Volume 55 — North Carolina Reports

Cause transmitted from the Court of Equity of Stokes County, at the Fall Term, 1854.

<p>.Appeal from an Interlocutor}’ order by his Honor Judge Bai-:i,Er, at tlie Fall Term, 1854, of tlie Court of Equity of Guilford County.</p> <p>The defendant’s counsel moved to dissolve the injunction and sequestration heretofore ordered in this case, and upon considering the matters set out in the bill of the plaintiffs (which "was sworn to) and the answers of the defendants, his Honor decreed accordingly. Whereupon, the plaintiffs prayed and obtained leave to appeal to this Court.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court.</p>

Die appeal was taken from an interlocutory order made by his Honor dissolving the injunction heretofore granted, and .the case presented oy the hill and answer, is sufficiently stated in the opinion of his Honor.

Cause removed, by consent, from the Court of Equity of Mew Hanover County.

Cause transmitted from the Court of Equity of Richmond County, at the Spring Term, 1854. The executors of Archibald McQueen filed their bill praying for advice and directions as to their duty in distributing the estate of the testator under the following provisions in the “will:— “ Item 1.

Petitioh eoe Aleviohy transmitted, from the Court of Equity of Stanly County, at the Eall Term, 1854 The case sufficiently appears from the opinion of the Court.

Cause removed from the. Court of Equity of Stanly County. The deed, upon the consteuQtion of which tbjLs Qa.se rests. reciting that a marriage was about to take place between Frances Adderton and Amram Moses, and that the intention of the parties was to have the estate of the wife, real and personal, settled and secured to her, so that it should not absolutely and exelusi/uety vest m the said Amra/m bj virtue of the intended marriage, conveyed to the defendant Harris, as…

<p>Petition filed at this Term, upon notice to the defendant, to rehear a cause decided at December Term, 1852, of this Court. (Bus. Eq. 58.)</p>

Cause removed from the Court of .Equity of Eorsythe County, at the Fall Term, 1854. The bill in this case, was filed to prevent the defendant from sending the slaves in question, beyond the limits of the State. The slaves having been seized under a writ of sequestration, the defendant gave bond for their forthcoming, and at the return term of the writ, filed his answer, claiming the right o'f property in these slaves.

<p>Cause removed from the Court of Equity of New Ilanover, at the EallTerm, 1854.</p>

•Appeal from a decree of. tlie Court of Equity of Beaufort County, at tbe Eall Term, 1854, sustaining the demurrer to the plaintiff’s bill, his Honor, Judge Caldwell, presiding.

Cause transferred from the Court of Equity of Camden County. Joseph Seymour, the first husband of the plaintiff, Mrs. Morgan, devised to her the tract of land in question. After his death, she was married to Isaac Tillet, the father of the defendants, and upon his death she was again married to the plaintiff, James M. Morgan.

Joseph Iialsey died in tbe year , leaving two grand children, Joseph Halsey Skinner and Sarah Halsey Skinner, infant children of bis deceased daughter Anne, and another grand child, Joseph Halsey Wynne, infant child of bis deceased daughter Sarah. Both tbe daughters of Mr. Halsey, died in tbe life time of their father, leaving husbands surviving them, but be bad no other children, nor any descendants of such besides tbe three grand children mentioned above.

Cause removed from tlie Court of Equity of Bertie County, at tlie Fall Term, 1854.

Cause transmitted to this Court from the Court of Equity of New Ilanover. The piaintiff had recovered a judgment for the sum of $316 and costs in the County Court, and took out execution, which, was in part satisfied, and returned nulla, ¿¿was to the remainder. The defendant, Bowen, having been surrendered by his bail, was confined in prison, and afterwards regularly discharged under the insolvent law.

Tins case was before the Court at the December Term, 1853, ante 35 , and a decree made for an account.. On the coming in of the Commissioner’s Report, an exception was filed to a charge of a tax upon the estates of John and Elorence, under the revenue laws of this State. The exceptions set for argument, and argued at June Term, by Mr. Moore, for the plaintiffs, and H. O. Jones for the defendants.

<p>A Court of Equity will not entertain a t>ill for a discovery which seeks to set aside a prior deed of trust on account of usury.</p>

Cause removed from the Court of Equity of Pitt County. Benjamin Briley among other things bequeathed as follows: Item 6. All my bank stock I give in trust to my friend Charles Greene, for the use and benefit- of my several heirs, namely, Martha Turnage, &c., (naming them) making in all' ten stares.

<p>Appeal from a decree of the Court of Equity of Beaufort County, at the Fall Term, 1854, by his Honor, Judge Caldwell, ordering a sale of the premises.</p>

Cause removed into this Court from tbe Court of Equity of Pitt County, Fall Term, 1854. Tbe Bill Was filed by tbe Administrator with tbe will annexed, of John Joiner, to obtain, a construction of the will. The clauses upon whieh'the several questions arise are as follows: “ I give to my three grand-sons, John H. Hines, Robert Hines and.

Cause removed from the Court of Equity of Alamance County, at the Eall Term, 1854. The hill was filed hy the plaintiffs as the next of kin of David Outlaw, deceased, alleging that he had made'and published his last will and testament, which was solemnly admitted to probate, and which is as follows : “ It is my wish and desire, that my good friend and relative, Dr. Joseph B. Outlaw, have all my property-of every description. DAVID OUTLAW.

<p>Cause removed from tbe Court of Equity of Iredell County, at Spring Term, 1854.</p>

Eve Clement, bad two brothers, Adam and Henry, both of whom died in her life-time. Adam Clement, left him surviving; an only daughter, Susan, who married Charles Cauble.

Cause removed from tlie Court of Equity of Mecklenburg, at tbe Spring Term, 1854. Doctor Stephen Fowl died in tbe County of Mecklenburg, having made and published his last will and testament, in which tbe plaintiffs were appointed executors.

Cause removed from the Court of-Equity of Pasquotank. Tbe plaintiffs, as executors of Miles Profilers, and in tlieir own rights, set out in tbeir bill the following two clauses of the will of their testator, viz : Second clause. “ I give and bequeath unto my daughter Emily the farm known as the Andrew Brothers’ tract, containing about fifty acres; and after nay wife’s death, I wish the land, last mentioned’,, sold, and'the proceeds divided among my children and their heirs.”…

<p>Appeal from the Oourt of Equity of 'Washington county, from an interlocutory decree of his Honor, Judge Pbeson, dissolving the injunction previously obtained.</p> <p>The ease made by the pleadings appears from, the opinion of the Court.</p>

<p>Where equities are. equal in point of merit, and the junior equity in point of time gets the legal estate, a Court of Equity will not interfere in favor of the prior equity.</p>

<p>Cause removed from the Court oí“ Equity of Stokes county.</p>

<p>A widow takes possession of a part of the land of her deceased husband, having had it assigned for her dower by some of the heirs, the others being out of the State and neither agreeing to or dissenting from this arrangement, and afterwards has most of it regularly laid off by court, though some, that - was first occupied by her, is not finally assigned in her dower — it was held, that she was not liable to account to the heirs for the profits received from any part of this land.</p> <p>A brother who leaves the State, cannot, when it suits him to file a bill for partition, require those of his brothers who have occupied parcels of tho land, to pay liim a ratable part of the sum for which the parcels might have been rented. The parcels occupied not being more than a ratable part of the whole tract.</p>

Cause removed from tlie Court of Equity of Johnston county. In the will of Elizabeth Jones are the following provisions: “As to my property, any will and desire is, that after my death, it anay all be equally divided among my children, share and share alike, but in the distribution, it is' my will and desire that the portions falling to my daughters Jane Roy-kin, Amanda Edwards, and Eugeiaia Blackwood, should be secured and settled-upon them, the said daughters and their…

<p>Where an intestate had p,ut slaves into the possession of his child, and after-wards made a deed of gift of them, the advancement must take effect and be estimated as of the date of the deed, arid not of the commencement of the possession.</p> <p>Property put into the possession of a child on his setting out in life, suitable to house-keeping and family purposes, is not to be considered as a present but as an advancement.</p> <p>Property given to grand-children is not liable to be brought into hotchpot.</p>

* Upon tlie argument of the demurrer in the Court below, Iris Honor over-ruled the demurrer, and ordered the defendants to answer. He further adjudged that the writ of injunction prayed for, be issued. From which decrees the defendants prayed an appeal, which the Court allowed.

<p>Appeal from tlie Court of Equity of Orange County from a decretal or<Jer dissolving an injunction.</p>

Cause removed from tlie Court of Equity of Davidson county at tlie Spring Term, 1855. The plaintiff Stimpson, as trustee, and the other plaintiffs who aré the creditors of W. J. McElroy, filed this bill against the defendant Fries and other creditors, seeking to have certain property and effects delivered over to him' the said Stimpson, according to the provisions of a deed in trust made to him on 2nd January, 1855, for the satisfaction of the debts therein specified.

<p>Where the admitted facts of a case were of an extraordinary character, and showed that the plaintiff, who was an intemperate man, with his faculties much impaired by that vice, was the victim of a gross imposition in the purchase of a stock of goods, the Court will afford relief, notwithstanding it does not fully appear from the proof, that at the time of the trade, he was absolutely drunk.</p>

<p>A widow has a right to clear the lands assigned to her for dower, for the purposes of cultivation, where it is necessary for the enjoyment of the estate; provided it is done with a due regard to the proportion of wood and cleared land.</p> <p>The clearing of sixteen acres in addition to thirty acres already cleared in a tract of 240 acres heavily timbered, is not out of proportion or unreasonable as regards the rights of the remainder-man.</p>

Cause removed from tlie Court of Equity of Henderson County. The defendants demurred to the plaintiffs’ hill, and the demurrer being set down for argument, the cause was sent to the Supreme Court by consent.

<p>In order to convert an absolute conveyance into mere security for money loaned, it must be alleged and proven, 1st, That the agreement was that the property should be conveyed as a mere security. 2nd. That the defendant ivas induced to execute an absolute conveyance by fraud, imposition or undue influence.</p> <p>A mere gratuitous offer to allow the assignor of a title bond for land to pay back tlie purchase money and interest, if done within twelve months, is not a sufficient ground to authorise the Court to convert an absolute conveyance, into a security for the money paid.</p>

Cause removed by consent from tlie Court of Equity of Aslie County, at the Spring Term, 1855.

<p>Cause transmitted from the Court of Equity of Gaston County.</p>

<p>Cause removed from the Court of Equity of Mecklenburg Comity.</p>

<p>IVlicvo a trustee admits the allegation in a bill that he lias committed a breach of trust in giving a release, and the releasee does not meet the allegation that lie lias contrived to obtain such release, but states immaterial matters as his answer, the Court will deoreo against them both.</p>

Cause removed, from the Court of Equity of Rowan at tlie Spring Term, 1855. Reese Jolmston liad been found by an inquisition of Rowan county, to be an idiot, and for more than twenty years had been under the guardianship and protection of guardians appointed by the County Court.

This cause lias been twice before this Court; first, upon an Appeal from an order of tbe Court of Equity of Burke County at tbe Spring Term, 1852, bis Honor Judge Dicic presiding, continuing tbe injunction (heretofore granted) to tbe bearing.

Cause removed from the Court of Equity of Cleaveland County. ” The bill alleges that, in 1851, Richard Champion held two notes on the plaintiff, one for the sum of sixty dollars, and the other for about ninety-five dollars; that about the 3rd of June, in that year, they exchanged horses, and said Richard agreed to give the plaintiff $50 as boot, which was to be credited on these notes: also, that he made another payment in iron amounting to $17.32, which was likewise to be…

<p>A bequest made in 1818, to Mary Porter, of slave property, and “in ease the said Mary Porter should die without issue, then and in that case, it is my will that the above named negro, &c., be divided among my six sons, and to the survivor, &c.,” gives the absolute estate to the first taker, the limitation over being too remote.</p>

<p>Cause removed from the Court of Equity of Cherokee County.</p>

Cause removed from the Court of Equity of Lincoln County. This bill was filed by the plaintiffs who are the nephews and nieces ol Anthony Shull of the half blood, being the children of his half brothers and sisters against the administrator with the will annexed, and against the nephews, &c., of the whole blood, to compel the payment of the legacies claimed by them under said will.

'Cause removed by consent from the Court of Equity of Union County. Jane Cairnes, a feme sole, who resided in Lancaster District, S. C., bought of Jesse Harris a negro slave by the name of Anne, at the price of $150, and for a part of the price thereof, .gave a note for $100 with the plaintiff as surety.

<p>T.o convert a deed, absolute upon its face, into a security for a debt in the nature of a mortgage, so as to give a right to redeem, besides parol admissions that the deed was intended as a mere security, there must be facts, idehors the deed, inconsistent with the idea of an absolute cbnveyance, and proof of fraud, oppression, ignorance, or mistake, so as to account for the conveyance being absolute when such was not the intention.</p> <p>Although there be some facts, dehors the deed, that tend to show a trust, yet if there be other facts perfectly consistent with the idea of an absolute sale, and the repugnancy between the trust sought to be established, and the terms of the written instrument, is still unexplained, a Court of Equity will not interfere with the legal rights of the party by an injunction.</p> <p>An injunction to stay the execution on a recovery at Law in an action,of detinue, is as much an ordinary injunction, as one to stay an execution on a judgment for money. In both instances they come within the rules governing ordinary injunctions, unless irreparable injury be alleged.</p>

<p>Cause removed from tlie Court of Equity of Beaufort Co.</p> <p>This was a bill filed by Henry W. Adams, the Adm’r. with the will annexed of John M. Coila, and as the husband of Haney A. Adams, against the legatees under said will, praying the advice of the Court of Equity as to the construction and the proper manner of executing the provisions of the will. The following is a copy of the will: “ Item 1st I lend unto my sister Haney Amanda Adams, during her natural life, oue improved l'ot in the town of Bath, H. 0., known in plan of said town, as lot Ho. 31, and at her decease, I give the same to her son, ’William Adanis, forever.</p> <p>“ Item 2. I lend tó my sister Haney Amanda Adams, during her natural life, one unimproved lot in the town of Bath, H. C., known in the plan of said town as lot Ho. 29, and at her decease I give the same to her son, William Adams, forever.</p> <p>“ Item 3d. I lend to my sister Haney Amanda Adams one tract or parcel of land lying and being on Chicod Creek, Pitt County, H. C., adjoining the lands of Hathaniel Ilarding, James Paramore and others, during her natural life, and at her decease I give the same to her lawful children forever.</p> <p>“Item 4. I lend to my sister Haney Amanda Adams one tract or parcel of land lying on Chicod Créele, Pitt County, H. C., adjoining the lands of Henry Galloway, John Boyd and others, during her natru’al life, and at her decease I give the same to her lawful children forever.</p> <p>“ Item 5. I lend to my brother Jahleel Smith Coila, one tract or parcel of land lying at the head of Duck Creek, Bean-fort County, H, 0., adjoining the lands of John Pilly, Sr., Robert Latham and others, during- his natural life, and at his decease I give the same to his lawful children forever.</p> <p>“ Item 6. I give to my nephew, "William Adams, three hundred dollars, which sum I wish to be judiciously expended in his education.</p> <p>“ Item 7, The rest and residue that I may die possessed of, I wish to he equally divided between the children of my brother Jahleel Smith Coila, -and my sister Haney Amanda Adams.”</p> <p>The children of Mrs, Adams are John A. Adams, William A. Adams, and Henry E. Adams, who are infants, and are made parties to this hill, defending by their guardian ad litem.</p> <p>The children of Jahleel Smith Coila are Ellen and Rosanna Coila, who are also infants, and are made parties defendant, defending by their guardian ad litem.</p> <p>The questions propounded in said bill are:</p> <p>1st. Whether Haney Amanda Adams takes anything under the seventh clause of the above will.</p> <p>2nd. In case she is entitled, what proportion is she entitled to ? Whether one half or one third ?</p> <p>The defendants, by their guardians, answered, professing no knowledge of the matter set out in the will and exhibit, but submitted their interests to the judgment of the Court.</p> <p>The cause was set down for hearing on the bill, answer and exhibit, and removed to this Court by consent.</p>

Cause removed from the Court of Equity of Bladen County. James J. McKay died in September, 1853, having made his last will and testament, which was duly admitted to probate in the County Court of Bladen, where the testator was domiciled. William J. McKay was appointed executor therein, who renounced the office. Ilis wife, Mrs. Eliza Anne McKay, was also appointed executrix, but she died before the death of her husband.

<p>The transfer of an equitable chose in action, to be entitled to the protection. of a Court of Equity, must bo founded on a valuable consideration.</p> <p>The compromise of a controversy, wherein the legal owner of a chose in action, supposed he was bound to the performance of an onerous and oppressive contract, when in truth he was not, is not such a sufficient consideration as will entitle the transferee to a decree for a specific performance.</p> <p>Where the contract sought to be enforced, is hard and oppressive, this Court will not interfere to enforce a specific performance, but will leave the parties to their remedies at law.</p>

Cause removed from the Court of Equity of-Randolph County. An estate in certain slaves bad been limited by the will of James Collett to Mrs. Nancy King, for her life, and then to her children; in consequence whereof, upon the death of Mrs. King, which took place in 1851, her children became possessed of nine slaves as tenants in common.

This was a petition for pabtition, removed from the Court of Equity of Beaufort County. TIenry Allen died about -20th of September, 1849, seized of the premises described in the plaintiff’s petition. lie left, surviving him, his widow, the plaintiff, and an only child, a daughter named Isabel, his sole heir-at-law, to whom the land in question descended, subject to plaintiff’s right of dower.

Cause removed from the Court of Equity of Chatham County: The bill was filed 'for the redemption of certain property, real and’personal, and at the last term of this Court it was declared to be tbe opinion of the Court, that the plaintiff was entitled to redeem a certain negro slave, named Nathan, upon the payment of the sum paid by defendant, with interest; accordingly an interlocutory decree was made, referring to the Clerk and Master in Equity of Chatham, to enquire' and…

Cause transferred from the Court of Equity of Columbus County.

Cause removed to this Court from the Court of Equity of Guil-ford County. C. A. Gillespie died in the year 1854, leaving a will which was duly proved; and there being no executor named therein, the plaintiff was appointed Administrator with the will annexed, by the County Court of Guilford. The administrator seeks the advice of the Court as to the proper construction of the will, which is as follows: “ Item 1.

Cause removed from the Court of Equity of Orange County. Joseph Armstrong- died in the year 1840, having bequeathed to his widow, Peggy Armstrong, during her life or widowhood, four negro slaves, tó wit, Daniel, Jacob, Tamor and Abram, with a proviso, that if she remained his widow, she might dispose of said slaves by will among her four children, James Armstrong, Nancy Coggin, wife of George T. Coggin, Mary Anne Parker, wife of Jesse P. Parker and Parthenia Leathers, wife…

Cause removed from tlie Court of Equity of Orange County. On tlie 14th of October, 1854, Samuel D. Sclioollield conveyed by deed to tlie plaintiff, Harrisoii Smith, of tlie firm of W. W. & II. Smith of Philadelplijp, in the State of Pennsylvania, a'negro woman by the name of Charlotte, aged about 27 years, with general warranty, for the consideration of $800.

<p>To convert a purchaser who takes a deed absolute on its face into a trustee for another, and to convert the conveyance into a mere security for money loaned or advanced, it must be- alleged and proved that the clause of redemption was omitted by reason of ignorance, mistake, fraud or undue advantage, and the intention must be established by facts dehors the deed of conveyance, which arc inconsistent with an absolute conveyance.</p>

<p>Cause removed from the Court of Equity of Guilford County.</p> <p>Dr. John A. Foulkes made his last will and testament several years before his death, which occurred in the year 1853, and appointed the plaintiff and anSther to act as executors;, hut the former only qualified.</p> <p>By the fifth clause of his will, he gives to the plaintiff all his personal property, not specifically disposed of, during her life, with the power of disposing of one-third part of his personal estate (slaves excepted) between his two children.</p> <p>The seventh clause of his will is as follows : “ I give, devise and bequeath to my son, James F. Eoulkes, two slaves, Andrew and Milton, which are to go into his possession upon his arrival at full age. My reason for this gift I wish explained: I do not consider the two slaves properly mine. My father wished to give the boy Milton, to my son James, but I took the deed in my own name, and his grandfather, Patrick, gave to him a boy, Jack, which I sold and received the money. In place of Jack, I give to James the boy Andrew. But should my son make my estate pay on account of the price of Jack, then I direct and will that Andrew shall not pass to James, and his part of my estate shall answer for the price of Jack.”</p> <p>At the time of making this will, James was under age, but became of age before his father died, and then received from his father six hundred dollars, for which he gave the following receipt:</p> <p>“Received of my father, John A. Eoulkes, six hundred dollars, in full payment for a boy Jack, sold by my father; said boy was given me by my grandfather, James Patrick, dec’d. Signed, James E. Eoulkes.</p> <p>Oct. 28, 1852.”</p> <p>Notwithstanding this payment and receipt, the executrix, the plaintiff, assented to James’ legacy of the slave Andrew, by hiring him from the said James for a year, and otherwise by treating him as his property.</p> <p>The bill alleges that plaintiff made this assent in total ignorance of her right; that she did not know she had a right for life in this slave, until a short time before the filing of this bill, when she was advised by counsel that the receiving the money for Jack deprived defendant of his right to Andrew ; she made known to the defendant that she had received this information, whereupon he got angry, and taking the slave away from her, carried him to the town of Fayetteville where he lived, and has kept him ever since. She insists that by the will of hei late lmsband, the plaintiff is entitled to a life-pro-qierty in Andrew, or in the money paid £or Jack, if the defendant insists on keeping Andrew, and that the defendant ought tó be put to his election as to that matter; that her act of hiring the slave Andrew, is all the assent she ever gave to the legacy; she admits, however, that she intended to assent to it, but says that she was, at that time, “ wholly ignorant of any interest she had or might have, in law or equity, to the boy Andrew,” and fully believed that the defendant was entitled •to Andrew, notwithstanding he had collected the money for Jack.</p> <p>The prayer is, that the defendant be compelled to surrender Andrew to her, and account for his hire; or that he be compelled to elect between the sum of six hundred dollars and the slave; and if he prefers taking the latter, that then he shall pay the plaintiff the sum of $600.</p> <p>There is a prayer also for general relief.</p> <p>The answer of defendant admits the material allegations in the bill, but says that his father owed him about $1,500 or $1,600 when this sum of $600 waspaid; and notwithstanding the receipt which he gave, he says it was understood that the balance, which was for interest, was still to be paid; and that his father told him, shortly before his death, that he had made a provision in his will which he thought would be satisfactory of that claim. He understood him to refer to this bequest of Andrew, and that it was his decided wish that it should stand in lieu of the remainder due as interest of the money collected for Jack.</p> <p>Replication was taken, and the cause set down for hearing on the bill, answer, and exhibit filed, and sent to this Court.</p>

Cause transmitted from the Court of Equity of Chowan County- William Bullock died in the County of Chowan, seized and possessed of a considerable estate, consisting of several tracts of land, slaves, and other valuable property, having made and published his last will and testament, which was duly proved by his executor, Thomas IT. Leary, the defendant, who alone qualified, his wife the executrix, therein appointed jointly with him, having renounced her right to act.

Cause removed from tlie Court of Equity of Martin County. Tho defendant had tho older grant for a tract of land designated in the accompanying diagram as 1, 2, 8, 9, 12, 13, then along a natural boundary to the beginning, and had had, by himself and those under whom he claimed, a continued possession and cultivation of a part of it, ever since a few years after the date of his grant, which was in 1752.

Cause removed into this Court from the Court of Equity of Beaufort County. In 1845, the Rev. Mr. Singletary conveyed to the defendant, by ail absolute bill of sale, a slave by the name of Guilford, reciting therein as a consideration, the receipt of $850, with a general warranty of title.

The facts of this case are set forth in the opinion of the Court. argued as follows: What Equity has the plaintiff to retain the amount received, or to a set off against it ?

William Brame, the father of the plaintiffs and the defendant, in August, 1826, executed the following deed, viz: “Know all men by these presents, that I, William Brame, of the County of Warren, and State of North.

Cause removed from tbe Court'of Equity of Alamance. The bill was filed to compel the defendant to bring in a deed for cancellation, and for an account of the rents, &c. Joseph Patton was a lunatic, to whom the. defendant was guardian ; he had a few articles of personal property of small value, and a tract of land containing sixty acres, worth between five hundred and a thousand dollars, and no other-means of subsistence.

Cause removed from the Court of Equity of Davidson County. The executor of the will of John Delap, filed this bill, asking the advice and direction of the Court of Equity, upon questions growing out of the will, which is as follows: “ I give and bequeath to' my -well-beloved wife, Margaret, the whole of my landed property not otherwise disposed of; all the household and kitchen furniture of every description; my negro man Tony, and my negro woman Elizabeth ; all to be her’s…

Cause removed from tbe Court of Equity of Caswell County. Mrs. Anne Taney died in Caswell county in the year •-, having made and published her last will and testament, of which the following is a copy of the material part^,: “ 2.

In tlie year 1849, William Milson, and Ilenry Williams as the executor of Ezekiel S. Whitley, deceased, conveyed to the plaintiff John C. Pettijohn, a fishery and the appurtenances, to wit, a vessel, two flats, a number of fish barrels, a quantity of salt, salt barrels, some ropes, &c., at the price of $3,500, and took in payment therefor five bonds on one Clayton Moore, for $480 each, payable at different dates; two notes on Caleb Walker for about $250 each, bearing…

<p>Appeal from an. interlocutory order of the Court of Equity of Guilford County, liis Honor, Judge Dick, presiding.</p> <p>The statement in the bill is, that the defendant Clark, who is a married man, debauched the daughter of the plaintiff, and that she became jiregnant by him; that to save the feelings of his own family, and to conceal the dishonor brought upon the plaintiff by his act, also in lifu of any claim for damages for the seduction, he agreed with plaintiff that he would convey to him a certain tract of land, described by metes and hounds, on which the plaintiff was then residing, and in consideration thereof plaintiff was to give up all cause of action for the seduction of his daughter; that after the child should be bom, plaintiff was to take care of bis daughter and her child, and was to discourage her from swearing it to the defendant Clark; but if a warrant were taken out by other persons to compel her to swear it, Clark was to furnish her with money to pay the fine. Accordingly a deed of conveyance was made of the land in question, conveying the same to the plaintiff in fee simple, and delivered, as an escrow to the defendant Ragsdale, to be delivered to the plaintiff at the end of three years from the birth of his daughter’s child, provided plaintiff’s daughter did not swear the child to the defendant Clark, within that time. This obligation, on his own part, was also reduced to writing, and put into the hands of the defendant Ragsdale. The bill states that he has continued in possession of the land, and has complied with his part of the agreement faithfully, by taking care of his daughter and child from the time the child was born until a short time before the three years expired, when the defendant Clark, having great influence with his daughter, prevailed on her to leave his house and reside in a house belonging to him near a saw-mill which he owned, leaving the child with plaintiff 5 that he managed to excite his daughter against him, and only a few days before the expiration of the time agreed on, procured her to swear the child to him, Clark. This, he charges, was done fraudulently and collusivoly, in order to defeat the condition on which the deed was to be delivered. Although often requested by plaintiff, the defendant Ragsdale, has declined to deliver the deed deposited with him, alleging as a reason for thus declining, that he has been forbidden by the defendant Clark, to do so, who pretends that the condition on which the delivery was to be made, has been broken, and that he is not bound to cdfbplete the conveyance. The bill further alleges that Clark has brought an ejectment in the County Court of Guilford, and recovered against plaintiff, and threatens to take out execution on the same, and turn him out of possession. The bill prays an injunction, also, for a conveyance of the land ; and for that purpose, that defendant Bagsdale be compelled to file tbe deed in bis bands in tbe office of tbe clerb and master of Gfuilford. County, that tbe same may be delivered over to tbe plaintiff; also for general relief.</p> <p>At tbe return Term, the defendant Clark, demurred to tbe bill, for tbe reason that tbe consideration for making tbe deed in question was “ immoral, illegal and impolitic.” There .was a joinder in demurrer, and tbe cause was set down for argument.</p> <p>On bearing tbe argument of counsel, tbe ' Judge below overruled tbe demurrer, and ordered tbe defendant Clark to answer; also, that tbe injunction theretofore issued be continued. Erom which decree tbe defendant appealed.</p>

Cause removed from the Court of Equity of Brunswick County- 'In contemplation of a marriage about to he solemnised between the defendant, Timothy Clemmons, and Unity Gilbert, on the 8th day of January, 1831, the former entered into a contract in writing under seal, whereby, certain slaves therein mentioned, to wit: Liddy, Dora, Mall, Hardy and Jane, with the increase of the females, are secured to the said Unity, “ during her natural life, and after her death, one-half of…

Cause removed from the Court of Equity of Brunswick. In the year 1831, the plaintiff, Timothy Clemmons, who was a widower, with several children by a former marriage, and. who was possessed of several slaves, and other property of value, married Unity Gilbert, who was a widow with a small property in slaves, &c., and who also bad several children by her former marriage.

The plaintiff owns a small tract of land, of about eleven acres, adjoining the town of Lumberton, on which he resides, through which there flowed a sluggish expanse of water, creating much swamp-land and marsh ; but by cutting ditches in several directions, he had caused the water to flow off freely, and had, in a great measure, reclaimed this marsh, so as to make it fit for cultivation.

<p>Cause removed from the Court of Equity of Hyde County.</p> <p>Thomas Ballance, now deceased, being greatly indebted to various persons, for the purpose’ of securing his creditors, made a deed in fee of his land in trust, to David Carter, dated 10th of May, 1853. Amongst other tracts of land lie conveyed the one in question, lying near the town of Middleton, in Hyde County, known as the home plantation, containing about three hundred acres. This deed in trust was duly proved and registered, and by virtue of the power and authority therein contained, the said David Carter, as trustee, on the 15th of June, 1853, having made advertisement, exposed the lands embraced therein to public sale, to the highest bidder, on a credit of six months. The land in question was sold to the plaintiff, Saunderson, who became the last and highest bidder for the same, at $3,942, and gave bond and security for the purchase-money, according to the terms of the sale. At the maturity of the bond thus given, the plaintiff paid the purchase-money and took from the trustee a deed in fee simple for the same, without warranty; he, the trustee, believing that the title of the land was undoubtedly good.</p> <p>Thomas Ballance had purchased the land in question from his father, one Caleb Ballance, and took a deed for the same, dated in the year 1821, which, for the want of words of inheritance, conveyed to the said Thomas only the life-estate of the grantor, Caleb. Thomas Ballance, however, immediately entered upon the land thus conveyed, and continued in the possession thereof up to the time of making the deed of trust above mentioned, claiming the same as his absolute property in fee.</p> <p>Upon the death of Caleb, the grantor, the reversion of this land descended to his heirs-at-law, who were Thomas Ballance, Joshua Ballance, and a sister, who dying without issue, the whole reversion finally became the properly of the said Thomas and Joshua.</p> <p>On the 8th day of June, in the year 1853, a few days before the sale by the trustee, Joshua Ballance made a deed in fee for his half of the reversion of the land in controversy, to the defendant, Caleb Ballance, Jr., for the consideration of $25, which, it is admitted, was much less than the actual value thereof. Thomas Ballance, by permission of the plaintiff, remained in possession of the land, after the trustee’s sale, until his death, which occurred in December following; and the defendant, who was living with the said Thomas, took the possession and still holds the same. "When the plaintiff, in the month of January following, demanded the possession, from Caleb, he, for the first time, produced his deed from Joshua Bal-lance, and claimed one half of the land. This latter deed was not registered until after the death of Thomas Ballance.</p> <p>The plaintiff alleges in his bill, that at the sale of the trustee above mentioned, while the land in question was being offered for sale, he enquired of the former owner, Thomas Ballance, in the presence and hearing of the defendant, Caleb, whether the title of the same was clear and indefeasible, and received for an answer, that it was; that the said Caleb made no claim to the land on this occasion, and said nothing about the deed which he now sets up ; that he relied upon this assurance of the said Thomas, and fully believed that lie was purchasing the entire estate in the land ; and that although the defendant knew well that he was buying under this impression, he failed to make known his claim of title to the half, as now set up, until after the plaintiff had paid the purchase-money and taken his deed as aforesaid. The prayer of the bill is for a conveyance of the half of the land bought of Joshua Baliance, and for general relief.</p> <p>The defendant, in his answer, admits that he was present when plaintiff bought the land, and admits that he gave him no notice of the deed which he held from Joshua Baliance, for one half of it, nor of any claim to it whatever, and excuses himself for this omission by the following statement: “ This defendant says, that he had said deed at, and before, the sale by Carter, the trustee, but he did not feel bound at said sale to disclose his title; because he knew, that.before the sale, the deed from Caleb Baliance, Sen’r., to Thomas Baliance, had been examined by the trustee ; and the said trustee knew, or might have known, that the said deed conveyed only a life-estate ; and because said trustee in offering said land for sale, carefully and distinctly stated that it was only the estate of Thomas Baliance, whatever that might be, which was sold ; which this defendant thought was a sufficient caution to all purchasers to inquire for themselves. This defendant thinks it probable the plaintiff did not know the character of the deed from Caleb Baliance, Sen’r., to Thomas Baliance; but he might easily have known the same, as the said deed was duly registered in Hyde County, on the lltli day of January, 1821, and the sale by the said Carter had been advertised for several weeks before it took place.” The defendant denies that he heard the conversation, at the sale, between the plaintiff and Thomas Baliance, as stated in the bill.</p> <p>There were replication and commissions; and testimony was taken; and the cause was set down fqr hearing on the bill, answer, exhibits, former orders and proofs, and sent to this Court.</p>

<p>Cause removed from the Court of Equity of Orange County.</p> <p>The bill, which professes to he in the nature of a petition, alleges that James Vaughan died in the County of Granville, in the year 1816, having made and published his last will and testament, which was duly proved in the County Court of that County, and that he therein bequeathed and devised as follows:</p> <p>£{ I lend to my beloved wife, Ann Vaughan, my whole estate, real and personal, in manner and form as hereafter to be stated and directed, with some exceptions hereinafter to be made, during widow-hood. Item. I give and bequeath to my beloved wife, Ann Yaughan, one third of my estate, real and personal, my carriage and two best horses, four beds and furniture, all the curtains and toilets of every description, to her and her heirs forever. Item. In case it should be more convenient to my beloved wife to have the hTutbush land and my manor-house and land, and even the negroes, sold, (the latter, however, I suppose she ought to keep, as she will have two-thirds during widow-hood, and one-third in fee,) she is at liberty to do so, as she will have ample ¿money to purchase elsewhere.”</p> <p>That Mrs. Yaughan was seized and possessed of the property thus devised and bequeathed, from the death of her husband till her own death, which occurred in January, 1833» That before her death, she made and published her will, which bears date 14th of September, 1832, with a codicil which bears date 9th of December, 1832, which was also proved in the County Court of Granville, and recorded; in which last mentioned will she devised and bequeathed to her granddaughter, Maria Howerton, her heirs and assigns forever, the Mutbusli tract of land and plantation, also the house and lot in the town of Williamsborough, where she resided. That at the time of making the last mentioned will, Maria Howerton was the wife of the plaintiff, Thomas Howerton, and has continued such to the present time. That the plaintiff and his wife, Maria, had children born alive at the time of the making of the said will, and he entered into possession of the real estate so devised by the said Ann to his wife, and became seized of the same. That a bill in Equity was filed in the Court of Granville County, at the September Term thereof, in favor of Osborn Yaughan and others, against Samuel Dickens, the executor of James Yaughan, Thomas Yaughan, and Thomas Howerton, executors of Mrs. Ann Yaughan, praying, among other things, for a sale and division of the Nutbush land and manor-house and lot, in the town of Williamsborough, as devised by James Yaughan to Anne Yaughan, and by her to Mrs. Howerton. That a decree upon said bill was made at September term, 1836, of the said Court of Equity, appointing Thomas Howerton, the plaintiff, commissioner to sell the land in question ; that plaintiff did make sale of the said land according to the terms of the decree. That bonds for the purchase-money were taken, and by him filed in the office of the clerk and master, and approved by the Court; and the money subsequently collected by the clerk and master. That, in tiie year 1848, the defendant, as the administrator with the will annexed of James Yaughan, filed a petition in the Court of Equity aforesaid, praying that the fund in the office of the clerk and master might be paid to him, which, at the March, term, 1849, was accordingly ordered and decreed ; but that the plaintiff was not made a party to this petition, and that he had no notice of the proceeding, nor of the decree, before it was made. That in pursuance of this decree the money was paid to the defendant.</p> <p>The plaintiff insists that, under the will of Mrs. Yaughan, lie is entitled to a part of the said fund. He alleges that he has applied to the defendant for the same, and that he has refused and still refuses to pay him any part thereof.</p> <p>The prayer of the bill is, that the defendant account and pay over to plaintiff such part of the fund as he may be entitled to, and for general relief.</p> <p>The defendant demurred to the bill specially, for that Maria Howerton, the wife of the plaintiff, should have been made a party to the same; also, generally, for the want of equity.</p> <p>The cause was set down for argument on the bill and demurrer, and sent to this Court under the act of Assembly.</p>

This was a petition by a tenant in common of a mill, against Ms co-tenants for a sale for partition. Moses Holmes, the former owner of the mill in. question, devised it in certain proportions to Ms son, the plaintiff, Ben-hen L. Holmes, and to Ms widow, and another son, named Cicero, (who is an infant,) as tenants in common.

Oause removed from the Court of Equity of Chowan County. Jonathan Haughton died in the year 1835, having made a will, in which, among other things, he devised and bequeathed to four of his grand-children, George J. Barney, Mary S. B. Haughton, Samuel T. Haughton, and the plaintiff) John P. Haughton, some land and a large number of slaves, (naming them,) with the following [contingent limitation in remainder: “ And should any of my above named grand-children die without…

<p>The statute of limitations, Rev. Stat, ch. 65, sec. 19, applies to a right of redemption arising from construction of a Court of Equity, and the time must he computed from the accrual of the right to sue.</p> <p>Inhere the owner of slaves had mortgaged them, and the tíme for redemption was several times postponed by memoranda on the mortgage deed, and finally the right to redeem rested on the parol promise of the mortgagee, to let the mortgagor redeem at any lime; hut after three years the property was sold by a constable, who had executions against the mortgagor, by consent of the parties, on the terms of first satisfying the mortgage debt, and bought by the mortgagee, who held possession for fourteen years under that purchase, denying the right to redeem; Held that the Statute was a bar, and that an agreement to refer the question of redemption to arbitration, which was violated by the mortgagor, did not revive it.</p>

Cause removed from the Court of Equity of Johnston County. The material facts of this case are stated in the opinion of the Court.

Cause transmitted from the Court of Equity of Perquimons. Benjamin Gordon died intestate in the year 1841, possessed of certain slaves which had been given to him by his father, John 0. Gordon, by parol, and the plaintiff Thomas P. Jones was appointed his administrator in 1842.

This cause was before the Court upon an appeal from an interlocutory order of the Court of Equity of Martin County, and heard at the December Term, 1855, (ante 302.) The case is now brought up for a final hearing, and the facts are sufficiently stated in the report of that decision. «

Cause removed from tbe Court of Equity of New-Hanover County. Tbe bill was filed at tbe Spring Term, 1851, seeking tbe assignment of dower in a valuable lot in tbe town of Wilmington. Tbe plaintiff intermarried with ber late husband, Mars-den Campbell, in the year 1834, and very shortly after that they removed to tbe State of Louisiana, and have never since returned to North Carolina.

Cause removed to this Court from the Court of Equity of Sampson County. On the 8th of Nov., 1841, the plaintiff executed to his son, the defendant, a deed for a tract of land, (describing it) supposed to contain three hundred acres, in consideration, as expressed in the deed, “ of one thousand dollars, in hand paid, or secured to be paid.” An action of ejectment was brought on this title, returnable at the Spring Term, 1853, of Sampson Superi- or Court.

<p>This was an appeal from the Court of Equity of New-Hanover County, Judge Caldwell presiding.</p> <p>The bill was filed by the plaintiff, alleging adultery on the part of the husband, and an abandonment of his wife; and the prayer is for a divorce and dissolution of the bonds of matrimony, &c.</p> <p>The main question in the case arises upon the following allegation in the plaintiff’s bill: “And your petitioner further shows to your Honor, that her said husband has resided in the town of "Wilmington for more than eight years, and although she has not been living with him three.years, in all, in this State, yet she is advised that the domicil of her husband is her domicil, and,, therefore, she has been resident of this State for more than the last three years preceding the present time.” The defendant answered; replication taken; commissions and proofs.</p> <p>The proper issues were made up and submitted to the jury; amongst the rest was the following: “ Has the plaintiff resided three years in this State, next before the filing of her said bill ?”</p> <p>On the trial of the issues, his Honor, amongst other instructions, told the jury that, according to admissions of the plaintiff, under oath, she had not resided in the State three years next before the filing of her bill, and no witness had been examined by her to prove an actual residence for three years, as required by the statute, though it was competent for her to have done so ; that the position taken by her counsel that the domicil of the wife was the domicil of the husband, was, in many cases, a fiction that gave way to the fact; and, in this case, an actual residence of three years must be made to appear.</p> <p>The counsel moved the Court to charge that the onus of proving the domicil of the plaintiff out of the State, under the circumstances of the case, devolved on the defendant; but the Court declined so to charge. The plaintiff excepted.</p> <p>Verdict for the defendant. Judgment that the bill be dismissed. Appeal by the plaintiff.</p>

Cause removed from the Court of Equity of Northampton County. The bill is filed by the widow and next of kin of Henry Deberry, also by the same parties as legatees under the will of the said Ilenry, against the defendant, as his executor, praying an account of certain assets that came into his hands, or which ought to have come into his hands; and if not so, which were lost by his negligence, and for which he is accountable.

<p>Cause removed from the Court of Equity of Rockingham County.</p> <p>This bill was filed by the plaintiff, as the surviving executor of the will of Yancy Holman, praying the opinion and direction of the Court, as to certain bequests in the said will.</p> <p>The following clauses are set forth in the plaintiff’s bill as those that require consideration in the questions propounded to the Court, viz:</p> <p>Item 2d. I give and bequeath to Henry Newby, who married my daughter Nancy Holman, the sum of one dollar, and no. more.</p> <p>Item 3d. I give and bequeath to Daniel Bryant, who married my daughter Susannah Holman, the sum of one dollar, and no more.</p> <p>Item 4th. I give and bequeath to Alexander Russell, who married my daughter Elizabeth Holman, one dollar, and no more.</p> <p>Item 5th. I give and bequeath to the widow of my son Yancy Holman, one dollar, and nothing more.</p> <p>Item 6th. I give and bequeath to my son Thornton Holman, the following negro slaves, to wit, Sylvia, and her four children, by name, Calvin, Bill, Alfred and Joshua, together with her future increase; also one negro hoy that I loaned him some years since, hy the name of Henry, to him and his heirs absolutely forever.</p> <p>Item Itli. I give and bequeath to my son Archer Holman, the following negro slaves, to wit, Lucy, and her four children, by name, Missouri, Jinny, Norman and Cicero, together with her future increase; also one negro boy, that I loaned him some years since, by the name of Jordan, to him and his heirs absolutely forever.</p> <p>Item 8th. I loan to my daughter Sarah, wife of Thomas Carter, the following named negro slaves, that is, Peter, and his wife Mary, and their four children, viz., Euth, Isabel, Prances and Elizabeth, and their increase; and at the death of the said Sarah Carter, then, the aforesaid slaves, with their increase, descends to the bodily heirs of the said Sarah Carter, to be equally divided between them, shai-e and share alike, to them and their heirs forever.</p> <p>Item 9th. I loan to my daughter Catharine, wife of William King, the following named negro slaves, viz., Pleasant, Bart-let, John, Yiolet, Charlotte and Martha, and their increase; and at the death of the said Catharine King, then the aforesaid slaves descends to the bodily heirs of the said Catharine King, to be equally divided between them, share and share alike, to them and their heirs absolutely forever.</p> <p>Item 10th. It is my will and desire that the following negro slaves, to wit, Anderson, Isaac, Juliet, Perry, Friday, Larina and Elva, shall be hired out in this section of the country by my executors, hereinafter named, for the benefit and use of the children of my daughter Elizabeth Eussell, who married Alexander Eussell, until the youngest of the said children shall arrive at the age of twenty-two years ; and that my said grand-cliildren shall and may receive, from time to time, the proceeds of the hire of the said slaves, as it may fall due and come into the hands of my said executors, and by them forwarded to the clerk’s office of Lauderdale County, Alabama; and by the County Court of said County, to be distributed equally between all the children of the said Elizabeth Eussell, according to the discretion of the said Court, for the purpose of their better maintenance and education; and when the youngest of my said grand-children shall arrive to the age of twenty-two years, then it is my will and desire that the said slaves shall he equally divided between all my said grandchildren, share and share alike, to them and their heirs absolutely forever.</p> <p>Item 11th. It is my will and desire that the slave Harriet, and her child Ciña, be sold, as it is her request, to the highest bidder.</p> <p>Item 12th. It is my will and desire that my tract of land lying and being in the County of Rockingham, on the water of Little Rockhouse Creek, containing 346 acres, adjoining the lands of Reuben Johnson, &c., be sold to the highest bidder, and the proceeds of said land be equally divided between my three grand-children, viz., Yancy Carter, son of my daughter Sarah Carter, Yancy King, son of my daughter Catharine King, and Yancy Russel, son of my daughter Elizabeth Russell.</p> <p>Item 13th. It is my desire that the personal property belonging to my estate shall be sold, and the proceeds of the said sale be equally divided between the bodily heirs of my three daughters, viz., Elizabeth Russell, Sarah Carter and Catharine King.”</p> <p>The tract of land on Rockhouse Creek was sold, and the money distributed as directed. The executor made sale of the entire personal property, besides the slaves, as directed by the 13th item of the will, amounting to $805, and also sold Harriet and her child Ciña, as directed by the lltli item, for $1000. The slaves mentioned in the 10th item were hired out as therein directed.</p> <p>Of the slaves loaned to Sarah Carter, as mentioned in the 8th item, one of them, Mary, was delivered of a female child, between the date of the will and the death of the testator. This child is named Haney. The plaintiff asks the instruction of the Court whether this girl Haney is included in the legacy to Sarah Carter, or whether the same is undisposed of by the testator’s will; and whether, if not included in tliat legacy, tliis slave is to be sold under the 13th item of the will, and the proceeds divided among the children of Elizabeth Eussell, Sarah Carter and Catharine King, or among all of the next of kin of the testator.</p> <p>The advice of the Court is also asked as to the mode of distributing the fund raised under the 13th item; whether the children of Sarah Carter, Catharine King and Elizabeth Eus-soll, are to take this fund per stirpes or per capita ; and whether the division may be made in the life-time of the mothers, or must be postponed until their deaths.</p> <p>Besides the personal property which came into the hands of the executor, there were received by him bonds and accounts to considerable amount; and he submits whether the money raised from these sources shall be distributed under the said 13th item, among the children of the three daughters, or to the entire next of kin.</p> <p>He asks also to be informed as to the nature of his duties in the mode of disposing of the hires of the slaves, for the benefit of Mrs Eussell’s children in Alabama. The nature of this enquiry is clearly stated in the opinion of the Court upon this point.</p> <p>He also asks the instruction of the Court as to his duty in assenting to the legacies to Mrs. Carter and Mrs. King, un der the 8th and 9th items of the will; whether they take the absolute property in the slaves mentioned in these items, thus making it proper to assent without qualification, or whether there be a limitation over to their children, and if so, in what manner he is to assent to the life-interest of the mothers.</p> <p>Some years before the death of the testator, ho made a parol gift, and delivered to his son Thornton the slaves Lucy and her four children, Missouri, Jinny, Norman and Cicero, and Jordan. Thornton took these slaves to Georgia, where he resides, and whore he still has them. Some years before his death, the testator also gave, by parol, and delivered to his son Archer, the slaves Sylvia and her four children, Calvin, Bill, Alfred and Joshua, also Henry, who took them to Mississippi and sold them. Afterwards, in the life-time of the testator, Archer Holman died without leaving children. 13y reference to the 6th and 7th items of the will, it will he seen that the slaves given formerly to Thornton are bequeathed to Archer, and mee versa, those heretofore given to Archer are bequeathed to Thornton, which, the executor believes, was a mistake in the testator; the name of Thornton being used in the 6th item where it was intended Archer’s name should be used ; and the name of Archer being used in the 7th item, where it was intended that Thornton’s name should he; and he believes that the mistake was that of the draftsman; hut he asks the advice of the Court in relation to these bequests ; whether he is to treat them literally, as written in the will, or whether the Court will authorise him to pursue what he believes was the testator’s intention in the premises. Also, whether the bequest to Archer failed by his death in the life-time of the testator.</p> <p>Answers were filed by Thomas Carter and wife, and by the guardian of the infant next of kin, and judgments pro con-fesso were entered as to all the rest of the next of kin, they having been made parties to the bill. Replication to the answers.</p> <p>The cause was set down for hearing on the bill, answers, former orders and exhibit, and sent to this Court by consent.</p>

Tins was a bill for an injunction to prevent the defendant from building a mill on Tar Eiver, transmitted from the Court ■of Equity of Nash County. The bill was originally filed as an information in the name of the Attorney General, on the relation of the plaintiffs, and as a bill of complaint; but subsequently was dismissed as to the Attorney General, and is carried on in its other aspect.

Petition for divorce, from the Court of Equity of *Alamance County.

Cause removed from the Court of Equity of Edgecombe County. The bill alleges, the incorporation of the Commercial Bank of Wilmington, its organization, the subscription by the defendant for fifty shares of the capital stock, the declaration of dividends by the bank of six per cent. in. favor of the stockholders at one time, to wit, in August, 1854, and five per cent, in their favor at another time, to wit, in February, 1855, making the sum of $550, which was duly paid to the…

Cause removed from- the- Court of Equity of Rockingham County. Tbe defendant administered upon tbe estate of bis father in 1837, and this suit was brought April, 1854, to recover one-half of the distributive share of Joseph Washburn, who bad married Prudence, one of the daughters of tbe intestate, and one-half of her share of the money arising from the sale of the real estate of William Smith, the same intestate, of whom the said Prudence was one of the heirs-at-law.

<p>The guardian of an idiot, or lunatic cannot, without the permission of the Court, exceed the annual income of the estate in expenditures for, and on account of, his ward.</p>

<p>Cause removed from the Court of Equity of Craven County.</p> <p>This case is sufficiently stated in the opinion of the Court.</p>

<p>Cause sent from the- Court of Equity of Rockingham.</p> <p>The case is fully stated in the opinion of the Court.</p>

Cause removed from tlic Court of Equity of Orange Cbunty. The bill was filed by the executors of the last will and testament of Joseph Woods, Sen’r., asking the advice- and direction of the Court upon certain questions growing out of said will.

Cause removed from the Court of Equity of Chatham County. Roderic Cotten, by his will, directed his debts to be paid out of the proceeds of his perishable estate, and bequeathed to his wife, Ann, certain real and personal estate, and certain slaves by name.

<p>Cause removed from the» Co-urt of Equity of Eowan County.</p> <p>The "bill was filed "by the- plaintiff,' as the administrator with the will annexed of Alexander ~W. Brandon, asking- the. advice- and direction of the Co-urt upon certain questions arising out of the construction- of the will</p> <p>Having in- previous clauses of the- will- given- to Thomas Cowan one-Thousand dollars, and to-the children of James L. Cowan- one thousand dollars, the provision, on-which the chief difficulty arises, is as follows</p> <p>“ If my estate should amount to. more than the sums of money which I have given and devised in the above legacies to the several named persons, in that event, the balance that shall remain after paying all the legacies, shall be divided into-three shares or parts, and/ that. Thomas Oowan, cmd the Children of James L. Gowan, have one part or share, and the children of George Locke one part or share, and the children of John S. Brandon, one part or share. The. part or share that shall fall to, each family, is to. be divided, share and share alike.”</p> <p>Thomas Co-wan and James L. Cowan, mentioned in this extract,' are the only surviving- children of a deceased sister of the testator. James L. Cowan, at the death of the testator, had three children, and his wife was at that time pregnant with another, -which afterwards-was born, and is still living.</p> <p>The bill sets forth, that Thomas Cowan claims one-haif of the share or part allotted to him and the children of James 3L. Cowan; whereas, the children insist, that he is only entitled to come in per capita, with them, viz., to. take one-fifth.</p> <p>Another question arising upon this clause is, whether the child of Jamos L. Co-wan, that was in ventre sa mere at the testator’s death-, is entitled to- come in for a share with the previously born children.</p> <p>Among other bequests, is a pecuniary legacy to the trustees of Davidson College, and another to the elders of Thyatira Church, in Eowan county, and a question is raised, whether these legacies are liable for a tax under the Eevenue law of the State ?</p> <p>James L. Cowan’s children, Thomas Cowan, the trustees of Davidson College, the elders of Thyatira Church, and all the legatees of the testator, are made parties ; and besides the instructions aslred as above stated, the plaintiff prays that an account may be taken of his whole administration, and that the same be closed and settled by a decree of this Court.</p> <p>There were answers, insisting upon the interests of the several parties above suggested, but in no wise varying the statement of facts as set forth in the bill.</p>

<p>During the pendency of an issue of demsavií vél non, and before the •will is admitted to probate, the widow enters her dissent; it was held, that her dissent is effectual, and that her personal representative is entitled to a distributive share.</p> <p>Where a residuary fund is bequeathed to “ all my legatees, equally to be divided,” it was held, that persons to whom gifts of slaves were confirmed, and one dollar in addition given, were entitled to come in for a share under the description of legatees.</p> <p>Where a residuary fund is bequeathed to all my legatees, equally to be divided, it was held, that one, to whom a life-estate was given, remainder to- his children, must come in with his children for one share between them.</p> <p>A legacy given to an executor does not deprive him of commissions, unless it is expressly mentioned as being in lieu of them.</p> <p>Where a share in a residuary fund is given to persons that had been advanced by deeds of gift, which are ratified by the will, there is no reason why they should account for their advancements before they shall take such share.</p>

<p>A non-resident who has no property or effects within this Stale, will he restrained by an injunction from collecting a bond given for a tract of land, to which he had no title, notwithstanding the purchaser has a cause of action at law upon a covenant of warranty.</p> <p>Where a deed has been filed as an exhibit in a cause, and its execution has been admittedby the pleadings of the opposite side, it is too late to object to the sufficiency of the probate and registration, for the first time, on the trial of the cause.</p>

Cause removed from the Court of Equity of Stokes County. Tho hill was hied by the plaintiffs, as legatees under the will of Samuel Flippin, against the defendant, as executor, praying a decree for an account and payment of their legacies. The other defendants are also legatees ; and the Court is further asked to declare in what proportions the several legatees shall talco under this will.

<p>Cause removed from the Court of Equity of Cherokee County-</p> <p>The Legislature, at its session of 1850, passed an act entitled “ An Act to authorise the sale of refused lands owned by the State, in the Counties of Macon and Cherokee.” The purpose of this act was, among other things, to secure preemption rights to first settlers, and to those who had made valuable improvements upon lands occupied by them. By this act the Governor of the State was authorised to appoint, and did appoint, three commissioners, whose duty and office it was, amongst other things, to hear and determine pre-emption claims, and to award certificates to such as might be entitled to such rights. The board of commissioners thus authorised and appointed,' shortly afterwards held their session at the town of Murphy, in the County of Cherokee. ’</p> <p>The plaintiff, in his bill, alleges, that among other claims, that of the defendant Amos Carden, for the land which is now in controversy, was submitted to the board; that he claimed as the assignee of his brother, the defendant Alfred Carden, who, it was alleged, liad made valuable improvements; that he pretended that, when lie went off, lie left property in the house to enable him- to keep the possession, and that he intended to return; that Alfred was a resident of Tennessee, and he professed to have sold to his brother Amos; that these allegations are wholly untrue; that the defendant Alfred had made no such improvement; that all he did towards improvement was to go into an old Lidian hut for about two months, put up a few old rails, and plant a small patch of corn on land that had been cleared by the Indians; that lie did not go off with the purpose of returning, nor did lie leave any article of personal property in the hut to signify such intention, and that there was no evidence as to these allegations except the oath of Alfred Carden, who, in swearing in their support, committed gross perjury; that both the Cardens are now, and have been, generally, citizens of the State of Tennessee; that the board of commissioners were mistaken in their views of tbe law, and as to tbe nature of their duties, and were imposed on, and mistaken as to the facts; that the defendant Amos, not having the possession, nor the right of possession, was not entitled to have the certificate issued to him ; that the first substantial improvement made on the land in question, was by one Reuben Breeden, who settled on the same, and made permanent and valuable improvements thereon ;, that, when he went off, his possession was transferred to one Singleton Rhea, to whom he assigned his interest by a written instrument; that S. Rhea assigned in writing to P. M. Rhea; he to Richard Roberts; and he to plaintiff; that these transfers were for valuable considerations, and bona fide / and that possession has been continued from Bredeon down to plaintiff; a period, amounting in all, to about thirteen years; that the plaintiff was unable to show the commissioners how the facts were, his witnesses being partly out of the State, and there was no mode of enforcing their attendance, or of procuring their testimony ; that the board of commissioners being thus imposed upon by fraud and perjury, and being thus mistaken in the nature of their duties, under the Act of Assembly, wrongfully and unjustly awarded the certificate to the said Amos Garden, who shortly thereafter sold and assigned the same to the defendant G. TV". Lovengood, who assigned the same to the other defendant, his son, Drury Lovengood, to whom a grant for the land has issued; that both these last named defendants had notice of the equity of the plaintiff when they took such assignments. The bill further charges that the grantee, Drury Lovengood, has obtained a verdict and judgment in the Superior Court of Cherokee, and threatens to turn plaintiff out of possession.</p> <p>The prayer is for an injunction, and for a conveyance ; also for general relief.</p> <p>The answer of the defendants denies the several allegations contained in the plaintiff’s bill, and insists that the transaction was really and truly as represented to the commissioners by Alfred Carden; and that the certificate properly issued to his assignee, who sold it bona, fide, and without notice of any such equity as set forth, to G. TV. Lovengood, who likewise, without any such notice, sold it to the other defendant, Drury Loven-good.</p> <p>An injunction had been obtained upon the plaintiff’s bill, which, at Pall Term of the Court below, upon the coming in of the ans wer, was dissolved, and the bill continued as an original.</p> <p>There- were replication, commissions and proofs taken; and the cause, being set down for bearing, was sent to this Court.</p>

Cause removed'from the Court of Equity of Henderson Comity. The defendant, being indebted to theiplaintiff in the sum of eleven hundred and thirty-six dollars, (01136,) executed a mortgage-deed of a certain tract of land, described in the pleadings, to secure the payment thereof.

<p>Where equities are equal the law prevails; but if the party having the right at law acquires another interest inconsistent with Ms equity, so that he cannot honestly claim both, Ms equity is impaired, and the rule, gm prior est in tempore, potior est in jm:e,. prevails,</p>

<p>The words, “so much of my land lying, &c., as will conveniently carry water to a saw-mill, so as to be his profit and advantage,” contained in a deed, convey no interest in the soil, but an easement or privilege to have sites for a race and mill-dam, and to pond back the water, with the right of ingress and regress to repair, &c.</p> <p>And without words of inheritance, such a right is, by construction, given so long as the grantee and his heirs and assigns may wish to run the mill.</p> <p>Where the assignee of the grantor in the above deed, tore away the dam at the head of the race, and filled up the race theretofore laid out and used, and ploughed over it, so as to efface the limits of it, against the remonstrances of the grantee, Equity will grant relief by issuing a commission to re-mark the site of the race, &e., and also order an account for the loss of profits. This equity is under the head of a “ confusion of boundaries.”</p>

<p>Cause removed from tbe Court of Equity of Macon County.</p> <p>The plaintiff made the following mortgage-deed to the de-fondant, which was duly registered, and upon the construction of which this case principally turns, viz:</p> <p>c‘ Know all moa hy these presents, that I, N. B. Thompson, of the county of Macen, and State of North Carolina, do mortgage and pledge four tracts of land unto James Parker, of Cass county, Georgia, the said lands lying and being in the county of Macon, ¡and State of North Carolina, and 8th District ; one, which is known by No. 11; one other by No. 109; one other by No. 110 ; and the other No. 113 ; in the whole, containing 244 acres; all which, I mortgage and pledge unto said Parker, and deliver up the certificates for said land, to hold as surety for the valuable consideration of fifty dollars to mo paid in hand And said Thompson do further agree, that said Parker may have said land by paying one hundred and twenty-five dollars more, otherwise the said Thompson may redeem said mortgage and certificates, by paying the fifty dollars, and its interest, by fall next; as witness my hand and seal, this seventeenth of May, A. D. 1841.”</p> <p>The remaining facts of the case are sufficiently set out in the opinion of the Court.</p>

The plaintiff Sarah purchased a tract of land from the defendants’ intestate, David Hamrick, which is described by metes and bounds, particularly set out; and the quantity is stated in said deed at one hundred and fifty acres ; the price of which was five hundred and twenty-five dollars ; of which sum one hundred and twenty-five dollars was paid at the conclusion of the bargain; and, for the remainder'of the purchase-money, $400, she executed her bond, with C. P. Wilkins as…

Cause removed from tbe Court of Equity of Cleaveland County- Stephen Sparkes, of tbe County of Eranklin, in this State, made a deed in trust, dated lOtb day of April, 1843, to indemnify tbe defendants Shemucl Kearney and Kichard W. Kearney, as sureties for certain debts therein mentioned, and to secure the payment of these debts to the several creditors ; in which said deed were conveyed to them, (the said Kear-neys,) a tract of land, containing 957 acres, which said Sparkes…

<p>Oause removed from the Court of Equity of Cherokee County. This cause was before the Court at August Term, 1852, on a demurrer to the bill, (Reported 8 Ire. Eq. 304, as Ransom v. Shuler.)</p> <p>The plaintiff purchased of the defendant two tracts of land, situate in the County of Cherokee; one tract, known as No. 155, and the other, as 153; the first, described by metes and bounds, and expressed to be for ninety-four acres; the other, described in like manner, as containing one hundred and seventy-one acres ; and took from the defendant a conveyance of his interest in the said two tracts, which was that of a purchaser at the commissioner’s sale in 1838; and also took from him an authority to the Secretary of State, to issue the grant whenever he, the plaintiff, should discharge the bonds which defendant had given the State for these lands. After this trade, the defendant removed to Georgia, where he still resides.</p> <p>The plaintiff alleges, in his bill, that the defendant had been in possession of the premises for many years before he sold to the plaintiff, and that he had made valuable improvements —such as a good dwelling-house, out-houses, grist-mill and orchard, and had improved much of the land by clearing; that when the plaintiff was viewing the lands with the intention of purchasing, the defendant pointed out these improvements and clearings as situated on tbe 171 acre tract; but to his astonishment, afterwards, on surveying the lands, he found that no part of these improvements was on the tract designated in the deed, but that they were on unappropriated lands belonging to the State; that the price he was to give for the said tracts of land was $600; that he paid down $300, and gave his bond for $300, of which he has paid all but $182 ; that the said improvements were worth some two or three hundred dollars ; that the defendant well knew the fact that the boundaries of the two tracts did not include the improvements, but fraudulently misrepresented the matter as above stated;, that suit was brought on the bond given by plaintiff to the defendant, and a judgment taken for the remainder of the purchase-money, and that execution was about to be taken out upon it.</p> <p>The prayer of the bill is for an injunction, and for general relief.</p> <p>The answer of the defendant admits the contract and conveyance as set forth, and that he described and pointed out the improvements, &c., as being on the lands designated; he says, also, that “ it may 1)6 that the lines of his tract do not include all his improved lands, or all which he supposed ho was selling, or that the plaintiff thought he was purchasing but he avers that, by his purchase, the plaintiff acquired rights under the laws, in virtue of these improvements and occupancy, which enabled him, for a trifling sum, not exceeding twenty dollars, to perfect a grant for the land, including the improvements ; and he avers further that the plaintiff has al~ 'ready done this. He says that he was entirely ignorant of the fact that the improvements were outside of his lines.</p> <p>There was replication to the answer. Subsequently, it was1 referred to the clerk and master of the Court of Equity of Cherokee, to enquire and report “how much land, if any, represented by the defendant to be included within the boundaries of his title, is not so included ; and its relative value; and what rights, if any, plaintiff acquired by his said purchase; and if hejhas secured any legal or other claim thereto, upon what rights be did so.” Upon this reference, Mr. Axley, the. commissioner, reports, among other matters :</p> <p>That the dwelling-houses, ont-lionses, orchard, garden, and twenty-five acres of cleared land are not included in the boundaries designated in the deed from the defendant to plaintiff, but were on vacant land, and that this part had been represented by defendant to be included in his boundaries; that, by this purchase plaintiff acquired no right to this omitted part, except the right of possession ; that the plaintiff availed himself of this- pre-emption right, and entered one hundred acres, including the buildings, -which cost him $22,41; that the value of these improvements was $250. He farther reports that the cleared land, outside of the lines designated, had been entered by oneB. Allison, -which was procured from him by plaintiff, and that he subsequently obtained a grant for this part also, which cost him $22,41 more; in all $44,82;. and that the value of this improvement was $50.</p> <p>The cause -was set down for hearing on the bill, answer, exhibits and former orders; also, upon the report of the commissioner, and upon amotion to dissolve the injunction heretofore issued, and sent to this C-ourt by -consent.</p>

<p>Cause removed from-the Court of Equity of Mecklenburg' County.</p> <p>The bill of the plaintiff alleges, that one Samuel Wilson died in the year 1843, having made and published his last will and testament, which was duly proved; that amongst other provisions in the said will, are the following:</p> <p>“ 6th. I give and bequeath unto Sidney X. Johnston and his heirs, the following property (mentioning particularly, lands, slaves, and other valuable property,) in trust for the use of iny son Patrick J, Wilson, during bis life, and at his death, to the uso and benefit of the lawful issue of the said P. J. Wilson; and should he die without lawful issue, then, and in that case, I will and bequeath said property to my surviving children and their issue, share and share alike. It is my will that all the property devised and bequeathed to the said Sidney X. Johnston be hold by him for the trusts aforesaid ; that in no event it be subject to the payment of my son’s debts. The said Sidney X. Johnston is hereby authorised to permit the said P. J. Wilson to have the use of the said property and effects, in such way as he shall judge most expedient to effect my intentions towards him; and the said Sidney X. Johnston is also allowed to sell all, or any part, of the said property that he thinks proper, and hold the proceeds of the said sale upon the same trusts;” that Sidney X. Johnston renounced the trust mentioned in the said will, and that the plaintiff, by a decree of the Court of Equity, was substituted in his place, and that he undertook the execution of the same.</p> <p>The bill asserts that the equitable interest of P. J. Wilson is not liable for the payment of his debts.</p> <p>It is further alleged in the bill, that P. J. Wilson is a man of profligate habits — intemperate and extravagant; that ho has held possession of all the property willed to S. X. Johnston for his use, since the death of his father; that he has squandered the proceeds, and in addition thereto, contracted numerous debts, upon a number of which, suits at law have been brought, judgments obtained, and executions issued against him; that plaintiff, being a brother-in-law of the defendant, as well as his trustee, and being desirous of saving the property bequeathed and devised, and to prevent the defendant from being harrassed by his creditors, has deeply involved himself by going seowity for him, and has also paid out large sums of money for him, and that he is otherwise indebted to the plaintiff.</p> <p>The prayer of the bill is, that the Court will decree the sale of the property conveyed in trust by said will, for the satisfaction of plaintiff’s claims, and tlie debts where lie has made himself liable for the defendant; and for general relief.</p> <p>To this bill there was a general demurrer and joinder in demurrer; and the cause being set down for argument, tip. on the bill and demurrer, was sent to this Court.</p>

Cause removed from the Court of Equity of Buncombe County- This bill was filed by the plaintiffs, as executors of the late James Patton, praying the Court that an account might be taken, under the instructions of the Court, and the whole estate settled finally, so that they might, be discharged of the trust imposed by their testator’s will.

Cause removed from the Court of Equity of Lincoln County. On the 9th of August, 1848, the defendants executed to the plaintiff the following deed of assignment, viz: “ Know all men by these presents, that James F. Leach -and William W. Eaton, who are legally possessed of the patent-right of J. W. Howlet and F. M. Walker’s improved smut-machine, patented May 9th, 1846, as will appear by reference to the record of the Patent Office, do by these presents sell unto William…

<p>Where B, one of eleven heirs at law, represented to A, another heir, who owned two elevenths, that he had purchased eight parts, which, with his own, amounted'to nine parts; and they agreed in writing to divide the land between them, so as to give A his two elevenths adjoining his other land, and such agreement was carried into execution by marking a dividing line, each taking possession, which was held for nine years without question; upon a bill for specific performance, B shall not be heard to say that he was not able to perform, because he did not own all the shares he had claimed, but a performance will be decreed.</p>

This cause was beard at last term with that of Jones v. Oar-Icmd, (concerning the same matter); and this was retained for further directions. Instead of a sale, the Court at last term decreed a partition by metes and bounds, with a suggestion that the part as contended for by Jones the plaintiff in the other suit might be assigned by the commissioners to him, which would ¡out an end to the controversy as to the mode of division.

Cause removed from the Court of Equity of Eutherford County- Otis P Mills, the late husband of the defendant’s intestate, bequeathed to his wife, Eachel, personal property to sell, or use the same in any way she might choose, for her own use, and for the use, benefit and education, of their children ; and upon the marriage or coming of age of any of the children, the whole remainder of the estate to be divided equally between her and the four children, the part of each to be…

Cause removed from the Court of Equity of Henderson. County. The facts of this case are sufficiently stated in the opinion of the Court.

<p>This case is fully stated in the opinion of the Court.</p>