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FORECLOSURE OF MORTGAGES-Continued.
The time within which a sale must be made a power of sale in
a mortgage is not limited and is not affected by the fact
that the right to sue on the debt is barred. Menzel v. Hin-
A proceeding by an administrator to sell land for assets to
pay debts is not conclusive against the heirs at law as to
the validity of the alleged debts. Austin v. Austin, 262.
Under Acts (Private) 1889, Ch. 62, Sec. 24, providing for the
condemnation of land in Elizabeth City, a land-owner who
fails to appeal from an award of damages in such proceed-
ing cannot maintain an independent action for the value
of the land. Lamb v. Elizabeth City, 194.
An executor may purchase claims against his testator for mon-
ies received by his testator as guardian or agent, if no
money received by the testator as such guardian or agent
has come into his hands as executor and there is no fraud
or concealment on his part. Murray v. Barden, 136.
Where an insolent bank discounts drafts, such insolvency being
known to the officers, and the drawer of the drafts sues to
recover the amount of said drafts placed on deposit, he
could not in another suit disaffirm the discount for fraud.
Davis v. Lumber Co., 233. /
The finding of the jury, in an action for the recovery of land,
that defendant acted with a fraudulent purpose in purchas-
ing the same, could be considered on his application for the
allowance of the value of the improvements made by him,
though for various reasons the issue was immaterial in the
action itself. Hallyburton v. Slagle, 957.
The rule that parol agreements are merged in a written con-
tract is not applicable where a written contract was by
fraud or mistake executed differently from the terms of
agreement. Gwaltney v. Ass. Society, 925.
In an action to recover on a negotiable instrument, it is not
sufficient for the defendant merely to allege fraud, but the
facts constituting the fraud must be alleged. Beaman v.
The evidence herein as to fraud and want of consideration in
the obtaining of a negotiable instrument is not sufficient
to be submitted to the jury. Beaman v. Ward, 68.
FRAUDS, STATUTE OF
A declaration of trust by a purchaser at the time of the con-
veyance of the legal title to him, as a condition on which
the vendor consents to convey, is not within the statute
of frauds. Sykes v. Boone, 199.
The burden is on the purchaser of property conveyed to de-
fraud creditors to show that he bought for a valuable con-
sideration and without notice. Cox v. Wall, 730.
In an action for land alleged to have been fraudulently sold by
an administrator, it is error for the trial court to instruct
that the title of a subsequent purchaser depended on
whether he knew of the rights of an heir to the property,
without reference to the knowledge of the purchaser of the
fraudulent sale. Morrow v. Cole, 678.
In an action to recover land alleged to have been fraudulently
sold by an administrator, it is error for the trial court to
instruct that if the administrator was guilty of fraud in
making the sale that subsequent purchasers were guilty
of fraud without adding that such subsequent purchaser
must have had notice of such fraud. Morrow v. Cole, 678.
In an action to set aside a fraudulent conveyance, a judgment
and a return of execution thereon unsatisfied is strong but
not conclusive evidence of insolvency. Mauney v. Ham-
In an action for land alleged to have been fraudulently sold by
an administrator, a subsequent purchaser is entitled to an
issue as to whether he bought with notice of the fraud.
Morrow v. Cole, 678.
An administrator whose sale of realty is set aside by an heir
for fraud is not liable for injury to such realty committed
by his grantee, it not appearing that he aided in such in-
jury Morrow v. Cole, 678.
The burden is on the purchaser of property conveyed to defraud
creditors to show that he bought for a valuable considera-
tion and without notice. Morgan v. Bostic, 743.
For the purposes of an attachment the situs of a debt is where
either the debtor or the creditor resides. Sexton v. Phoenix
Ins. Co., 1.
A gift of personal property is not complete without delivery,
but declarations of an alleged donor that he had given cer-
tain property is competent evidence from which the jury
may infer and find whether there was a delivery. Gross
v. Smith, 604.
A grant to a riparian owner of land covered by navigable
water conveys only an easement therein and a deed of the
land adjoining the navigable water conveys the easement
of the land covered by the water. Land Co. v. Hotel, 517.
In an action to have a senior grantee declared a trustee for a
junior grantee of public land, a bare statement in the case
on appeal that the defendant claimed under the senior
grantee does not authorize a decree that the defendants
be declared trustees for the benefit of the plaintiffs.
Ritchie v. Fowler, 788.
The registration of a grant is constructive notice to a junior
grantee that a senior grantee claims the land included in
the grant and an action to declare the senior grantee a
trustee for the benefit of the junior grantee must be
brought within ten years of said registration. Ritchie v.
A person making an entry of land covered by navigable waters
is confined to straight lines, including only the fronts of
his own land. Holley v. Smith, 36.
A person cannot maintain ejectment where, when the action
was begun, a grant from the State, through which he
claimed had not been and could not be legally registered,
though it had been registered at the time of the trial under
Acts 1901, Chap. 175. Morehead v. Hall, 122.
GUARDIAN AND WARD.
Where, in an inquisition of lunacy, the jury finds the defendant
to be of unsound mind and incompetent for want of under-
standing to manage his own affairs, but not an idiot or
lunatic, the court should appoint a guardian. In re Ander-
HAWKERS. See "Peddlers;" "Taxation."
In ejectment, an instruction as to color of title, the only issues
involved being the location of a boundary and adverse pos-
session, is not prejudicial. Pittman v. Weeks, 81.
In an action by an employee for injuries sustained by being
pushed against machinery, evidence that the machinery was
second-hand is irrelevant, and if admitted is harmless.
Lamb v. Littman, 978.
In an action for damages for trespass on realty, the refusal of
the trial court to instruct that there was no evidence of
any damage prior to the commencement of the action, is
harmless error, the jury having found only nominal dam-
Dale v. Railway Co., 705.
In an indictment for murder, if the trial court instructs correctly
as to the degree or quantity of proof necessary to reduce
the crime of murder to manslaughter and later lays down
a contradictory rule by saying that the mitigating circum-
stances must be proven beyond a reasonable doubt, it is
harmless error, there being no evidence tending to reduce
the crime to manslaughter. State v. Utley, 1022.
HEARSAY EVIDENCE. See "Evidence."
Where a will provides that certain property shall be sold and
the proceeds divided amongst the heirs of the testator,
grand-children of the testator take per stirpes. Lee v. Baird,
Where a testator bequeathes certain property to V. for her life
and at her death be sold and divided equally among all of
the children of the testator, grand-children whose parents
were dead at the time of the execution of the will, take
nothing under this provision. Lee v. Baird, 755.
That a person was summoned to work a public road three con-
secutive days, the law providing that hands shall not be
required to work continuously for longer than two days at
any one time, is no defense for failing to work the first
two days. State v. Yoder, 1111.
That a person had been assigned to work a public road is no
defense to an indictment for failing to work another road
to which he had been subsequently assigned. State v. Yoder,
In an indictment against a person for failure to work a public
road the order of the county commissioners laying out said
road is competent evidence to show the establishment of
such road and such judgment cannot be collaterally at-
tacked. State v. Yoder, 1111.
A complaint describing a road, naming the county wherein
it lies, alleging the person summoning to have been the
overseer of that particular road; that the defendant was
a citizen of the county liable to work on said road and
duly assigned thereto, and that he had been duly sum-
moned, giving time and place; that he wilfully and un-
lawfully failed to work, and also negatived the payment
of one dollar, is sufficient to support a warrant for failure
to work a public road. State v. Yoder, 1111.
A deed in trust by the husband, in which the wife does not join,
reserving the homestead of the grantor therein conveys
the entire land contained in the deed of trust, subject only
to the determinable exemption in $1,000 worth thereof from
the payment of the debts of the grantor during his life.
Joyner v. Sugg, 580.
A person may use a map or drawing to demonstrate the rela-
tive positions of places involved in the evidence given by
him. State v. Wilcox, 1120.
In an indictment for murder a witness may state that the pris-
oner shortly before the killing seemed mad at the de-
ceased. State v. Utley, 1022.
An indictment for murder need not
contain the words "pre-
meditation" and "deliberation." State v. Cole, 1069.
There is sufficient evidence in this case to go to the jury con-
necting the defendant with the death of the deceased.
State v. Wilcox, 1180.
The evidence in this case is not sufficient to be submitted to the
jury as to the guilt of the accused of murder in the first
degree. State v. Cole, 1069.
In an indictment for murder, evidence that the accused said
immediately after the shooting, "That was a good shot,
wasn't it, with my left hand?" is competent. State v. Utley,
It is error for the trial court to instruct as to self-defense that
it is incumbent on the prisoner to show that it was neces
ary to shoot the deceased in order to protect his life, or
to save himself from serious bodily harm, although a
proper instruction relative to self-defense had been given
in a prior part of the charge. State v. Barrett, 1005.
Where the purpose or design to kill is formed with deliberation
and premeditation, it is not necessary that such purpose
or design be formed any definite length of time before the
killing. State v. Spivey, 989.
In an indictment for murder, there being no allegation that the
prisoner was insane at the time of the trial, no issue as
to insanity need be submitted. State v. Spivey, 989.