ACCOMPLICE-See Witness, 1.
ACCOUNT AND SETTLEMENT See Evidence, 5; Executors and
Administrators; Mortgagor and Mortgagee, 1; Practice, 8, 14.
1. The signatures of the presiding officers, by article two, section
twenty-three of the constitution, must be affixed to an act of leg-
islation during the session of the general assembly, and are nec-
essary to its completeness and efficacy. Scarborough v. Robin-
son, 409.
2. The judicial power cannot be exercised in aid of an unfinished
and inoperative act, so left upon the final adjournment, any
more than in obstructing legislative action. Ibid.
ACTION, form of See Contract, 3 (3).
ACTION, joinder of—See Guardian and Ward, 4.
ACTION FOR PENALTY-See Sheriff.
ACTION TO RECOVER LAND:
1. Whenever a defendant is wrongfully dispossessed of his land by
legal process, he is entitled to a writ of restitution and an inqui
sition of damages in that action, of which the plaintiff is not
permitted to deprive him by taking a nonsuit. Lane v. Morton,
38.
2. Purchase money paid on agreement for sale of land, is in equity
considered as land, and if the contract be vacated after the death
of the vendee, it goes to the heir; and hence, in an action to re-
cover the same the heir is the proper party plaintiff. Young v.
Young, 92.
3. A parol contract for the purchase of land is void under the stat-
ute of frauds, but the plaintiff's right of action in this case is
thereby only affected pro tanto. Ibid.
4. Quære-As to whether under the circumstances of this case the
defendants are not concluded by an equitable estoppel from de-
nying the plaintiff's title. Ibid.
5. Where, upon the trial of an issue of fraud in the sale of land, the
fact that the grantor remained in possession after conveying, is
competent evidence; any act or declaration of his, characteriz-
ing his possession as fraudulent or otherwise, is also competent.
Hilliard v. Phillips, 99.
6. A levy, made in 1846 under a justice's execution, which describes
the land as lying "on the waters of Tyson Creek, adjoining the
lands of Bryant Burroughs and others, containing two hundred
acres, more or less," is sufficient under Rev. Code, ch. 62, § 16;
and a sheriff's deed which conforms to such description confers
at least color of title on the purchaser. Ibid.
7. In such case parol evidence is admissible to fit the description to
the land. Ibid.
8. When the adverse parties to an action involving the title to land
derive their claims from the same person, neither is at liberty
to dispute that person's title, or to assert a superior and better
title in another, unless he has acquired that title, or, in some
way connects himself with the true owner.
Caldwell v. Neely,
9. Improvements put on land by a life-tenant during his occupancy
thereof do not constitute a charge upon the land when it passes
to a remainderman. Merritt v. Scott, 385.
10. A defendant in possession of land under the belief that he has a
good title, has the right to show in evidence in an action to re-
cover the land, that he has in good faith made permanent im-
provements after his estate had expired, and their value, to the
extent of the rents and profits claimed by the plaintiff. (Bat
Rev., ch. 17, § 262 (a). Remarks of SMITH, C. J., upon the pro.
visions of the act of assembly in such cases.) Ibid.
11. Where, in an action to recover land, the plaintiff showed title
out of the state by a thirty years' possession, and, without pro-
ducing any paper title, relied upon section eight, chapter four-
teen, of Battle's Revisal, concerning "burnt records;" it was
held, that this statute did not make it necessary for the plaintiff'
to show a seven years' adverse possession in addition to the thir-
ty years to entitle him to recover.
Hill v. Overton, 393.
12. In such case the lapse of seven years' adverse possession concur-
rently with the thirty years necessary to raise the presumption
of a grant, is sufficient. Ibid.
13. Whenever the record of a trial in a former action is pleaded as
an estoppel in a subsequent action, and such record fails to dis-
close the precise points on which the first action was decided, it
is competent to the party pleading it to aver the identity of the
point or question on which the decision was had and to support
it by proof; and the same, if proved, is equally conclusive as if
the same matter appeared of record. Yates v. Yates, 397.
14. In such case, averments and parol proof may be resorted to in
support of a record whenever the verdiet and judgment are vague,
with this limitation only, that it should be such as to show the
question of fact decided in the first action and its materiality,
with such precision as to indicate clearly that it was material and
must have been passed on by the jury. Ibid.
15. In an action to recover land, where the defendant pleaded as an
estoppel the verdiet and judgment in a former action wherein the
plaintiff sought to recover of the defendant the possession of the
land in question and claimed title under a deed to him from Y.,
which defendant assailed as a forgery, and the jury found against
the plaintiff's right of possession; Held, that the question of the
validity of the deed was, in a legal sense, of the substance of
the issue, and the verdict of the jury was the same thing as de-
ciding adversely to title in the plaintiff; and that the plaintiff
was thereby estopped. Ibid.
16. When on the trial below, the court charged that a will devising
"all my lands on both sides of Haw river in Chatham county,
and all the mills and appurtenances and improvements thereto,
said property being known as the McClenahan mills" was color
of title, provided the jury found that the tract of land was well
known throughout the county by the name used in the will and
its metes and bounds were all ascertained, visible and known,
and that the plaintiff, and those under whom he claims have been
in actual adverse possession, &c. Held, not to be error. Henley
v. Wilson, 405.
17. Held further, that in such ease, the qualification in the charge
"provided that the jury find that the tract of land was well
known throughout the county by the name used in the will" was
unnecessary. Ibid.
18. In an action for damages for trespass upon land, the fact that
the plaintiff contributed to enhance the injury occasioned by the
wrongful act of the defendant does not excuse the defendant, al-
though it may go in mitigation of damages.
See Evidence, 3, 4; Landlord and Tenant; Purchaser; Statute of
ADVERSE POSSESSION-See Action to recover land, 8, 11, 12, 16;
Statute of Limitations, 4.
ADVERSARY PROCEEDING See Judgment, 5.
AFFIDAVIT-See Attachment; Evidence, 2; Practice, 10, 16, 22, 47.
1. It is incumbent on one who has dealings concerning a note past due
with an agent acting under a limited power, to "look out for the
power" under which the agent acts. Earp v. Kichardson, 5
See Attachment, 5; Attorney and Client; Evidence, 10; Lien, 4;
Trusts and Trustees, 5 (1)
AGREEMENT See Evidence, 8. 9; Judgment, 3.
AMENDMENT-See Attachment, 1; Jurisdiction, 5; Practice, 16, 46
ANCILLARY PROCEEDING-See Attachment.
ANSWER-See Interest, 3; Pleading.
APPEAL.-See Evidence, 6; Practice, 21, 23, 24, 40; Roads, 1.
APT TIME-See Practice, 30.
ASPORTAVIT-See Larceny, 2.
Defendant, after using threatening language with reference to the
prosecutor and in his hearing, advanced upon him with a knife,
continuing the use of violent and menacing expressions; the ev-
idence left it doubtful as to whether or not the knife was open
when defendant got within five or six feet of the prosecutor the
latter said, "I shall have to go away," and withdrew from the
work on which he was engaged: Held, that defendant was prop-
erly convicted of an assault. State v. Shipman, 513.
ASSENT-See Judgment, 4; Partition of Land, 1.
ASSIGNEE-See Husband and Wife, 8; Lien, 1.
1. It is not necessary that the affidavit upon whicb an attachment is
sought should state either that the court has jurisdiction of the
subject matter of the action, or that the defendant has property
in this state. Branch v. Frank, 180.
2. It is error to discharge an attachment granted as ancilliary to an
action, because of the insufficiency of the affidavit to obtain ser-
vice of the summons by publication, for it is possible the defect
may be cured by amendment. lbid.
3. The court will not surrender property in custodia legis if its deten-
tion appear reasonably necessary to protect the right of the
plaintiff until the trial. Bruff v. Stern, 183.
It appeared from the affidavit for an attachment (made by plain-
tiff's agent) and the accompanying exhibits, that the defendants,
partners in trade, had made an assignment of their entire stock
to the father-in-law of one partner, in trust, after the payment
of the expenses incident to the assignment and a five hundred
dollar personal property exemption to each partner, to sell pri-
vately the goods, &c., and apply the proceeds to the satisfaction
of the firm debts, the trustee being a preferred creditor in an
amount sufficient to absorb the entire assets devoted to the debts.
The trust deed contained a proviso that the general creditors
should be paid only upon the condition of their releasing all
claims against the individual partners. The affidavit also alleged
that the trustee, who lived in a distant state, had delegated his
charge to his own son and the assigning partners. It further ap-
peared that in about four months immediately preceding the as-
signment, the assignors had converted about five thousand dol-
lars' worth of their stock into money, of which the creditors had
received not more than one-ninth;
Held, that such affidavit, embodying the foregoing facts, and
stating that the defendants had disposed of and secreted their
property, with intent, as the agent believed, to defraud the plain-
tiff's, was sufficient to warrant the continuance of the attachment
until the trustee and all persons interested could submit their
conflicting statements and interests to the decision of a jury.
Ibid.
Held further, that the personal property exemptions provided
for by the deed should be paid out of the first money coming
into the trustee's hands, and not out of the residue liable to the
claims of the general creditors. Ibid.
5. The provisions of C. C. P., § 117, requiring that verifications made
by agents shall state why they are not made by the principals,
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