when they were to "be entitled to take possession
of said land and premises, free of all costs." Held,
that the grantor intended to convey a fee to the
children, and that the deed should be reformed by
inserting the words "and their heirs, forever."
Vickers v. Leigh, (N. C.) 10 S. E. 308.

7. A deed which reserves to the grantor a
life-estate, but contains no words of inheritance,
or words limiting the estate to an interest less
than life, conveys only a life-estate; and on the
death of one of the grantees the joint tenancy is
severed to the extent of his interest, which reverts
to the grantor, under Gen. St. S. C. § 1551, provid-
ing that, "where any person shall be, at the time
of his or her death, seised or possessed of any es-
tate in joint tenancy, the same shall be adjudged
to be severed by the death of the joint tenant,
and shall be distributable as if the same were a
tenancy in common. "-Varn v. Varn, (S. C.) 10 S.
E. 829.

Estoppel by, see Estoppel, 1, 2.

What constitutes.

1. An instrument in the form of a warranty
deed is a deed, and not a will, though providing:
"This deed is to go into effect after the death of
[the grantor,] she claiming her right to hold the
land so long as she lives, and at her death all the
franchises and right which she holds to be to the
party of the second part. "-Seals v. Pierce, (Ga.)
10 S. E. 589.

Description.

2. An exception in a deed which reads, "Ex-
cept the dower of fifty acres, as fully described in
the deed given the C. B. Co.," is not void, though
the boundaries of the excepted land are not de-
fined in any way. as reference may be had to the
deed to the C. B. Co. to ascertain them.-McAfee
v. Arline, (Ga.) 10 S. E. 441.

Acknowledgment.

3. Code N. C. § 1246, subsec. 7, provides that
certificates of the privy examination of married
women shall be "substantially" in a certain form;
the form given concluding with the words: "Wit
ness my hand and seal, (private or official, as the
case may be,) "etc. Held that, where the acknowl-
edgment is taken by a justice of the peace of the
county in which the land is situate, the provision
for the use of a seal is merely directory, not manda-
tory.-Lineberger v. Tidwell, (N. C.) 10 S. E. 758.
4. Code N. C. 1260, as amended by Laws
1889, c. 252, providing that, wherever the judges
or clerk of the superior court, mistaking their
powers, have probated deeds and have ordered
them registered, all such probates shall be as val-
id as if taken before, or ordered by, the clerk,
or other proper officer having jurisdiction, does not
cure the probate of a deed taken before a clerk,
the grantee, who has jurisdiction of the subject-
matter, in violation of Code N. C. § 104, subd. 3,
which provides that no clerk can act as such in
relation to any estate or proceeding, if he or his
wife is a party to any deed.-Freeman v. Person,
(N. C.) 10 S. E. 1037.

Construction.

5. Where a conveyance of land reserves the
right to raise ore thereon to the owners of a cer-
tain furnace, the exclusive right to such ore re-
mains in the vendors, and a subsequent conveyance
by them of such ore to the owners of such furnace
constitutes a good defense to a bill to restrain the
latter from digging the ore, though the conveyance
is made after action brought.-Lee v. Bumgardner,
(Va.) 10 S. E. 3.

6. A deed reciting a consideration of "natural
love and affection," after reserving an estate for

*

*

*

8. A deed executed October 1, 1861, by a hus-
band to his wife, reciting that, "for and in consid-
as the Harrell Farm,' * * I do by these pres-
ents exchange and convey unto the said C. a
certain piece or parcel of land,
bounded
as follows: ** and I do further agree to
warrant and defend the title of the same to her,
the said C., her heirs or assigns, forever, " etc.,-
must be held, in equity, to convey the fee-simple
estate in the land.-Winborne v. Downing, (N.
C.) 10 S. E. 888.

*

9. Plaintiff leased defendants a tract of land,
for her life, on condition that defendants should let
her occupy and remain with them as one of their
family, and should take care of her during her
life, and, if defendants should fail to comply
with the terms of the lease, they should vacate
the premises without recourse to law. After-
wards she made defendants a deed in fee for the
land, which provided that, if defendants should
conform strictly to the agreements contained in
the lease, then the deed should remain in full
force and effect, and should take effect at her
death; otherwise, it should be void. Held that,
in an action by plaintiff to cancel the deed, and
defendants to support her, the question whether
recover possession on the ground of a failure by
the deed passed the legal title in præsenti is
immaterial, as the deed, when construed with the
lease, shows the intention to let defendants have
immediate possession, and that they are entitled
to retain it as long as they comply with their
agreement to support plaintiff.-Stanton v. Allen,
(S. C.) 10 S. E. 878.

10. The heirs of an estate partitioned the land
by deeds. The deed to one of the heirs and her
husband read: "The parties of the first part do
grant, relinquish, and release unto the said par
ties of the second part, and to the heirs of the fe-
male party of the second part," etc. The deed
contained no warranty. Similar deeds were given
The wife died, having had no children. Held, that
to the other heirs. No other consideration passed.
and conveyed no estate to the husband which he
the deed in question operated only as a partition,
could assert, as against the wife's heirs.-Yancey
v. Radford, (Va.) 10 S. E. 972.
Proof of deed.

11. In an action to recover land defendants set
up a deed to them purporting to have been execut-
ed by plaintiffs. Plaintiffs filed an affidavit that
the signatures were forgeries, to which defendants
replied that they were genuine. Held, that the
only effect of the affidavit was to leave the burden
of proving the deed on the party offering it, and it
is immaterial that the deed has been recorded.-De
Vaughn v. McLeroy, (Ga.) 10 S. E. 211.

Default.

Demurrer.

DEPOSITION.

In action against infants, see Infancy, 2.

Notice of taking.

disorderly house, as it does not appear that she
kept a drinking place, or that drinking and drunk-
en men and women were wont to assemble there,
or that she lived in a thickly-settled neighborhood,
or that the people about there were disturbed, or
knew of the immoral conduct at her house.-State
v. Calley, (N. C.) 10 S. E. 455.

Distress.

Opening and using.

2. Under Code N. C. § 1357, providing that
depositions shall be returned to the court, and
opened and passed on by the clerk, after having
first given the parties or their attorneys at least
one day's notice; and that all depositions when al-
lowed by the clerk, or by the judge upon appeal
from the clerk's order, are legal evidence, if the
witness be competent,- -a deposition without such
notice, and which was not passed on by the clerk,
is properly excluded.-Bryan v. Jeffreys, (N. C.) 10

S. E. 167.

3. A deposition is not legal evidence which
has not been passed on by the clerk of court "after
having first given the parties or their attorneys
not less than one day's notice," as required by
Code N. C. § 1357.-Berry v. Hall, (N. C.) 10 S.

E. 903.

DESCENT AND DISTRIBUTION.
See, also, Executors and Administrators; Wills.
Advancement.

1. Where a father pays for land, and has the
deed therefor made to his son, the transaction
will be treated as an advancement to the son, and
not as a resulting trust, especially where the son
is allowed to retain it for many years, mortgag-
ing and in every way treating it as his own.-Catoe
v. Catoe, (S. C.) 10 S. E. 1078.

Rights and liabilities of heir.

2. The heir cannot plead the statute of limita-
tions against a debt on which judgment has been
recovered against the administrator, unless the
judgment was obtained through fraud and collu-
sion; and, where the findings of the court negative
the allegation that the judgment was thus ob-
tained, the heir is bound by the judgment.-Proc-
tor v. Proctor, (N. C.) 10 S. E. 1036.

3. A distributee of an estate cannot maintain
an action for his distributive share against the
sureties of a deceased administrator, who died be-
fore completing the administration, having assets
remaining after paying all the debts of the estate,
as the action should be brought by the administra-
tor de bonis non.-Gilliam v. Watkins, (N. C.) 10
S. E. 183.

Disbarment.

See Attorney and Client, 3, 4.

Dismissal.

Of appeal, see Appeal, 62–68.

DISORDERLY HOUSE.

What constitutes.

1. Evidence that a man was seen in defendant's
house at night, in bed with one of her daughters,
defendant at the time being in a room below; that
on another night a witness saw defendant and
daughter in bed with men; that at another time
witness saw defendant having sexual intercourse
near her barn, beside the road; and that one of de-
fendant's daughters had a bastard child,-will not
justify a conviction of keeping a bawdy-house.-
State v. Calley, (N. C.) 10 S. E. 455.

2. Nor does such evidence, coupled with the
fact that witness got drunk at the house on liquor
obtained elsewhere, prove that defendant kept a

For adultery.

DIVORCE.

1. Code N. C. § 1285, provides that a divorce a
vinculo matrimonii shall only be granted to the
injured party, and assigns as grounds, inter alia:
"(1) If either party shall separate from the other,
and live in adultery; (2) if the wife shall commit
adultery." Held that, since the enactment of sub-
section 2, a husband who separates from his wife,
leaving her in the care of her father, is not there-
by precluded from obtaining a divorce, where she
has openly avowed that she had habitual incest-
rous intercourse with her uncle for three years be-
fore the marriage.-Steele v. Steele, (N. C.) 10 S.
E. 707.
Pleading.

2. A person seeking a divorce a vinculo matri-
monii, on the ground of adultery, need not allege
that it has not been due to his fault, or that he has
not himself been guilty thereof.-Steele v. Steele,
(N. C.) 10 S. E. 707.
Alimony.

3. Code N. C. § 1283, provides that the superior
court may declare "void from the beginning" any
42. Chapter 42, § 1810, provides that all marriages
marriage prohibited or declared void by chapter
wife living, "shall be void." Held, that an action
between persons either of whom has a husband or
by a woman to declare her marriage with defend-
ant void on the ground of his prior existing mar-
riage was within Code, § 1291, which provides that
alimony pendente lite may be given where any
married woman shall sue "for a divorce from the
bonds of matrimony or from bed and board. "—Lea
v. Lea, (N. C.) 10 S. E. 488.

4. Plaintiff's allegation that her marriage is
void does not estop her to claim alimony pendente
lite.-Lea v. Lea, (N. C.) 10 S. E. 488.

5. Under Code N. C. § 1291, requiring five day's
notice of a motion for alimony pendente lite to be
given defendant, it appears that defendant had
actual notice where he and his counsel were in
court when an order was made continuing the hear
ing of the motion to a succeeding term.—Lea v.
Lea, (N. C.) 10 S. E. 488.

DOWER.

Interest on allowance in lieu of, see Interest, 3.
Right to dower.

1. The purchaser at an execution sale of land
conveyed it to a trustee for the separate use of the
judgment debtor's wife, and on such further trusts
and limitations as might be declared by the trustee.
Held that, as it was necessary for the legal title to
remain in the trustee to declare the further trusts
and limitations, the statute of uses did not execute
the use in the wife, and her inchoate dower right
was not merged in the fee.-Davis v. Townsend,
(S. C.) 10 S. E. 837.

2. Where land purchased at execution sale is
conveyed to a trustee for the separate use of the
judgment debtor's wife, the fact that a mortgage
given by the trustee was foreclosed in the judg-
ment debtor's life-time, and that his wife was
made a party to the proceedings, does not estop
her from asserting her claim as dowress after the
debtor's death.-Davis v. Townsend, (S. C.) 10 S.

F. 837.

3. Nor is the wife estopped from asserting her
dower right by covenants in the deed to the trustee,
or by a general warranty in the mortgage given by

5. In a bill brought by a party to whom a wid-
ow has conveyed her dower interest in two tracts
of land, to have dower assigned therein, which
parcels of land at the time said suit is brought are
held and owned by different parties, the persons
owning and holding said respective tracts of land
are necessary parties defendant. Morgan v.
Blatchley, (W. Va.) 10 S. E. 282.

-

6. Where the widow consented to sell her dow-
er interest in the land of the decedent for a price
agreed on in a suit to have dower assigned, to
which the creditors and heirs were all parties, a re-
sale and re-estimate of the dower, on the ground
that the former allowance was excessive, will not
be decreed, especially where the creditors do not
complain.-Scott v. Ashlin, (Va.) 10 S. E. 751.
Computation of value.

7. Where the husband and wife are both liv-
ing, the rule for computing the present value of
the wife's contingent right of dower is to calculate
the expectation of life of the wife, and the proba-
bility of the joint lives of the husband and wife,
and, from the present value of an annuity payable
while the wife lives, deduct the present value of
an annuity payable while both are living.—Strayer
v. Long, (Va.) 10 S. E. 574.

Duress.

Effect, see Principal and Surety, 1.

EASEMENTS.

By prescription.

1. A claim by prescription to an easement in
the use of a ditch is not supported by proof that
it has been used only by those who owned the
whole premises through which the ditch runs be-
fore a conveyance of any portion, as such use is
not adverse to a grantee of such portion.-Cros-
land v. Rogers, (S. C.) 10 S. E. 874.

2. Where there has been an open and public
use of an easement for more than 20 years, unex-
plained, it will be presumed to be under a claim
of right, and adverse.-Rogerson v. Shepherd, (W.
Va.) 10 S. E. 632.

By necessity.

3. Where plaintiff sells a portion of his land,
but fails to reserve the right to use a ditch which
runs through it, and which was used to drain the
portion unsold, a claim to an easement in the use
of the ditch by implied reservation is not sup
ported, where there is no evidence that the ne-
cessity for the ditch is imperious and continuous,
nor any facts stated which show that there is no
other way in which the water at that point might
find vent.-Crosland v. Rogers, (S. C.) 10 S. E.

874.

4. Where a party sells two adjoining tracts of
land, and one can have access to a public highway
only by passing over the other of said tracts, it
creates a right of way, of necessity.-Rogerson v.
Shepherd, (W. Va.) 10 S. E. 632.

Interference with-Injunction.

5. Where a party has acquired an open and un-
obstructed right of way over land by publicly us-
ing the same in that manner, without objection,
for more than 20 years, he can enjoin its obstruc-
tion. - Rogerson v. Shepherd, (W. Va.) 10 S. E.
632.

6. Where owners of land grant the right to a
railroad company to use water from a spring on
their land, and to lay pipes from such spring to a
certain tank, by a contract which is duly recorded, I

one who purchases the land many years after-
wards, with actual knowledge that the pipes were
laid across the land, and that the topography of
the land renders it necessary that they should be
laid just as they are, takes subject to such ease-
ment, and is properly enjoined from interfering
therewith, and it is immaterial that the tank is
not located in the exact place specified in the
contract, where the change does not affect the po-
sition of the pipes.-Diffendal v. Virginia M. Ry.
Co., (Va.) 10 S. E. 536.

7. Evidence that the former owners of the land
permitted the railroad company to lay the pipes as
they did, not as part of the contract, but as a tem-
porary convenience, will not warrant a rehearing.
Diffendal v. Virginia M. Ry. Co., (Va.) 10 S. E.

536.

S. Under covenants in deeds to both parties
that the land in question was to be used only as
an alley, and that it was to be kept open for the
mutual benefit of the owners of property on each
side, defendants have no right to obstruct the alley
by building a wooden frame entirely across it, and
putting up hooks and slides of metal to hang and
slide meat on, and an injunction will issue in plain-
tiffs' favor, though they were not using the alley at
the time, and were not damaged by the obstruc-
tion.-Swift v. Coker, (Ga.) 10 S. E. 442.

EJECTMENT.

Title to support.

1. The fact that one dies in possession of land,
and that the same is administered on and sold,
under the order of a court of ordinary, as his prop-
erty, is sufficient evidence of original title in him
to enable a purchaser at the sale, or others claim-
ing under him, to recover in ejectment.-Findley
v. Johnson, (Ga.) 10 S. E. 594.*

2. Plaintiff in ejectment, who bases his title on
a sheriff's deed, cannot recover, if the execution
debtor had no other property, and no homestead
was allotted.-Mobley v. Griffin, (N. C.) 10 S. E.

142.

3. No recovery can be had upon the demise of
a person who had conveyed away his whole title
(Ga.) 10 S. E. 113.
before the action was brought.-Hobby v. Bunch,

Pleading.

4. In ejectment, no recovery can be had upon
the title of a person from whom no demise is laid
in the declaration.-Hobby v. Bunch, (Ga.) 10 S. F.
113.

5. A declaration in ejectment, setting out de-
mises severally from two persons, is not amendable
by ingrafting upon one of these demises an equi-
table claim for money in favor of a third person
against the defendants.-Hobby v. Bunch, (Ga.)
10 S. E. 113.

6. An objection to the validity of a sheriff's
deed, upon which plaintiff in ejectment bases his
title, that the execution debtor had no other prop-
erty than the land sold, and no homestead was al-
lotted, may be raised by defendant without plead-
ing such defense.-Mobley v. Griffin, (N. C.) 10 S.

E. 12.

7. Where the declaration and the deeds under
which both parties claim describe the land as
"lot No. 59, known as the 'Davis Place,'" and it is
shown that the Davis place was lot No. 69, the
declaration may be amended accordingly. -Pol-
hill v. Brown, (Ga.) 10 S. E. 921.

8. Plaintiff in ejectment, who relied on a de-
mise, alleged, in an amended declaration, that his
lessor claimed title under certain mesne convey-
ances from one of the six heirs of H.; that the at-
torney in fact of the other five heirs of H. had con-
veyed the remaining undivided five-sixths of the
land to one N.; that N., with knowledge that the
other one-sixth had been bought by the predeces-
sors in title of plaintiff's lessor, and with the in-
tent to defraud, conveyed to defendants the entire
tract; and that defendants bought with full notice
of plaintiff's rights, and had put valuable improve-
ments on the land, which rendered it impracticable
to partition the land in kind. Held, that a general

sembly to the contrary notwithstanding, unless, in
the act * * creating the corporation, the sec-
tion or sections of this chapter, and the chapter
entitled 'Railroad and Telegraph Companies, '
shall be specially referred to by number, and as
such specially repealed." Held, that a railroad
company incorporated in 1887 was subject to the
general railroad law relating to condemnation of
land, though its charter provided that it should
have power to condemn lands under the same
rules and terms as another designated company,
whose charter modified the general law in that
respect. Durham & N. Ry. Co. v. Richmond &
D. R. Co., (N. C.) 10 S. E. 1041.

-

Procedure.

3. Code N. C. § 1952, requires a railroad com-
pany, before constructing any part of its road,
to survey the line of the proposed road, make a
map thereof, file certificates that it has located
its road according to such survey, give notice,
etc.; and section 1944 requires that performance
of these conditions shall be alleged in the petition
in proceedings to condemn lands. Held, that per-
formance of these conditions was indispensable,
and that failure to allege the same was fatal.-
Durham & N. Ry. Co. v. Richmond & D. R. Co.,
(N. C.) 10 S. E. 1041.

4. Where, in condemnation proceedings, plain
tiff excepts to the report of the commissioners
solely on the ground that the assessment was ex-
cessive, and defendants do not except at all, the
inquiry before the court is not what damages de-
fendants have sustained, but whether the assess-
ment was excessive; and a judgment for defend-
ants for a greater amount than the assessment,
though entered on a verdict, and not excepted to,
will, on appeal, be reduced to the extent of the ex-
cess over the commissioners' report.-Durham &
N. R. Co. v. Trustees of Bullock Church, (N. C.) 10

S. E. 761.

Application.

5. An application to condemn land for public
use must distinctly state that the land is needed
for public use, and will, when condemned, be de-
voted to such public use.-Fork Ridge Baptist
Cemetery Ass'n v. Redd, (W. Va.) 10 S. E. 405.

6. An application to condemn land for ceme-
tery purposes should show that the land to be
taken does not lie within 400 yards of a dwelling-
house, unless the purpose is to extend the limits
of a cemetery already located, and then, that such
limits will not be extended nearer to any dwelling
house which is within 400 yards; Code W. Va. 1887,
c. 42, § 2. imposing such limitations.-Fork Ridge
Baptist Cemetery Ass'n v. Redd, (W. Va.) 10 S. E.

405.

Compensation-Evidence.

7. Where a railroad has condemned part of a
church property, it is competent, for the purpose
of proving that the value of the residue was im-
paired as church property by the location and use
of the road, to show that horses could not be left
on the grounds, on account of passing trains, and
that people would not go to the church to worship,
as they were disturbed by the same causes.-Dur-
ham & N. R. Co. v. Trustees of Bullock Church,
(N. C.) 10 S. E. 761.

8. In proving damages to property arising
from the location of a railroad on it, it is compe-
tent to prove the value of the property before such
location, preparatory to showing what it was worth
after the road was constructed.-Durham & N. R.
Co. v. Trustees of Bullock Church, (N. C.) 10 S. E.
761.

Streets-Rights of abutting owners.
9. The owner of a lot having an easement ap-
purtenant in the adjacent street, with reference
to which he bought and improved the lot, cannot,
without compensation, be deprived of his rights
in such street by a sale for the benefit of the town
through which he claims title; nor can the legis-
lature deprive him of such appurtenant rights by
authorizing the town to again enter upon and sell
such street to others.-Moose v. Carson, (N. C.) 10
S. E. 689.

10. A railroad company proposed, in the occupa-
tion of a street, the graded portion of which was
24 feet wide, to appropriate to its exclusive use
about 2 feet of such graded portion. Held that,
whether plaintiff, whose property fronted on the
street, owned the fee of the street or not, there
was no such destruction of the value of plaintiff's
property as would entitle him to an injunction to
restrain the railroad company from constructing
its road, until the damages were ascertained and
paid, or secured to be paid.-Arbenz v. Wheeling
& H. R. Co., (W. Va.) 10 S. E. 14.

EQUITY.

See, also, Creditors' Bill; Fraudulent Convey-
ances; Injunction; Mortgages; Partition;
Partnership; Quieting Title; Receivers; Spe-
cific Performance; Trusts.

Jurisdiction.

1. A bill in equity which seeks no discovery,
but merely alleges that defendant retains certain
moneys of plaintiff, delivered to defendant to in-
demnify him as plaintiff's surety, after he has been
relieved from his liability as surety, and refuses to
account for or pay over the same, does not present
such a case as will entitle the plaintiff to be heard
in a court of equity, and such bill will be dismissed
upon demurrer. -Hoke v. Davis, (W. Va.) 10 S. E.
$20.

Reformation of contracts.

2. A mortgagee who seeks to have a mortgage
corrected on the ground of mutual mistake as to a
recital that the debt was due "by bond or note, "
cannot object to the correctness of the amount due
on the ground that the parties had full opportunity
to ascertain the same when the mortgage was exe-
cuted.-Morisey v. Swinson, (N. C.) 10 S. E. 754.

3. The reformation of a deed to conform to a
written contract entered into before the execution

of the deed will be denied where the proofs show,
not only that nothing was omitted from the deed
by accident or mistake, but that the departure
from the terms of the contract was deliberately
made, and that it was the subject of discussion be-
tween the parties when the deed was executed,
which was done with a full and clear understand-
ing of its contents, and with no other outside in-
fluence or assurance than that of the agent of the
grantee, a railroad company, that it would comply
with the essential requirements of the contract, but
not professing to be authorized to bind the company
beyond the stipulations in the deed.-Shenandoah
Val. R. Co. v. Dunlop, (Va.) 10 S. E. 239.

4. Parol evidence of fraud is not admissible for
the purpose of reforming an executory written con-
tract for the sale of land, by including more land
than is therein specified.-Davis v. Ely, (N. C.) 10

S. E. 138.

5. A deed conveyed land "generally known as
edge as to what was included under this descrip-
The Loop.'" It was a matter of universal knowl-
tion. The vendee lived in the immediate vicinity
of "The Loop" before his purchase, was well ac-
quainted with the land, and after the conveyance
fenced the land on the line generally understood to
be the true one. Held, that the deed would not be
reformed to include lands other than those "gen-
erally known as 'The Loop,'" though the vendee
testified that he and the vendor intended to con-
vey them by the deed.-Fudge v. Payne, (Va.) 10
S. E. 7.

6. A deed may be reformed upon allegations
that at the time it was made it was "fully under-
stood, and it was so agreed," between the parties,
that the term "Loop, "used in the deed to describe
the lands conveyed, included and embraced cer-
tain lands which the vendee afterwards found
were not generally understood to be known and
described as contained in the "Loop. "-Fudge v.
Payne, (Va.) 10 S. E. 7.

7. A mere preponderance of evidence is not
sufficient to show mistake in a mortgage, but there
must be clear and convincing proof.-Pollock v.
Warwick, (N. C.) 10 S. E. 699.