Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-24
DECISIONS OF THE sUPREME COUNT
nLrET(yJ
Decisions OF the Supreme Court of the
state OF tennessee, ut knOxvilles Sep-
temDeF Term. 1850.
Hardin VI. CauQdon

| tenn Der Terms 1861
| Hardin vs.. Cengdon.
| l. On the motion to dismiss the writ of errol
(granted IN this by one of the judges of THU
court within two years from the date of the decree
without any order for superse1ids which was moi
pray for) some doubt at first entertained upC
the question, whether taking sections 3I98 and 3,
Isl of the Code together it was intended to confer
power on the appellate court Judge thereof to
| issue simple writ of error without two years af
| ter the Judgment or decree sought to be reversed
unless sIpersedids were also desired.
Wsare satisfied on reflection that the writ OF err
ror was properly allowed, and that the power was
intended to be conferred the appellate court OF
judge thereof to award writ of error merely
without granting q supersedias.
z As regards the merits of the cause, we think
the decree is correct The proof clearly establish
that in the latter part of 1852 an agreement was
entered into between the parties by which Hardin
empo wered to make contracts for the purchase of
mineral nds to be resod speculation and If ap-
proved by COngdon the latter was to furnish the
money to pay for the lands. take the title himself
as purchaser, sne upon resale Hardin was to re-
celve one-fourth o. the profits realized from the
speculation.
1t appears that, in Pursuance of this contract.
several tracts of land contracted for by TAR
bin, and conveyed to Congdon and afterwards re-
| sold by him at large profit upon the investments
one-fourth of the profits of one of which specula-
tons, namely, the Nelson Carter property with in
terest to the date of the decree amounted to the
sum of s., l6lSl, for which decree was rendered
IA compliments favsr.
The objection to the decree that the contract be
tween the parties not being in writing was void by
the statute of frauds The objection is not tenabIe
The contract did not contemplate that any interest
in the lands should be vested in Hardin The legal
effect of the contract was merely to confer on him
an agency to make contracts for the purchaser and
the stipulation that he should have One-fourth of
the profits of the speculation was merely mode
Of compensation for his services. To such con-
tract the statute of frauds and preures has no ap
plication.
1t may possibly be correct as argued that court
of equity would declare the compliments propor-
ton of the profits to be lien upon the lands to
secure the payment thereof but this does not help
the argument. This is done in favor of purchaser
of land by parol contract, who has advanced the
purchase money upon the faith of such contract
which the other party refused to execute:
Decree affirmed. MCKINNEY
a true copy. W. r. CAswELI, Clerk
Middleton smith and wife.
On the sth of March, 1856, the complainant
purchased from the defendants a tract of land w.
ing in Hamilton county, for the consideration of
81 10000, which was paid, and conveyance in fee
with the usual covenants and warranty, and sesin
was executed by Smith and wife-the privy exami- |
nation Of the wife having been taken IN proper |
form. The land belonged to Mrs. Smith. Her title |
was derived untstlsev4 Will of her deceased father
Samuel Wilson, which was dated the 18th day of |
October; 1858.
The devise of the land is to Mrs. Smith, "for the
benefit of my daughter Jane Mrs Smith) and her
bodily heirs"
The bill seeks to have the contract rescinded and
the deed cancelled upon the assumption that under
the foregoing devise, Mrs. Smith takes only an es-
tate for life in the land conveyed in fee to the COM
Dlainant.
The defendants demurred to the bill, and the de-
nurer was allowed and the bill dismissed.
The act of 1852, oh. 81 copied into the code, Sec
zoos, has ne application to this
By the common law the words of the devise ''for
the benefit of my daughter Jane and her bodily
heirs would have created conditional fee; that
s. estate which restraints the fee to some partic-
llar heirs exclusive of others; to the heirs of
mans body, or the heirs male of his body. But |
with estates tail general and special were long
since entirely abolished. By the North Carolina
statute of 1874, oh. o. sec. ), which have re-
estates were converted into estate in
fee simple absolute, and this provision is reenacted
by the code sec. 2O07. 1t follows, therefore that
the conveyance of the defendants is operative to in1
vest the compliments, with estate in fee simple,
the demurrer was properly allowed.
Decree affirmed. MCKINNEY.
W. +. CAswEII- Clerk.