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Branch, Sons & Company vs. DuBose et al. grounds. The motion was overruled by the presiding judge in the following opinion, which reports the case:

“This suit was brought to recover one-fourth of the proceeds of a lot of cotton sold by the defendants as factors. The plaintiffs claim that the cotton was raised, in 1872, on a plantation owned by them in South Carolina, and rented to two persons named Smith, who sent it to market. These facts are not denied. The plaintiff's further claim that they were entitled, by the terms of their lease, to one-fourth of the crop by way of rent, and that the defendants received the cotton for sale with notice of this interest, and understanding that they were to account for it. The defendants admit the receipt and sale of the cotton and the amount of the plaintiffs' interest, if they have any interest, but deny any such interest, inasmuch as they say the cotton was sent to them by the Smiths in their own names alone, without any notice of the plaintiffs' claim. They set forth a lien on the cotton, as the property of the Smiths, for a general balance of advances on their crop, anıl they insist, moreover, that James R. DuBose, guardian for Susan W. DuBose and her brother, then both minors, settle the account with the defendants, assuming the debts due to the defendants from the Smiths in the name of his firm of Arnold & DuBose, and taking to that firm all claim to the cotton and its proceeds."

“I believe these are the facts as insisted on by the opposing parties.

I. “The first ground of the motion for a new trial, is the refusal of the court to continue the case for want of the testimony

of F. E. Smith. He was one of the tenants who raised the cotton, and the defendants hoped to contradict by him the testimony of W. D. Smith, his co-tenant, which had been offered on the other side.

“Now, in the first place, it was not sufficiently shown to the court, what Mr. F. E. Smith's evidence would be ; and, in the second place, no diligence was shown to obtain it on the part of the defendants. The plaintiffs had issued a commission for him, which was not returned. But this was not the

Branch, Sons & Company vs. DuBose et al. act of the party seeking the continuance. It is true that W. D. Smith's depositions had been very recently returned to court, within a day or two, if I remember right, and the defendants were only then aware of the necessity of contradicting him. But suppose he had been on the stand, and his evidence had been what the defendants did not expect, could these parties have claimed a continuance in the mere hope of obtaining contradictory testimony? I can see no difference between the two circumstances.

II. “ The second ground of the motion is the refusal of the court to strike out the testimony of W. D. Smith as to the arrangements for the crop of 1871, the crop of 1872 being the subject of litigation. There was evilence going to show that the arrangement of 1871 was continued to 1872, with the knowledge of the defendants. Whether that evidence was sufficient or not, I was not competent to decide at that stage of the case. It was certainly sufficient to make the testimony objected to admissible, and the effect of the whole was matter for the jury, and not for me to decide.

III. "The third ground is the striking out of one of the defendants' pleas. This plea set forth a recovery, in Wilkes superior court, by the minors against their guardian, James R. DuBose, and his securities, on his guardian's bond, for divers charges of mismanagement, and the ground taken was, that admitting their claim against the defendants to be prima, facie valid, they had elected to pursue a co-ordinate remedy, and were estopped by that. This ground and the eighth, involve the same question of estoppel, which I will consider when I come to that ground. At present, I only remark that though the plea did state that the claim was embraced in the suit in Wilkes, the record of that suit showed that it was not, except in the general and loose language of other defaults,' or worils to that effect, so that it did not appear that this matter had ever been adjudicated, nor was it pleaded or claimed that the judgment in Wilkes had ever been satisfied.

IV. “The fourth ground of the motion is the ruling out of the receipt of Arnold & DuBose.

Branch, Sons & Company vs. DuBose et al.

lst. “This paper was res inter alios acta, and could prove nothing between the parties.

21. “If the documents mentioned in that paper were received by Arnold & DuBose, there was higher evidence of the fact, the testimony of the parties, and the person who signed the receipt was actually, on the stand as a witness. A mere written memorandum drawn by a third person is no evidence.

“No other ground stated in the motion was urged in the argument, except the eighth. I therefore dispose of the remaining grounds without comment.

VIII. “The eighth ground raises the question whether the minors in the case, were estopped by the act of their guardian in the transfer of the entire interest in this cotton to Arnold & DuBose. The ground states that the guardian was present and permitted 'the arrangement to be made. The evidence was that he made it himself, which perhaps strengthens the force of this ground for a new trial. I shall consider it in that light, and then the question arises, can a guardian dispose of the property of his ward, for his own benefit, without complying with the forms of law? Again, does the

purchaser of such property, having notice of the ward's interest, acquire a title under the sale, leaving the ward to his remedy against the guardian? Again, is the ward estopped as against the purchaser, by this act of the guardian ? Does the suit against the guardian amount to such an election of remedy as to relieve the purchaser until the judgment against the guardian is satisfied ?

“I do not think argument necessary in answering any of these questions.

“The rule for a new trial must be discharged.” To this judgment defendants excepted.

FRANK H. MILLER, for plaintiffs in error.

BARNES & CUMMING, for defendants.

Brady et al. vs. Walters.

JACKSON, Judge.

Susan DuBose and William W. Simpson sued Branch, Sons & Company in the city court of Angusta, for the sum of $984 82. The jury found for plaintiffs. A motion was made for a new trial on various grounds. We think none of them good, and adopt the opiniou of Judge GOULD contained in the record, as our own, a syllabus of which 'will appear in the head-hotes furnished the reporter. We remark that we find no plea at all set out in the record. A copy of an amended plea appears in the motion for a new trial, and that, so far as this record discloses the pleadings, is the only plea defendants filed. In the judge's opinion overruling the motion for a new trial, there are also allusions to other pleas; however that may be, the evidence is overwhelming in favor of the verdict, and the result must have been the same, no matter what pleas had been filed.

Judgment affirmed.

MARY J. BRADY et al., plaintiffs in error, vs. SIMEON WAL

TERS, defendant in error.

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1. Where land was conveyed to B., the wise of C, for her sole and separate

use, and for the use of her children born and to be born by the said C., to have and to hold the same for the uses aforesaid, a trust estate was created in B. for her sole and separate use, and for the use of her children, as

above described. 2. The trust was not executed until all probability of the birth of any more

children from B, by C., had become extinct. 3. The fraud necessary to defeat a title by prescription, under section 2683,

must be such as would affect the conscience of the party obtaining it with bad faith and moral turpitude. The mere fact that the deed under which the defendant holds was the result of a sale by a trustee, not made in strict

conformity to law, does not constitute such fraud. 4. Where the legal title to land was in a trustee for infants, and he fails to in

stitute suit therefor until his right of action was barred, the cestui que trusts are also barred.

VOL. LV. 3

Brady et al. vs. Walters.

Trusts. Prescription. Fraud. Statute of limitations. Before Judge CLARK. Sumter Superior Court. October Adjourned Term, 1874.

Reported in the decision.

W. A. HAWKINS; B. P. HOLLIS; J. W. BRADY; G. W. WOOTEN, for plaintiffs in error.

Cook & CRISP, for defendant.
WARNER, Chief Justice.

This was an action of ejectment brought by the plaintiffs against the defendant to recover the possession of lot of land oumber two hundred and ten, in the twenty-seventh district of Sumter county. On the trial of the case, the jury, under the charge of the court, found a verdict for the defendant. A motion was made by the plaintiffs for a new trial on the several grounds set forth therein, which was overruled by the court, and the plaintiffs excepted.

The plaintiffs claim title to the land in dispute under a deed made by Wright Brady, dated 26th of January, 1860, by which the grantor conveyed the lot of land to Mary Jane Brady, the wife of Martin J. Brady, for her sole and separate use, and for the use of her children born and to be born, to have and to hold the same for the uses aforesaid. Some time in the year 1863, probably in October, the exact date does not appear, Mary Jane Bradly and her husband, petitioned the judge of the superior court to appoint the said Martin J. Brady, the husband of said Mary Jane, trustee for herself and children, and also prayed for an order to sell said lanıl, and invest the proceeds thereof in more productive property, for the benefit of the said Mary Jane and her children. On hearing and considering the application, the judge appointed Martin J. Bradly trustee for his wife Mary Jane and her children, naming them, upon his giving bond and security in the sum of $4,000 00 faithfully to account to his cestui que trusts for the product of said sale and the investing the

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