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Bazemore vs. Davis.

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was conveyed; and that as the said Reynolds, as trustee for said Sarah only, conveyed the property embraced in the deed from Mosely, trustee, and in that from said mayor, etc., of Macon, to Job Taylor, without referring to the child or to the conveyance from Mosely, and without defining what estate he held in trust, but simply referring to the deed from said mayor, etc., as having been made to him “as trustee as aforesaid” on the day of its date, that no title to defendant's interest in either parcel of land passed. Also, that the reference to the deed from the mayor, etc, charged Taylor and those holding under him with notice of the terms thereof, and of the fact that said Sarah had only an estate for life in the land covered by the conveyance from Mosely, trustee, with remainder to the defendant.

Upon these positions the court charged the jury that, under the law, the mayor of the city of Macon could only convey the advance front of streets to the owners of the lots adjoining, and such deeds must follow the title to the adjoining lots; that, therefore, although the deed from said mayor to Peyton Reynolds, as trustee, covering the advance front, conveyed the use and proceeds to Sarah Page for her life, with remainder to defendant, yet, that neither Job Taylor, nor any other purchasers under him, were charged with notice of the trust stated in this deed, but that they had the legal right to presume that the Mosely deed to the adjoining lot stated the trust correctly.

9th. The complainant insisted that under the terms of the Disharoon marriage settlement the surplus income of the trust property, realized during the life of the wife, after providing for the support of the beneficiaries, belonged absolutely to her; and that, as one half of the purchase money paid by Reynolds, trustee, to Mosely, trustee, for the aforesaid lot number six, came from surplus income, she, the life tenant, was the equitable owner, in fee, of one-half of said lot; and that, as complainant held under a chain of title coming through her, under no circumstances could defendant recover

Bazemore vs. Davis.

more than one-half of the property in controvery. The court so charged.

A condensed statement of the material portions of the testimony introduced upon the trial, in addition to the deeds alreally set forth, présented the following case :

The defendant, Amanda Bazemore, is the only child of William H. Disharoon; she was born in March, 1843; her father died in 1847 or 1848; her mother afterwards married Henry B. Page ; defendant married Marcus D. Bazemore in 1853, when she was but a little over fourteen years of age; she was divorced from her husband in 1863, and re-married him in October, 1865; her mother died in October, 1868. Of the proceeds of lot number six, in the southwestern range of the city of Macon, $1,200 00 was invested by Reynolds, trustee, in a plantation in Houston county. About this time the trustee purchased a negro woman and two children, but whether with a part of the proceeds of the aforesaid lot, or not, the evidence leaves in some doubt. A year or two after the purchase of the Houston property, Mrs. Page became dissatisfied, and the trustee, at her solicitation, bought a house and lot near the city of Macon ; part of the purchase money therefor was paid from the proceeds of the aforesaid lot number six, part from the funds of Mrs. Page, and part from the sale of two negroes belonging to the trust estate.

The evidence is somewhat indefinite as to how the fund paid for the lot near Macon was raised, but the above statement seems most in harmony with all the testimony.

On October 27th, 1857, Marcus D. Bazemore executed a post-nuptial settlement, wherein, having recited that whereas one William H. Disharoon, shortly after his marriage, made a settlement of all his property upon his wife for life, and at her death, to the issue of such marriage; and whereas, the said Disharoon having died, his widow married one Henry Page, and he (Bazemore) having married the only surviving child, (the defendant,) and being willing to gratify her mother's wishes in the premises, he, in consideration of love, etc., for his said wife, and of a certain arrangement with his

Bazemore vs. Davis.

mother-in-law, by which she was to loan to him a portion of such trust property, being expressed in a writing bearing same date with his deed, sold and conveyed unto Peytou Reynolds, all his title, etc., to the remainder interest of his wife in the plantation in Houston county, certain live stock and plantation tools, certain slaves, together with their increase, and all other property or interest therein that he may be entitled to, or to which he may become entitled by virtue of his marriage to his said wife, or by virtue of her father's said deed of gift, for the following uses and purposes : For the sole and separate use of his said wife during her natural life, and at her death to such child or children as shall be born to said Amanda and him, free from any debts he might thereafter contract. He reserved the right to use the rents, issues and profits of all of said property (increase of negroes not included,) without accountability during his coverture with his said wife; also, the right to consume the hogs and their increase, and such cattle as may vest in him under the aforesaid deed of gift or marriage settlement.

The instrument further provided that if his wife should die before him, leaving a child or children of the marriage, he was to have the right to use and spend the rents, issues and profits of said property during his life, without accountability, except as to the corpus and the natural increase of the negroes. Also, that in case be outlived his wife, then all of said property, with its increase of every description, should vest absolutely in him.

Reynolds accepted the trust.

Defendant testified, in brief, as follows: Knows that her mother moved to lot number six, in the city of Macon. There was then a good six-room dwelling-house and the necessary out-houses on the

and the lot was enclosed. She was then but seven or eight years old, and cannot remember much about the improvements. When this property was sold, did not know whether it was sold or rented. She was at the time absent at school. Knows that her mother and step-father moved to a place in Houston county, but is entirely unac

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Bazemore vs. Davis.

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quainted with the manner in which it was purchased, or what money paid for it. About the time she moved to Houston, two negroes were sold for about $1,250 00, but does not know what was done with the money. About the same time her mother bought a negro woman and two children for $1,200 00, but does not know what money was used in the payment for them. When she was not at school, prior to her marriage, she lived with her mother and step-father. After her marriage she lived with her husband. After her mother's death she and her husband took possession of the Houston place. Her husband sold this place, over her objections, for $1,350 00. She did not see the money paid, as she went out of the house to avoid it. After her husband received the money, he went off to Macon, and she did not see him for two weeks. He spent it all in the payment of debts contracted before bis marriage. He also sold the place near Macon for $800 00. He spent this money with the exception of $25 00 or $30 00, which he let her have. (Though the evidence is silent on the subject, yet the answer admits that defendant joined in the conveyance of both of the above pieces of property, alleging as an excuse her infancy and the influence of her husband, which she was unable to resist.) Never knew of her right to lot number six until about twelve months before her mother's death. This information was derived from ber mother and step-father. Knew nothing of improvements placed on the lot since her mother left it until after they were built. Knew nothing of the sale or purchase of the lot, or any part of it, to any one or by any one. As to the improvements on the part of the lot in contro

the evidence disclosed that there were none at the time of the sale by Reynolds, trustee, to Job Taylor. John Hollingsworth placed improvements thereon to the value of about $1,200 00. The bare land would be worth about $700 00 or $800 00. Complainant, in the fall of 1865, placed a new two-room cottage on the lot, fenced it in, and made other improvements, which she claims cost her $500 00, but which, from other testimony, would be worth $300 00. She claims

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Bazemore vs. Davis.

that all of these improvements are of the aggregate value of $2,500 00, but other witnesses place them at $1,500 00. She asserts that she has annually placed improvements on the property to the amount of $ 10 00, and paid taxes to the amount of $25 00. The larger house, with out-house, since the war, would rent for from $20 00 to $30 00 per month. The two-room cottage would rent for about $6 00 per month. Complainant paid $1,200 00 for the property in Confederate money. The lot, with improvements, would not sell, at time of trial, for more than $1,500 00 in cash. The other portions of lot number six, not involved in this case, had passed into the hands of various purchasers, against whom suits had been brought, but who had not been made parties to this litigation.

10th. Returning to the remaining errors of law alleged to have been committed on the trial, which the above synopsis of the testimony will render clear, it was insisted by complainant that if the jury should believe, under the view of the law presented in the 9th division of this report, that the defendant was entitled to one-half the lot in dispute, they should ascertain what was the value of the improvements placed thereon since the purchase by Job Taylor, then ascertain the value of one-half the lot without the improvements, charge defendant's half with one-half the value of the improvements, less one-half the rents received by complainant, and that upon the payment of this charge defendant would be entitled to one-half the lot: That complainant was entitled to the improvements placed there by her or by those from whom she bought. The court so charged.

11th, 12th. It was contended by complainant that if the proceeds of lot number six had been invested in the Houston county plantation and in the house and lot near Macon, and this property had been settled by post-nuptial settlement on defendant, and afterwards sold by her husband, that defendant could not recover the lot in controversy until she had accounted for the same. That the fact that defendant was an infant at the time the settlement was made did not affect the principle, for if she was of sufficient age to enter into the contract

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