, he will be liable at law for a breach thereof, although he may, in the instrument containing the covenant, describe himself as covenanting as trustee; for the covenant is still operative as a personal covenant, and the superadded words are but a descriptio personae.” 2 Story Eq., sec. 975; Duval v. Craig, 2 Wheat., 45; Tobin v. Addison, 2 Strob., 4; Barrett v. Cochran, 11 S. C., 34. The bond in McDowell v. Reed, was: “Know * * * that we, J. P. Reed, trustee, * * * are held and firmly bound * * * to which payment, well and truly to be made and done, we bind ourselves and each and every of our heirs, executors, and administrators, jointly and severally, firmly by these presents.” The bond in the case at bar reads: We, Wm. J. Langston * * * and Horace E. Johnson, trustees, are held and firmly bound unto * * * to which payment, well and truly to be made and done, we do bind ourselves and each and every one of our heirs, executors, and administrators, jointly and severally, firmly by these presents. In McDowall v. Reed, others had signed with Reed (see page 467); but he signed, “J. P. Reed, trustee (l. S.).” In the case at bar the defendants do not even add the word “trustee” to their signatures to either the bond or the mortgage, and much less do they sign uas trustees.” Moss v. Johnson, 36 S. C., 553. In McDowall v. Reed (p. 467), it is noted that “the bond and mortgage were both signed by J. P. Reed, trustee, without stating for whom.” This is true of the bond and mortgage under consideration.</p> <p>The result of the authorities cited may be thus stated:. 1. In every cause of action upon a written instrument, whether under seal or not, if the plaintiff would reach the alleged principal, he must prove, outside of the writing,, that the supposed agent had the authority to make or execute the writing, whatever its nature; and so, if the action be against the agent, charging him as personally liable, the alleged agent can only escape liability by showing (a) that his alleged principal is effectually bound by the instrument executed by him, and (b) that the writing itself, which he may not contradict, alter, vary or explain (unless ambiguous), purports to bind the alleged principal, and not himself. 2. In every case, if the agent was without authority, he is bound personally, even though he formally signed the name of Iris alleged principal. 3. In every case the alleged agent’s intention to bind the principal must appear in the writing; if not, the principal is not bound. The principal cannot be reached by the holder of the papers. This is absolutely so in a court of law. If there be an exception to the rule, it can only be in that class of cases where, from tlie principal having taken the benefit, he may be followed in a court of equity; and in that class of cases, his being held liable in a court of equity in no way relieves the agent from liability upon the paper itself. 4. In deeds and mortgages, for obvious reasons, the intention to bind some one else must appear in the manner of execution; whilst in less solemnly executed instruments, it is sufficient if it can be made to appear from the whole paper. Webster v. Brown, 2 S. C., 430; Dewalt v. Kinard, 19 S. C., 292; Johnson v. Johnson, 27 S. C., 316; Moss v. Johnson, 36 S. C., 553-4; Henshall v. Roberts, 5 Bast., 150.</p> <p>In the most favorable view of this obligation, the defendants cannot justly, much less legally, claim immunity from liability on this bond. If others were to pay, or to assist them in paying, the duty was still theirs, under the very terms of their bond and their covenant therein, to cause the purchase money “to be paid,” and this they have not done. Defendants rely upon that portion of the testimony submitted by them tending to prove that they, the defendants, signed the bond upon the assurance of Mr. C. E. Spencer, one of the grantors, that they were not personally bound thereby, and that defendants assumed no personal liabilities in entering into the contract evidenced by the papers. This is a plea of estoppel by conduct.</p> <p>All of the parties to this action are men of the highest character, and no one of them would even be suspected of telling a deliberate falsehood. ■ Evidently some of the parties misunderstood each other, or, during the lapse of time, their memories have proven treacherous. Plaintiffs were trustees, and as such sold to defendants, and as such took their bond and mortgage. They could only act in selling, &c., within the scope of their authority. Defendants knew the authority of plaintiffs to sell, for they refer to it in the bond and mortgage. Now, it cannot be seriously considered that Mr. Spencer, an able and learned lawyer, would entertain the idea that he, as trustee, had the authority to make the “assurances” attributed to him by some of the witnesses. Nor would he, as a lawyer, have told the defendants that their bond and mortgage did not render them personally liable. The defendants, not being lawyers, and, as the evidence indicates, seem to suppose, as so many persons are accustomed to assert, that the mere adding of the words “trustee”- or “agent” to a name, either in the body of a paper or to a signature, has the effect of preserving them from and against personal liability — words talismanic in their behalf. The act claimed as an estoppel is the statement alleged to have been made by Mr. Spencer that the bond and mortgage would not bind the defendants personally. Both parties saw these papers, and each could construe them; now an opinion of that nature is not an act, and cannot support the position taken by defendants. Matters of opinion and law are not elements of estoppel by conduct. 7 Am. & Eng. Ene. of L-, p. 14. The cases of Bull v. Rowe, 13 S. C., 370, and Douglas v. Craig, Id., 371, do not change this rule. I do not think that this plea can be sustained either by the testimony or under the law. The testimony was not admissible, and the plea is without support.</p> <p>The answer alleges that at the date of the commencement of this action, the four associations had duly elected and appointed a board of trustees, “and the said property, at the date of the breach of the conditions of the bond and mortgage sought to be foreclosed, and at the date of the commencement of this action, had been transferred from and vested in the board of trustees of the said Baptist High School, composed of the following persons,” naming them. The answer alleges that the said parties were and are in charge of the moitgaged premises, for the uses and trusts designated, appointed, and declared by the said associations, and are necessary and proper parties to this action. As matters of fact, the title to the mortgaged premises is in the defendants now just as they received it from plaintiffs. They have not conveyed it to the alleged board of trustees nor to any one else. The parties named as constituting the trustees appointed by the associations were never, so far as I can learn from the testimony, authorized to have the mortgaged premises transferred to them. These parties, as I understand the testimony, especially the printed minutes of the sessions of the associations, were appointed trustees to conduct and manage a school upon the mortgaged premises. The mere management and control of a school did not involve the title to the property. These parties are not in possession of the premises, and I can see no reason for making them parties to this action.</p> <p>The defendants further contend that the real parties in interest are the board of trustees whose names are set out by the defendants in their answer, cited above, and the four associations that appointed or elected them; that the statute of uses executed the trust, so far as the defendants are concerned, instantly, upon the establishment of a high school by the associations, and the appointment by them of a board of'trustees. As we have seen, by the evidence, the board of "trustees just alluded to are not, and were not, appointed as trustees to take and hold the title to the realty; they were appointed to manage and conduct the school. The defendants, according to their contention, held the property in truát for “such board of trustees” as the associations might designate. The associations were'to act, determine the character of the board, and appoint and elect such board.. This board was to take and hold the title to real estate. The'defendants were fo convey and pass that title; surely, in a grave and serious matter, such as conveying property, necessitating the execution of solemn interests, the action of the associations should be clear and unequivocal, and authoritatively announced and duly shown. Again, defendants were to convey the property to “such board” and “for such uses and trusts” as the associations “may hereafter appoint and designate and declare.” These “uses and trusts” were to appear in the conveyance to the “board;” and, so far as I can see, they have never been appointed, designated, and declared by the associations. In a general way, it was understood and assumed by all the parties that the property was to be used as the location of a Baptist High School; but to carry that purpose into effect, as well as to follow the words of the trust, this could be only done by the associations in a legal and formal manner, and they have not done so. The defendants still hold the title to the property, and still have a most important duty to perform; in'reference thereto, to wit: to convey it, and to convey it “for. such uses and trusts” as the associations “may” hereafter appoint, &c. The statute of uses, therefore, has not executed the use; for it only executes the use when nothing further remains to be done. Huckabee v. Newton, 23 S. C., 295; Blount v. Walker, 31 S. C., 26; Ayer v. Rilter, 29 S. C., 138.</p> <p>I have given this case full consideration. It was unusually well presented by learned counsel, to whose research and statements I am debtor. The parties are all men of high character, and the purposes actuating them were of a high and noble order, to wit: the advancement of the education of the youth of their section. The plaintiffs, according to Mr. Langston’s report or statement, as stated in the report of J. S. Croxton, page 8, minutes of Moriah Association, sold the property for one-third its value entirely upon credit, and upon easy terms. The defendants, as zealous' churchmen, and as public-spirited citizens, initiated the idea of the purchase of the property and of the school. They went forward and acted as we have seen, and have been disappointed in their hopes and expectations. While it is the duty of the Court to declare the law and enforce it, I trust that it is proper for me to express the hope that the plans of the defendants will yet materialize; that they will yet receive the aid expected; that the historic King’s Mountain School, under their “auspices,” will .revive, and that the future wall equal, if not excel, its past. I conclude that the plaintiffs are entitled to a personal judgment against the defendant upon the bond; for a decree of foreclosure and sale; the costs and disbursements of this action, and the attorney’s commissions of ten per cent., as demanded in the complaint.</p> <p>From this decree the defendants appeal on the following exceptions:</p> <p>1. Because his Honor, the Circuit Judge, erred in holding the defendants herein personally liable for the debt evidenced by the bond, when the facts as stated in the complaint are not sufficient to constitute a cause of action for personal judgment against said defendants.</p> <p>2. Because his Honor, the Circuit Judge, erred in finding as matter of fact that the school wa^ under the “auspices,” not ownership, of the association; whereas he should have found the said school and property was under the equitable ownership, management and control of the association.</p> <p>3. Because his Honor, the Circuit Judge, erred in holding as incompetent and inadmissible, defendants’ testimony detailing the negotiations for the purchase of said property, and as to what was said and done prior to and at the time of the execution and delivery of the bond and mortgage.</p> <p>4. Because his Honor, the Circuit Judge, erred in finding as matter of fact that the board of trustees, or the parties for whom the defendants were to hold the property as trustees, is not now in esse; whereas he should have found such board to be in esse and duly elected by the association, and existing at and prior to the issuing of the summons herein.</p> <p>5. Because his Honor, the Circuit Judge, erred in finding as matter of fact, that “doubtless the defendants confidently expected their ‘brethren’ in the four associations to help .them pay for the property;” when the testimony clearly shows that the defendants purchased the property for the four associations instead of for themselves as individuals.</p> <p>6. Because his Honor, the Circuit Judge, erred in finding as matter of law, “somebody is personally bound for the money due to plaintiffs and evidenced by the bond in suit.”</p> <p>7. Because his Honor, the Circuit Judge, erred in finding as matter of law and fact that “it does not appear in the contract that the alleged principals were bound or intended to be bound.”</p> <p>8. Because his Honor, the Circuit Judge, erred in finding as matter of fact that “there is no evidence showing that the four associatiuns authorized defendants to create the trust in question or to incumber it.”</p> <p>9. Because his Honor, the Circuit Judge, erred in holding as matter of law that the alleged agent can only escape liability by showing (a) * * * and (b) “that the writing itself, which he may not contradict, alter, vary or explain (unless ambiguous), purports to bind the alleged principal and not himself.”</p> <p>10. Because his Honor, the Circuit Judge; erred in holding that in deeds and mortgages, the intention to bind some one else must appear in the manner of execution.</p> <p>11. Because his Honor, the Circuit Judge, erred in finding as a matter of fact that Mr. Spencer, an able and learned lawyer, would not entertain the idea that he, as trustee, had the authority to make the “assurances” attributed to him by some of the witnesses; nor would he, as a lawyer, have told the defendants that their bond and mortgage did not render them personally liable, when, as matter of fact, the preponderance of the testimony shows that defendants were led to believe by the words and conduct of Mr. Spencer that their execution of the bond and mortgage in form and manner as set out, would not render them personally liable.</p> <p>12. Because his Honor, the Circuit Judge, erred in holding as matter of law that the words and conduct of Mr. Spencer during the conduct of the negotiations for purchase of the property, and at the time of the execution of the deed, bond, and mortgage herein, did not estop plaintiffs from holding defendants personally liable in an action at law on the bond.</p> <p>13. Because his Honor, the Circuit Judge, erred in finding the words, conduct and assurance of Mr. Spencer to defendants during the negotiations for the property, and at the time of the execution of the deed, bond, and mortgage herein, were matters of opinion and law, and were, therefore, not elements of estoppel by conduct; whereas, his Honor should have found that said acts, conduct, and assurances of Mr. Spencer were matters of fact, and operated as estoppel by conduct and declaration.</p> <p>14. Because his Honor, the Circuit Judge, erred in holding that the property described in the complaint and covered by the deed and mortgage, was not under the control and in the possession of the board of trustees elected by the four associations; and that said trustees, for whom, by the terms of the deed creating the trust, the defendants held the property, were not necessary parties to the determination of this action.</p> <p>15. Because his Honor, the Circuit Judge, erred in holding as matter of fact and law, that the title to the mortgaged premises is in the defendants now just as they received it from the plaintiffs.</p> <p>16. Because his Honor, the Circuit Judge, erred in holding as matter of fact, that the board of trustees appointed or elected by the four associations, were not appointed as trustees to take and hold the title to the realty; when he should have held as matter of fact and law, that under the terms of the deed creating the trust upon the election or appointment of the said board of trustees, the statute of uses executed the use in them.</p> <p>17. Because his Honor, the Circuit Judge, erred in finding as matter of fact, that according to defendant Langston’s report or statement, as stated in the report of J. S. Croxton’s, page 8, minutes of Moriah Association, that plaintiffs sold defendants’ property for one-third its value, when, as matter of fact, Mr. Langston’s statement, as appears in said report, was that the property could be bought for less than one-third of its original cost.</p> <p>18. Because his Honor, the Circuit Judge, erred in deciding as matter of law, that the defendants herein, under the evidence, are personally bound by the execution of the bond and mortgage herein, and for giving judgment against them personally for the debt evidenced by the bond.'</p> <p>19. Because his Honor, the Circuit Judge, erred in not finding that the plaintiffs were stopped from claiming personal judgment against the defendants, said defendantshaving explained to the plaintiffs, or one of them acting for all, the exact nature of the capacity in which they were contracting, and for whom and by and under what authority they were contracting.</p> <p>cite: Acceptance by principal of the acts of agent binds principal: 19 S. C., 238; 8 S. C., 49; 11 S. C., 35. New trustees a.rc necessary parties: 8 S. C., 48.</p> <p>cites: Defendants are personally liable on the bond: 1 Rich., 501, 255; 3 Hill, 26; 4 Strob., 90, 215; 5 Am. Dec., 92; 2 Bail., 318; 52 Am. Dec., 473; 10 S. C., 369; 17 S. C., 188; 26 S. C., 526; 10 S. C., 225; 2 S. C., 430; 19 S. C., 292; 27 S. C., 316; 36 S. C., o CO Ob a CO co <N co CN Ob CO G C/j CO •cH o 8 CO w fcO OX Ob oi ~ • co to co Ox</p>

Before Townsend, J., Sumter, June, 1897. Action by J. J. Harby v. H. L,. B. Wells and E. J. Geddes in magistrate’s court. Judgment for plaintiff. Defendant, Geddes, appeals. Appeal dismissed, and he appeals to this Court. cite: Amendments: Code, 194; 41S. C., 145. Error to admit more testimony after motion of nonsuit: 1 N. & McC., 154; 43 S. C., 105. cites: Judgment of trial Judge on facts in law case final: 12 S. C., 222; 13 S. C., 115; 2 Strob. Iy., 156; 2 N. & McC., 99.

Before Townsend, J., Aiken, February, 1897. Action by Owen Alderman, sheriff of Aiken County, v. F. A. Roesel and Henry Getzen. Judgment for defendant. Plaintiff appeals. (cite no cases). cite: When charge too favorable to party cannot complain: Long v. By., 50 S. C. Judgment of dismissal is proper in claim and delivery when defendant denies allegations, does not retake property or ask for judgment for value: Code, 299; 38 S. C., 508.

<p>Before Klugh, J., Florence, February, 1897.</p> <p>Action by Fila F. and T. C.Willoughby v. North Eastern Railroad Company. Judgment for defendant. Plaintiffs appeal.</p> <p>cite: Questions not res judicata: 17 S. C., 40; Rich. Eq., 204; 1 John, Cas., 497; 31 Verm., 249. Defendant had no right to assault -plaintiff in order to come out with the rails: 2 Bail., 4; 16 S. C., 375; 2 Strob., 232.</p> <p>cite: Issue once adjudicated cannot be again raised, even in a different cause of action: 94 U. S., 351; 4 Am. St. Rep., 436; 158 U. S., 1; 1 How., 135; 14 Am. St. Rep., 247; 152 U. S., 301; 144 U. S., 610; 146 U. S., 279; Bail. Eq., 293, 326; 11 Rich. Eq., 318; 11 Rich., 560; 15 S. C., 577; 16 S. C., 35; 4 Strob., 40; 19 S. C., 158; 24 S. C., 479; 44 S. C., 1; 35 S. C., 206; 33 S. C., 498; 41 S. C., 171; 48 S. C., 154, 321; 50 S. C., 68. Husband joined for conformity, not party in interest: Code, 135; act of 1712; 2 Bail., 347; act of 1744; 4 McC., 413; 2 Bail., 477; 27 S. C., 459. fidge may charge on legal effect of a record: 50 S. C., 218; 47 S. C., 488; 44 S. C., 288; 46 S. C., 550. Admission of irrelevant testimony may be cured by charge: 50 S. C., 129. Exceptions too general: 30 S. C., 170; 40 S. C., 88, 366, 537; 43 S. C., 99; 45 S. C., 244; 46 S. C., 101; 47 S. C., 91; 51 S. C., 55.</p>

Before Gary, J., Anderson, April, 1897. Action in claim and delivery by J. J. Dobbins v. M. B. .Gaines, as sheriff of Anderson County, in magistrate court. Partial judgment for plaintiff. He appeals. New trial ordered. Defendant appeals. cites: On main issue: Crim. Code, 473, 474; 3 McC., 429; Code, 7. cites: On main issue: Crim. Code, 473, 474.

<p>Before Townsend, J., Charleston, April, 1897.</p> <p>Action by Wm. M. Thomas v. Town Council of Moultrieville. Judgment for defendant. Appellant appeals.</p> <p>cites: 4 S. C., 376; 42 S. C., 293; 12 Rich., 132.</p> <p>cites: Art. 1, sec. 36, Con. 1868; Rev. Stat.,1194, 656; 16 Stat.,152, 359; 4 S. C., 403; 6 S. C., 1; 21 S. C., 318; Con. 1868, art. XIV., sec. 8.</p>

<p>Before Watts, J., Anderson, July, 1897.</p> <p>Supplementary proceedings in an action by Globe Phosphate Company v. J. D. Pinson. Order of Circuit Court is as follows:</p> <p>After hearing read the testimony taken before R. M. Burriss, probate judge and special referee for said county, under supplementary proceedings had in the above stated case; and it appearing from the judgment roll in the above stated case that a homestead in real and personal property has been set off to the defendant, J. D. Pinson; and it appearing, further, that the said J. D. Pinson has other property than that set off to him as homestead, which he neglects and refuses to apply to the payment of his debts; and it appearing, further, that J. A. Pinson is indebted to said J. D. Pinson in about the sum of $200, balance of the purchase money of a tract of seventy-seven acres of land: Now, on motion of Bonham & Watkins, plaintiff’s attorneys, it is ordered, adjudged, and decreed, that John A. Hayes be, and is hereby, appointed receiver of all the property, real and personal, together with choses in action, of the said J. D. Pinson, not included in the inventory or schedule of the property appraised and set off to him as homestead; and particularly of the claim of $200 due by J. A. Pinson to said J. D. Pinson as aforesaid. And the said J. A. Pinson is hereby enjoined and restrained from paying the said sum of $200 to any other person than John A. Hayes, the receiver herein appointed. And the said J. D. Pinson is hereby enjoined and restrained from selling, assigning, transferring, conveying or in any wise disposing of any of the property of which he is possessed, not included in the schedule of the property, real and personal, set off to him as homestead as aforesaid; and he is particularly enjoined and restrained from assigning, transferring or disposing of his claim against J. A. Pinson for the sum of $200 due for the balance of the purchase money of a tract of land as aforesaid. And the said John A. Playes, receiver, is hereby authorized and empowered to sue for and collect the above named claim, and any and all choses in action and claims belonging to the said J. D. Pinson; and to sell such property, real and personal, as may come into his hands of the assets of said J. D. Pinson; and that he hold the same subject to the further order of this Court. That the said John A. Hayes, before entering upon his duties as such receiver, do enter into bond, in the sum of $200, with one or more sureties, to be approved by the clerk of court, conditioned for the faithful performance of his duties. Let copies of this order be forthwith served on J. D. Pinson and J. A. Pinson.</p> <p>From this order the defendant appeals, on the following grounds:</p> <p>1. He erred in appointing John A. Hayes receiver of all the property, real and personal, together with the choses in action, of tlie said J. D. Pinson, not included in the in-' ventory or schedule of the property appraised and set off to him as homestead; because, under the testimony, it did not appear that the said J. D. Pinson had in his possession any property applicable to plaintiff’s judgment.</p> <p>2. He erred in appointing a receiver “particularly of the claim of $200 due by J. A. Pinson to said J. D. Pinson;” it appearing, from said testimony, that said balance was extinguished by reason of an agreement between the said J. D. Pinson, Jas. A. Pinson, and John Pinson, by which the said Jas. A. Pinson was to assume an indebtedness of the said J. D. Pinson to John Pinson'for services, in consideration of the said J. D. Pinson releasing him for the balance due on the said land.</p> <p>3. That in any event, the said J. D. Pinson would be entitled to a homestead in the said $200; and his Honor erred, therefore, in holding it applicable to plaintiff’s judgment, and in ordering the receiver appointed herein to collect the same.</p> <p>4. He erred in enjoining the said J. A. Pinson from paying the said sum of $200 to any other person than the receiver herein appointed, the said J. A. Pinson not being a party to this action.</p> <p>5. He erred in enjoining and restraining J. D. Pinson from selling, assigning, transferring, conveying or in any wise disposing of any of the property of which he is possessed, not included in the schedule of the property, real and personal, set off to him as homestead; it being respectfully submitted that, under the Constitution and the laws of this State, the said J. D. Pinson is entitled to homestead exemption in the sum of $500, and the said J. D. Pinson is entitled to enough personal property, which, together with the amount set off to him as homestead, would make said sum of $500; and his Honor erred in not so holding.</p> <p>6. He erred in not authorizing the said receiver to take possession of only such property of the said J. D. Pinson as would be subject to levy and sale under execution by virtue of the laws of this State, including homestead provisions, and he erred in authorizing the said receiver to take possession of any property other than that herein specified.</p> <p>cite: Appointment of receiver error, because defendant had no property applicable to plaintiff's judgment: Rev. Stat., 2135; 32 S. C., 265.</p> <p>cite: An assignment of homestead unappealed fro7n settles all questions: Rev. Stat., 2126; 20 S. C., 527; 25 S. C., 572; 12 S. E. R., 203; 8 S. E. R., 156. Defe7idant caimot object to the order restraining his debtor fro7n paying the debt to another tha7i the receiver: 22 S. C., 585; Code, 317, 319; 21 S. C., 339.</p>

Before Witherspoon, J., Greenville, November, 1896. Reversed. Action by Joseph P. Ratimer v. W. N. Trowbridge, as administrator of W. C. Trowbridge. Motion for nonsuit granted. Plaintiff appeals. cites: In proceedings to revive judgment by summons, plaintiff is not required to show non-payment: 14 S. C., 221. But rule is otherwise in an action on a judgment: Code, 311. Evidence of plaintiff sufficient to rebut presumption of payment: 16 S. C., 52.

<p>1. Mandamus. — A County Superintendent oe Education will not be required by mandamus to approve a teacher’s pay certificate, when the county treasurer has no funds in hand to pay it with.</p> <p>2. Ibid. — Ibid.—Pubuc Schood Trustees. — When a County Board OE Education has ordered the trustees of one school district to run more than one school in such district, their relief is by appeal to the state board of education, and not by mandamus to require the county superintendent of education to approve the certificates issued to the teacher of the one school for services rendered after such order.</p>

<p>Before Watts, J., Spartanburg, March, 1897.</p> <p>Action for partition by Taura A. Smith et al v- Manly F. Smith. From judgment of nonsuit plaintiffs appeal.</p> <p>cite: Code, 168, sub. 2; 18 S. C., 471; 35 S. C., 309; 17 S. C., 484; 41 S. C., 16, 397; 47 S. C., 67; Code, 169.</p>

Action in the original jurisdiction of this Court on the following complaint: The plaintiffs, complaining of the defendant, by leave of Hon. R. C. Watts, Circuit Judge, first had and obtained,… Held: in accordance with the requirements of said act, at which election the electors shall vote “Yes” or “No” upon the question of creating the new county, and upon the name and county seat of the proposed new county. Fourth.

Before Aldrich, J., Lexington, February, 1897. Action by Willis M. Wilson v. Mary J. Counts for betterments. Judgment for plaintiff. Defendant appeals. cite: Motion for nonsuit should have been granted: 21 S. C., 101, 316; 31 S. C., 376; 23 S. C., 286; 29 S. C., 96, 303; 41 S. C., 158; Rev. Stat., 1952; 15 S. C., 552; 5 Rich., 598; 14 S. C., 35; 45 S. C., 283; 50 S. C., 39. Can homestead be sold under jtidgment for betterments: 22 S. C., 312.

<p>Before Klugh, J., Florence, January, 1897.</p> <p>Action by J. J. Gandy v. Orient Insurance Company. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Clause prohibiting double insurance enforced on ground of public policy: 2 McM., 220; 16 Pet., 510. Policy previously taken out in another company invalidated Orient policy: 17 Ins. D. J., 456; 23 lb., 723; 9 lb., 96. Conversation between insured and agent cannot effect contract: 66 Cal., 6; 67 Cal., 621. Conversation between insured and agent cannot be evidence of waiver, because stick waiver is forbidden by policy: 144 Mass., 46; 9 Allen., 316; 63 N. Y., 534; 33 N. Y., 487; 73 N. Y.', 5; 27 S. C., 132; 37 S. C., 56; 17 S. C., 514. Defendant's request as to misunderstanding between parties should have been charged: 94 U. S., 29; 11 Fed. Cases, 934. Plaintiff could not recover even if he notified agent of other insurance: 37 S. C., 68; 17 S. C., 579.</p> <p>cite: Can motion for nonsuit be made upon conclusion of whole evidence? 15 S. C., 146; 38 S. C., 512; 33 S. C., 258.. Waiver may be shown otherwise than by indorsement on policy: 36 S. C., 272. Contract made when premium paid and policy written: 11 Am. Rep., 125; 36 S. C., 271. Agency being shown, burden of proving limitations to authority shifts: 13 Wall., 235.; 37 S. C., 68. Not error to refuse to charge that plaintiff is only entitled to recover one-half of three-quarters of value of property on ' account of other insurance: 11 Am. Rep., 125; 20 lb., 171; 69 la., 658; 31 Grat., 176; 3 Dill., 480; 40 Am. Rep., 625.</p>

Before Benet, J., Richland, July, 1897. Action in foreclosure by Roan and Exchange Bank v. J. A. Peterkin, Ross S. McKenzie et al. From order of Circuit Judge ordering issues out of chancery as to issue of paramount title, set up by defendant, McKenzie, he appeals. cite: Complaint should have been dismissed as to appellant: 25 S. C., 73; Code, 139. Issue should not have been ordered: 23 S. C., 392. cites: Order refusing issues proper: 25 S. C., 73.

Before Benet, J., Charleston, June,,1896. Action by Gilbert Geddes DuPont v. Elizabeth C. S. DuBos, and B. H. Rutledge, as executor of B. Rutledge, deceased. Judgment for plaintiff.

Before Buchanan, J., May, 1897. Action by Jane C. McKenzie v. Stanhope A. Sifford and Geo. W. S. Hart, as executor of Stanhope McKenzie. From judgment for appellant defendant appeals. cites: Settlement had is binding in absence of frazid, mistake or accident: 2 Strob.

Before Gary, J., Greenville, March, 1897. Action by J. L,. Hunter v. The Pelham Mills on the following complaint: (1). The defendant above named is a corporation created by and under the laws of this State, and as such may sue and be sued in the courts of this State. (2).

<p>Application by E. C. Riggs for writ of certiorcu i.</p>

Before Kdugh, J., Chesterfield, July 2, 1897. Motion by Henry Burch, in case of John W. Odom v. Henry Burch, to set aside, on ground of excusable neglect, want of notice, &c., so much of a judgment by default as contains the certificate of the Judge that the consideration of the debt was the purchase money of the homestead. Motion refused. Defendant appeals. cites: Error of law corrected on this motion: 26 S. C., 589; Code, 195.

Before Aldrich, J., Edgefield, March, 1897. Action by L-aura M. Swearingen v. The Hartford Eire Insurance Company. Judgment for plaintiff.

Before Buchanan, J., Rexington, September, 1896. Action by Stewart Spearman Mack, by guardian ad litem, against South Bound Railroad Company and by Barnett Salley Mack against same. Judgment in both cases for plaintiffs. Defendant appeals. cite: Statutory signals at public crossings are intended only for benefit of public crossing at them: 33 S. C., 136; 34 S. C., 444; 39 S. C., 514.

<p>Before Townsend, J., Barnwell, September, 1897.</p> <p>Creditor’s bill by the Bank of Charleston National Banking Association v. J. C. Dowling, C. F. Dowling, and F. H. Dowling, in his own right, and as executor of Virginia S. Dowling, Henry Spann Dowling, Decania Dowling, and Dina E. Dowding. The Circuit decree is as follows, omitting the formal parts and the statement of the testimony and discussions thereof:</p> <p>I do not hesitate to say that the evidence satisfies me that all these transactions were entered into by these parties for the purpose of protecting the property of E. H. Dowling from his creditors, and of defeating and defrauding his creditors of their just debts. I have thought it best to refer, briefly, to certain other points alluded to in argument at the hearing, in order tbat the parties may have the benefit of my views respecting them, before the passage to the will. The testimony is, that the sheriff of the county of Barn-well set off a homestead in the lands in question to E. H. Dowling before the sale at which the Bank of Charleston claims to have purchased. After the assignment of homestead, the plaintiff excepted thereto. E. H. Dowling, at the sale by the sheriff, gave notice to the effect that persons purchasing at said sale would not obtain a good title to the premises sold, for the reasons set forth in said notice, and disclaimed his right to homestead in said premises. There is no doubt that the said B..H. Dowling must be held to the admissions contained in said notice — at least, so far as the same affect the issues involved in this case. If they conflict with other statements of his in regard to title and possession, they must be considered in accepting his testimony, in passing upon these questions. But, in the view I take of the case, I am of the opinion that B. H. Dowling was entitled to a homestead in said premises at the time the same was attempted to be set off. It appears, however, that the homestead here was not perfected. Such being the case, proper proceedings should be had to assign to E. H. Dowling such homestead as he may be ehtitled to under the laws respecting homestead at the time the debts of the plaintiff were contracted. If the surrender of possession of the premises was, as contended by plaintiff, to E. H. Dow-ling, he thereupon occupied the position of mortgagee in possession and owner of said premises; subject, however, to the interest of Mrs. Barr under the bond and mortgage of J. C. Dowling and C. T. Dowling, assigned to her as collateral security to the debt of B. H. Dowling to her, herein-before referred to; and upon the payment of the debt of Mrs. Barr, he became entitled to the securities held by her, and had a title to said premises, freed from the incumbrance of the Barr debt. Now, there can be no question that the Barr debt was paid; she so testifies, and the fact has been clearly demonstrated from what has been said in the previous part of this decree. I am satisfied, however, with the conclusions heretofore reached by me, namely, that the surrender of the premises was to B. H. Dowling. This being so, he at once became the mortgagee in possession, as before stated, and the said premises became subject to the lien of the judgments obtained against, and liable to levy and sale thereunder, and the purchaser at such sale would take a good title to the premises sold. But, even if these various transfers had vested the absolute title to the premises in question in fee in Virginia Spann Dowling, and the same remained in her up to the time of her death, then, under the interpretation which I give to her last will and testament, I am of opinion that an absolute estate in said property passed to her husband, E. H. Dowling. Under the will, E. H. Dowling has absolute power to control and dispose of the property therein mentioned as he may deem fit and proper. And I hold, when the power to dispose of the estate devised is given absolutely by will, as in this case, the power overrides the trust attempted to be created, and gives the trustee the whole estate — an estate subject to and liable to be sold for his debts. No broader terms could be used to create an absolute estate than those used in the will of Virginia Spann Dowling. The will is as follows: “The State of South Carolina. In the name of God, amen. I, Virginia Spann Dowling, of the county of Barnwell, wife of Elijah H. Dowling, of the said county, being of sound mind, memory, and understanding, gratefully acknowledging God therein, but considering the certainty of death appointed unto all, and the uncertainty of the time thereof, do make, publish, and declare this present writing ás and for my last will and testament, in the manner following: That is to say, that, in the first place, I desire Christian burial of my body, under the direction of my executor hereinafter named; and I direct that all my just debts, funeral and testamentary expenses, be fully paid and satisfied by my said executor with all convenient speed after my decease; then I give, devise, and bequeath all the real estate whereof I am or shall be seized, interested in or entitled to, or whereof I have or may have power to dispose, and also all and singular my personal estate, goods, chattels, moneys due, and effects, whatsoever and wheresoever, whereof, wherein or whereto I am or shall or may be or become interested in, or entitled unto, and every, part and parcel thereof, respectively, and all my estate and interest thereto, with the appurtenances, unto the said Elijah H. Dowling and his successor or successors, by his last will and testament to be nominated and appointed, to and upon the trust that the whole and every parcel and portion thereof shall be, during the lifetime and capacity of the said Elijah H. Dowling, managed, controlled, exchanged, sold or otherwise disposed of at and by the discretion of the said Elijah .H. Dowling, and without accountability therefor, and in accordance with any testamentary directions of the said Elijah H. Dowling, to the use, benefit, and behoof of my children, Henry Spann Dowling, Decania Dowling, and Dina E. Dowling, and such other child or children as shall be born of me unto the said Elijah H. Dowling, me surviving, during their minority, respectively, and to be equally distributed unto and among them, share and share alike, to them and their heirs; and it is directed that partition and allotment shall be in all respects subject to the discretion of tny executor hereinafter named, and during his lifetime and capacity may be by him made; but thereafter, when the oldest of the said children surviving shall attain the age of twenty-one years, the same shall be made and effected by three or more family friends, to be by the said successor or successors selected, and his or their hand or hands, seal or seals, to that end and purpose duly appointed and authorized. And I do hereby nominate, constitute, and appoint my husband, the said Elijah H. Dowling, executor of this my will. In witness whereof, I, the said Virginia Spann Dowling, have hereunto set my hand and seal, this 24th day of February, in the year of our Ford 1886. Virginia Spann Dowling. [Seal.]”</p> <p>The mere reading of the will must satisfy any one that Elijah H. Dowling is given, by the power contained in this will of his wife, an absolute control over all the property therein mentioned, and in which a trust is attempted to be created. Such being the case, the absolute power overrides the trust and gives him the whole estate. The conclusion reached by me is fully sustained by the following authorities: “The equitable title merges in the legal when they are united in one person.” Healey v. Alslon, 25 Miss., 190; 3 Jarman on Wills, 71. “If no precise period for the termination can be shown, it remains an estate in fee.” 3 Jar-man on Wills, 71. Said Haskell, J., in the case of Blume v. Evans: “The Court inclines to a construction which favors the early vesting of estates, and against a construction which divests an estate already vested.” Blume v. Evans, 10 S. C., 82. “Wherever, therefore, the objects of the supposed recommendatory trust are not certain or definite; wherever the property, to which it is to attach, is not certain or definite; wherever a clear discretion and choice to act, or not to act, is given; wherever the prior disposition of the property imports absolute and uncontrolable ownership; in all such cases, courts of equity will not create a trust from words of this character.” II. Story Eq., 331. “Whenever any person gives property and points out the object, the property, and the wa}' it should go, that does create a trust, unless he shows clearly that his desire expressed is to be controlled by the party, and that he shall have an option to defeat it.” II. Story Eq., 329. “We may lay it down as an incontrovertible rule, that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is where the testator gives the first taker an estate for life only, by certain and expresss words, and annexes to it a power of disposal.” I. Sugden on Powers, p. 183. “A valid executory devise cannot subsist under an absolute power of disposition in the first taker.” Jones v. Bacon, 28 Am. Rep., 2, 3. “The power of alienation belongs to a fee; in fact, it is the very essence of a fee. Is the condition which the latter portion of the clause attempts to attach to the devise inconsistent with and repugnant to this devise? The performance of the condition would require Moore to die in possession of the real estate devised to him. In no other way could he leave a will disposing of it. The condition, then, is a direct- and positive restriction upon the powers of alienation. The will invests him with a fee, but the condition strikes at the very substance of this fee, and if valid, would take and destroy its most important and essential quality— the power of sale.” Moorev. Sanders, 15S.C.,442. “Where,” says Sir Edward Sugden, “the intention is clear, a power may enable the donee to dispose of the fee, though no words of inheritance be used, as where a testator, gives a power to sell the lands, the donee may sell the inheritance, because the testator gives the same power he had himself.” Quoted in Heimh<mser v. Decker, 38 N. J., 430; 18 Am. & Eng. Euc. of Law, 904. “After directing a sale of certain property, the will adds: I wish the proceeds of my real and personal estate, and .the debts due me, after paying my debts, to be put at interest by my executors, and my wife to receive the interest; but, so long as she remains my widow, she is to be at liberty to receive from my executors or from my estate such part of it as she may choose, and to appropriate it as she believes to be just and right.” Held: “All the estate to be directed to be sold and invested by his executors, passed absolutely to his wife.” The language imports absolute dominion, and absolute dominion is one of the best descriptions of absolute property. Miss. So. of M. E. Chtirch v. Calvert's Adm., 32 Gratt. “An unlimited power of disposition given by will, carries the absolute interest in the property.” Smith v. Bell, Tenn. Ch. Rep., Cooper’s ed., 302. Lord Langsdale has thus defined the degree of certainty required to create a valid trust: “Any words by which it is expressed or from which it may be implied that the first taker may apply any part of the subject to his own use, are held to prevent the subject from being certain. And in another case, it is said that to create a trust by means of an obligation imposed upon the conscience of the devisee, the words must be imperative, the subject must be certain, and the object as certain as the subject.” II. Redfield on Wills, p. 409. “Where there is a choice, it must be in the power of the devisee to dispose of it either way. The words did not clearly demonstrate an object, and it was held not to be a trust.” II. Sugden on Powers, p. 157. “It appears, then, that the trust and the power are inconsistent, antagonistic; they cannot, therefore, coexist; the power as the dominant creation must overrule the trust.” Bratton v. Massey, 15 S. C., 277. So that, in any view that may be taken of the case, I am clearly of the opinion that the property in question was, and is, subject to the debts and liabilities of E. H. Dowling, and was, and is, liable to sale for the payment of the same. Having reached this conclusion, I am satisfied that the plaintiff is entitled to judgment and such relief as is consistent with the findings hereinbefore announced. The plaintiff, the Bank of Charleston National Banking Association, as appears from the evidence, purchased said premises at execution sale, under its judgment, complied with the terms of sale, and received the sheriff’s deed to the property. It also appears that the present action was commenced before the plaintiff obtained the conveyance from the sheriff. As soon, however, as the plaintiff, the Bank of Charleston National Banking Association, received the conveyance from the sheriff, the legal title of E. H. Dowling, the judgment debtor, which, as I have found, was then in him, was divested, and the plaintiff, the Bank of Charleston National Banking Association, acquired his rights, and became entitled to the property and its possession. Now, while it is true that the plaintiff could not maintain an action for ejectment against E. H. Dowling until it obtained the sheriff’s deed, and thereby acquired the legal title, yet, it seems to me, where all the parties are before the Court, and there is no doubt as to the facts, that the court of equity has the power to render such judgment as will fix and protect the rights of all parties, and not compel the plaintiff, the Bank of Charleston National Banking Association, to resort to another action to obtain that to which it is clearly entitled, and which, as I think, the court of equity may award in the present action. Under all the circumstances, it seems to me that the plaintiff, the Bank of Charleston National Banking Association, is entitled to the possession of the property, and that the Court should award it in this action. Of course, the plaintiff, the Bank of Charleston National Banking Association, must take the property subject to the homestead rights of F. H. Dowling, to which I have held he is entitled. * * *</p> <p>From this decree the defendants appeal on following exceptions:</p> <p>First. As to the deed of Sheriff Lancaster to the plaintiff, the Bank of Charleston, and the alleged legal title of the said plaintiff arising out of said deed, it is respectfully submitted that his Honor erred in finding: 1. That the plaintiff could avail itself of said legal title in this action; whereas, the Supreme Court of this State, in 45 S. C., 677, have decided that it could not, for the reason the deed was delivered after the commencement of this action, and the said finding of his Honor, the presiding Judge, is contrary to the principles of said decision. 2. That the execution and levy under which the sale upon which said deed was based was regular, and that the land sold was duly levied upon; whereas there is no legal proof going to show that any levy was ever made upon the land before the sale, and consequently he should have held that the sale was void. 3. That said deed was valid; whereas he should have found that the sheriff had no power or right to sell said lands until the homestead of the defendant, F. H. Dowling, was set off therein, and, as the question of homestead had not been settled, the sale was void. 4. That the plaintiff, the Bank of Charleston, was entitled to have possession of the land described in the complaint in this action in any way whatsoever.</p> <p>Second. That-as to the homestead exemption of the defendant, F. H. Dowling, it is submitted that his Honor, the presiding Judge, erred in decreeing and finding: That the homestead that was set off by the three appraisers should be set aside and a new homestead assigned to the said defendants, for the reason that said question was never before his Honor nor included in the pleadings in this case, and introduced merely as evidence as an attack on the title of the plaintiff; and for the further reason that the exceptions to said homestead question are pending on the law side of the Court, and have never been heard, and his Honor had no jurisdiction in the premises to pass upon that question; and, further, if he undertook to determine that question, he should have found, as it is respectfully submitted, that said appraisement and set off of homestead-should be confirmed.</p> <p>Third. That as to the deed of the defendant, E. H. Dow-ling, to his brothers, J. C. and C. T. Dowling, of 1,800 acres of land, the subject of the action, said deed, dated the 24th of November, 1874, -it is respectfelly submitted that his Honor, the presiding Judge, erred in decreeing and finding as to the same that said deed was fraudulent, null, and void; that at the time of its making the grantor and grantees contemplated a fraud upon the creditors of B. H. Dowling; that E. H. Dowling then had creditors or was then insolvent, either him or his two brothers, or that Wroten & Dowling were then insolvent; that there were badges of fraud connected with said deed, and that E. H. Dowling held possession of the same after the execution of the deed. Whereas his Honor should have found, as it is respectfully submitted, that said deed was not called in question either in the pleádings or in the proofs in the case; that there was no testimony assailing said deed in any way; that fraud is never presumed, but must be clearly proved; that at the time of the making of said deed the testimony is, that said E. H. Dowling had no creditors to be affected by said deed; that there is no testimony going to show that E. H. Dowling or his two brothers, or Wroton & Dowling, were insolvent; that there are no badges of fraud in connection with said deed, nor that B. H. Dowling held possession of said land after the execution of said deed. ' ■</p> <p>Fourth. It is submitted that his Honor erred in finding that the First National Bank of Charleston has been, by order of the Court, made a party plaintiff in this proceeding, or in any way finding that the judgment of said First National Bank of Charleston is valid as a lien upon the property in question, the same being null and void upon its face; and his Honor further erred in not finding, as to the judgment of the county of Barnwell, that the same was paid and discharged.</p> <p>Fifth. It is submitted that his Honor erred in finding that the defendants, E. H. Dowling and John C. Dowling, were insolvent since the 1st day of January, 1875, and also erred in finding that John C. Dowling and C. T. Dowling surrendered possession of the tract of land described in the complaint and known as the mortgaged premises, after condition broken, to E. H. Dowling, with the express understanding that it was in full satisfaction of the mortgage debt; whereas he should have found to the contrary, that it was known to said C. T. Dowling, as testified by him, and also known to John C. Dowling, at the time that they went out of possession of the land in question, that the mortgage in question was the property of Mrs. Rebecca A. Barr, and that they could not get possession of said mortgage; and, further, he should have found that the possession of the premises, the mortgagors being out of possession, was taken in charge by the defendant, E. H. Dowling, as the agent of the then mortgagees, Mrs. Rebecca A. Barr and Mrs. V. S. Dowling, and that according to law, which is recognized by the Circuit Judge, the legal title to the premises passed into Mrs. Rebecca A. Barr and Mrs. V, S. Dowling.</p> <p>Sixth. That his Honor erred, it is submitted, in rejecting the testimony of the defendant, E. H. Dowling, as to the manner in which he took possession of the property in question, as agent of Mrs. Rebecca A. Barr and his wife, for the reason that he was in no way estopped by his answer not stating when and by whom possession was delivered to his wife, V. S. Dowling; and for the further reason that the answer of the minor defendants was before his Honor, and upon that answer alone such testimony is competent.</p> <p>Seventh. That his Honor erred, it is submitted, in finding that the rental value of the land in question was from $75 to $100 per farm’, and that there were sixteen one-horse farms upon the tract of land in question; and in also finding that Mrs. Barr had to account for the rental value of the property during the period that she was in possession thereof; and that P. C. Spann had so to account, and that the mortgrge held by them was satisfied thereby; for the reason that said parties did not enter into possession of said land with any understanding that they were so to apply said rents and profits, or that they are in law bound so to apply said rents and profits, as to the creditors of.E. H. Dowling who, as such, were not entitled to such application. It is also submitted that his Honor erred in finding anything as to an accounting of the rents and profits; that no such accounting was contemplated in the proceedings; none has ever been ordered, and no testimony responsive to the same has ever been taken.</p> <p>Eighth. As to the transfer of the mortgage given by C. T. and J. C. Dowling to E. H. Dowling, and assigned by said E. H. Dowling, on March 15th, 1876, to Mrs. Rebecca A. Barr, it is submitted that his Honor erred in finding: 1. That said transfer was fraudulent, null, and void, and given and accepted with the intention of delaying, hindering, and defeating the creditors of E. H. Dowling, who transferred the same; whereas his Honor should have found, as sustained by the uncontradicted testimony (he having found that the saidN transfer was for a square, honest debt), that same was given by E. H. Dowling to hissistesas an honest preference of a debtor to a creditor, without any intention on the part of the debtor to hinder or delay his creditors, and without any knowledge on the part of Mrs. Barr of any such intention on the part of her brother; and he should have further found that the understanding between Mrs. Barr and Dr. Dowling was that she was first to be paid her debt out of the mortgage, and then if there was anything left it was to go to his wife, V. S. Dowling, the assignment being not in proportion of one-half to each, but as aforesaid; and should have found that all of the debt of E. H. Dowling to Mrs. Barr was due and unpaid. 2. That the date of the transfer was at some time subsequent to the 15th of March, 1876; whereas he should have found, by the unquestioned evidence, that the bond and the mortgage was actually delivered, for valuable consideration, to Mrs. Barr,, in December, 1875, and that the written transfer was made actually on March 15th, 1876, and at no other time; and he should have further found that at said time of said transfer there were no creditors against the defendant, E. H. Dow-ling, not even the cause of action of the plaintiff, the Bank of Charleston, in this suit; and he should have further found that although the defendant, E. H. Dowling, had signed a bond to the State of South Carolina for his brother, J. C. Dowling, as treasurer, yet no liability arose on said bond,, and that the judgment recovered by the State against J. C. Dowling and his sureties was upon his subsequent bond. 3. That his Honor erred in finding that when the confession of judgment was made from E. H. Dowling to Rebecca A. Barr, it was made for a greater amount than was due.</p> <p>Ninth. That it is submitted that his Honor should have-found, as a matter of law and fact, that the transfer of the mortgage in question from E. H. Dowling to Rebecca A. Barr and V. S. Dowling was made when the defendant, E. H. Dowling, was solvent and had no creditors, as far as the testimony in the case is concerned; that it was honest, good, and valid, and that, though given as a security for the debt of Mrs. Barr, and the balance as a gift to his wife, it vested, when the debt to Mrs. Barr was not paid, the title of the mortgage in Mrs. Barr and Mrs. Dowling as mortgagees;, and that when the mortgagors, C. T. and J. C. Dowling,, went out of possession in December, 1877, the fee of the land in question at common law passed into said mortgagees, and that at that time Rebecca A. Barr and V. S. Dowling became the legal owners of the property.</p> <p>Tenth. It is submitted that his Honor erred in finding that there was no consideration for the transfer of the mortgage in question from Rebecca A. Barr to P. C. Spann, and that said transfer was a part of a scheme to delay, hinder, and defeat the creditors of E. H. Dowling, for the reason that there is no testimony to show that any such intention existed; and that, even if it did exist on the part of E. H. Dowling and P. C. Spann, there was no participation in or knowledge of it by Mrs. Rebecca A. Barr; and that, in this connection, his Honor distinctly erred, in stating what was the consideration of said transfer, in entirely omitting the truth that a part of the consideration was an undivided one-half interest in the 1,000 acres of land upon which stood the Steadman mill.</p> <p>Eleventh. That his Honor erred in finding that the sale of the Mike Barr property from E. H. Dowling to P. C. Spann was without consideration; whereas the testimony shows beyond question that $3,000 was paid tlierefor, and that P. C. Spann was a man of means at the time of the transfer.</p> <p>Twelfth. That it is submitted that his Honor erred in stating it as law that, in transactions between relatives, “the burden is placed upon them to satisfactorily explain the transaction charged with fraud;” whereas it is submitted that the law is, that whilst a less degree of proof is required in matters between relatives than outsiders, yet it is the law, in all cases of fraud, to prove the fraud to the satisfaction of the Court; and not only to prove the fraudulent intent of the grantor, but the co-operation and knowledge of the grantee with the grantor in the fraudulent transaction; and if this be not proven, the fraud is not established.</p> <p>Thirteenth. It is submitted that his Honor erred in finding that the transfer of the papers in question by P. C. Spann to his sister, V. S. Dowling, was null and void, on the ground that there was no consideration between the parties, and that the same was a part of a scheme to rob the creditors of E. H. Dowling; whereas it is submitted that he should have found, upon the testimony and the greater weight of' the testimony, that said consideration was full, and that said transfer was honest and without taint of fraud.</p> <p>Fourteenth. It is submitted that his Honor, having found the fact that there was a deed from the defendant, J. C. Dowling, to V. S. Dowling, shortfy before her death, covering his half interest (if he had any at that time) in the land in question, erred in finding that said deed was null and void; and he should have held that said deed was valid, and was a conve3?ance of a mortgagor to a mortgagee of a half interest in the property, and that the fee of the half interest was vested in her thereby. And it is respectfully submitted that the least his Honor could have held in this action was that Mrs. V. S. Dowling was the owner of a half interest in this property, having the deed therefor of J. C. Dowling, and that said interest passed to her estate, and that the other half interest in said property was covered by the mortgage — that is to say, the interest of Mrs. Rebecca A. Barr in said mortgage, which had been transferred from her to P. C. Spann, and by P. C. Spann to V. S. Dowling, and that the same was held by the estate of V. S. Dowling; and that said debt so transferred was a valid and binding lien on the property as to the half interest thereof prior to any claim of any judgment creditor of the defendant, E. H. Dowling.</p> <p>Fifteenth. It is submitted that his _ Honor erred in construing the will of the testatrix, Virginia Spann Dowling, as he did, and in decreeing that the same vested in B. H. Dowling, a lpvyable fee in the land in question; whereas he should have found that said will simply created the defendant, E. H. Dowling, his executor and trustee under the said will, and that the fee in the property covered by said will vested in him as such executor in trust for the use and benefit and behoof of the minor children of said testatrix, with power to sell the same, and to reinvest the proceeds subject to like limitations and trusts.</p> <p>Sixteenth. It is submitted that his Honor erred in passing upon the question of the strict statute of limitations, which was meant to apply to the legal title of the plaintiff, inasmuch as said legal title was not to be considered by the Court in this action, according to the previous decision of the Supreme Court; anditisfurthersubmittedthat his Honor erred in not dismissing the equitable cause of action of the plaintiff set up in the complaint, and the evidence, on the ground that same was a stale claim and was barred in equity by laches and a lapse of time.</p> <p>Seventeenth. It is submitted that his Honor erred in not decreeing that the complaint should be dismissed with costs, for the reason the testimony in the case clearly showed that the plaintiff was not entitled to any relief whatsoever, either legal or equitable.</p> <p>cite: Error to grant legal relief: 45 S. C., 677; 14 S. C., 434; 47 S. C., 203. No proof of levy: 23 S. C., 96; 14 S. C., 480. Sale without assigning homestead is void: 26 S. C., 1; 29 S. C., 175; 32 S. C., 264; 47 S. C., 137. Deed in question not proven to have been executed to delay and defraud creditors: 37 S. C., 373; 47 S. C., 100. Mortgagee in possession only chargeable with rents and profits received: 47 S. C., 582; 42 S. C., 536; 14 S. C., 292; 16 S. C., 470. Mortgage may be assigned orally by mei'e delivery: Vor. Code, 93; 20 S. C., 139; 4 S. C., 257; 38 S. C., 457; 12 S. C., 167. Subsequent creditors cannot attack voluntary transfer except for fraud: 22 S. C., 528; 28 S. C., 111. Claim of plaintiff barred by laches: 22 S. C., 41; 24 S. C., 99; 16 Ves., 254; Harp. Eq., 271; 2 Strob. Eq., 27.</p> <p>cites: As to construction of will: 1 N. & McC., 71; 2 McC., 66; 16 S. C., 507; Fable v. Brown, 2 Hill Eq.; Buist v. Dawes, 4 Rich. Eq.; Carr v. Porter, 1 McM.; Smith v. Poyas, 1 DeS; 10 Johnson, 505; 4 Rich. Eq., 475; 4 T. R.,-38; 7‘Ves., 567.</p> <p>cites: Rule as to findings of fact below: 45 S. C., 303; Con. 1895, art. 5, sec. 4; 47 S. C., 347. Defendant will not be permitted to deny statement in verified answer: 44 S. C., 1; 30 S. C., 564; 38 S. C., 504; 23 S. C., 401; 40 S. C., 255; 18 S. C., 606; 28 Mo., 346. If mortgage assigned as collateral and gift, assignee takes thereby no legal title to la.nd: 15 S. C., 170. Conveyance to hinder, delay, and defeat creditors is void: 1 Hill, 22, 382; 27 S. C., 97. Court granted proper relief: 27 S. C., 97; 45 S. C., 683; 41 N. Y., 107. Construction of will: 4 Rich. Eq., 476; 18 S. C., 184; B. Mun., 242; 52 Gratt., 257; 16 S. C., 557; 27 S. C., 514; 15 S. C., 277; 97 N. Y., 421.</p> <p>cite: As to construction of will: 13 Am. R., 23; 16 John., 537; 19 N. H., 85; 1 Salk., 229; E. R., 10 Eq. Cas., 267; E. R., 14 Eq. Cas., 49; 6 Jurist N. S., 1360; L. R., 8 Ch. Div., 540; 25 Miss., 440; 10 S. C., 82; 28 Am. Rep., 2; 15 S. C., 442; 38 N. J. Eq., 430; 32 Gratt., 357; Tenn. Ch. R., Cooper’s ed., 302; 15 S. C., 277.</p>

<p>Before Buchanan, J., Fairfield, February, 1897.</p> <p>Action by Stark P. Martin v. R. H. Jennings, clerk of court, as administrator of Mattie Gaither, and Sallie G. Martin, as her heir at law. Judgment for defendants. Plaintiff appeals.</p> <p>cites: Transactions with decedents: 30 S. C., 288; 33 S. C., 310; 35 S. C., 213; 41 S. C., 129; 38 S. C., 166. Heir at law, defendant, cannot testify as to communication with deceased: 11 S. C., 449; 30 S. C., 288. Evidence as to pecuniary condition of plaintiff inadmissible: 24 S. C., 150. Letters written after suit are admissions, and should have been admitted: 15 Penn. St., 242; 5 Miss., 90; 1 Mill. Con. R., 300. Under certain circumstances, law will presume gift from wife to husband: 2 S. C., 136; 6 S. C., 240; 24 S. C., 281; 42 Wis., 548; 11 Md., 415; 50 Penn., 204, 382; 24 S. C., 277; 53 Pa. St., 289. If trial ft-dge err as a matter 'of law in refusing a new trials this Court will reverse him: 14 S. C., 432; 16 S. C., 13; 19 S. C., 491; 31 S. C., 138; 45 S. C., 490, 90.</p> <p>the former cites: Letter written after suit brought cannot be received as new promise: 14 S. C.,434; 17 S. C., 123; 48 S. C.,590; 47 S. C., 430; 27 S. C., 323; 16 S. C., 198. Testimony on matter eliminated, not relevant: 36 S. C., 214. Testmiony cannot be sustained here on a diferent ground than that zirged on trial: 47 S. C., 492; 41 S. C., 118; 8 R. R. A., 608; 46 S. C., 77; 158 U. S., 335. Heir at lazo, defendant with administrator, can testify as to communications with deceased: 47 S. C., 492; 16 S. C., 402; 9 S. C., 279. Incompetent testimony received without objection, competent: 3 S. C., 512; 14 S. C., 508; 24 S. C., 592; 17 S. C., 578; 38 N. Y., 484; 3 S. C., 448, 512; 7 S. C., 299. Evidence as to pecuniary condition of plaintiff admissible: 3 S. C., 512; 35 S. C., 546; 8 R. R. A., 610; 22 S. C., 46. Relevancy of testimony largely for trial Judge: 35 S. C., 549; 43 S. C., 99; 17 S. C., 134. Testimony by heir at taw as to one transaction with decedent does not open door for evidence in reply as to others: Code, 400; 142 N. Y., 140. Misstatement by Circuit Judge as to issues raised by pleadings, immaterial: 41 S. C., 190; 21 S. C., 596; 35 S. C., 459; 14 S. C., 627; 34 S. C., 235; 42 S. C., 474. Whole charge must be considered on exceptions: 37 S. C., 343; 42 S. C., 175; 35 S. C., 272; 47 S. C., 74; 42 S. C., 473. Whether there was a gift from wife to husband is a question forjury: 24 S. C., 273. Counsel will not be relieved here if they acquiesce in errors below: 48 S. C., 257; 37 S. C., 251. Affirmative defense imist be specially pleaded: 50 S. C., 184; 15 S. C., 95. No presumption of law that wife gives husband her rents: 6 S. C., 239; Rev. Stat., 2165; 31 S. C., 436; 34 N. Y., 293; 131 U. S., 238; 11 S. E. R., 655. Refusal to grant new trial will not be reviewed here, except for error of law: 23 S. C., 226; 39 S. C., 33; 26 S. C., 104; 38 S. C., 216; 40 S. C., 89; 42 S. C., 471; 36 S. C., 587; 24 S. C., 593.</p>

<p>Before Benet, J., Anderson, February, 1897.</p> <p>Action in foreclosure by Etnaline Parker v. W. R. Parker, O. H. P. Fant, and Sarah A. Hamby. From decree setting aside plaintiff’s mortgage, she appeals.</p> <p>(argues facts).</p> <p>cite: Voluntary conveyance is not fraudulent as to subsequent creditors and purchasers: 18 S. C., 528; 6 Paige, 535; 52 Bark., 26; 111 U. S., 117; 8 Wheat.,.229; 11 Wheat., 195; McC., 167; 1 Hill Ch., 121; 3 Rich. Eq., 41; 1 McC., 231; 4 Sandf. Ch., 312; 19 S. C., 385; 22 S. C., 531; 20 S. C., 555; 2 Bail., 461. Merger: 17 S. C., 499; 24 S. C., 19; 26 S. C., 425; 27 S. C., -572; 43 S. C., 50. Admissions treated against admitting party: 12 S. C., 354. Party not affected by fraud unless he participated in it: 47 S. C., 582.</p> <p>(no argument).</p> <p>cite: Rule as to finding of fact below: 43 S. C., 426; 42 S. C., 283. Acceptance of telease of lien estops junior mortgagee from attacking senior mortgage: 6 S. C., 29. Circumstances attending transaction may be shown by parol, to show intention: 24 S. C., 18; 31 S. C., 281; 21 S. C., 400; 17 S. C., 329; 47 S. C., 648. Was there merger? 26 S. C., 424.</p>

<p>Before Buchanan, J., Spartanburg, July, 1897.</p> <p>Action by W. Harvey Rogers and Nimrod Rogers v. Elias Rogers et al.' Judgment for plaintiffs. Defendants appeal.</p> <p>cite: No resulting trust here: 1 Bay, 450; 61 N. W. R., 237; 114 Mass., 366; 19 S. C., 134; 23 S. C., 266; 4 DeS., 516; 6 S. C., 90; 32 S. C., 595. Plaintiffs barred by laches: 43 S. C., 441; 6 S. C., 90; 47 S. C., 323; 42 S. C., 347. Elias Rogers held lifetime interest in this land by marital rights: 48 S. C., 28.</p> <p>cite: Resulting or imT plied trust may be shown by parol: Rev. Stat., 2693; 14 S. E. R., 419; 13 lb., 215; 4 /¿., 692; 4 DeS., 487; 1 McC. Eq., *119; 23 S. C., 254; 24 S. C., 597; 34 S. C., 504. No adverse possession: 3 S. C., 34; 22 S. C., 361. Elias Rogers had no marital rights: 14 S. C., 609. Point not miled on below cannot be made here: 40 S. C., 534; 24 S. C., 435; 47 S. C., 346. Exceptions too general: 30 S. C., 167; 43 S. C., 99; 46 S. C., 184, 95; 42 S. C., 281; 34 S. C., 344.</p>

<p>Motion to recall remittitur.</p>

<p>Before Aldrich, J., Edgefield.</p> <p>Action by G. W. Townes and H. H. Townes v. City Council of Augusta. Upon motion for nonsuit, the Judge made the following remarks:</p> <p>I shall endeavor as briefly as I can to announce my conclusion upon the several grounds upon which this motion is asked, or as many of them as may be essential to pass .upon. 1st. “That the plaintiffs cannot retain the benefit of any contract, and at the same time be relieved from any burden or any consequence which flows from the contract.” This case has been before the Supreme Court of this State, and was there considered, and it granted an order wherein it was held that the judgment of the Court below was erroneous, in that the Court should have granted the motion made for a nonsuit in that case. It sent the case back to this Court for a new trial, because it might be that the plaintiffs would introduce sufficient evidence to sustain the allegations of their complaint to prevent. the penalty of a nonsuit. I have read over the case, the brief, as prepared for the Supreme Court, and have also read their decision. Now, that Court having passed upon this case as presented on the facts therein contained, and having said the motion for a nonsuit was proper, and stated the reasons why it was proper; in that case my duties are circumscribed. It is left for me to say whether the plaintiffs in this case have submitted the testimony which, in the opinion of the Supreme Court, was wanting in the trial of the case at the prior trial. And before doing so, let me say, in regard to comment of the learned counsel, that the Supreme Court, or the Judge who wrote the opinion thereof, had inadvertently overlooked certain testimony contained in the brief. It is not my province, certainly not my pleasure, and it is very far from my duty, to assume that the Supreme Court inadvertently or otherwise overlooked any material testimony in the brief; and it affords me pleasure to add, also, that I can see very plainly how the decision of the Supreme Court, or of the Justice who wrote the leading opinion, could be correct, and in exact accord with the language he used in that opinion. If you will notice that he bases his decision why the motion for a nonsuit should have been granted upon the conduct of the plaintiffs after they had acquired their alleged rights to the land. Now, the letter of the counsel of plaintiffs to the city council of Augusta, or its mayor, was a notice, a statement, or you might term it a demand. The Supreme Court did not rest its decision upon the declarations or statements of either counsel or the plaintiff, but upon their conduct, and if you view the conduct as contradistinguished to mere talk or statements, the language of the Justice who wrote that opinion would be correct from his standpoint. Now, if that be so (and I must construe 'the testimony in the light of this decision, because it is directly upon this issue), what have we got here to supply the missing testimony, or the wanting testimony, at the prior trial? We have the statement, the declaration of the plaintiffs, that they have not received any of this money arising from the use of the water power derived from the canal; that they have not accepted it, and that they, on the other hand, to use their word, “repudiated” it, and these gentlemen themselves go on and tell you what they themselves have testified to, what they did; that with their knowledge, with their permission, certainly by their acquiescence, they let their property remain in the hands of their father, and used it and operated it. Well, that was conduct. When they allowed him to remain there by their permissson and acquiescence, his conduct they are responsible for; and if that be true, as I think it cannot be gainsaid, I don’t see where there is any more testimony in this case than there was at the previous trial.</p> <p>Now, I need not state the rule of evidence governing nonsuits, that where there is any testimony to go to the jury that the Judge should refuse the nonsuit; but I think the meaning of that rule is, that wherever there is any legal testimony, any competent testimony, to go to the jury, the Judge should not interfere. But here in this case these gentlemen testified as to what they did, their conduct in the premises, and I do not see that there is any more testimony in this case, as I say, than was at the prior trial. Now, the conduct to which, as I understand the decision of the Supreme Court as referring to, is not what in its usual and general acceptation is termed an estoppel in pais. It belongs to that class of conduct which means an acceptance or ratification of the acts of another by receiving the benefits therefrom. In such cases, there is no element in it that the party must induce the other one to act on, or to do anything, or to change his position. A man that sees a certain status of affairs, or certain condition of affairs, which he can reject or not, he has his option; when he accepts the benefit of the condition of affairs, reaps the results or the emoluments resulting therefrom, the rule in such cases is, that he accepts the benefits and takes it along with the burden, he adopts it. Now, the Supreme Court, in this case, had another element to deal with, on which, with all due respect to counsel, I do not think sufficient stress has been laid by any of the counsel. I am now discussing this case from the standpoint that this property was derived from the will of the grand-father, Jones; that Mrs. Townes was the life tenant, and that these plaintiffs, the gentlemen now bringing this action, were the remaindermen, undoubtedly, under the law and under that will. As I caught it, the life tenant under the life estate had an absolute life estate in that, and during her life she could have given permission to anybody to erect that dam there, and it would have been a lawful act on her part. She had the right to do it, and that permission would exist as long as she lived. Now, if she had a life estate, and the remaindermen did not take it through her, but as purchaser under the will of their grandfather, they were then in the case, which often occurs, the remaindermen taking the property as it comes from the life tenant upon the termination of the life estate. In such cases, where the remainderman takes it, accepts it, uses it, utilizes it, or allows it to be done, ordinarily he is held by his conduct to accept the life estate in the condition in which he receives it and accepts it.</p> <p>Now, there is another view. For that reason, I will have to sustain the first ground of the motion for a nonsuit. But as this case may go back to the Supreme Court, and to the end that it may be adjudicated and all those issues settled, and that we may get a finality of it, there is an independent, separate, and distinct issue which has been brought into this case which did not exist in that former trial, and upon those issues the Court is asked to grant the nonsuit, and it is my duty to pass upon that. Now, let’s assume that Mr. Jones, the grand-father, by his devise conveyed this estate, this land in question, to his daughter for life, and at her death to her children. The testimony here, the record of the Court introduced in evidence by the plaintiffs, shows that after the termination of the life estate, an action where H. H. Townes, as guardian, and these two plaintiffs were parties, was instituted in the Court of Equity, and the very point or gist of that action was the sale of the land in dispute. That Court, with all of these gentlemen parties to it, directed the sale of this particular land, and in pursuance of that decree of Court, which had jurisdiction in the premises, full power to act, this land was sold to Mr. Shaw, and in that deed we find these very significant words: "Together with all and singular the rights, members, hereditaments and appurtenances to the said tract of land and islands belonging or in any wise incident or appertaining, and particularly the water power and water privileges incident or appertaining thereto.” Now, what does that mean? Does it mean the right to utilize the water as it flows in the Savannah River adjoining, which it describes as a boundary, or does it mean some power already established? Unless the Court was guilty of tautology — unless this deed repeats and says what was unnecessary — uses unnecessary and meaningless words — that cannot be the construction placed upon the deed, because it reads as follows: “Together with all and singular the rights, members, hereditaments and appúrtenances to the said tract of land and the islands belonging.” Those words will convey the right to use the water in its natural condition as it existed. Therefore, when he says, “and particularly the water power and water privileges incident or appertaining thereto,” it must mean something else than the natural flow of water; it must have been intended to mean something more. This deed was made after that water power was established. The terms of that deed are broad enough to carry the water power as established and put there by the agreement of Townes, sr., as trustee of his wife. Be that as it may, whether the Court erred or not, the Court had jurisdiction of the matter, and it did sell it. Now, then, afterwards, in 1892, the deed from Shaw back to H. H. Townes, sr., as guardian, conveyed this land that he purchased under the decree of the Court. It says so in terms. What did he buy? He bought the land, “and particularly the water power and water priviliges incident or appertaining thereto,” as well as the other rights and hereditaments to the land appertaining. Now, therefore, the rights, members, hereditaments and appurtenances, and particularly the water power and water privileges, passed out of these plaintiffs when that land was sold to Shaw, and it was gone from them, notwithstanding the will of their grand-father, because the Court of Equity had the right to sell this land, to change this investment, or for any other reason it saw proper. When that land was conveyed back to Townes, sr., as guardian, in 1892, it was still in the hands of some one other than the plaintiffs, or it may be it was in his hands as guardian of these plaintiffs, and they had a beneficial interest in it. Certainly, when he conveyed it back in 1894, then the plaintiffs were in of a new title. They were in under the conveyance, and being in under that conveyance, and that conveyance having passed to them the rights, members, hereditaments and appurtenances, and particularly the water power and privileges, and so on, they owned whatever water powers and privileges that Mr. Shaw bought, and [no more. Therefore, I think upon that ground' the motion for a nonsuit must prevail, because that disposes of that branch of the case. There are a number of other ■ grounds here.</p> <p>The 2d. “Because there is no evidence in this case, not a scintilla of evidence, connecting the city council of Augusta, the defendants, with the grievances of which the plaintiff complains.” I do not think it is necessary, in the view I have taken of it, to pass upon that at all.</p> <p>3d. “Because the plaintiffs have shown that they purchased the land affected by the grievances of which they complain many years subsequently to the infliction of the injury, and with full knowledge of existing conditions, to wit: the construction of the dam and the consequences thereof; thereby, under the law, they took the land cum onere.'’' That I sustain as good ground for motion for a nonsuit.</p> <p>4th. “Because the plaintiffs have not only not shown that they have been damaged in any way by any act of the der fendant since their purchase; on the contrary, they have shown affirmatively that the lands mentioned in the complaint are in as good condition as they were when the plaintiffs purchased the same, to wit: That the lands are in as good condition as they were in 1892, when H. A. Shaw conveyed the same to Henry H. Townes, as guardian for Henry H. Townes, jr., and Willis G. Townes, and in the same condition as. they were when Henry H. Townes conveyed the same to plaintiff in 1894.” I sustain that ground as necessary consequence in sustaining the view I expressed in regard to the deed from Shaw to Townes.</p> <p>5th. “Because the plaintiffs have introduced no testimony whatsoever tending to show that they have in any way been injured by any act of the defendant since the demand made upon the defendant by them, March 6, 1894.” I hardly think it necessary to go into a discussion of that. It has been covered by what I have already said in the discussion of the other branches.</p> <p>Mr. Croft: All parties are desirous for this litigation to be permanently ended, and if your Honor does not object to doing so, I would much prefer you to pass on all the grounds. Your Honor has not ruled on the second.</p> <p>The Court: The 2d. “Because there is no evidence in this case, not a scintilla of evidence, connecting the city council of Augusta, the defendants, with the grievances of which the plaintiff complains.” I hold he cannot sustain his ah legations ás to grievances, because he has failed to prove them, and as far as the connection of the city council of Augusta with those grievances is concerned, there was testimony there that the city council of Augusta was operating them. I refuse to sustain it on the second ground.</p> <p>From this judgment plaintiffs appeal.</p> <p>cite: Consideration of deed may be shown by parol: 12 S. C., 139; 2 Hill, 404. Official. deed passes no title without compliance with bid: 41 A. D., 439; 14 Ark., 114; 9 Rich. Eq., 396. Estoppel in pais does not apply to infants: 2 Gray., 161; 11 E. R. A., 861. Loose declarations not acted upon do not operate as estoppel: 87 A. D., 316. Minors are not estopped from asserting title to land sold by administrator tmder void order: 87 A. D., 306; Boh, 573. Estoppel in pais question of fact: 86 A. D., 406. Remaindermen may object to any work or burden put on land during life of life tenant: 25 S. C., 523; 1 Strob., 130; 39 S. C., 34; 16 S. C., 230; 17 S. C., 54; 14 A. S. R., 632; 46 A. D., 579. The Court deed to Shaw, and reconveyance by him to Townes, guardian, does not change status of parties: 37 Am. Dec., 85; 26 D. R. A., 427; 10 Pet., 25; 26 D. R. A., 425; 18 R. R. A., 540; 22 S. C., 545. Plaintiffs not bound by acquiescence of predecessors: 5 D. R. A., 210.</p> <p>cite: Rule as to confirmation by minor after attaining majority: 4 McC., 245. Grantee cannot accept benefits of deed and refuse burden: 6 Har., 343; 50 Mich., 119; 36 N. E. R., 856; 52 S. W. R., 460; 128 N. Y.,'270; 33 Atl. R., 905; 106 Mo., 521. Party selling land and. repurchasing it takes it mm onere: 15 S. C., 484; 46 S. C., 486. Land as good as when repurchased, therefore no damages: 47 S. C., 476. In some cases parol not admissible to prove consideration of deed: 44 S. C., 544; 29 S. C., 48; 2 McC., 167; 1 McC., 261, 48, 514.</p>

<p>Before Watts, J., Newberry, March, 1897.</p> <p>Action by D. M. Dickert v. The Farmers Mutual Insurance Association of Chester. Judgment for plaintiff. Defendant appeals.</p> <p>(Oral argument at hearing; no authorities afterwards furnished reporter.)</p>

<p>Before Townsend, J., Greenville, September, 1896.</p> <p>Proceeding by T. B. Cunningham et al. v. James T. Williams, for mandamus. Writ ordered to issue. Defendant appeals.</p> <p>cite: On the point decided: 6 S. C., 476; Code, 402, 404; Rev. Stat., 2247; 3 Wis., 795; 60 Pa. St., 212; 34 S. C., 194; 3 S. C., 53; 48 S. C., 211; 102 U. S., 672; 16 S. C., 52; 2 N. Y., 620; 45 Hem., 19; 107 U. S., 221; 63 Ga., 638; 10 Q. B. D., 504; 3 S. C., 338; 36 S. C., 559.</p> <p>The former cite: On point decided: Gen. Stat., 2247; Code, 402; 102 U. S., 672; 34 S. C., 184; Code, 401; 17 S. C., 563; Gen. Stat, ch. 102; 10 S. C., 40; Code, 452; 6 S. C., 472; 36 S. C., 599; 32 S. C., 102.</p>

Before Klugh, J., Florence, May, 1897. Foreclosure by J. W. McCown, as clerk of court, as administrator of estate of Sarah W. Hunter, v. M. E. West-bury, T. H; Waterman, Thos. W. Westbury, and J. A. Banks. From Circuit decree the defendants appeal. cite: Payment on bond and return of same amount to holder, is payment: 3 Bibb, 10; 6 Mod., 237; 8 Mo., 49; 22 Graft., 643; 6 R. R. A., 695; 1 Hill, 227. Question of application of payment one of fact: Bail.

<p>Before Buchanan, J., Oconee, September, 1897.</p> <p>Action by Andrew Murdock v. The Courtenay Manufacturing Company. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Proof of purchase of cement tends to prove that'amount of cement furnished: 24 S. C., 131. Judgment entered while motion for new trial is pending is invalid: Code, 287; 28 S. C., 568; 22 S. C., 50; Code, 286.</p> <p>The former cites: The receipted bill might have been used by witness to refresh his memory: 14 S. C., 451; 15 S. C., 273. Btit it could not have been put in evidence: 14 S. C., 451; 5 Rich., 495. Judgment properly entered, notwithstanding the pending order deferring motion for new trial on case and exceptions: 6 Rich., 492; 22 S. C., 343; Rule 47 Circuit Court; Code, 287; Wait’s Annotated Code N. Y., sec. 265; 14 S. C., 104; Code, 286.</p>

<p>Motion to reinstate appeal dismissed by clerk under ■Rules 1 and'2.</p> <p>Stephen Putney & Co. and other judgment creditors of A. Y. Cartwright & Co. brought an action against the assignee of A. Y. Cartwright & Co. and others, to set aside a deed of assignment and certain conveyances of realty, as being frauds upon the plaintiff creditors, and for the appointment of a receiver. On 20th August, 1895, Judge Benet filed an order holding the complaint to be a creditors’ bill, setting aside the deed of assignment, holding the conveyances of real estate void, and ordering the clerk of the court to call in, by advertisement, all the creditors of the insolvent defendant firm who were willing to come in and contribute to the expenses of the litigation. On the 14th January, 1896, Judge Townsend filed a decree, in which, among other things, he ordered, “That all necessary disbursements made and incurred by the original plaintiffs in the complaint in this action, including their traveling expenses in prosecuting the action to judgment, or, more properly speaking, until the rendition of the decree of Judge Benet, on August 28th, 1895, should be refunded to them before the fund coming into the hands of the receiver shall be ratably applied to the claims, complying with all the provisions of Judge Benet’s decree.” It seems that no notice of the filing of this order was served by either party, and on the 6th of June, 1896, the attorneys for assignors and certain creditors, who came in under the call under Judge Benet’s decree, served notice of the filing of Judge Townsend’s order, and on same day served notice of intention to appeal from such order and exceptions to that portion above quoted. This notice and exceptions were immediately returned by respondent’s attorneys with the indorsement that the assignee, pursuant to said order, had accounted to the receiver, and that the receiver had paid to the original plaintiffs their necessary disbursements and traveling expenses, and that the assignee was the attorney of all parties defendant, appellant. On July 1st, 1896, Judge Ernest Gary signed an order confirming the report of the clerk on claims, filed June 28, 1896, and ordering the receiver to pay out the funds. On July 31st, 1896, the proposed “Case” with exceptions was served, but at once returned by respondents’ attorneys. On October 3d, 1896, the appeal was dismissed by the clerk of this court, upon affidavits of respondents’ attorneys that the “Return” had not been filed in time.</p>

<p>Before Keugh, J., Edgefield, November, 1897.</p> <p>Action by Thomas T. Bussey v. Charleston and Western Carolina Railway Company. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Charge: Con. 1895, sec. 26, art. 5; 49 S. C., 558; 51 S. C., 459. Appliances: 18 S. C., 262; 22 S. C., Crouch v. R. R. Harmful effect not cured in charge by correct instructions: 51 S. C., 459. Contributory negligence: 49 S. C., 19; 21 S. C., Hooper v. R. R.; 42 S. C., 465. Error in instructing jury as to elements of damage: 51 S. C.5 480.</p> <p>cite: Appliances: 18 S. C., 270, 282. Negligence: 40 S. C., 109; 18 S. C., 271; 39 A. S. R., 187. Exception too general: 49 S. C., 285, 445. Elements of damage: 100 U. S., 214; 71 A. D., 267; 18 S. C., 266.</p>

<p>Before Benet, J., York, November, 1897.</p> <p>Action by Rauraglenn Mills v. A. F. Ruff; Same v. A. Friedheim & Bro.; Same v. W. L. Roddy; and George B. Hiss Oil Co. v. W. L. Roddy. From judgment overruling demurrers to the complaints, defendants appeal.</p> <p>cite: Con. 1895, sec. 18; 130 U. S., 670; 15 Peters, 499.</p> <p>cites: 34 Ark., 323; 25 S. C., 352; 22 S. C., 297; 49 S. C., 7; 4 Wheat., 663; 2 Wall., 23; 70 Ala., 120; 99 U. S., 700; Con. 1895, secs. 16,17,18, 21, art. IX.; 161 111., 502; 46 S. C., 344; 48 S. C., 153; 13 S. C., 288; 15 Pet., 499; 37 Am. St. R., 163; 24 Cal., 518; 48 S. C., 152; 13 Am. St. R., 626; 36 Am. & Eng. Corp. Ca., 222; 22 Stat., 92; 46 S. C., 37; 1Í3 U. S., 727; Con. 1895, sec. 11, art. XVII.; 2 Strob., 560.</p>

Before Aldrich, J., Spartanburg, November, 1897. Indictment of Chris. Cannon for shooting Capt. John H. Blassingame. From verdict of guilty and sentence thereon defendant appeals. cites: Confessions: 49 S. C., 550. cite: A request containing faulty proposition of law may be refused: 46 S. C., 218; 48 S. C., 195, 364. Party desiring jury specifically instructed^ must so request: 46 S. C., 43; 49 S. C., 438.

<p>Before Buchanan, J., Abbeville, October, 1898.</p> <p>Action by Mrs. S. R. Knox v. B. W. Campbell for possession of tract of land. From an order directing trial of equitable issues set up by answer, plaintiff appeals.</p> <p>cite: 12 S. C., 108; 19 S. C., 290; 28 S. C., 533; 31 S. C., 262; 15 S. B- R., 711; 19 S. B R., 1009; 44 S. C., 119; 52 S. C., 236.</p> <p>cite: Order not appealable: Code, 11; 8 S. C., 112; 11 S. C., 134; 4S. C., 114; 33 S. C., 389. On the main question: 42 S. C., 95; 18 Stat., 41; 44 S. C., 119; 23 S. C., 392; Code, 276; 33 S. C., 390; 44 S. C., 546; 36 S. C., 562.</p>

Before Aldrich, J., Oconee, March, 1898. Action by James N. Robinson et al. v. Thomas M. Rowery et al., for possession of land. From judgment for plaintiffs, defendant, Rowery, appeals. cite: Consideration of deed may be inquired into: 27 Cal., 119; 20 R. R. A., 100; 23 S. C., 251; 21 S. C., 480; 34 Penn. St., 252. Rescission of deed may be shown by parol: Rice Bq., 84. Appellant does not seek to enforce executory contract, but an executed one: 34 S. C., 496; 29 S. C., 72.

Before Watts, J., Pickens, July, 1897. Indictment against Adam Mansel for taking orders for whiskey. From judgment against defendant, he appeals. (Arguments on point decided were oral.).

<p>Before Buchanan, J., Spartanburg, April, 1898.</p> <p>Indictment against B. F. Henderson for selling, and for storing and keeping in possession whiskey. From verdict and sentence, defendant appeals.</p> <p>cites: Contradiction of witness:</p> <p>Oral argument.</p>

Before Aldrich, J., Greenwood, November, 1897. Action by S. J. McGee and Jesse Thompson v. Mrs. P. J. Wells, for possession of land. Judgment' for defendant. Plaintiffs appeal. cite: Declarations to show resulting trtist: 4 Gray, 584; 46 S. C., 193; 19 S. C., 156. Conveyance for grossly inadequate price is badge of fraud: 21 S. C., 270. Badges offra^t■d: 22 S. C., 200; 1 Hill, 16. Judgment lien on land sold to defraud creditor: 34 S. C., 559. Resulting trust: 19 S. C., 156.

Before Benet, J., Laurens, February, 1898. Indictment against Fortune Byrd for murder. Defendant convicted of manslaughter, and appeals. cites: Charge on facts: Con., art. V., sec. 26; 49 S. C., 285, 550; 48 S. C., 257. (oral argument).

Before Witherspoon, J., Beaufort, June, 1897. Petition by W. H. Bockwood for writ of mandamus, compelling H. Q. Adams, county treasurer of Beaufort County, to pay county commissioners’ warrant. Petition refused. Petitioner appeals.' (No citations by either on point decided.)

Before Gary, J., Greenville, March, 1897. Indictment against W. Henry Sudduth. for rape. Defendant convicted, and appeals. cite: Witness may state that prosecutrix made complaint, but can state nothing more: 41 N. Y., 265. Declarations of prosecutrix made considerable period after ocmrrence not admissible: 25 S. E. R., 616. Force necessary to make out rape: 59 N. Y., 374; 126 Ind., 185. (Oral argument.)

Before Benet, J., Colleton, January. Action by Eleanor R. Glover v. Annie W. Remley et al. and the Charleston and Savannah Railroad Company. The following Circuit decree states the facts: The plaintiff’s complaint alleges: That Joseph Glover died 1840, leaving of force his will, by which he gave the real estate involved in this case to his son, Francis Y. Glover, for life, and after his death to his children.

Before Gary, J., Beaufort, January, 1898. Foreclosure by N. Christensen v. F. W. Wells and Mary Filen Wells, as devisees of Mamie Wells. Judgment for defendants. Plaintiff appeals. cites: Agency may be implied: 34 S. C., 175; 44 N. Y., 349; 68 N. Y., 400. Contract with reference to separate estate of married woman binds such estate: Rev. Stat., 2167; 31 S. C., 138; 17 S. E. R., 782; 43 S. C., 287; 45 S. C., 651; 21 S. E. R., 155.

Before Benet, J., Laurens, February, 1898. Indictment of John Johnson for murder. From order declaring appeal abandoned and resentencing defendant, he appeals. (both oral arguments).

Before Buchanan, J., Orangeburg, January, 1898. Indictment in magistrate court against C. E. Coop for hawking and peddling. Defendant convicted and appeals. Appeal dismissed, and he then appeals to this Court. cites: Is the defendant a hawker and peddler: Crim. Code, 294; 16 Stat., 407; 1 McM., 40; 41 S. C., 211; 49 S. C., 527; 75 la., 74; 114 Mass., 267. Is the act unconstitutional: 120 U. S., 489; 39 Kan., 764; 137 Ill., 534; 39 S. W. R., 1; 133 Pa., 284; 153 U. S., 289.

<p>Before Gary, J., Barnwell.</p> <p>Foreclosure by Thos. M. Philpot v. Salley J. Cantey and J. A. Cantey. From Circuit decree plaintiff appeals.</p> <p>cites: 20 S. E. R., 62; 10 S. E. R., 95.</p> <p>cite: 20 Stat., 1121; 41 S. C., 330; 49 S. C., 469.</p>

Before Gary, J., Barnwell, November, 1897. Action by Coskery & Davidson v. J. N. Wood on a foreign judgment. From judgment for plaintiff, defendant appeals. cite: Simple proof of judgment in Geoi'gia not sufficient; all facts necessary for judgment here should have been proved: Code, 91; 4 Rich., 509; 1 Bail., 248; 5 Strob., 35; Riley, 200; 1 Hill Ch., 459; 2 Sp., 282; 13 Rich. Eq., 40; 10 Rich. Eq., 477; Code, 170, 271.

Before Townsend, J., Georgetown, May, 1897. Indictment against Zachariah D. Green, as judge of probate, for failure to perform official duties. From judgment against defendant, he appeals. The latter cite: Indictment not sufficient, in that it does not allege a wilful failure to perform the duties of the office: Crim.

<p>Before Townsend, J., Georgetown, May, 1897.</p> <p>Indictment against Zachariah D. Green, as judge of probate, for failure to perform official duties. From judgment against defendant, he appeals.</p>

<p>Before Gary, J., Florence, February, 1898.</p> <p>Action in claim and delivery in court of A. L. Armsfield, magistrate, by L. S. Bigham v. J. W. Holliday and R. Mc-Lendon, sheriff. Judgment for plaintiff. Defendants appeal. Appeal dismissed by Circuit Judge. Defendant again appeals.</p> <p>cite: Code, 410; 12 S. C., 561; 50 S. C., 23; Code, 88, sub. 11, 360; 51 S. C., 221.</p> <p>The former cites: Code, 359, 360; 7 S. C., 342; 9 S. C., 82; 18 S. C., 601; 11 N. Y., 274; 19 S. C., 143.</p>

Before Klugh, J., Darlington, August, 1897. Foreclosure, Emiline Sweet v. D. H. Gilmore. The following is so much of the Circuit decree as is necessary to understand the issues on appeal: This is an action for the foreclosure of two mortgages, given by the defendant, Gilmore, to the plaintiff — the first to secure a bond for $6,000, dated August 19th, 1886, and the second to secure a bond for $750, dated February 7th, 1888.

Before Benet, J., York, November, 1897. Action by P. W. Wilson, a section master, v. Ohio River and Charleston Railway Company, for damages for negligently crushing his foot between flat cars loaded with dirt. From judgment for plaintiff, defendant appeals.

Before Watts, J., York, Januáry, 1897. Action by Stephen Putney & Co. et al. v. Thos. F. McDow, as assignee, et al,., to set aside a deed of assignment. The referee found that the claims of R. M. Allison and of Mrs. Carrie J. Cartwright are valid claims against the assigned estates.

<p>Before Buchanan, J., Greenville, November, 1897.</p> <p>Action by Amelia A. Holtzclaw v. Walter E. Gassaway. Demurrer to complaint sustained. Plaintiff appeals.</p> <p>cites: 21 S. C., 599; Gen. Stat., 1826.</p> <p>cites: Distress warrant only power of attorney: Cheves, 252; 2 McM., 200; 9 Exch., 14. No actual damages for distress: 35 S. C., 486, 501; 37 S. C., 199. Facts alleged do not warrant damages: 30 Fla., 1; 49 111., 241; 35 S. C., 488, 504; 45 N. J. R, 61; 5 Exch., 248; 53 Pa. St., 443; 112 Ind., 404; 85 Pa. -St, 293; 89 Wis., 371; 65 'Tex., 274; 104 N. Y., 434; 116 N. C., 720; 42 111., 174; 17 N. Y., 442; 55 Vt., 442; 4 Cal., 344; 36 Minn., 90; 85 111., 11.</p>

<p>Before WATTS, J., Barnwell, April, 1898.</p> <p>Action by Charles Carroll Simms v. H. E. Buist, for specific performance. Judgment for plaintiff. Defendant appeals.</p> <p>cites: 17 S. C., Burnett v. Burnett; 3 Rich. Eq., 559.</p> <p>cite: 1 Strob. Eq., 346; 3 Rich. Eq., 576; 16 S. C., 294; 23 S. C., 43; 42 S. C., 342; 2 S. C., 72.</p>

Before Klugh, J., Chesterfield, July, 1897. Prosecution by the town council of Chesterfield v. W. M. Ratliff and D. H. Laney, for violating town ordinance against shooting. Defendants convicted, and appeal to the Circuit Court. New trial granted. Town council appeals. cites: Ordinance being written instrument nvust be construed by Court: 3 S. C., 253; 15 S.’C., 32; 17 S. C., 480; 10 S. C., 124; 15 S. C., 296.

<p>Before Krugh, J., Richland, November, 1897.</p> <p>Action by Ben Iseman v. The South Carolina and Georgia R. R. Co. From judgment of nonsuit plaintiff appeals.</p> <p>cite: 10 Ex., 376; 34 A. & E. R. R. Ca., 515; 46 N. Y., 23; 9 A. & E. R. R. Ca., 364; 51 S. C., 150; 57 Pa. St., 339; 2 A. & E. R. R. Ca., 108; 26 Id., 173; 58 Id., 15; 86 Pa. St., 139.</p> <p>cites: 38 S. C., 1; 48 S. C., 1; 47 N. Y., 274; 48 S. C., 421.</p>

<p>Before Klugh, J., Lexington, February, 1898.</p> <p>Action by Rachel M. Culler v. Henry Crim, and the heirs at law of David B. Culler, for possession of land and partition.</p> <p>The following is so much of the Circuit decree as throws light on the questions decided:</p> <p>This cause was heard by me at Lexington, at the fall term, 1897, upon the pleadings and testimony taken by a referee. It appears that M. J. Rucker recovered judgment against David B. Culler and two others, on the 21st day of June, 1881, upon a note dated February 9, 1878. Execution was issued upon said judgment, whereupon Culler claimed homestead; appraisers were appointed and made their return, to which exceptions were duly filed, and were heard by the Court about the year 1882. Although the record does not show what was the decision of the Court as to these exceptions, the testimony of J. A. Muller, Esq., is positive that they were overruled and the return confirmed. This testimony is borne out by the fact that Culler was allowed to remain in undisturbed possession of the property thus set off as homestead until his death, in 1893, and by the further fact that the judgment creditor turned from pursuit of Culler to seek satisfaction out of the other defendants to the same judgment, by proceedings supplementary to the execution. I conclude, therefore, that, as a matter of fact, the homestead was confirmed by the Court. Mat- - ters adjudicated by that proceeding are not open to inquiry now. * * * After the death of David B.-Culler, letters of administration on his estate were issued to H. A. Spann, as clerk of court, it seems, at the instance of creditors. The administrator sold the personal estate, realizing therefrom the sum of $53.15. Under proceedings thereafter instituted in the probate court, to sell the real estate for the payment of debts, a tract of 133 acres, being a part of the real estate which had been set off to David B. Culler as a homestead, was sold on salesday in January, 1896, to Henry Crim, one of the defendants herein, by the probate judge for Lexington County, and said Crim is now in the possession thereof. This action, to which the heirs at law of David B. Culler, and also Henry Crim, and H. A. Spann, as administrator, are parties, is brought for the purpose of annulling the sale of said tract of land to Crim and recovering the same from him, together with damages, for an accounting by the administrator, and for the partition of the real estate of said David B. Culler. * * * The main question in the case is as to what should be the disposition of the homestead, now that David B. Culler is dead, leaving no widow or children. We have seen that one of his sisters, Marjory, for whose benefit in part, doubtless, the Court allowed the homestead exemption to him, is dead; and the other, Rachel, apparently makes no claim as a beneficiary under the homestead assignment, for she comes now asking partition of the homestead amongst all the heirs of him to whom it was set off. So the conditions calling for the exemption having ceased to exist, the exemption itself has ceased. Shall the property now go to the payment of the creditors of David B. Culler, or does it pass to his heirs generally, freed from the claims of his creditors? The question must be determined by the law as it stood in 1878, when the debt was contracted against whose collection the homestead exemption was invoked. The law then of force was the act of 1873, 15 Stats., 369. The second section of that act provides that “the title to the homestead, so set off and assigned, shall be forever discharged from all debts of said debtor then existing or-thereafter contracted.” This provision is identical in terms with that of the act of 1880, which is construed in the case of Stewart v. Blalock, 45 S. C., 61, and held to exclude the claims of creditors even after the death of the party for whose benefit, in the first instance, the homestead was set off. The property of David B. Culler .being thus forever discharged from all his debts, the sale by the probate judge was void. The heirs of David B. Culler are, therefore, entitled to recover the land so sold.</p> <p>From this decree, the defendant, Henry Crim, appealed.</p> <p>cite: The homesteadproceeding is not res judicata as to Crim: 12 Conn., 374; 1 Bail., 75. Homestead proceedings are not complete until recorded., and purchasers are notified by record only: 17 Stat., 514; 7 S. C., 149, 172. Respondents are estopped by probate court proceedings: 7 S. C., 150; 52 S. C., 173.</p> <p>cite: Finding of trial Jttdge that retttrn had been confirmed, cannot be reviewed by this Court: 51 S. C., 97. Bttt if reviewed., will not be reversed: 12 S. C., 572, 609. Judgment creditor having acqttiesced in homestead assigned, parties claiming through him are bound: 41 S. C., 109. Filing in clerk's office is sufficient: 15 S. C., 37. Homestead vested in heirs ttpon assignment, hence no title of decedent to sell by probate court: 10 S. C., 37; 22 S. C., 309. Parties not bound by probate proceeding: 20 S. C., 246.</p>

<p>Before Aldrich, J., Abbeville, January, 1898</p> <p>Indictment for grand larceny against Isaac Sanders. At close of evidence for prosecution, defendant’s attorneys moved the Court to direct a verdict of not guilty: 1st. For the entire lack of identification of the bale of cotton. 2d. That the contract between these two men was a contract of partnership.</p> <p>The Court: In regard to the motion as to whether or not the cotton was identified, that raises a question entirely of fact for the jury, and the identity by marks or weights, etc., is for the jury. There is testimony to go to the jury. I will charge them the law as to larceny, but there is certainly some testimony there, and I could not take that away from the jury.</p> <p>From verdict of guilty and sentence, defendant appeals.</p> <p>cite: Witness cannot be contradicted unless he deny statement: 43 S. C., 205. Contracts with laborers for portion of crop imist be in writing: 8 S. C., 63; 20 S. C., 6; 32 S. C., 1'23. Rule laid down in 1 Hill, 36f abrogated by StaUUe.</p> <p>(oral argument).</p>

Before Buchanan, J., Charleston, March, 1898. From order requiring plaintiff to amend his complaint in M. P. Pickett, receiver of the Charleston Basket and Veneer Co., v. the Fidelity and Casualty Co., the plaintiff appeals. cite: On point decided: 42 S. C., 547; 48 S. C., 182; Code, 11; 32 S. C., 106; 34 S. C., 345; 36 S. C., 559. • cite: On point decided: 24 S. C., 319; 3 S. C., 608; 24 S. C., 86; Code, 181; 51 S. C., 405; 38 S. C., 556; 25 S. C., 41; 110 N. Y., 646; Code,…

Before Watts, J., Hampton, February, 1898. Account by Colleton County against Hampton County for expenses for trial of criminal case transferred. Commissioners of Hampton refused to pay account in part. Upon appeal, this action was reversed. From' that judgment Hamptou County appeals. cites: County of Colleton primarily liable: Rev. Stat., 676, 677. County in which offense is committed is not always liable for expenses of trial: Con. 1895, art. VI., sec. 6; Acts of 1896, 214.