The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-17
SUPRE NE COURT OPINIONS.
Reported for The New and Observer by Jos. L.
Seawell.


Reported for The New and Observer by Jos. L.
Seawell.
ELLIS, ADMIN. VS.. MASSENBURG.
Kew trial.
Action by the administrator and a creditor Of
Mrs. L. H. Massenburg to set aside a deed by
the intestate to the wife and children of her
son B. B. Massenburg, the deed being for only
nominal consideration and the grantor being at
the time indebted beyond the value of her re-
manning estate. The children and heirs at law
Of the grantor, including B. B. Massenburg, the
father and husband Of the grantees, were MADE
parties plaintiff, although they disclaimed any
interest in the suit, and the plaintiff, b. Is.
hassenburg, was appointed guardian ad litein
for his children, the infant defendants; Held that
the appointment Of b. B. Massenhurg as guar
dian ad Item for the infant defendants was
fatal error which cannot be cured by any evil
dence of good faith or want of injustice. and a
new trial is awarded.
BEACON V. BONG.
Reversed
The holder of a tenants mortgage upon
crop for agricultural supplies furnished the ten
ant to cultivate the same, acquires no right OF
the tenant, but only the right to have the adj
vances repaid out of that part of the crop which
is the tenants share. Thigpen Leigh, 80 N.
O., A.
Where tenant, who is under a contract with
his landlord to cultivate land upon shares, mort
cages his crop for agricultural supplies to be
used in cultivating it, and abandons the crop
against the consent of the landlord and before
A.
tenant upon the land to cultivate and gather the
crop, the last tenant agreeing with the land
lord to pay the lien on the crop given by the
FIRST tenant; Held that when the first tenant
abandoned the crop he forfeited all interest there
in, and the entire crop became forthwith the
property Of the landlord unincumbered by the
hen put upon it by the first tenant,
HOWARD V. EARLY
New trial.
Husband and wife mortgaged wife's land to &C.
cure husbands debt. The husband was at that
time solvent and promised HIS wife 20 secure
her against loss By reason OF the mortgage; he
afterwards became insolvent and then, in COM
pliance with his promise to secure his wife,
transferred to her a note which was payable TO
his order; Held in an action by creditor Of the
husband to subject the transferred note to the
payment OF the creditors debt, that the fore
going facts rebutted the legal presumption of
fraud in dealings between a wife and her insol-
vent husband, and although the jury found that
the transfer OF the note was made with
fraudulent intent, az they did not fp1 that the
wife participated in the fraud or 3ad knowledge
Of it, judgment should have been rendered
against the husband alone. Nadal vs. Britton
l1S N. C. 1877; Brown vs.. Nit :hell, ln2 n. c.
BAT; Sharp vs. Williams, 76 N. c. 81.
RAY VS. SECURITY TRUST. AND LIFE IN.
SURANCE COMPANY.
Reversed.
On November IT, 1898, the plaintiffs interstate
made application to the defendant cJmrany fer
life insurance policy. On January g. 1899, the
president Of the campony wrote to the intes-
tate that her application had been approved and
the policy would be forwarded in due time to
the agent, through whom the application was
made. subsequently the applicant paid to the
local agent the amount which she supposed to
be the annual premium due upon the policy, but
on January 10, 1899, the company wrote the
local agent to withdraw the policy If it had
not been delivered. The policy was never de-
livered to the applicant and she died in March,
1889, there being no change in her health be
tween the date of the application and January
25, 1899. This action is by the administrator
to recover the amount Of the policy.
The plaintiff contends that when the appli-
cation was received and the defendant replied
that 1t had been approved and the policy would
be sent, the contract was complete, as the minds
Of the contracting parties then met
Held that the contract of insurance was de-
pendent upon the proviso in the policy that "No
insurance shall be in force until the delivery
OF the policy to, and the payment of the first
premium by, the party whose life Is insured while
In good heath,' and as this proviso was never
complied with, the plaintiff cannot recover.
CARR VS.. FIDELITY BANK.
Error.
The plaintiff and one Smith owned real estate
as tenants in common but were not partners.
The rents from the property were deposited in the
defendant bank OF plaintiffs and Smiths agent
in the name Of 'Smith and Carr and the de-
PENDANT did not know that the plaintiff and
Smith were only tenants in common and not
partners Smith drew a check upon the defen-
dant bank in the name OF Smith and Carr for
the greater part Of the amount deposited There
after the plaintiff demanded OF the defendant
one half Of the amount deposited which was re-
fused, and plaintiff also refused the defendant 8
tender OF the balance on hand OF the amount
deposited and now sues to recover Of defendant
one half Of the money deposited in the name
Of "Smith and Carr
Held that the plaintiffs remedy is against
Smith alone and not against the defendant, as
1t had no notice Of the nature OF the property
whence the fund was derived, and was compelled
TO pay the check drawn upon it in the name Of
''Smith and Carr by one OF the parties to
whose credit the deposit made. No cause
Of action is shown as to the agent who made the
deposit
WICK vs.. WICK.
New trial.
Plaintiffs and defendants are heirs at law OF
Gilley Wick, who died ntestate seized OF the
land in controversy. The plaintiffs claim that
they are the sole owners Of the land of their
mother by reason of an oral agreement between
plaintiffs and defendants that If plaintiffs would
convey to defendants the plaintiffs interest in
the land Of the father of the plaintiffs and de-
PENDANTS. the defendants would release to the
plaintiffs and defendants interest in the land
of their mother upon her DEATH The plain
tifs in accordance with this agreement conveyed