tained against his principal, from resorting to a Court of Chancery, to es-
tablish, that the property levied on and condemned, had been previously
levied on by a senior judgment creditor, and condemned, pending the trial
of which the last levy was made; and that the property had been deliver-
ed in satisfaction of the judgment of the senior creditor. Babcock & Grif-
fin v. Williams,
150
2. Where lands have been omitted out of a contract by mistake, which is
afterwards corrected by a Court of Chancery-Quere? will judgments ob-
tained against the vendor, after the contract was made, but before its cor-
rection, have a lien upon it? Pierce v. Brassfield, et al.
573
3. The levy of a sheriff, or the lien of an execution, does not change the
title of the defendant in execution into a mere right of action, but he may
transfer or sell the property in the same manner as if no levy, or lien ex-
isted, though in the hands of his assignee, it will continue subject to the
levy, or lien. Atwood v. Pierson,
LIMITATIONS AND NON CLAIM, STATUTES OF.
1. In a suit against the administrator of one of the obligors to a bond, con-
ditioned to make title to land, within a convenient time after an infant
feme covert came of age, the bar of the statute of non-claim begins to run
from the time the feme comes to full age, and not from the death of the ob-
ligor. Pinkston v. Huie,
252
2. A promise by one of two administrators to pay the debt, is sufficient to
take the case out of the statute of limitations, when the action is against
him only, after the decease of his co-administrator. Hall, Weeks & Co. v.
Darrington,
502
3. A witnesses certificate is not an open account, so as to be barred by the
statute of limitations of three years. Carville, &c. v. Reynolds,
See Criminal Cases, Proceedings in.
See Guardian and Ward, 5.
1. When duties are imposed on the Circuit Judge as an officer, another Cir-
cuit Judge has no power to issue a mandamus. The State ex rel. Thomp
son v. The Circuit Judge of Mobile,
2. A mandamus from the Supreme Court is the proper remedy when a Cir-
cuit Judge, in his capacity of supervisor of an election refuses to give the
proper certificate to the person shown to be elected. And this is so, al-
though the office may be full, or a new election ordered, in consequence
of a certificate improperly given. Ib.
1. The master or mistress of a slave, when assaulted by another, may command the slave to aid in repelling the threatened injury; but the employment of such an instrument of defence, would of itself aggravate any injury which might result, and enhance the damages, unless the threatened danger was so immiment, as to render a resort to any means justifiable, or at least excusable, to prevent irreparable injury. Pinkston and Wife v. Greene and Wife,
2. If a master permits his slave to retain and dispose of a portion of his earnings, he cannot afterwards reclaim them; and where the slaves under such permission placed the part yielded up to him in the hands of a third person to be invested in real estate, and a title taken in the name of such person, that the slave might have the benefit of the purchase, there is no resulting trust in favor of the master; nor would any subsequent master, in virtue of his purchase, acquire such right. But where the person who has invested the slave's money sold the property, counted the proceeds in his presence, acknowledging it to be his, borrowed from him a part, and promised to return it, the law will consider this a promise to perform that which was previously a moral duty, and it inures to the master, though he may have purchased the slave subsequent to the investment of the money. Shanklin v. Johnson, 271 3. The master may maintain an action of trespass against an overseer, who inflicts cruel or immoderate punishment upon his slave. Gilliam v. Sen
See Freehold and Freeholders, 2.
See Overseers, 1.
MORTGAGOR AND MORTGAGEE.
1. A decree that D is entitled to certain lands, and that he be let into the possession, charged with the payment to C of a sum of money, does not make C a mortgagee of the lands. Davenport v. Bartlett & Waring, 180 2. A mortgagee who is not in the actual perception of rent, and does not intermeddle with the property, cannot be charged with rent. Ib. 180 3. Where the mortgage provided, that after default of payment the mortgagee might enter, the mortgagor is entitled to possession until such default; and if the land is rented, the tenant is liable to his londlord for the rent 9 after default, if he has not been notified by the mortgagee not to pay it over. Smith v. Taylor,
4. Although a mortgagee of personal property with the power to take possession of and sell the same upon the mortgagor's default, may interpose a claim under the statute to try the right, when it is levied on by execution, yet he may waive his legal right, and resort at once to a Court of Equity, where all interests may be adjusted, and justice more completely administered. Anderson, et al. v. Hooks, et al.
MORTGAGOR AND MORTGAGEE-CONTINUED.
5. The pendency of a suit by the mortgagor of a slave against the mortga-
gee for a foreclosure, is sufficient notice to one who takes a mortgage
pendente lite, to prevent the last mortgage from having the priority, al-
though that is, and the first one is not recorded. Bolling v. Carter & Wo-
mack,
NEW TRIAL.
See Practice at Law, 15.
1. Where one purchases while a person other than the vendor is in posses-
sion, under a claim of title, or as an incumbrancer, this is sufficient to put
the vendee upon inquiry, and in legal effect will be equivalent to notice of
an incumbrance. Smith & Co. v. Zurcher, &c.
208
2. Where a party had an equitable title to one half of a tract of land, of
which the line had not been run and ascertained, and was not one of the
subdivisions of land known to the land office, a possession, to be notice,
must cover the entire tract claimed. Hanrick & Powell v. Thompson, 409
3. The pendency of a suit by the mortgagor of a slave, against the mortga-
gee for a foreclosure, is sufficient notice to one who takes a mortgage pen-
dente lite, to prevent the last mortgage from having the priority, although
that is, and the first one is not recorded. Bolling v. Carter & Womack, 921
See Vendor and Vendee, 11.
1. A purchaser of land at a sale made by commissioners, under the order of
the Orphans' Court, cannot object to any irregularity in the action of the
commissioners, if the sale is confirmed by the court. Jennings & Graham
v. The Administrators of Jenkins, et al.
2. Where G purchased land at a commissioner's sale, and executed his note
with J as his surety, and J afterwards, with the consent of G, procured the
commissioners to cancel the sale, executed his own notes, with security
as the purchaser of the land, and was returned as the purchaser to the
court, by which it was confirmed-Held, that he could not afterwards re-
scind the sale, on the ground that the power of the commissioners was ex-
hausted by the first sale. Ib.
285
3. The Orphans' Court has power to order the sale of an equitable title to
real estate, in all cases where it may order a sale of land. Ib. 286
4. Sales made by order of the Orphans' Court are judicial sales, and the rule
caveat emptor applies. Worthington, Adm'r, v. McRoberts, et al.
5. Three commissioners were authorized by the Orphans' Court to sell land
ORPHANS' COURT-CONTINUED.
but one attended in person, and another was present by an agent, and two
united in making a report of the sale to the court, by which it was con-
firmed. The purchaser having executed his notes, and taken possession
of the land, which he retained for about three years—Held, that he could
not abandon the possession, and refuse to pay the purchase money, for an
alledged irregularity in the sale. Ib.
297
6. No precise form of words is necessary to be employed in confirming a sale
made by commissioners. Any thing which expresses the approbation of
the court, to the action of the commissioners, is sufficient. Ib.
297
7. The court has the power, if it thinks proper, to withhold the title, until the
purchase money is paid. Ib.
297
8. With the exception of contested wills, and the provision of the act of 1843,
for a trial by jury in the case of insolvent estates, the Orphans' Court has
no power to impannel a jury to ascertain a disputed fact, unless there is a
real doubt in relation to it, requiring a cross-examination to elicit the truth,
And in such a case the necessity for impannelling a jury must appear, by
setting out the testimony in the record, so as to enable an appellate court
to revise the order. Willis' Adm'r v. The Heirs of Willis,
330
9. When a matter is properly submitted to a jury, by the Orphans' Court,
and its decision is adopted by the court, it cannot be reviewed in this court.
Ib.
330
10. Annual, or partial settlements, made by an administrator, or guardian, in
conformity to law, are prima facie to be considered correct, but may, on
the final settlement be impeached by proof, showing their incorrectness.
ль.
11. To authorize the vendee of real estate, who holds the bond of a deceased
person, conditioned to make a title, to proceed in the Orphans' Court to
enforce a performance, he should disclose in his petition such a state of
facts as indicate he comes within the category intended to be provided for
by the statute. Consequently it should be alledged, that the executor, or
administrator, of the obligor, received his appointment from the Orphans'
Court of the county in which the petition is filed. Crimm's Adm'r v.
Townsend,
403
12. Where an administrator, in the settlement of his accounts, exhibits the
receipts for money paid by him to one who subscribes his name as guar-
dian of the infant children of the intestate, but does not prove that such
person was guardian, or that the money had been appropriated to the use
of the children, the Orphans' Court should not allow the payments. Lan-
dreth's Adm'r v. Landreth's Distributees,
430
13. Under the statutes of this State, the Orphans' Court is invested with pow-
er to determine the validity of bequests, and consequently to declare their
invalidity; but this power does not extend to trusts created by will, nor to
ORPHANS' COURT-CONTinued.
litigation between the cestuis que trust and the executor as trustee. Har-
rison v. Harrison, et al.
470
14. Partial settlements previously made according to law, are upon the final
settlement to be considered as prima facie correct, but may be surcharged
and falsified by the distributees. Ex parte allowances, made to the ad-
ministrator, without any cause assigned therefor, are nullities. Brazeale's
Adm'r v. Brazeale's Distributees,
15. When a decree of distribution is not made at the final settlement, no such
decree can afterwards be made, without notice to him, setting forth when
the decree will be made, and who claims the right to distribution. Ib. 491
16. Where a life estate was bequeathed to one in Georgia, in certain slaves,
who was also appointed executrix, and qualified as such, and afterwards
removed to this State, bringing the slaves with her, the Orphans' Court
of this State has no power to grant administration upon the property,
though the will be produced, proved, and recorded, and the executrix as-
sent to the appointment of an administrator cum testamento annexo. Tread-
well v. Rainey,
590
17. The return by a guardian frem time to time of the account between him-
self and ward, and ordering the same to be recorded by the Orphans' Court
is not such a res adjudicata as will prevent either party from showing an
error in such returns, and estop the court upon final settlement from ex-
amining the debits and credits on both sides, from the commencement of
the guardianship, and rendering such decree as will be proper upon a
view of all the facts. And the marriage of a female ward, after such occa-
sional returns, cannot prejudice the guardian, or deprive him of credits
that would have been available if the ward had continued sole. Cunning-
ham and wife v. Pool,
615
18. The act of 1821, which authorizes the Judge of the Orphans' Court to
summon a jury to determine a contested fact, is not imperative upon the
court, so as to take from the judge the power to decide for himself in such
a case; and if no error appears in his decision, made without the interven-
tion of a jury, it will not reversed. Ib.
615
19. The act of 1803, which provides for receiving, auditing, and stating the
accounts of guardians, &c., and for exceptions to the report thereof, does
not require a written voucher to support each item, or warrant the exclu-
sion of oral testimony upon an exception to the stated account. lb. 615
20. Where letters of administration are revoked upon the failure of the ad-
ministrator to renew his bond, as required by statute, and upon the settle-
ment of his accounts, in the Orphans' Court, a decree is rendered against
him, for the amount due by him to the estate, in favor of his successor,
execution ordered to issue thereon-the decree, at least as it respects the
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