#### Isom Kirkpatrick *vs.*Valentine Atkinson and wife.

*Issue at Law*— New *Trial*— .Appeal—Incompetent Evidence— *Personal Representative*— Fraud—Limitations, *Statute of.*

Where an issue at law is ordered, the verdict of the jury, though approved of by the presiding Judge, is not obligatory onihe Chancellor — he may direct a new trial, or even decide the cause in opposition to the verdict.

Upon an appeal from a Circuit Chancellor’s decree, refusing to order a new trial at law, it is incumbent on the appellant to show that the Chancellor has miscarried; it is not enough for the Court of Appeals to have misgivings as to the result attained by the Chancellor.

Where incompetent evidence was received on the trial of4the issue at law, the Circuit Chancellor is not bound, like a Law Court of Appeals, to grant a new trial on that ground; he may, if he is satisfied with the verdict upon consideration of the competent testimony, refuse to grant a new trial.

Where the personal representative is entitled to an account of rents and profits accruing before the death of his intestate, he has such an interest as entitles him to file a bill to set aside, on the ground of fraud, a conveyance of the land made by the intestate.

From analogy to the statute of limitations, the Court of Equity generally adopts the period of the statute as a bar to equitable demands. Sometimes a shorter period is held to preclude the plaintiff, and where the circumstances of the case make it inequitable for the defendant to insist on the bar of the statute, the Court will not enforce it.

In June, 1847, J. M. executed two deeds, by which he conveyed his land and negroes to V. A., reserving the use to himself for life. He remained in possession until 1852, when he died intestate. In Kay, 1856, the plaintiff administered on his estate, and shortly afterwards filed a bill, to set aside the deeds, on the ground of misrepresentation and fraud, and of the incapacity of the donor. The allegations having been found true, and it not appearing that the capacity of the donor had improved, the statnte of limitations was held not to bar the plaintiff’s bill.

BEFORE DARGAN, CH., AT CHESTER, JUNE, 1858.

John McKelvey and Elizabeth, his wife, on the 23d of June, 1847, executed two deeds, whereby the said John McKelvey, reserving the use to himself and wife during their *28lives, conveyed all his real and personal estate to the defendants, Valentine Atkinson and wife. Elizabeth McKelvey died in September, 184S, and John McKelvey died in July, 1852. In May, 1856, letters of administration on the estate of John McKelvey were granted to the plaintiff, who, thereupon, filed this bill, to set aside the said deeds. In July, 1857, an order was made, directing an issue, to determine whether the donor was of sufficient capacity to execute the deeds, and whether said deeds were procured to be executed by misrepresentation, fraud, or undue influence. The issue was tried at Chester, Spring Term, 1858, before his Honor, Judge O’Neall, and the jury found for the plaintiff on both the issues.

The defendants appealed, and in June, 1858, moved the Court at Chester for a new trial. Plis Honor, Chancellor Dargan, overruled the motion, and decreed in favor of the plaintiff.

The defendants appealed on the grounds:

I.Because the Chancellor erred in not granting a new trial on the grounds taken before him, to wit:

1. Because the presiding Judge erred in receiving, as evidence, the declarations of John McKelvey, and Elizabeth McKelvey in derogation of their own deeds, after execution thereof.

2. Because the presiding Judge erred in permitting the opinion of witnesses as to the competency of John McKelvey, and his capacity to make the deed, without any fact, showing want of capacity.

3. Because from the proof it was clear that the said John McKelvey made his own contracts up to the time of his decease; that he had resided with the defendant for the space of two years, long after execution of said deed, without any manifestation of displeasure as to the terms or with the defendants; that there was no proof of any single fact showing want of capacity to understand the deed in controversy. *29The verdict of the jury finding want of capacity is without evidence.

4. Because there was no proof of misrepresentation, undue influence or fraud on the part of the defendants. The verdict of the jury finding that the said deeds were procured by fraud, misrepresentation, and undue influence, is without evidence.

5.- Because it is respectfully submitted, that the presiding Judge erred in stating and suggesting to the jury, in order to sustain the testimony of James Robiuson, that the deed in question might have been lodged with the clerk of the Court, with a request not to record the same, when there was no proof, nor any effort to prove the same, thus supplying to the jury, facts to sustain the testimony, without which it must have been discredited.

II. Because the complainant, Isom Kirkpatrick, as administrator of John McKelvey, had no right to the *rents and profits*of the real estate of John McKelvey; the heirs-at-law, and not his administrators being entitled thereto ; the decree of the Chancellor directing such accounting is erroneous' and ought to be reversed.

III. Because the decretal order directing an issue to try the validity of the deed made to the defendant by John McKelvey, of his land, is erroneous; the heirs-at-law of John McKelvey, being no party to the proceedings, and they are the only persons who have a right to test the validity of said deed.

IV. Because more than four years having elapsed since the execution of the deeds, before the commencement of the suit, the statute of limitations was a bar to so much of the bill as relates to the negro slaves, and other personal property; the decree of the Chancellor overruling'said plea was erroneous.

V. Because the costs of suit should have been paid out of the estate, and not by the defendants.

*Melton,*McMily, for appellants.

*Smith,*contra.

*30The opinion of the Court was delivered by

Dunkin, Ch.

At the original hearing of this cause in the Circuit Court, the presiding Chancellor, after an examination of some of the witnesses, deeming the inquiries involved in the pleadings peculiarly proper for the consideration of a jury of the vicinage, who were best acquainted with the parties and witnesses, directed an issue at law. The result was certified to this Court by the presiding Judge, who tried the issue and who was satisfied with the verdict. On a motion for a new trial, before the Circuit Court of Equity, in July last, the Chancellor, after a review of the evidence appearing-in the notes of the presiding Judge, expressed his satisfaction with the verdict rendered by the jury, dismissed the motion for a new trial and proceeded to a final decree in the premises, which is the subject of this appeal.

The principal grounds taken involve the proposition that the result attained by the concurrent judgment of the jury, the presiding Magistrate in the Court of Law, and of the circuit Chancellor, is not warranted by the testimony. Every human tribunal is fallible, and all the machinery invented for eliciting the truth may sometimes prove ineffectual, but such is not the general presumption. The parties had, in the first instance, the advantage of the time-honored observance of calling on jurors to respond to questions of fact. Their verdict, approved as it was by the presiding Judge, was not obligatory upon the Chancellor. Unless satisfied with the finding, he was at liberty to direct a new trial, or even to decide the cause in opposition to the verdict. This is an appellate tribunal, and it is incumbent on the party asking for a revision of the Chancellor’s judgment to satisfy this Court that he has miscarried. It is not enough that this Court may have misgivings as to the result which has been attained. But it is objected that the law Judge received evidence which should not have been admitted, and that on this ground the Chancellor should have ordered a new trial. This subject is very fully treated in *Lyles vs. Lyles,*1 Hill Ch., *3176. It is not like a motion for a new trial at the other end of the hall. The issue is direeted for the purpose of satisfying the conscience of the Chancellor, and if, upon a review of the competent testimony, that object has been attained, the Chancellor is not bound to reject the verdict, because, in his opinion, the Judge erred in law on the admissibility of a part of the evidence. In this case there was testimony besides that to which objection has been taken ; and we cannot say that it was not sufficient to have satisfied the Chancellor with the result.

The second ground of appeal insists that, in any view, the administrator is not entitled to the rents and profits of the real estate, but that they belong to the heirs-at-law of the intestate. The rents and profits, which accrued during the lifetime of the intestate, belong to his personal representative, and not to his heirs. After that period, the right to the rents and profits accompanies, of course, the inheritance. The decretal order upon this point is not very distinct, but it must be so construed. And this furnishes an answer to the seventh ground. As the right to an account of the rents and profits which accrued during intestate’s lifetime would belong to the administrator, he was entitled to an inquiry as to the validity of the deed.

It remains to notice the defence of the statute of limitations, very faintly urged at this hearing. It has been often reiterated that proceédings in this Court are not within the statute of limitations, but that this Court, generally, adopts this period as a bar to equitable demands from analogy to the statute. Sometimes, however, a shorter period has been held to preclude the plaintiff, as in the case of *Kirksey vs. Keith,*heard at this sittings. And where, from the circumstances, it would be inequitable for the defendant to insist on the lapse of time, this Court is not bound to enforce the bar. The jury have found not only that *“*the deeds were procured to be executed by misrepresentation and fraud,” but that the intestate “ was not of sufficient capacity to execute the deeds.” *32The intestate always retained possession, and it was not suggested that his capacity subsequently improved. Under these circumstances he could not be expected to have known his wrongs, or to have adopted the proper means of redress. The plaintiff instituted these proceedings soon after taking out letters of administration, and within four years from the death of his intestate.

It is ordered and decreed, that the decree of the Circuit Court be affirmed, and the appeal dismissed.

Johnston and Wardlaw, CC., concurred.

*Appeal dismissed.*