Lathrop et al. vs. White, guardian, et al. timony in order to trace this fund. They had to introduce as a witness George H. White, the person who made the deed to his brother in 1867; and his evidence is rather weak as to the fund having arisen from the estate of Uriah Jones. It seems to us that he testifies to a presumption rather than to a fact. The only way in which he says he knows that the fund that he borrowed from his brother was a trust fund, was his familiarity with his brother's business. Whether this particular money which he borrowed did arise from the trust estate, he does not say positively. See Bazemore vs. Davis, supra. 5. Besides all this, it is not even contended by the defendant in error that Boon had any notice, or that there were any facts or circumstances that would put him upon inquiry. From the facts disclosed in this record, he certainly was an innocent purchaser. He had no notice. Nor was there any fact to put him upon inquiry as to this land having been conveyed to William T. White by George White in payment of money that George had borrowed of the trust estate. Boon being an innocent purchaser, and having transferred his bond for title to Lathrop & Co. and put them in possession of the land, it matters not whether Lathrop & Co. had notice or not. If Boon's title was pure, they purchased a pure title, and no bad faith on their part would render it impure. Our conclusion, therefore, is (1) that the deed made by George H. White to William T. White, trustee for his wife, put the title into the wife; (2) that she having died in 1868 or 1869, and prior to the act of December, 1871, the husband became her sole heir, and was entitled to all of her property, real and personal; (3) that the title of all her property being in him, he had a right to place with Lathrop & Co. Boon's two notes as collateral security for his own individual note; (4) that Lathrop & Co. had a right to settle these Lathrop et al. vs. White, guardian, et al. two notes with Boon, upon his turning over to them his bond for titles and putting them in possession of the land; (5) this record does not disclose that Lathrop & Co. had any notice, nor were there sufficient facts and circumstances to put them upon inquiry as to whether the fund which originally paid for this land arose under the will of Uriah Jones; (6) that Boon certainly was an innocent purchaser without notice; (7) that Lathrop & Co., having purchased from Boon, who was an innocent purchaser, got his title, and it was good to them, whether they had notice or not. Therefore the plaintiff has no right to recover. 6. White, the guardian, however, contends that Lathrop & Co. never went into possession of this land. He claims that when Boon surrendered the possession, he surrendered it to him, and that he and Warren, one of the partners of Lathrop & Co., made a verbal contract, whereby it was agreed that White should take the land and rent it and pay the debt of his brother, and when that was done, the land should belong to his ward. This Warren denies. The court below seemed to take a different view of the law of the case from what we have taken, and failed to submit this matter to the jury. We think that if White made this contract with Warren, that he was to take the land and rent it and pay the debt of his brother, and after the debt was paid the land was to go to his ward and niece, then if the debt was paid, she would be entitled to it. But if there was no such contract as that made, and Warren only gave him twelve months in which to redeem the land, and he failed to redeem it, then of course she cannot recover. This is a matter entirely for the jury as to which theory they will adopt after hearing the evidence. If the case should be tried again in the court below, we presume that the court will submit this matter to the jury, under proper instructions. Judgment reversed. Johnson vs. Cochran. JOHNSON VS. COCHRAN.* Where the name of a person appeared as duly signed to a submission to arbitration, though he did not in fact sign it or authorize his name to be subscribed thereto, yet if he were present when the arbitration was had and the award was made, testified as a witness before the arbitrators and knew that his rights were involved, making no objection to the arbitration at the time, he is estopped from denying that he is bound by the award. (a) The court below seems to have ignored this question, and the jury were not charged upon it. The plaintiff was bound by the award, and the verdict, being contrary to the award (which is not attacked), is without evidence to support it. W. J. IVERSON and J. A. HUNT, for plaintiff in error. STEWART & DANIEL and E. F. DUPREE, contra. BLANDFORD, Justice. The question in this case is, whether the verdict of the jury was sustained by the evidence. There are some special grounds in the motion for a new trial which are not approved by the court, and we cannot consider them. It appears that Johnson rented certain lands to F. A. Cochran, the father of R. E. B. Cochran, the defendant in error, and of T. J. Cochran. A controversy having arisen between the Cochrans and Johnson, it was left to arbitration. The question left to the arbitrators to decide was, whether Johnson had rented the land to the father, F. A. Cochran, or to the two sons, R. E. B. and T. J. Cochran. The names of all the Cochrans, both the father and the sons, were signed to the submission *BLECKLEY, C. J., did not preside in this case, on account of indisposition. 81 40 100 380 to arbitration. Brinson et ux. vs. Lassiter et al. The arbitrators decided and awarded that Johnson had rented the land to the father, and not to the sons. R. E. B. Cochran, the defendant in error here, after this award had been rendered, brought his action against Johnson to recover from Johnson for certain work which he alleged he had done on this land, and for certain corn he had advanced to Johnson, and one-fourth of the value of seven bales of cotton which had been raised upon the land by Cochran, and which had been sold by Johnson and the money therefor collected and retained by him. A verdict was had for R. E. B. Cochran for $52.50 principal, besides interest. R. E. B. Cochran testified that he had never signed the submission, but that he was present when the arbitration was had and the award was made; and that he had testified as a witness before the arbitrators, and knew that his rights were involved in that controversy. We think he is estopped, under the circumstances, from denying the correctness of that award. The court below seems to have ignored this question entirely, and the jury were not charged on this subject at all. No instruction was given them as to whether he was bound by the award, under the circumstances of the case, or not. We think he was bound by it; and that award having settled the fact that Johnson had rented this land to the father, the verdict of the jury was without evidence to support it, and the court erred in not grant. ing a new trial. Judgment reversed. BRINSON et ux. vs. LASSITER et al. 1. The levy of a tax execution for $3.60 on one hundred acres of land, worth $1,200, is such a fraud on the law as to render the sale void at the option of the land-owner, and a deed made in pursuance of such levy and sale is void on its face, if it show the fact of such excessive levy. 81 40 128 15 Brinson et ux. vs. Lassiter et al. 2. The levy in this case was also void for want of sufficient description of the premises levied on. It described the land as "One hundred acres of land, as the property of William E. Lassiter, bounded as follows: north by Dr. Wallace, and west by the Central railroad"; there being two branches of the Central railroad in the county, and no boundaries east and west being given. (a) It is not sufficient that the purchaser knew the boundaries of the land. It should be so described that the world may know them, in order that all may knowingly bid and the land may bring the highest market price. 3. The verdict was warranted by the evidence. May 2, 1888. Tax. Executions. Levy and sale. Description. Before Judge RONEY. Burke superior court. May term, 1887. Reported in the decision. R. O. LOVETT and E. L. BRINSON, for plaintiffs in error. TUTT & LOCKHART, by ROBT. L. RODGERS, contra. SIMMONS, Justice. The record in this case shows that 100 acres of land, worth $1,200, were levied on by the sheriff of Burke county to satisfy a tax execution for $3.60, and that the land was sold to the wife of the tenant of the landlord for $35. Under the charge of the court, the jury decreed that the sale was void and should be set aside, and that the respondents should pay $300 for rent and damages for the years they had been in occupation of the land. 1. Under the facts as disclosed by this record, the sale by the sheriff was void, for two reasons. The first is, because the levy and sale made by him were excessive. The levy of a tax execution for $3.60 on 100 acres of land worth $1,200, is such a fraud on the law as to render the sale void at the option of the land-owner, and a deed made in pursuance of such levy and sale is void |