I. One let into possession of land under a contract to purchase, is an occu-
pant at the will of the vendor, and he so continues until the purchase
money is paid. Allen v. Taylor, 37.
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.
1. Where it appeared by the affidavit of two physicians that a sewer used
by the defendant was dangerous to the health of the plaintiffs; It was
held, no error to continue the injunction against its use to the hearing.
Evans v. The Railroad, 45.
2. In such case, it is immaterial that the sewer is also used by others. Ibid.
I. Qualification is as essential as election to the right to hold office, for the
right of one elected to an office to be inducted, is in subordination to
the Constitution, and the officer must possess the constitutional qual-
ifications, before he can fill the office. Hannon v. Grizzard, 293.
2. The result of the vote is conclusively settled, so far as the Board of
County Commissioners are concerned, by the certificate of the Board
of Canvassers. Ibid.
3. It is reasonable to presume and to act upon the presumption, that a
person chosen by the electors is qualified to hold the office, but if the
Commissioners are satisfied, or have reasonable grounds to believe,
that the person elected is disqualified by the Constitution from hold-
ing the office, they are not required to induct him. Ibid.
So where a person was elected to an office, but the Commissioners,
acting in entire good faith, refused to induct him, on the ground that
he was disqualified under the Constitution from holding the office, but
upon a suit instituted to try the title to the office it was adjudged that
he was qualified; It was held, that an action would not lie against the
Commissioners to recover damages for the profits of the office, lost by
their refusal to induct. Ibid.
5. If the action of the Commissioners in such case had been prompted by
malice, or to accomplish any unlawful end, the action would lie. Ibid.
6. Whether the duty of the County Commissioners of inducting persons
who have received a certificate of election into office, is merely minis-
terial or not; Quære, but if the commissioners refuse to induct one
who is plainly ineligible, the Courts will not compel them to do so,
and thus put one into an office which he cannot constitutionally hold.
McNeill v. Somers, 467.
7. The right given by the statute to a sheriff to collect the taxes for which
he is accountable, after he has gone out of office, does not bring him
within the inhibition of Art. 14, 87, of the Constitution, so as to ren-
der him ineligible to hold another office. Ibid.
8. Where the statute imposes certain duties to be performed by an officer
after the expiration of the term of office, their performance does not
constitute a place or office of trust or profit so as to disqualify the
former officer from holding another office at the same time. Ibid.
1. The effect of the Acts of the General Assembly of 1883 and 1885 in
relation to a graded school in Edenton, was to supersede the organiza-
tion of the school district within the same territory, and confer all the
powers theretofore exercised by the school committee under the general
law and transfer all moneys then in the treasury to the trustees created
by said special enactments. Skinner v. Bateman, 5.
2. The school committee for the
superseded district had no authority to
contract or give orders for the payment for teaching a school therein
after the passage of the Acts of 1883 and 1885; and it was no breach
of the county treasurer's bond to refuse to pay upon their order,
although at the time he had moneys in his hands apportioned origi-
nally to said district. Ibid.
1. If a grandparent receives his grandchild into his family as a member of
it, they stand in the relation of parent and child, and no presumption
is raised of a promise on the part of the grandparent to pay the grand-
child for services rendered such as a child generally renders as a mem-
ber of the family. Dodson v. McAdams, 149.
2. The presumption against the promise of the grandparent to pay for
services in such case, may be overcome by evidence of an express
promise on his part to pay for such services. Ibid.
3. Where the evidence was that a grandchild resided with her grandfather
as a member of his family, and did household work for him, and he
declared several times that he intended to give her a part of his prop-
erty as he would his children, and that she should be paid for the ser-
vices she rendered him; It was held, no sufficient evidence to go to
the jury to prove a promise on the part of the grandfather to pay her
for her services. Ibid.
4. The services of a child to its parent, or of a grandchild to whom the
grandparent stands in loco parentis to such grandparent, are not gra-
tuitous, but are presumed in the absence of evidence of an express
promise, to be rendered as a recompense for the care and protection
extended to the child. Ibid.
1. The effect of $172 of The Code is to leave the law as it was prior to the
adoption of the Code of Civil Procedure as regards the effect of a par-
tial payment in removing the bar of the statute of limitations. Bank
v. Harris, 118.
2. The fact that the maker of a note has a claim against the holder, which
the holder endorses as a credit on the note without the assent of the
maker, will not be such a partial payment as will rebut the statute of
limitations, but an agreement to apply one existing liability to another
is such a partial payment as will stop the operation of the statute,
although the endorsement is never actually made on the note. Ibid.
1. The provision of The Code, $272, authorizing the Court to direct a
division of improperly joined causes of action, does not extend to the
cases where there is also a misjoinder of parties to the action. Mitch-
ell v. Mitchell, 14.
2. The guardian or next friend of an infant is not, properly speaking, a
party to the action, although his name appears in the record. Tate
v. Mott, 19.
3. 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 representative, and another a non-resident of the State. Scott
v. Bryan, 289.
4. An 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.
5. 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. Morehead v. The R. R. Co., 362.
6. The Court has no power, except by consent, to allow amendments either
in respect to parties or the cause of action, which will make substan-
tially a new action, as this would not be to allow an amendment, but
to substitute a new action for the one pending. Clendenin v. Turner,
7. Where no members of a class to whom a conditional limitation is limited
are in esse, a proceeding for partition, to which all of the parties in
interest who are in esse are parties, will not give them a fee simple.
Overman v. Sims, 451.
8. 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 convey-
ance of the legal estate unless all of the heirs of the trustee are parties.
Graves v. Trueblood, 495.
9. One who has the right of possession of an equitable estate in land may
maintain an action for the possession. Ibid.
I. Where non-resident infant tenants in common filed an ex parte petition
to sell land for partition, by their guardian, who was a non-resident;
It was held, that the decree of sale was not void, and could not be
attacked collaterally. Tate v. Mott, 19.
2. In a petition for partition, an allegation that the defendant has an estate
in a certain number of acres of said land, is insufficient, as it would in-
dicate that the defendant has a several estate in that number of acres.
Baum v. The Shooting Club, 310.
3. Where no members of a class to whom a conditional limitation is limited
are in esse, a proceeding for partition to which all of the parties in
interest who are in esse are parties, will not give them a fee simple.
Overman v. Sims, 451.
4. Land was conveyed to T T and his heirs, to hold for the use of M T for
her life, and at her death to such child or children, and the represen-
tatives of such, as she shall have by T T living at her death, and their
heirs forever. M T had two children by T T living, but such children
had no issue; Held, that M T and her children by T T could not con-
vey a fee simple in the land, and the fact that the land had been
divided by a proceeding for partition did not cure the defect. 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 representative, 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.
Evidence that the plaintiff asked payment of a debt from the defend-
ant, and that the defendant acknowledged that he owed something,
and gave the plaintiff some property to be applied to the debt, which
was entered as a credit on the bond sued on, is some evidence, taken
with other circumstances, to rebut the presumption of payment from
the lapse of time, although there is no evidence that at the time
plaintiff was the owner of the bond sued on. White v. Beaman, 122.
PENDING ACTION:
1. Where the action is still pending, any relief against a judgment or de-
cree rendered therein must be by a motion in the cause, and not be a
new action. Morris v. White, 91.
2. Where parties are required by a decree to execute a conveyance for cer-
tain land upon their coming of age, the action is pending until the
conveyance is executed. Ibid.
3. Where the pendency of another action, and a judgment therein which
disposes of the subject-matter of the controversy in the new suit, is
not regularly pleaded, but is taken advantage of by an exception, the
informality is such that this Court will not pass on the question, but
will remand the case, that the fact may be regularly ascertained. Hol-
ley v. Holley, 229.
4. It is well settled, that a motion in the cause, and not a new action, is
the proper remedy to set aside an irregular judgment, whether the
irregularity appears on the face of the record or not, even although
the action is at an end. It is otherwise when it is sought to attack a
judgment for fraud, which must be done by a new action, if the action
in which the judgment sought to be attacked is at an end. Syme v.
Trice, 243.
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
disregarded, and in such case a bill of particulars affixed to the plead-
ings as a part of it does not aid it. Smith v. McGregor, 101.
2. When the pleadings are so confused and vague as to leave it in doubt
what the parties are contending over, this Court will not take cogni-
zance of the cause on appeal. Woodlief v. Merritt, 226.
3. Where the pendency of another action, and a judgment therein which
disposes of the subject-matter of the controversy in the new suit, is
not regularly pleaded, but is taken advantage of by an exception, the
informality is such that this Court will not pass on the question, but
will remand the case, that the fact may be regularly ascertained.
Holley v. Holley, 229.
|