2. In such case, the vendor may, after reasonable notice to quit, demand possession, and if the possession is not surrendered, he may bring his action at once. Ibid.
3. What is reasonable notice to quit will depend on the circumstances of each case. Ibid.
4. While a Court of Equity will hold a vendor who has received the full price for land as a trustee for the vendee, and compel him to convey the legal title, yet before the purchase money is paid, it will not de- prive him of any of his rights, legal or equitable, and one of these is the right to hold possession of the land, in the absence of a stipulation to the contrary in the contract. Ibid.
5. A vendee failing to pay the purchase money has no right to have the land sold as of course, and a Court of Equity will not direct a sale at his instance, unless it appears that the land will sell for a sum suffi- cient to pay the debt, and that he is unable to pay it without a sale. Ibid.
6. 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. Ibid.
7. Where a vendee is let into possession before the purchase money is paid, and the vendor brings an action to recover the possession, the defend- ant must file the undertaking to secure rents and damages provided for by The Code, $237, before he will be allowed to answer. Ibid. 8. Where a parol contract for the sale of land upon which money has been paid, is repudiated, the vendor is required to return the money, for he will not be allowed to retain both the money and the land. Cade v. Davis, 139.
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.
10. 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.
1. Where four copartners joined in a note to purchase property for the partnership account, and after the dissolution of the firm, the plaintiff paid more than his proportion of the note, and brought suit against the defendant for contribution; It was held, that the other partners were not necessary parties where they were all insolvent, one of them
dead with no representation, and another a non-resident of the State. Scott v. Bryan, 289.
2. Where one partner pays more than his share towards a partnership debt, he can only recover from his copartner one half of the excess paid. Ibid.
CONTRIBUTORY NEGLIGENCE:
1. Where a party is injured by the want of ordinary care and diligence in another, but the party injured does not use reasonable care and dili- gence himself, he cannot recover. Walker v. Reidsville, 382.
2. If the injured party, although not entirely free from fault, could not by ordinary care and prudence have avoided the danger caused by the careless and negligent conduct of the defendant, he can recover dam- ages for the injury. Ibid.
3. So, if the negligence of the defendant was the immediate cause of the injury, and that of the plaintiff was remote, such remote contributory negligence would not bar a recovery. Ibid.
4. Where an excavation was allowed to remain open and unguarded in a town, which, however, was some distance from the sidewalk, and its existence and unprotected condition was well known to the plaintiff, who carelessly fell into it and was injured; It was held, that he could
5. In an action for damages for an injury caused by the negligence of the defendant, where the defence is contributory negligence, it is some- times proper to submit two issues, one as to the negligence of the de- fendant, and the other as to the contributory negligence of the plain- tiff, yet when the action of both has contributed to the injury, it is allowable to submit an issue only as to the defendant's negligence, with instructions to find that in the negative, if the jury believe that the plaintiff's conduct contributed to the injury. Scott v. R. R. Co., 428.
6. It is not per se negligence for the plaintiff to have driven his vehicle near one edge of a street approaching a railroad, although he could have obtained a better view of the track from the middle of the street. Ibid.
7. It is not error for the trial Judge to refuse to charge that certain acts or omissions of the plaintiff amount to contributory negligence when the evidence in regard to them is conflicting. Ibid.
8. Where the plaintiff was injured at a point where the railroad track crossed the street it is not per se negligence that he might have seen the moving cars at another crossing, where there were several tracks,
and the evidence was conflicting as to whether he could have discov- ered that the cars were on the track which led to the crossing which he was approaching. Ibid.
9. One who is injured by jumping from a moving train is generally barred of a recovery by reason of his contributory negligence, but where a servant was ordered by his superior to do so in order to perform a duty for the company, it not appearing to the servant at the time that obe- dience would certainly cause injury; It was held, that there was no such contributory negligence as would prevent a recovery. Patton v. R. R. Co., 455.
CONTROVERSY WITHOUT ACTION:
In the submission of a controversy without action, the statement of facts upon which the judgment of the Court is asked should not be a mere narration of the facts out of which the controversy arises, but should contain a statement of the subject-matter and nature of the controversy and of the conflicting claims of the litigants. Overman v. Sims, 451.
1. Conversion consists either in the appropriation of the thing to the party's own use; or in its destruction; or in exercising dominion over it in exclusion or defiance of the plaintiff's rights; or in withholding the possession from the plaintiff, under a claim of title, inconsistent with that of the plaintiff, but it must be by acts, as bare words will not amount to a conversion. University v. The Bank, 280.
2. In the case of a conversion by a wrongful taking of the chattel it is not necessary to prove a demand and refusal; and so the wrongful assump- tion of the property and of the right of disposing of it may be a con- version in itself, and render a demand and refusal unnecessary. Ibid. 3. The statute of limitations will run in favor of one who has converted chattels and applied them to his own use, although the true owner may be ignorant of the conversion. Ibid.
4. Public securities, such as State bonds, may be converted by returning them under an assertion of a right to hold them in defiance of the true owner, as well as other property. Ibid.
I. Where the charter of a corporation allowed it to borrow money on such terms as its directors might determine upon, and to issue bonds or other evidences of indebtedness; It was held, that this provision al-
lowed it to sell its bonds below their face value, and where it did so the loan was not for that reason usurious. Bank v. M'f'g Co., 298. 2. A provision in a charter allowing a corporation to lend money at a usu- rious rate of interest does not confer the power on them to do so, but a provision to borrow money at such rate is not liable to any objec- tion. Ibid.
3. Two corporations were under the same management, and one of them executed a mortgage on its property to secure a debt, and afterwards this debt was assumed by the other corporation, which executed a mort- gage on its property to secure it, and the mortgage on the property of the original debtor corporation was cancelled. After the expiration of some time, the original debtor corporation again assumed the payment of this debt, executed a new mortgage to secure it, and the mortgage on the second corporation was cancelled; It was held, that under the provisions of our registration laws, as against creditors, the cancelled mortgages were inoperative, and the secured creditor could claim no liens or priorities under them. Ibid.
4. The provisions of Bat. Rev., ch. 25, §48, (The Code, §685,) apply to corporations generally, and are not restricted to those only formed by foreclosures under a deed of trust of an insolvent or expiring corpora- tion. Ibid.
5. So, where a corporation made a mortgage for the purpose of securing bonds to raise money; It was held, that the debts owing by such cor- poration at the time the mortgage was executed were entitled to prior- ity over the bonds secured by the mortgage. Ibid.
6. The act of 1879, which provides that mortgages executed by corpora- tions on their property or earnings shall not exempt the property or earnings from execution for the satisfaction of a judgment obtained for labor performed, materials furnished, or for torts committed by such corporation, so far as it relates to labor and materials furnished, is only intended to more effectually secure the lien given by the Con- stitution and statutes to laborers and material-men, and was not in- tended to create a lien in favor of parties who furnish machinery, &c., to the corporation upon its personal credit. Ibid.
7. It is intimated, that the purchaser of shares of an incorporated com- pany, at a sale under an attachment against the party who appears on the stock-book of the corporation to be the owner, gets a title superior to that of a transferee from such apparent owner, who has not had the transfer made on the books of the corporation. Morehead v. The R. R. Co., 362.
8. 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.
9. The records and books of a corporation are at the least prima facie evi- dence of the organization and existence of the corporation. Ibid.
10. Where the stock-book of a corporation contained a list of the stockhold- ers, the number of shares of stock owned by each, the sum of money paid by each, and the balance due, such book is evidence against a stockholder in an action to recover the unpaid balance of his subscrip- tion, to show that he was a stockholder, and the condition of his stock account, but such evidence may be rebutted. Ibid.
1. Where a record contains superfluous matter the appellant will be taxed with the costs occasioned by it, although he succeeds in the appeal. Tobacco Co. v. McElwee, 71.
2. 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.
3. In such case the defendant cannot complain that the costs of the con- tempt proceedings are divided between the parties. Ibid.
4. A vendee is not entitled to recover costs in an action to force him to perform his contract and pay for the land, if he contest the case and does not make a deposit of the amount due, although the plaintiff cannot make a good title at the time when the action is commenced. Hobson v. Buchanan, 444.
5. It is intimated, that the vendee could recover his costs in such case if he made deposit of the balance due and accepted the title as soon as the vendor had perfected it. Ibid.
6. Although an appeal will not lie when the costs only are involved, yet when it calls in question the entire judgment and the costs only as incidental, it will be entertained. Ibid.
I. A counter-claim which only alleges that the plaintiff is indebted to the defendant, without alleging further the nature and kind of such in- debtedness, and how it arose, is imperfectly pleaded, and ought to be
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