Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1881-10-23
SUPREME COURT OPINIONS.
REPORTED for the CHRONICLE by L. Ii
man, Jr., September Term, 1881.

man, Jr., September Term, 1881
/. acknowledgements Payment. To
obtain the benefit of the presumption of
payment from lapse Of time, there should
be an averment of payment in the pleading.
3. Presumption of payment-Rebutted.-
The presumption of payment may be re-
the mind that the debt has not been paid.
3. Appeal-By distribution-Upon a bill
fled under the Code, sec. 22O9 ct sea-, for
the appointment of an administrator and set
Element of an estate, distributee may ap-
peal from decree adverse to the interest of
the estate, whether the administrator ap-
peals or not. Stanley v. McKinzer, admir-.
Cooper, J.
Practice-Upon bill to sell realty to pay
debts-Account not necessary, when.-Al-
though, upon q bill filed to sell realty for
the payment of debts of an estate, refer
ence to ascertain and report of debts and
assets may generally be proper, and may be
essential, where there has been no final set
Element of the administration, or where the
testimony is conflicting, or the facts COM
plicated, their omission would not be re-
versible error, if the record shows that they
would be a mere form and useless ex-
pense; as, where there is only one debt,
and final settlement of the administration
has been had in the County Court, which is
shown to be correct and is unimpeached,
and the chancellor finds that the debt is
valid, and that the personal assets have been
! exhausted in due course of administration.
Bloom v. Cate and others. Cooper, j.
Judgment setting aside satisfaction
| Where judgment has been prima facie
satisfied by sale of reality under execution,
and it turns out that the land is lost by rea-
| son of a superior title, the judgment credi-
tor cannot have another execution uutil the
first satisfaction is set aside by proper legal
proceedings. Forrest V. Jones. Cooper j.
Chancery Practice-Account.- In cases OF
account in Chancory, if the Chancellor con
cur with the master in his findings, this
court will not reverse. except upon clea1
preponderance of evidence. Forrest, ex.
v. Robson & Nixon. Cooper, J.
Private way-Registration laws.-A deed
by one landowner to an adjoining landowner
granting private right of way, is within
| the registration laws, and without registra
ton is void, as against bona fde purchaser
from the grantor without notice. Worley
in error, V. State. Mcfarland, J.
Criminal law-Murder in second degree
Malice implied-Rebuttal- the defend
ait Win u OcdoiJ WodpOh otilho LILO Dio Nv
under the impulse Of sudden passion, malice
will be implied by the law, but this pre-
sumption may be rebutted by other facts
and charge is erroneous which does not sc
state to the jury. Redden V. State. Nc.
Farland, J.
/. Will-widow contesting cannot be On
joined when.-It is no ground to enjoin the
widow of the testator from contesting his will
that she has been induced by purchaser of
property under the will to take that course,
where, although old and infirm, it is not al
! legged she is incompetent to act for herself
and it appears to be her interest to break
| the will
2. Same-Estoppel.-T election of 8
widow to take under her husbands will does
not estop her from afterwards contesting
the will nor will her presence at, and ac-
| quiescence in, the sale of prop
erty under the will, when il
| is not avelred that she was then aware of
the facts on which she is making the con-
| test, or that her conduct was intended to
| influence, and did influence, the action OF
| the executors; nor will the receipt by he,
! from the executor of the greater part of he,
share under the will, the amount received
not exceeding her distributive interest in
| the estate if the will be sci
aside. Moore and Armstrong, exrs. "
johnson and others. Cooper, J.
Parol-Lien on reality cannot be created
Under our law there can be no such thing az
a parol or equitable lien or mortgage on
real property. Cate and wife v. Miller.
Cease approved, S Sneed. Sc. McF arland, J