WEISENFIELD v. MCLEAN.

$300.00, dated April 1st, 1881, due October 1st, 1881, and another dated August 11th, 1881, due October 1st, 1881, for $700.00, executed by J D. Jowers, for all crops made. The lien for $300 conveyed the crops raised in Robeson, and the other two, the crops raised in Richmond-the last two were recorded in Richmond only.

The defendant Leach testified that they (defendants) advanced to Jowers, under these liens, between $1,200 and $1,500. The two mortgages on Richmond crops amounted to $1,400, on Robeson crop to $300.

It was announced publicly, before the sale, that the defendants claimed the crop.

Upon cross-examination he said, that up to August 11th, 1881, he had advanced to Jowers $1,171.50; after that time to the 6th September, $177.70. Jowers was living at Shoe Heel in 1881, and had been for three or four years. He announced at the sale, that Jowers had turned over the property to defendants and that they claimed it under liens.

J. D. Jowers, defendant in the execution, testified: That he executed the liens to McLean & Leach; owed them large amounts; turned over the entire crops to them before the levy by Morrison, to make their money; after that, he had no control over the crops; turned them over to them for advancements furnished; did not know at the time what he owed them; did not balance any account; got credit afterwards.

N. A. McLean testified, that he was at the sale representing the defendants; that he forbade the sale, announcing publicly that they claimed the property under liens, and because Jowers had turned it over to them.

John Leach recalled, said they (defendants) shipped the cotton-sold it and gave credit for the cotton for the year; amount of sales, $2,046. Charged Jowers with the expense of gathering the crop. $2,046 worth of cotton was made on the Jowers place.

WEISENFIELD v. MCLEAN.

Four issues were submitted to the jury, the first relating to the partnership of the plaintiffs and not controverted.

2d. Were the plaintiffs the owners of the property described in the complaint on the 22d of September, 1881? Answer-No.

3d. Did defendants wrongfully convert the same, or any part of it? Answer-No.

4th. What damages, if any, have the plaintiffs sustained? Answer-None.

The plaintiffs asked the Court to charge the jury: "That the lien of the execution related to the date of it, the 10th Monday after the 3d Monday in February, 1881, if the jury believe the evidence, and if the jury believe from the testimony, that the property described in the complaint was levied on and sold by the sheriff, and that the plaintiffs became the purchasers, they are entitled to recover, unless before the levy was made, the defendants became and were bona fide purchasers of the said property from J. D. Jowers for value."

The Court declined to charge that in this case the lien of the execution related to the teste, but gave the remainder of the prayer. And this constitutes the first ground of exception. In §448 of The Code, it is expressly declared that, "no execution against the property of the judgment debtor shall be a lien on the personal property of such debtor, as against any bona fide purchaser from him for value, or as against any other execution, except from the levy thereof,” and there was no error in refusing the charge, in the terms requested, and in giving it as modified by his Honor.

The second prayer was: "That if the jury believed the testimony of John Leach, one of the defendants, the defendants were not bona fide purchasers of the said property, and the plaintiffs are entitled to recover."

This was refused, and is the second ground of exception. There was no error in refusing this charge. It would be

WEISENFIELD v. MCLEAN.

error to single out the testimony of one witness, when there are others testifying to the same matters, and charge the jury that if they believed that witness, they must find in accordance with his testimony. Jackson v. Commissioners of Greene, 76 N. C., 282, and the cases there cited.

The third prayer was: "That the lien for $700, April 1st, 1881, is void as to the creditors of J. D. Jowers, because it was recorded in Richmond county, and J. D. Jowers then resided in Robeson county."

This was properly declined, because it involved an expression of opinion as to the facts of the case, and so the third exception cannot be sustained. We need not refer to authorities to maintain the position that, in his charge, the Judge can express no opinion upon the facts.

The fourth ground of exception was the refusal to instruct the jury: "That the lien of $700, August 11th, 1881, which was recorded September 3d, 1881, only purports to convey to secure future advances, and does not secure any advances. made before that time, and conferred no title on defendants, except to secure future advances, and that said lien was void. as to the creditors of Jowers, and as to plaintiffs, because it was recorded in Richmond county, and the said Jowers resided in Robeson county."

His Honor refused to give the charge in the express words, for the same reason as the third, and because it involved an expression of opinion as to Jowers' residence, but that part of it which related to its being security for future advances alone, was given. There was no error in this of which the plaintiffs can complain.

The fifth ground of exception was the refusal to charge, as requested: "That the lien for $700, dated August 11th, 1881, and which was recorded September 3d, 1881, was void as to creditors until it was recorded, and that if the jury believe the testimony of John Leach, the defendants had only advanced $300.00, and that if the said Jowers trans

JENKINS v. JENKINS.

ferred all the property as testified, to secure the said sum, would be fraudulent in law, and the plaintiffs are entitled to recover."

His Honor refused to give this instruction, and charged the jury, that the plaintiffs, claiming as purchasers under execution against Jowers, could only get such an interest as Jowers had, but if the two liens registered in Richmond county were valid and subsisting at the time of the levy and sale, plaintiffs could not recover, if the liens conveyed the crops; that if Jowers was a resident of Robeson county, the liens having been registered in Richmond county alone, were inoperative as against the creditors of Jowers."

To this the plaintiffs excepted. This exception cannot be sustained.

Upon a review of the record, we find no error in the rulings of His Honor, of which the plaintiffs can complain, and the judgment must be affirmed.

No error.

Affirmed.

BEDFORD JENKINS et al. v. W. A. JENKINS.

Wills-Probate of Rule in Shelly's Case.

1. Prior to January 1, 1856, when the Revised Code went into effect, a will which was attested by two witnesses, could be proved in common form by the oath and examination of one of them only. Since that time, it must be proved by at least two of the subscribing witnesses, if living.

2. Where a will only gives the "use" of land to a devisee for life, with remainder to his heirs, the word "use" makes it clear that the devisor only intended to give a life estate to the first taker, and the rule in Shelly's case will not apply.

JENKINS v. JENKINS.

3. Where land is devised to the devisee for life, and after his death to be equally divided among the heirs of his body, the rule in Shelly's case does not apply and the heirs take as purchasers.

4. So where by will the use of all the balance of the testator's estate, including lands, were devised to the devisee for his natural life, and at his death to be equally divided among the heirs of his body; It was held, that the rule in Shelly's case did not apply.

5. The question is left open whether the rule in Shelly's case is abrogated by The Code, §1829.

(University v. Blount, N. C. Term, 13; Morgan v. Bass, 3 Ired., 245;

Horner v. Springs, 10 Ired., 180; Marshall v. Fisher, 1 Jones, 111; Word v. Jones, 5 Ired. Eq., 400; Mills v. Thorne, 95 N. C., 362; Ross v. Toms, 4 Dev., 376; cited and approved).

SPECIAL PROCEEDING, heard upon appeal from the clerk of DURHAM Superior Court, by Gilmer, Judge, at Chambers, on the 25th of January, 1887.

There was a judgment for the plaintiff, and the defendant appealed.

The facts are fully stated in the opinion.

Mr. John Manning, for the plaintiffs.

Messrs. E. C. Smith and W. W. Fuller, for the defendants.

DAVIS, J. The plaintiffs allege that Mary Beasley was the owner of the land in dispute; that she died, leaving a last will and testament, duly executed to pass both her real and personal estate, which was proven at February Term, 1855, of the County Court of Wake, and that by her said will, she devised the said land as follows: "Article 5th. I desire my daughter, Eliza Jane Jenkins, to have the use of all the balance of my estate, including lands, negroes, stock of all kinds, household, etc., during her natural life, and at her death to be equally divided among the heirs of her body." That the said Eliza J. Jenkins died in the month of March, 1886, and the plaintiffs are her children and grandchildren,