the application of this statute the obvious as a witness James Thigpen, who testified objection presents itself, that it must be put that he is the father of I. L. Thigpen, who in operation by an adverse holding, and is the husband of the feme plaintiff, and here the possession is that of a tenant hold- that he knows the land conveyed by him to ing under the owner, rendered hostile by no the plaintiff, C. A. Thigpen; that witness demand and refusal to surrender or resist- and plaintiff, C. A. Thigpen, and her husance offered to the owner's re-entry. Par- band, I. L. Thigpen, live together upon the ker v. Banks, 79 N. C. 480; Allen v. Taylor, said land. This witness testified further as 96 N. C. 37, 1 S. E. Rep. 462. to the seizure of the crops, etc., by the depuEqually without support is the sugges-ty-sheriff, defendant Bourne, being sheriff of tion that, if the debt is barred, so must be Edgecombe county at the time of said seizthe mortgage to secure it. These are essen- ure. Witness testified that he reserved to tially distinct as affected by the statutes of himself a life-estate in the 100-acre tract. limitations, as is held in Capehart v. Det- The plaintiff then proposed to prove by this trick, 91 N. C. 344; Long v. Miller, 93 N. C. witness a parol contract between himself 227. There is no error, and the judgment and C. A. Thigpen that he (witness) would must be affirmed. surrender the rents and profits of that land, the 100 acres, to her, in consideration of which she (Caroline A. Thigpen) was to take care of him (the witness) for his life. Objection by the defendants. Objection sustained, and plaintiff excepted. The presiding judge stated that if the proposition was In an action for the wrongful seizure of to prove such a parol contract for three growing crops the first paragraph of the complaint years, or for a less time, it would be adalleged that plaintiff, by virtue of certain deeds, missible. Plaintiff's counsel stated that was owner in fee and in possession of the land on they could not make proof to such effect. which the crops were growing. The deeds in ques-The issues upon the first cause of action tion reserved a life-interest to the grantor. The second paragraph alleged that plaintiff was owner and in possession of the crops growing on the land. Held, that the averment of the second paragraph was a distinct allegation, not connected with plaintiff's claim of title to the land, and it was not a variance to allow her to prove a parol contract with the owner of the life-estate, by which she was entitled to the crops as his tenant.

THIGPEN V. STATON et al. (Supreme Court of North Carolina. Oct. 21, 1889.)

PLEADING VARIANCE.

H. L. Staton, and W. S. Clark, the sum of $500, with interest from April 15, 1889, and the costs of action.

John L. Bridgers, for appellant. Gilliam & Son, for appellees.

were found by the jury. To the first issue, owner of 24-acre tract only." To the second issue,"owner of crops on 24-acre tract only." To the third issue, "Yes," on 24-acre tract; "No," as to others. To the fourth issue,"$500 damages." The 24-acre tract was not a part of the land conveyed by James Thigpen to Caroline A. Thigpen. This was a civil action tried before MAC- The other issues were found in favor of the RAE, J., and a jury at spring term, 1889, of defendants. Plaintiff moved for a new trial Edgecombe superior court. The plaintiff, for the error alleged. Motion denied. Caroline A. Thigpen, alleged that she was Judgment for the plaintiff. Plaintiff apowner in fee-simple and in the possession of peals. The jury herein having found the iscertain tracts of land described in the com- sues in favor of the plaintiff, C. A. Thigpen, plaint, and of the crops growing upon said and fixed her damages at $500, it is ordered land, and that defendant Bourne, at the in- and adjudged that the plaintiff, C. A. Thigstance and procurement of the other defend-pen, recover of the defendants, H. C. Bourne, ants, wrongfully seized said crops, and deprived said plaintiff of the use thereof, to her damage, etc. These allegations were denied in the answer. There were other causes of action stated in the complaint and denied in the answer, which, for the purposes of this appeal, are not necessary AVERY, J., (after stating the facts as tobe stated. The issues (agreed upon) aris- above.) A verbal contract for the sale of ing upon the first cause of action, and sub-lands, tenements, or hereditaments, or any mitted to the jury, were as follows: (1) interest in or concerning them, is good beWas the plaintiff, Caroline A. Thigpen, the tween the parties to it, and will be enforced owner and in the possession of the lands described in the complaint at the times and as set out therein, or of any part thereof? If a part, what part? (2) Was the said plaintiff the owner of the crops growing upon said lands at said times, or any part thereof? If a part, what part? (3) Did the defendant Bourne, at the instance and procurement of the other defendants, wrongfully seize the crops then growing and remaining upon said lands, and deprive said plaintiff of the use thereof, as alleged in the complaint? (4) What damage, if any, has plaintiff sustained by reason of such wrong-feme plaintiff, C. A. Thigpen, that she should ful seizure? The plaintiff offered in evidence to show title to the first tract of land described in the complaint, a deed from James Thigpen to Caroline A. Thigpen for 100 acres, reserving to himself a life-estate in the land conveyed. This deed was dated October 8, 1884. The plaintiff introduced

if they agree upon its terms, and the party to be charged does not plead the statute. Green v. Railroad Co., 77 N. C. 95. In controversies between them the rule is that where the plaintiff declares upon a verbal promise void under the statute of frauds, and the defendant either denies that he made the promise, or sets up another and different contract, or admits the promise and pleads specially the statute, the contract cannot be enforced. Holler v. Richards, 102 N. C. 105, 9 S. E. Rep. 460. The agreement between James Thigpen and the

support him during his life, in consideration of receiving the rents of the 100-acre tract of land for the same period, is good inter partes. If it be conceded that a stranger would be allowed to set up the plea that such a contract is void, where the law casts the burden on the party claiming

the benefit of it, to show a good title | ard Holden, and all claims in regard thereagainst such stranger, the admission would to, to C. M. Busbee, as arbitrator; and we not affect this case. The feme plaintiff holds agree to stand by, abide, and perform his the remainder after the life-estate of James award. Witness our hands and seals July Thigpen by deed from him; and with the 11th, 1885." Signed and sealed by Richard agreement, already stated, she lives upon Holden and John R. Knight, and witnessed the land with him and her husband, T. L. by J. J. Davis. The arbitrator proceeded to Thigpen. She alleged in the second para-hear the evidence, and made his award in graph of the complaint that she was the these words: "In respect to the matter reowner of the crops, not by virtue of the ferred to me as arbitrator in the foregoing title set out in the first paragraph, but as agreement, I award as follows: (1) That an independent fact, and, the allegation be- Richard Holden, Sr., pay to John R. ing denied, the court properly submitted a Knight the sum of two hundred and sevendistinct issue as to her right to the crops. It ty-five dollars; and that upon payment of was competent to show the parol contract said two hundred and seventy-five dollars between plaintiff and James Thigpen in or- to said John R. Knight, he, the said John der to establish her right to the growing | R. Knight, shall execute and deliver to said crops. It was material as evidence that she Richard Holden, Sr., a good and sufficient entered on the land, and was cultivating it deed of quitclaim in fee in and to said under a license from James Thigpen, and lot of land. (2) That upon payment of was entitled to the growing crop on that said two hundred and seventy five dollars tract. The fact that she entered under the to said John R. Knight, he, the said John authority of James Thigpen was evidence R. Knight, shall execute and deliver to tending to show she was his tenant. Medlin said Richard Holden, Sr., a good and sufv. Steele, 75 N. C. 154. She had not declared in ficient deed of quitclaim in fee in and to the second paragraph of the complaint how said lot of land. (3) If the said Richard she derived her title to the crop, but had Holden, Sr., shall fail to pay the said John simply claimed that she was owner and had R. Knight said sum of two hundred and the present right to the possession, and this seventy-five dollars within sixty days after was a separate and distinct alegation in the date hereof, then Jos. J. Davis and no way connected with her claim of title to Chas. M. Cooke, as commissioners, shall several tracts of land by virtue of deeds sell said lot of land at public sale in the mentioned in the first paragraph. There town of Youngsville, to the highest bidder, was therefore no variance between the alle- for cash, after advertisement for ten days gation and the evidence offered. There was by notice posted at the railroad wareerror in the refusal of his honor to allow house in said town, and, upon such sale, the witness to testify as was proposed, for shall execute title to the purchaser, and which a new trial will be granted. Error. out of the proceeds of sale pay the expenses Venire de novo. of sale, including five per cent.commissions to said commissioners, and the said two hundred and seventy-five dollars to said John R. Knight, and the balance then remaining to the said Richard Holden, Sr. (4) If, upon tender of said two hundred and seventy-five dollars by said Richard Holden, Sr., to said John R. Knight, the said John R. Knight shall fail to execute and deliver the quitclaim before mentioned, then the said commissioners shall sell said lot of land in manner as aforesaid, and out of the proceeds of sale shall pay the said John R. Knight said sum of two hundred and seventy-five dollars, less the expenses of sale and commissions as aforesaid, which shall be paid out of said two hundred and seventy-five dollars, and the balance of the proceeds shall be paid to the said Richard Holden, Sr. That the action pending in the superior court of Franklin county, wherein said John R. Knight is plaintiff and said Richard Holden, Sr., is defendant, shall abate, each party to pay his own cost. This 20th day August, 1885." Signed by C. M. Busbee, arbitrator, and witnessed by C. M. Cooke.

KNIGHT V. HOLDEN. (Supreme Court of North Carolina. Oct. 21, 1889.)

ACTION TO ENFORCE AWARD-COSTS.

1. An award that defendant pay plaintiff $275, and that on said payment plaintiff shall execute and deliver to defendant "a good and sufficient deed of quitclaim in fee of and to said lot," sufficiently disposes of the questions as to "the title and right of possession to a lot situate," etc., under the submission.

2. Where defendant, after submitting a cause to arbitration, resists the award, so that plaintiff is obliged to bring an action to secure the relief awarded, and the same relief is given in the action as was attempted to be given by the arbitrator,

defendant will be taxed with costs.

Appeal from superior court, Franklin county; J. F. GRAVES, Judge.

While an action by the plaintiff against the defendant for the recovery of certain personal property of which the latter had taken possession, under a claim of right thereto, was pending in the superior court of Franklin, the parties, with a view to an adjustment of matters in controversy, en- In pursuance of the award the land was, tered into a written agreement to submit after advertisement, put up and sold by the the same to arbitration, as follows: "We commissioners to the plaintiff at the price agree to refer all matters in dispute be- of $275, and their deed made to him theretween us, including the title and right of for. The present action is to recover compossession to a lot situated in the town of pensation for trespasses committed on the Youngsville, adjoining the lands of M. land, to have title declared to be in the Woodlief, Dora Green, Joseph Young, and plaintiff, and for a perpetual injunction John Young, containing seven acres, and against the committing of further waste, including an action for claim and delivery for which, by reason of defendant's alleged now pending in Franklin superior court at insolvency, no redress could be obtained. the instance of John Knight against Rich-Upon the trial the court rendered the follow

ing judgment: (1) That the award, in so | fendant. Possession follows title, and is far as it provides for the sale of the land drawn to it, nothing else appearing to the described in the complaint, and the sale of contrary, and so the award, in legal effect, said land, and the deed made by the com- in determining the one determines the othmissioners in pursuance of said sale, be, er. Hence the necessity of the sale to disand is hereby, set aside. (2) That the plain- charge the attaching incumbrance. The tiff hold the said land charged with the award, then, does pass upon both inquiries sum of $275. (3) That the defendant shall as fully as if in more particular terms. have 90 days in which to pay said sum, and The last objection is to the judgment taxupon its payment the plaintiff is directed ing the appellant with the costs of the acto make title to the defendant for said tion. In this we find also no error. The land, and to deliver possession thereof to defendant resists the award as ineffectual the defendant. (4) That upon the default in toto, and in this is overruled, and the of the defendant to pay the said sum with- same relief given as was attempted to be in the said time, then C. M. Cooke and J. given by the arbitrator; so that the presW. Hinsdale are appointed commissioners, ent action was necessary to secure the fruits and directed to sell the said land in of the award, and the general rule prevails Youngsville for cash, after 30 days' adver- which taxes the unsuccessful party with tisement at the court-house and four other the costs of the action. The case relied on public places in Franklin county, and out to sustain the contention of the appellant of the proceeds to pay to the said plaintiff (Vestal v. Sloan, 83 N. C. 555) is not in the sum herein before adjudged to be due to point. There, the defense was a trust to rehim, and the balance to pay to the defend- deem the land, whose possession was ant, after retaining cost of sale, including a sought to be recovered in the suit, and commission of 5 percent. to each. (5) That most of the costs were incurred in determinthe plaintiff recover against the defendant ing this controversy, in which the defendant the costs of this action. prevailed. As, under a divided system, this relief against an action of the legal owner to recover his land would have to be sought in a court of equity, the cost of which would have fallen upon him, so he must be charged when the same result is reached in an equitable defense, relied on in the single action which now admits it. Here the defense is that the award is invalid, and the defendant fails in his resistance to its en

costs his conduct has rendered necessary. There is no error, and the judgment is affirmed.

Case on Appeal. The defendant at the trial admitted the legal title to the locus in quo to be in the plaintiff, and set up an equitable title in himself, insisting that the award of the arbitrator is void, and that it certainly is void, in so far as it provides for the sale of the land. The action was tried on the pleadings, upon the suggestion that, if the judge should sustain the award, it would not be necessary to go any fur-forcement, and of course ought to pay the ther in the trial of the case. His honor held that the award was void, in so far as it provided for a sale of the land, and set it aside to that extent; and also held that the defendant must pay all the costs, although his honor sustained the defendant in his equitable defense, and held that the plaintiff could not recover upon his legal title, but that he held the land in trust for the defendant to secure the amount of the award and costs ($275) due to him, and ordered a judgment accordingly, and all costs. From this judgment the defendant appealed.

J. W. Hinsdale, for appellant. C. M. Cooke and N. Y. Gulley, for appellee.

HILL V. PORT ROYAL & W. C. Ry. Co. (Supreme Court of South Carolina. Oct. 16, 1889.) RAILROAD COMPANIES-CROSSING HIGHWAYS.

Under Gen. St. S. C. § 1535, providing that the county commissioners may lay out a highway across a railroad previously constructed, after due notice to the railroad, when the county commissioners, without such notice, change a highway so as to run it under a narrow span of a trestle, the

railroad is not liable for damages received from the

narrowness of the span.

Appeal from common pleas circuit court
of Laurens county; HUDSON, Judge.
Benet & McGowan, for appellant. Jos.
Ganall and H. Y. Simpson, for respondent.

SMITH, C. J., (after stating the facts as above.) The sufficiency of the terms of the submission to sustain so much of the award as authorizes and directs a sale of the land upon the specified contingency, adversely decided by the judge, is not before us, as the plaintiff acquiescing therein does not appeal; and it is plain that the excess of the arbitrator, being severable from the rest of his award, does not invalidate what is done within the terms of the reference. Griffin v. Hadley, 8 Jones, (N. C.) 82; citing|poration, in building and maintaining its Cowan v. McNeely, 10 Ired. 5.

MCGOWAN, J. This was an action by the plaintiff against the defendant corporation, claiming damages for a personal injury received by the plaintiff by coming in contact with the timbers of defendant's trestle, near Badgett's mill, in Laurens county. The complaint alleged "that the defendant cor

road-bed across the public highway at It is insisted by the appellant that the Badgett's mill, in Laurens county, so award is inoperative and void, because it wrongfully and negligently built and maindoes not dispose of the question of title tains the trestle of its road over and and right of possession. We do not con- across said highway at said place, by reacur in this view of the award. The title, if son of the narrowness of the passage, the not in direct terms, by clear and irresistible great obliquity to the public highway, the implication is declared to be in the plain- close proximity of said passage to the steep tiff, and this was admitted at the trial. At grade of said highway, and the want of the same time the land is declared to be repair of said crossing, that the said crosscharged with the sum of $275 due to the de-ing was and is extremely dangerous to the

traveling public. That in conse- | plaintiff appealed upon the following quence of the defendant's negligence in grounds: (1) Because his honor erred in regard to said crossing, the buggy of the finding that the plaintiff has entirely failed plaintiff, in which he was riding along to show that the railroad company caused said highway, on September 26, 1887, at said the accident. (2) That he erred in finding crossing, was dashed against the timbers that there was no evidence whatever that of the defendant's trestle at the side of the the old road was abandoned, because of the narrow passage of said crossing, without benches being only eleven feet apart. (3) fault of the plaintiff, and was thereby Also in finding that the abandonment of the broken and overturned, by means of which old road has nothing to do with this the plaintiff received great bodily injuries, particular accident. (4) That he erred in and a broken leg and other wrongs and in- considering the question of contributory juries, to his damage, ten thousand dol- negligence.' "(6) In finding that it was lars," etc. The defendant corporation an- clear as the noon-day sun that the accident swered, denying that it had been guilty of resulted from the fact that this mule can"any negligence in building and maintain- tered off or ran off, and that the driver ing its road-bed at the place designated in lost control of the mule, and was thrown the complaint, or in failing to make repairs in that way against the benches. (7) of the crossing at said place, and denying That he erred in finding that there is that the passage of said crossing has been not only no evidence of negligence on the made, or is, by any acts of negligence of the part of the railroad company, but that defendant, dangerous to the traveling pub- there is proof positive that the mismanlic," etc. The cause came on for trial before agement of the mule on that occasion, Judge HUDSON and a jury. There was much and nothing else, caused this very severe testimony, all printed in the brief, which injury to this old gentleman. (8) That as well as we can summarize it, was sub-he erred in holding that he had the same stantially as follows: The trestle in ques-power to grant a nonsuit as he would tion was constructed in the year 1884, and, have to set aside a verdict for insufficient at that time, what was spoken of in the proof. (9) That he erred in not holding testimony as the "old road," the "old that the testimony introduced at the route" and the "straight road," was the trial tended to sustain the plaintiff's cause acknowledged highway. The trestle crossed of action, and should go to the jury. (10) this highway nearly at right angles, the Because he erred in not holding that it was benches at the crossing being 11 feet apart. the duty of the defendant corporation to This road under the trestle was very bad, restore the highway to its proper width rocky, and hard to keep in repair; but it and safety, both at the original crossing was worked by the county road-hands un- and the adopted crossing, and to keep said til 1886,-two years after the construction crossings in good repair; and that, if any of the trestle. In the year named (1886) the one suffered injury in consequence of such overseer of the road, by the authority of neglect of duty, the defendant should be the supervisor of roads, and with the con- held responsible. (11) Because he erred in sent of Mr. Badgett, (who owned a mill on not holding that the defendant had no dethe stream just above the trestle,) opened cree from the county commissioners for cona new public road over Mr. Badgett's land, structing this track in any particular manwhich left the old road at a point some dis-ner over the branches of the highway near tance from the trestle on the side towards Laurens. This new road crossed under the trestle at a different point from that where the old road crossed. It approached the trestle down a hill, and at an oblique angle, The proof was ample that the plaintiff reand crossed under it by an abrupt turn. ceived quite a severe injury from his buggy The public generally used the new road, and striking with great force against the trestle the road-hands worked it; but it did not of the railroad; and the only question is appear that the crossing of the old road whether that injury was caused by the neghad been formally closed, or that the new ligence of the defendant corporation. A road had been made at the instance of, or railroad company which runs its track upon notice to, the defendant corporation. across a public highway must not injure On the evening of September 26, 1887, the the public road, and for the neglect of that plaintiff and a companion in a buggy, were duty is responsible for the damages caused on their way home, traveling "down the thereby. Section 1531, Gen. St., (railroad new cut road," and when they were within | act,) declares that "when a railroad is laid 65 or 70 yards of the trestle, the mule draw-out across a highway or other way it shall ing the buggy got into and continued in a be constructed so as not to obstruct the very fast trot down the hill, and in making same." Was the injury complained of here the sharp turn under the trestle, the buggy caused by the neglect of this duty by the was dashed against the timbers of the railroad company? If the injury had been trestle, was turned over, and the plaintiff's received at the crossing of the road which leg was broken, inflicting a very severe in- was the highway where the trestle was jury upon him. Upon the close of the plain-built, there would have been some questiff's testimony, the defendant corporation tions of fact for the jury as to whether the moved for a nonsuit, which the judge company had been guilty of negligence in granted, saying, among other things: "So making the trestle-span across the highway that the plaintiff, in my opinion, has cer- too narrow, or in allowing the crossing to tainly failed to show that the railroad com- get out of repair, etc. The damage, howpany, by negligence, caused this accident.ever, was done at a new crossing, made, as There is nothing in that point to go to the it seems, after the trestle had been built, jury," etc. From this order of nonsuit the and at a place which the company could not

Badgett's mill, and that the encroachment of the trestle of defendant upon the highway was a nuisance and negligence of defendant per se," etc.