#### *Matilda Poag*& *others*vs. *C. P.*Sandifer, *and others.*

To a bill to enforce an agreement in relation to land, if the defendant deny the agreement in his answer, he need not plead the statute of frauds.

The mere retention of a pre-existing possession, wiE not take a case out of the statute of frauds.

This cause was first heard before Wardlaw, Ch., at York, June Sittings, 1851, who made the following decree:

*171Wardlaw, Ch. As I have formed the opinion that all proper parties are not before the Court, I shall state so much only of the case as involves that point.

In 1819, John Carroll obtained from the Catawba Indians, a lease for ninety-nine years, of a tract of land, including sixty acres, the subject of this suit, within the Indian boundary of York District. He died in May, 1837, having devised this land to Minor Carroll. In 1841, Minor Carroll took a grant of the land from the State. He died intestate in May, 1844, and in 1845, this land was sold under proceedings in this Court for partition, and purchased by C. P. Sandifer, who has not yet paid the whole of the purchase money.

The claim of the plaintiffs is, that an undivided portion of the sixty acres of this land were held by John Carroll, from 1819 anterior to his lease, under a parol trust for his sister Jane Gallagher. She died in May, 1832, leaving of force, a will, which contained no express mention of this land, whereof Joseph Carroll, since dead, was executor; and leaving as her next of kin, her children Matilda Poag, Martha Abshier and Esther Poag. The husband of Martha Abshier left this State about fourteen years ago, and has not been heard of since. Esther Poag died in 1839, leaving a husband Jackson Poag, and two children, Dorcas and Mary J. The bill is filed by Matilda Poag, Jackson Poag, Dorcas Poag, and Mary J. Poag, as heirs at law of Jane Gallagher against C. P. ‘Sandifer, the present owner of the land, and against the administrators and distributees of Minor Carroll, and prays that Sandifer be compelled to deliver up the sixty acres, and account for rents and profits, or that Sandifer, or the administrators of Minor Carroll, if they have sufficient assets in their hands, otherwise the distributees of Minor Carroll, account for the value of the land with rent or interest. Martha Abshier is not made a party, and it is alleged 'that she has released her interest to Matilda Poag.

The defendants deny the trust, and plead the statute of limitations ; but, *in limine,*insist that Martha Abshier and the *172personal representatives of Jane Gallagher and Esther Poag, are necessary parties to the suit. The determination of the question, whether any of these is a necessary party, may depend on the character-of John Carroll’s legal estate in the land, whether leasehold or freehold, at the death of Jane Gallagher, in 1832; and, perhaps, on that of his devisee afterwards. I mean their estate in the Indian lands under our legislation, for it is unnecessary to investigate whethef the reversionary right was originally in the State or the Indians.

By the Act of 1739, 3 Stat. 525, all persons were inhibited from treating with the Indians for their lands, without a license from the Governor and Council, and all contracts with the Indians for their lands were declared void. In 1808, the Catawba Indians were empowered, under certain restrictions, to lease their lands for a term not exceeding three lives in being or ninety-nine years. (5 Stat. 576.) In 1812, some of the restrictions upon leasing were repealed, and it was further provided, *“*that a lease for three lives or ninety-nine years of the said Catawba lands shall be, and the same is hereby declared to be, a qualification equivalent to a freehold, in all cases where a freehold is not required by the Constitution of this State, or of the United States.” (5 Stat. 678) The Act of 1838, (6 Stat. 602,) invested on prescribed conditions, all the reversionary right and interest of the State in these lands in the lessees; and the Act of 1840, (11 Stat. 102,) authorized the lessees on certain terms to take out grants for these lands, and to hold them as other lands.

The title of John Carroll to the tract in question, from his lease in 1819 until his death in 1837, governed by the Acts of 1808 and 1812, was clearly enough a chattel interest, unless the latter Act converted it into a freehold ; and it is argued that such is the eifect of the Act. But the Act does not profess to change the nature of the estate of the lessees; it only makes a chattel interest equivalent to freehold for certain political purposes ; it qualifies the lessees to sit as jurors on the trial of slaves, and to exercise other privileges limited by law to free*173holders — perhaps lo become members of our House of Representatives, under the constitutional requirement of “a real estate of the value of £150 sterling, clear of debt.” I am informed that these leaseholds, where grants have not been taken out under the Act of 1840, have always been regarded without dispute as passing to the personal representatives of deceased owners, for sale or other disposition. In *Payne*vs. *Harris,*'3 Strob. Eq. 39,42, where the nature of the estate m these Indian lands of an intestate, who died in 1841, was in question, the Court say : “ Leasehold estates go to the executor, and are personal estate within the meaning of the Act of 1791, which intended to include under the term, whatever was to be administered by the personal representative of the deceased.” If.the legal estate was a chattel real, any trust imposed upon it would follow its nature ; and the beneficial interest of Jane Gallagher at her death in 1832, passed to her executor. This question is not formal merely, for on the term of the statute of limitations, and the effect of the acts and declarations of Jane Gallagher’s executor, both of which may seriously affect the rights of the parties, the decision may turn. It is urged, that as beneficiaries have the option to accept the subject in which trust funds have been invested by trustees, and as 'the land here has become freehold by the grant of 1841, the effect must be to change the character of the beneficiaries retroactively into heirs at law. But I cannot venture, without hearing the personal representative, thus to nullify intermediate Acts and establish new rights and liabilities by relation. I think that the personal representative of Jane Gallagher should be made a party.

Then as to the necessity of bringing the personal representative of Esther Poag before the Court. Many of the preceding observations apply to this question, but before her death the Act of 1838 came into operation. The, reversionary right and interest of the State granted by that Act to the lessees, probably means the posssibility of reverter to the State upon the extinction of all the Indian possessors, and *the*right of the State *to*extinguish by treaty their usufructuary interest.

*174The grant cannot be construed to change the estate of the lessees into freehold, especially after the case of *Paynev s. Harris.*Supposing, however, the beneficial interest of Esther Poag was of the nature of a chattel real, then, if Jackson Poag, her husband, reduced it into possession during the coverture, he became entitled to it as a martial right, and is properly before the Court, although his children Dorcas and Mary J. are mis-joined as plaintiffs. But it is not clear that he could reduce to possession such an equitable interest: nor does it appear that he either aliened this chattel or attempted to reduce it to possession during the coverture, It .seems by the cross-examination of Martha Abshier, that he never lived upon the land. The personal representative of Esther Poag should be made a party. (1 Wms. Exors. 479.)

Then as to Martha Abshier. Any interest that she could release to Matilda Poag is probably an equitable interest, not transferable at law; and it is settled that the assignor must be a party to any suit by the assignee respecting the *chose.*— ■ *Cathcart*vs. Lewis, 1 Yes. jun., 46B; *Walburn*vs. Ingilby, 1 Myl. & K., 61. (6, Con. Eng. Ch. R., 498.) If her’s were a legal interest in a chattel real, it would seem that it was reduced to possession by her husband during coverture; and his representative would be a necessary party. But I am not prepared to decide that the interest was susceptible of reduction into possession. I have already waived prejudging the effect of the grant of 1841 on the estate of these claimants. My conclusion is, that Martha Abshier is a proper party — that the plaintiffs might use her as a witness, is suggested in the answer as the motive of omitting her as a party originally; and I may say, to avoid misconception, that the exclusion of her testimony does not necessarily follow from this decision.

It is ordered, that the plaintiffs, within a reasonable time, make Martha Abshier, and personal representatives of Jane Gallagher and Esther Poag, parties to this suit.

Afterwards, at June Sittings, 1852, the cause was heard before his Honor, Chancellor Johnston, who made the following decree:

*175JohnstoN, Ch. This cause relates to certain lands lying within the Indian boundary, in York district; and it may be proper, by way of introduction, to state the statutory law of the State relating to lands of this description. I am indebted to my brother Wardlaw, who has made a decision upon certain points in this cause, for the following summary of it:

By the Act of 1739, (3 Stat. 525,) ‘all persons were inhibited from treating with the Indians for their lands without license from the Governor or Council, without which all contracts with the Indians for their lands were, declared void.

In 1808, the Catawba Indians were empowered, under certain restrictions, to lease their lands for a term not exceeding three lives in being, or 99 years, (5 Stat. 576.)

In 1812, some of the restrictions upon leasing were repealed; and it was further provided that, “a lease for three lives, or 99 years, of the said Catawba lands, shall be, and the same is hereby declared to be, *a*qualification, equivalent to a freehold, in all cases where a freehold is not required by the constitution of this State, or of the United States.” (5 Stat. 678.)

The Act of 1838, (6 Stat. 602,) vested, on prescribed conditions, all the reversionary right and interest of the State in these lands in the lessees.

And the Act of 1840, (11 Stat. 102,) authorized the lessees, on certain terms, to take out grants for these lands, and to hold them as other lands.

Thomas Carroll held a large body of lands of this description, on which he resided in 1819, and had resided from the beginning of the present century, and for some years previous. In June, of that year, (1819,) he authorized a survey to be made by one Kuykendal, for the division of his lands between his three sons, -then living, to wit: *John*Carroll, *Mattheto Carroll and Joseph Carroll.*At the time, John Gallagher, the husband of his daughter Jane, was residing, with his family, on this land.

The survey had been nearly completed when Gallagher interfered and set up a claim to some portion of the land intended *176to be divided. This led to a dispute, which was compromised, however, by including the residence of Gallagher, and the spot of ground cultivated by his family around his house, in the portion to be laid off to *John Carroll.*

The portion laid *off*to John Carroll, containing 524 acres, was platted by Kuykendal, the 1st of June, 1819 ; but the plat takes no notice of the possession of Gallagher, nor of .any portion of the land or its boundaries, now alleged to have been intended for his wife within the limits of that plat.

Shortly after this division, the lease of Thomas, the father, was surrendered, and among others, John Carroll, on the of , 1819, took out a new lease to himself for the 524 acres allotted to him, and if not already in possession, he took possession of it.

Thomas, the father, died at some uncertain period afterwards.

Gallagher and his family remained on. the land as before the division.

Gallagher died 6th March, 1825, but his wife and children continued on the land.

On the 8th of March, 1832, Jane Gallagher made her will, of which she appointed her brother, Joseph Carroll, one of the executors, who alone qualified and acted. This will was admitted to probate the 21st of the same month; so that she must have died between the 8th and 21st of March, 1832.

The will makes no express mention of lands ; but, after disposing of a negro, Andy, her cooking utensils, a loom, a reel, two pairs of cards, two wheels and two beds, with their furni-niture, the testatrix proceeds thus :: — “ All the balance of my property, consisting of my negro man, Jim, my cows, and many other *pieces*of property, I direct my executors, hereinafter named, to expose to public sale,” &c.

Jane Gallagher left three daughters, Matilda, then the wife of Leander Poag, Martha and Esther. The three sisters, with Leander Poag, Matilda’s husband, remained at the old spot on the land; Martha married orie Alfred Abshier, and he came in with them, as did also Jackson Poag, who married Esther.

*177In 1834, Abshier gave his note to John Carroll for that year’s rent of the premises in their occupancy. The next year he refused to give another note for rent, and John Carroll sued him for the possession. He defended himself, and in the plat of survey made for the trial of the case, (dated Oct. 6, 1834,) we have, for the first time, the spot located where the family of Jane Gallagher resided. It is laid down by dotted lines as “ Abshier’s farm — about twenty acres cleared and in crop.” On the 15th of October, 1836, the action was tried, and John Carroll recovered; and under further proceedings in that case, Abshier and his co-occupants were dispossessed, and Carroll put in possession in their place. Abshier absconded 2d July, 1837, and has not been since heard from.

John Carroll died 6th May, 1837, having devised his lands to Minor Carroll, who came into possession. In 1841, Minor took a grant covering the whole 524 acres from the State. He died intestate, in possession, in May, 1844; and, in 1845, the whole body of land was sold for partition among his heirs, under proceedings in this Court, and bought by the defendant, Calvin P. Sandifer, who has not yet paid the whole purchase money.

Dudley Jones and one Thomas Carroll, jointly administered on Minor’s estate, and are made defendants to this suit — as are also the heirs of Minor.

Matilda’s husband, Leander Poag. having died, Abshier, the husband of Martha, having removed from the State, and being presumed to be dead — and Esther having died, leaving her husband, Jackson Poag, and two children, who are still infants:— an action was brought by the two sisters, Matilda and Martha, and by the distributees of Esther against Sandifer, the purchaser of the land, to recover possession. Their action was brought , 1849, and came on to be tried at February, Extra Term, 1851, of the Common Pleas for York; and resulted in a verdict for the defendant, Sandifer. Thereupon, the same parties, with the exception of Martha Abshier, who is made a defendant, filed this bill, the 17th of-March, 1851. Matilda Poag sues in *178her own right, and as administratrix *de bonis*non, *cum testa-mento*annexo,- of her mother, Jane Gallagher, whose executor, Joseph Carroll, is dead, and also, as administratrix of her deceased sister, Esther Poag. The defendants are Martha Ab-shier, Sandifer, and the administrators and heirs of Minor Carroll.

The bill, which is very vague, states that John Gallagher, shortly after his marriage with Jane Carroll, the daughter of Thomas Carroll, removed and settled upon a part of a certain tract of land then held by the said-Thomas Carroll, under a lease from the Catawba Indians, lying, &c., *“*and having such shapes and boundaries as will appear by reference to plats of the same herewith filed, as exhibits A & B,” (which, by the way, were never filed.) “ That the said John Gallagher continued in the peaceable and undisturbed possession of said land, for a period of about twenty years, until his death, *without the said Thomas having executed a lease*therefor.” “ That Jane Gallagher, the widow of the said John, continued in possession of the said land .until her death, in the year of our Lord, 1832 ; leaving your oratrix, Matilda Poag, Martha Abshier, and Esther Poag, her only surviving children. That the said Jane left a last will and testament,” (referred to as an exhibit, but not exhibited.) *“*That one Joseph Carroll took upon himself the execution of the said will. That as executor of Jane Gallagher, *he in no wise claimed or administered wpon said land as apart of the estate of Jane*Gallagher.” “That on the day of June, in the year of our Lord, 1819, Thomas Carroll made- a partition of his lands — and a tract leased by him to his son, Moses Carroll, who had died, leaving neither wife nor children. That upon that occasion, it was agreed by and between the said Thomas Carroll and his children, John Carroll, Matthew Carroll, Joseph Carroll, John and Jane Gallagher, that sixty acres of land, embracing the house where the said John Gallagher then lived,” (no other description of its location or boundaries,) “ should be run into the said John Carroll’s share of land, for the use and benefit of the said Jane Gallagher and her children.” *“*That no lease was executed for the share of *179said Jane Gallagher and her children, in the partition of said land, but that the same was so run into the plat of the said John Carroll, in special trust and confidence that the said John should stand seized of the same for the sole use and benefit of the said Jane Gallagher and her children — -in order that the share of the said Jane in the lands so partitioned, should not be subject to the control or debts of the said John Gallagher, who was thriftless in his habits and in insolvent circumstances.” “ That said John Carroll, from the time of the said partition until his death, acknowledged that sixty acres of land covered by his lease,” (viz : one which he took from the Indians after the partition,) “ and lying around the Gallagher house, of right belonged to his sister Jane Gallagher, and her children — and that he was holding the same for their use and benefit.”

The bill then proceeds to state the death of John Carroll, after having ousted Abshier and his companions ; his devise to Minor Carroll; the grant taken out by Minor in 1841 ; his death; the purchase of his land by Sandifer, &c., as I have narrated them; and avers, that the administrators of Minor, have assets to compensate them for the value and rents of the sixty acres, which the plaintiffs claim ; if not, that the residue, due by Sandifer on his purchase, should be subjected ; and if insufficient, the heirs of Minor should answer out of so much of the proceeds of the sale, and assets of the estate of Minor, as they have received. The bill also states, that Martha Abshier has assigned her interest to Matilda Poag, her sister.

If the plaintiffs are entitled to the value of the land, I suppose an inquiry might be made into the assets and the balance due by Sandifer, &c., and a decree made accordingly.

But the statements of the bill which I have quoted, are denied by the answer generally. It is denied that Moses, the son of Thomas Carroll, who died before the division of 1819, ever had any lease from his father, or any other interest in any portion of his lands, than a permissive possession as tenant at will. It is denied that John Carroll ever agreed to hold the sixty acres in trust for Jane Gallagher and her children, although he agreed *180to permit her to reside on his lands during her life ; and the answer denies, that he, at any time, acknowledged the land to belong to her or her children, or that he held it in trust for her or them.

Now, if there is evidence to establish the agreement, it must be in writing, or the contract must be taken out of the statute of frauds by some circumstance, so as to let in parol proof of it.

The defendants have not pleaded the statute, but having denied the contract as stated, they objected, at the hearing, to the proof of it by parol.

In *Cozine*vs. *Graham,*
      *(a)*
      **where the contract related to land, the Chancellor, upon an examination of cases in the Court of Chancery, observes: *“*The rule of pleading on this subject is well settled in the Court of Law; and I do not see why the principle' of that rule is not equally applicable to this Court. It is there held, that the statute did not alter the form of pleading. That if an agreement or contract is stated in the declaration to have been made, it is not necessary to allege that it was in writing, as that will be presumed until the contrary appears. If the agreement is denied, the plaintiff must produce legal evidence of its existence, which can only be done by producing a written agreement, duly executed according to the provisions of the statute. If the agreement is admitted by the pleadings, no evidence to prove its existence is necessary, and the Court never inquires whether it was in writing or not.”

In the *Ontario Bank*vs. *Root,*
      *(b)*
      **the principle affirmed in *Cozine*vs. *Graham,*is referred to and approved. In this latter case, *(Bank*vs. *Root,)*the agreement fell under another head of the statute of frauds. It was an agreement to pay the debt of another ; and was denied in the ans wer. The Chancellor says, “ As the agreement was denied in the defendant’s answer, it \vas not necessary for him to insist upon the statute as a bar. The complainant in such case must produce legal evidence of the existence of the agreement, which cannot be established by parol proof merely.”

*181This appears to be a reasonable view of the subject. In this case, the bill states that no lease was executed for what the plaintiffs denominate “ the share of Jane,” in the division of 18 L9, which approaches very near to stating, that the agreement, stated to have been made in relation to her *“*share,” was merely verbal. If that had been explicitly stated in the bill, the bill itself would have put the agreement within the statute, and the defendants need not have pleaded it. It is the function of a plea to bring to the view of the Court, independent facts not stated in the pleading of the other party; which facts are sufficient in law to bar the claim set up in that pleading. But if the other party himself states matter which is good ground of de-fence, he pleads against himself, and must submit to the bar which he himself establishes. There is no need to plead the bar in such a case. But it is possible, that though no *lease*was executed, a written *agreement*was made of the description stated. The defendants deny that any agreement of the kind was made, and call for the proof. No written agreement, as required by the statute, is produced, but in its place parol evidence is adduced. The defendants object to it, and the statute decides it generally insufficient. The statute must avail the defendants, unless a case is stated and proved, which in some way escapes its operation.

It has been urged, that the long possession of Jane and her family, under the “alleged” agreement, takes it out of the statute, being in the nature of a part execution of the contract: and so it would (possibly) if that possession had been taken under the agreement. A statute made for the suppression of fraud, shall not be perverted by construction so as to make it the instrument of fraud.- If a party, by means of a verbal contract, induces another to take possession of lands, by which he would be liable as trespasser, unless the agreement was allowed and enforced, this would be a fraud; and the party guilty of it shall not shield himself under a statute intended simply as a defence against injustice. But Jane’s possession was not taken under the agreement alleged, but existed before, and it has been *182often held, that the mere' retention of a pre-existing possession does not take a case out of the statute.

But it is attempted to take the case out of the statute in another way. It is alleged that Moses, the deceased son of Thomas Carroll, held a lease from his father for part of the premises partitioned among the surviving sons in 1819, and that Moses having left neither wife nor issue, Jane was entitled to a “ share” of his leasehold estate part of the lands to be divided. The intimation is, that the surviving brothers were allowed to throw her share into the lot of John, upon condition that he would hold it in trust for her benefit. This would, certainly, be sufficient, in two ways, if the facts existed. It would give a right of partition in Moses’ portion of the lands ; or it would operate as a consideration of the trust contract alleged in the bill; and John Carroll’s being let into possession of the residue of the land, would be a sufficient part execution to bind him.

But the proof that Moses ever had such a right as is alleged, utterly failed. He was an occupant of part of the land in his life time. But that he ever had a lease or other title from his father, so as to constitute it his-estate, does not appear ; nor is the amount or boundaries of his supposed land ascertained. It rather appears to have been a permissive occupancy.. The whole land divided belonged to the father, and he disposed of it, as his own, to his sons.

Were the statute not in the way, I think the evidence, of the contract alleged, altogether too loose to make it the ground of a decree, under the circumstances of this case. The evidence is all in writing, and will verify my remark.

Were the evidence not only sufficient to take the case out of the statute of frauds, but so explicit as to be made the ground of a decree, there are other difficulties which I have felt, and which I will mention without concluding anything on them.

It is not a reasonable construction of anything testified to by any witness, to conclude that the import of John Carroll’s engagement was, that he was to hold the land in trust entirely for his sister Jane, during her life, and then for her children, *by way*
      *183
      *of*remainder, after her death ; nor, (by the by) is that the way in which the bill states the contract. Such modes of verbal arrangement are too unusual, to render it reasonable to believe such was the case, in this instance. When contracts of that complexity are entered into, parties are disposed to put them in writing. It would be unsafe, (in contracts relating to land,) to infer from a conversation such as took place in 1819, distinct limitations of such property. Witnesses are too liable to be mistaken, especially after the lapse of thirty years, to allow of this. The inherent evidence is better than the recollection of any witness in such a case. The intention plainly was to keep the land for Jane, she being the object of affection, and the mention of her children was not made with an intention to give them any title, but by way of indicating that their mother should have a shelter for them. Such is my inference from the testimony, so far as I think it credible.

Then, considering the land as Jane’s, I am of opinion with my brother Ward law, that, as leasehold, it went to her executor, Joseph Carroll: — and he not claiming’it, (as the bill says,) as part of her estate, was bound by the adverse holding of John Carroll and Minor Carroll.

John Gallagher, her husband, did no act in his life time to destroy her right by survivorship. The law, applicable to leasehold estate, is well stated by a good elementary writer, (Wms. on ex’ors.,) thus: “The law gives a qualified interest to the husband in the chattels real, of which the wife is, or may be. possessed during marriage; viz: an interest in his wife’s right, with a power of divesting her property during the cover-ture. If, therefore, he so disposes of his wife’s terms, or rather chattels real, by a complete act in his life time, her right by sur-vivorship will be defeated. But if he leave them in *statu*quo, and the wife, be the survivor, she will be entitled to them to the exclusion of the executors or administrators of her husband.” John Gallagher did no act to reduce his wife’s leasehold into a right in himself; nor did he alienate it. It survived to her, *184and according to *Payne*vs. *Harris,*
      (c) went to her executor; who was barred. The title was in him. It did not “ descend, or come ” to Jane’s distributees ; and the statute of 1824, saving the bar of the statute, where titles descend upon a number of persons, some of whom are infants, does not apply. The statute having begun to run against the executor, though it had ■ not completed its bar in his life time, run on, and was not suspended in the interval between his death, and the grant of administration to Matilda Poag, his successor. I incline to the opinion, this is the law on this part of the case, though I do not think it necessary so to decide.

I return to the statute of frauds, and make that the foundation of my decree.

It is ordered that the bill be dismissed.

The complainants appealed from the decree of his Honor, Chancellor .Tohnstojst, and moved this Court to reverse the same on the grounds :

1. Because the defendants not having pleaded the statute of frauds, they are precluded from setting it up as a defence.

2. Because John Carroll having procured Jane Gallagher’s share of Moses Carroll’s land to be run into his plat, on his parol assurance to hold the same for her and her children, it would operate as a fraud, to permit him, or those claiming under him, to set up the statute of frauds as a bar.

3. Because the long possession of John Gallagher and family, under the parol partition of 1819, takes the trust contract out of the statute, inasmuch as the consideration of said contract was Jane Gallagher’s share of her brother Moses’ lands.

4. Because, under the circumstances, the complainants are entitled to have partition of the land in dispute, in right of Moses Carroll.

5. Because the trust contract is proved with sufficient certainty *185to entitle complainants to have an account for the value of the land, and rents, and profits.

6. Because the statute of limitations does not apply, and there was no one against whom it could run; that in any event the infant complainants are not barred.

7. Because John Carroll at no time did any act declaring his intention to discharge himself of his trust, but on the contrary, after he dispossessed Abshier, admitted complainants’ title to the land.

8. Because the grant covering the land was obtained by Minor Carroll, upon the lease of complainants, the beneficiary owners of the same, upon which alone he could have obtained it.

9. Because an executor is not to be deemed in possession of chattels real before entry.

Smith, for appellants.

Williams, contra.

*2*Paige, 177.

3 Paige, 478.

*3*Strob. Eq. 39.

*Per Curiam.*

This Court sees no reason to disturb the conclusion to which the Chancellor has come: and it is ordered that his decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Decree affirmed.*