The news and herald. (Winnsboro, S.C.) 1877-1900, 1878-12-10

tial relations with each other. If no
such proof is established, courts Of
equity treat the case as one of con-
structjye fraud" (StoyW'S E1. Ju,is.,
3l1)
The circuit judge finds as fact that
the matter was transacted Gin perfect
good faith, without fraud or conceal
mont or purpose Of undu, advantage
to himsclf.'
The transaction was in itself not
illegal, and in fact one of not unusual
occurrcncc-the attorney merely pay
ing, and converting into al Investment
for himself, note put into his hands
for collection.
Court, that the finding of fact in the
court below, will not bc disturbed if
there was evidence sufficient to sup
port such finding, even although the
evidence to the contrary may appear
to be very strong In this case we
perceive no difficulty in the way of the
rule: the finding is amply supportedby
the evidence. Such being the facts of
the case, tho conclusion Of law is cor
rcctly stated by the circuit Judge, and
his Judgment must be affirmed.
Motion refused.
WILLARD, G. j., and MCIvER, A.
SAMUEL Is. CLOwNEY, AS CLERK OF
THE COURT OF COMMON PLEAS FOR
FAIRFIELD COUNTY, RESPONDENT,
as. L. w. RAwLs, APPELLANT.
Tho opinion of the Supreme Court
was delivered by
II sKELL, n. J.-This was an action
Oh Il bond Tor the purciasc-moncy of
a tract Of land sold by rhc clerk Of the
courtb by virtue ofan order Of the court.
The answer alleges that tho tract actu-
ally conveyed to the vclidcc contained
but ninety acres, while thc deed states
that the tract contains one hundred
and thirty-ninc acres, more or less,
represented by the letter f. OH Il plat OF
rcsurvey made by Is. IL. Robertson, D.
S., on the 9TH day of October, a. -.
1869, Of the lands OF n. a. Pcav, de-
C ased, knowna. the Film FL P.a:c
The land was r,cycd uy ord L oI the
court and divided into tracts for the
purpose OF sale, and the advertisement
of sale announced that plals Of the said
tracts would be exhibited at the sale,
and that the sale would be made by
tract. The land in question is one of
these tracts, and it is admitted that tho
plat represented the tract as containing
ono hundred and thirty-niGc acres.
at the trial the defendant called as
witness b. ii. Robertson, the survey
or. "Thc plaintiffs attorney then in
quircd whether the defendant now
proposed to offer evidence in proof the
deficiency alleged in the answer. Upon
receiving a reply in the affirmative,
the plaintiff called as witness james
b. McCants, who, being first duly
sworn, tcstiticd' as is stated in the
brief. Another witness was then
called by the plaintiff, and testified as
shown inthc brief. "On this testimony
| The presiding judge ruled that no evf-
dcncc could be offered to sustain the
defence set up in the answer. The
defendant excepted" The judge then
ordered a verdict for the plaintiff.
Motion for Il new trial was refused
and appeal taken.
In the case as it is presented, the
plaintiff offered evidence in answer to
the defence set up in the plcadings,
and son this testimony" all evidence
in behalf of said defence was ruled out.
1t is plain that such ruling is errone-
GUS. The defendant might have re-
butted or contradictcd every point in
the testimony offered by the plaintiff
and thus have deprived Of all force the
ground upon which the ruling is made
to rest. The defendant is entitled to u
new trial.
But the real question on the appeal
is whether the defence set up in the
answer is q legal defence. If the
plaintiff desired to restrict the de-
fendantto the allegations contained in
the answer, he should have dcmurrcd :;
having failed to dcmur, and having
resorted to evidence on his own behalf,
the defendant has equal liberty, and is
entitled to the benefit of any valid de-
fence which he can produce ut tho
trial, provided tho adverse party be
not actually mislcd, and tho defence
be not absolutely inconsistent with the
plcadings.
The defence set up is that the tract
was sold and conveyed as one hun
drcd and thirty-nine acres, moro or
less, whereas only ninety acres werc
actually conveyed. Ifthis be true, it
is inmatcrial whether the mistake
arose from accident or fraud. 1t was a
misrepresentation, and the amount
renders it pro tu7,t0 q defence.
If the purchaser be misled by rep
resentation at the sale, he is entitled
to relief; and it is immaterial whether
there Is or not u warranty III the deed.
Such is the we'll established law. In
Eva7es vs.. Dendy, 2 Spcer, 10, the
Court says: "Whcre the purchaser
ofland has been deceived by misrep-
! rcScntatiOu. "Whcther Intentional Or