ACTION TO RECOVER LAND:
1. The vendor of land who has not been paid, has two remedies, one in
personam against the vendee, the other in rem to subject the land,
and he may pursue both of these at the same time, and may also
maintain an action to recover the possession. Allen v. Taylor, 37.
2. Where a vendee is let into possession before the purchase money is
paid, and the vendor brings an action to recover the possession, the
defendant must file the undertaking to secure rents and damages pro-
vided for by The Code, §237, before he will be allowed to answer.
Ibid.
3. Where the answer does not put the plaintiff's title in issue, it is useless
for him to introduce evidence of it. Gregory v. Forbes, 77.
4. Where an action was brought for a tract of land describing it as a whole, and incompetent evidence was admitted which related only to a part, the judgment of the Supreme Court will be for a venire de novo generally, and it will not grant a new trial only as to that portion of the land affected by the incompetent evidence. Beam v. Jennings, 82. 5. Where in an action to recover land the complaint alleged and the answer admitted that the defendant was in possession of the entire tract, but in fact the plaintiff was in possession of a portion of it, and upon a motion for a receiver the defendant was allowed to retain possession of the entire tract upon filing a bond, which was done; It was held, that in a proceeding to attach the plaintiff for a contempt for trespasses on that portion of which he was in possession when the order was made, it was not error to allow the order appointing the receiver to be so modified as to only embrace the land actually occupied by the defendant. Kron v. Smith, 386.
6. In such case the defendant cannot complain that the costs of the contempt proceedings are divided between the parties. Ibid.
7. Where land is given to a trustee to hold on various trusts, and after the death of the trustee an action is brought to construe the trusts and enforce the provisions of the deed, the Court cannot decree a conveyance of the legal estate unless all of the heirs of the trustee are parties. Graves v. Trueblood, 495.
8. One who has the right of possession of an equitable estate in land may maintain an action for the possession. Ibid.
9. Where a party establishes an apparent right to land, and the person in possession is insolvent, a receiver will be appointed to take charge of the rents and profits during the pendency of the action. McNair v. Pope, 502.
10. Quare, whether a deed executed by the executor of a deceased mortgagee, who undertook to sell the land in pursuance of the mortgage
to his testator, would establish such apparent right; but when the
purchaser at such sale also sets up a release from the mortgagor, he
makes out an apparent title, and is entitled to a receiver, although
the release is attacked for fraud. Ibid.
1. A cause of action against a Clerk of the Superior Court for damages
resulting from malfeasance in accepting an insufficient bond from an
administrator, cannot be joined with a cause of action against such
administrator and his sureties for a devastavit, the respective liabilities
of the parties having no connection. The Code, $267. Mitchell v.
Mitchell, 14.
2. The succession to the personal estate of a decedent is governed exclu-
sively by the law of the actual domicil of the testator at the time of
his death.
3. A creditor may sue the real representative of a deceased debtor to sub-
ject the descended lands to the payment of his debt, where there is
danger of loss from delay, without waiting for the settlement of the
personal estate by the administrator. Syme v. Badger, 197.
4. Under the provisions of the Act of 1715, if the debt be due at the death
of the debtor an action must be brought within seven years from the
death, otherwise both the heir and the executor will be discharged,
and if the action arose after his death the action must be brought
within seven years after the cause of action arose, or the Act will be a
bar, provided the personal representative has paid over the assets. Ibid.
5. By the provisions of The Code, §153, sub sec. 2, an action is absolutely
barred against both the personal representative and the heir, unless it
is brought within seven years after the qualification of the personal
representative and the advertisement for creditors, and nothing will
defeat its operation, except the disabilities mentioned in The Code, or
such fraud or other matter of equitable nature as would make it
against conscience to rely on the statute. Ibid.
6. Where an action was brought in 1877 against the administrator of a
deceased executrix, charging a devastavit, which pended until 1885,
when a judgment was rendered in favor of the plaintiff, who then at
once brought an action to subject the lands in hands of the heir to the
payment of the judgment; It was held, that the action was barred.
Ibid.
7. The administrator is not a necessary party to an action by a mortgagee
to foreclose the mortgage after the death of the mortgagor. Fraser
v. Bean, 327.
8. Where a vendee dies before paying in full for the land, his estate is
liable for the residue, and its payment by the administrator is proper.
Jones v. Slaughter, 541.
9. If, in such case, the administrator pays the balance due out of the
assets of the estate, but takes the title to himself individually, the
heirs can have him decreed to be a trustee for them; or, it seems, that
they can charge him with the payment as for a devastavit, and have it
declared a charge on the land. Ibid.
IO. Where an action was brought by the next of kin and heir at law against
an administrator for an account and settlement of the estate, in which
a consent decree was entered, discharging the administrator of all
liabilities in regard to his acts, representative or individual, in man-
aging the estate; It was held, that such decree released the adminis-
trator from the trusts upon which he held certain lands, for the heirs.
Ibid.
ADVERSE POSSESSION:
(See POSSESSION).
I. A power of attorney appointing an agent to wind up certain business of
the non-resident principal, does not authorize the agent to borrow
money on his account. Smith v. McGregor, 101.
2. Where prepayment of the premium is made an essential part of the
contract of insurance and of the taking effect of the policy, an agent
of the insurer has no power to dispense with such prepayment.
mond v. The Ins. Co., 158.
3. Before the acts and declarations of an alleged agent made and done in
the absence of the defendant, the alleged principal, can be received in
evidence, the trial Judge must find as a fact, that prima facie evidence
of the agency has been offered, and his ruling upon this question of
fact is beyond the reviewing power of the appellate Court. Smith v.
Kron, 392.
4. While infants are incapable of making a contract with an agent either
express or implied, so as to bind them for his torts committed in pur-
suance of the agency; It seems, that an infant is liable for torts com-
mitted by his agent in the necessary prosecution of the business of the
agency, under the maxim, qui facit per alium, facit per se. Ibid.
5. Before the records and books of a corporation can be received in evi-
dence for any purpose, it must be admitted or proved that the entries
were made by an authorized servant or agent of the corporation.
Glenn v. Orr, 413.
This Court will not recognize any agreement of counsel, if disputed, unless
it appears of record, or is reduced to writing and filed in the cause.
Short v. Sparrow, 348.
Where an instrument is intended by the parties to operate as an agricul-
tural lien under the statute, but it fails to set out some essential mat-
ter so that it cannot take effect as such statutory lien, it will yet be
given effect as a common law mortgage, if in form sufficient for that
purpose. Spivey v. Grant, 214.
1. The power of the Court to allow amendments so as to fit the complaint
to the evidence is too well settled to require discussion or citation of
authority. Spivey v. Grant, 214.
2. The Supreme Court has the power, in a proper case, to remand causes,
to the end that proper amendments may be made, or further proceed-
ings taken in the Court below. Holly v. Holly, 229.
3. Although a counter-claim to a counter-claim is not allowed, yet when
it is pleaded at an early stage of the action, and no objection is made
to it, this Court will not strike it out when the action has been long
pending, but will consider it as an amendment to the complaint.
Scott v. Bryan, 289.
4. Where in an action to recover land, the complaint alleged and the an-
swer admitted that the defendant was in possession of the entire tract,
but in fact the plaintiff was in possession of a portion of it, and upon
a motion for a receiver the defendant was allowed to retain possession
of the entire tract upon filing a bond, which was done; It was held,
that in a proceeding to attach the plaintiff for a contempt for tres-
passes on that portion of which he was in possession when the order
was made, it was not error to allow the order appointing the receiver
to be so modified as to only embrace the land actually occupied by the
defendant. Kron v. Smith, 386.
5. The distinguishing feature of the practice introduced by The Code is
to have actions tried on their real merits, and avert a failure of justice
from some defect that can be remedied by amendment, without preju.
dice to the other party. Kron v. Smith, 389.
6. The Superior Court has the power to allow amendments at any time,
either in the allegations of the complaint or in making new parties,
except where the proof establishes a case wholly different from that
made in the pleadings, or where the amendment would change the
subject matter of the action. Ibid.
7. The cause of action must exist at the time the action was begun, and
the plaintiff will not be allowed by an amendment to introduce a
cause of action which had no existence when the summons was issued.
Clendenin v. Turner, 416.
8. The Court has no power, except by consent, to allow amendments
either in respect to parties or the cause of action, which will make
substantially a new action, as this would not be to allow an amend-
ment, but to substitute a new action for the one pending. Ibid.
9. An amendment which introduces a cause of action which arose after the
action was begun cannot be permitted. So where a submission to
arbitration of the matters in controversy in a pending action was made
by an agreement in pais, the plaintiff cannot amend his complaint so
as to declare on the award which has been filed in his favor. Jackson
v. McLean, 474.
10. The Courts have inherent power to allow amendments to pleadings,
independent of The Code, which they may allow in their discretion,
unless prohibited by some statute, or unless some vested right will be
disturbed. Knott v. Taylor, 553.
II. Under the provisions of The Code, the Courts have the power, both
before and after judgment, to allow amendments to the pleadings,
when they do not substantially change the cause of action or defence.
Ibid.
12. Where the cause of action set out in the complaint was to recover land
descended to the plaintiff from her father, the Court has no power to
allow an amendment at the trial so as to allow the plaintiff to claim a
different interest as heir of her sister, as this would be not an amend-
ment, but substantially bring a new suit. Robbins v. Harris, 557.
1. Where the answer does not put the plaintiff's title in issue, it is useless
for him to introduce evidence of it. Gregory v. Forbes, 77.
2. Where the answer admits the purchase of land, it is unnecessary to
produce the deed, and a witness may testify to circumstances attend-
ing the transaction that are not in the deed, although he refers col-
laterally to the deed.
3. The lien of an attachment takes effect from its levy, and so, where in
an action to compel a corporation to transfer certain stocks on its
books, which the plaintiff had purchased at execution sale after it had
been attached to answer the judgment, and the defendant answered
that said stock had been transferred by the judgment debtor before
the rendition of the judgment, but did not aver that such transfer was
before the levy of the attachment; It was held, that the answer did
not raise an issue, or set up a substantial defence. Morehead v. The
R. R. Co., 362.
4. Where the answer asks that new parties be made, this will not be done,
when taking the answer as true; such party would have no ground on
which to resist the plaintiff's claim. Ibid.
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