The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-01-11
SUPREME COURT DECISIONS
(Reported BY Jos. j. seaweli.)

Where, pending an action for divorce
and almonv, the defendant confessed
judgment to his brother and another, and
the plaintiff instituted an action 10 set
aside the judgments and enioin the sale
and execution Hereunder, upon the
ground that the judgments were fraudu-
lent and were intended to defeat her re-
covery of alimony and the defendant met
the allegation of fraud and filed affidavits
showing every item of the Indebtedness
for which the judgments were confessed
it was error to continue the Injunction.
TTDDY VS.. GRAVES. PLAINTIFFS petition
to reheaT sustained and Judgment below
affirmed.
Where, IN on action to recover land
devised to plaintiff by his mother and
sold to pay city taxes, while the land
was held by plaintiffs stepfather as ten
ant Ey the ourtesy, the defendants an
swer admits the truth of the allegation
in the complaint that plaintiffs step
father was entitled to an estate by the
curtesy in the land. such admission of de-
PENDANT IS on admission Of fact and de-
PENDANT is bound by it, and the admission
overcomes the presumption that the mar
riage of plaintiffs step father to his
mother was before the adoption of the
Constitution OF 1868.
Section 80 Of charter 119 of the Laws
of 1896 applies to land sold to pay city
taxes rs well as to that sold to pay
State and county taxes.
BURNEY VS. ALLEN. Affirmed
Upon trial of an issue of devisayit vel
non it is competent to introduce evil
dence that, from the witnesses personal
knowledge of the room and the location
of the furniture, the testator could have
seen the subscribing witnesses as they
signed the will, # the testator was lying
in the position testified to by other wit
nesses or the trial.
TOMS VS.. FLACK Affirmed
The pre sumption is that the wife,
separate personal property is still her
own although it is in the husbands pos
session. And where notes in payment of
the wife's land are made payable to the
husband, the burden is upon the husbands
administrator to disprove the presumption
that the notes are the property of the
wife-it having been shown that the notes
were in payment of a debt due to the wife.
Where, in such case. the complaint
prays for a correction of the notes as well
as for possession, but the issue tried is
merely of ownership, the rules of evidence
as to correction of deed do not apply.
and If the evidence adduced is sufficient
TO prove merely that the notes were given
in payment of a debt due to the wife, the
trial Judge is warranted in directing
verdict in favor of the plaintiff.
GALLOWAY VS.. ANGEL. Affirmed.
Action before a Justice of the peace
upon the following instrument to-wt:
This is to certify that ! am due ]. C.
5000, to be paid out of the proceeds of
the sale of the land l own on Clear Greek
and I hereby agree to make deed
- to all the land l own on Clear
Creek to any one the said J. C. may de-
signate whenever he pays me $500 over
and above the 5000 due him." Upon the
evidence the jury were instructed to an
swer the issue 1920 subject to credit
(of a small amount; Held no error The
action is not to enforce the option or sub
ject the proceeds of the land sold, but a
simple action to recover judgment for the
$500, which was in no wise dependent o..
the sale of the land and the justice of
the peace had jurisdiction.
BATTERY PARK BANK VS.. WESTERN
CAROLINA BANK. No error
The defendant bank became nsolvent
and made an assignment for the benefit
of all its cer1tors. The petitioning cred
itors recovered judgments and filed petit
lions in the cause. claiming liens on real
on real estate of defendant: Held. the
deed of assignment under the facts of
this case is void as to petitioners. The
lien obtained by commencement of action
in nature of creditors bill creates lien
upon the chooses in action and equitable
assets of the debtor. but not upon his
tangible personal property, and if the
latter is levied on prior to appointment
of receiver, it passes to receiver subject
to lien of levy
The docketing of petitioners judgments
conferred the same lien on realty as
levy on personally would, and hence the
realty of defendant passed to receiver
subject thereto.
The judgment of the court below direct
ing payment of petitioners Judgments out
of proceeds of realty as preferred liens.
is affirmed.
The receiver here need not have appeal
ed as the question is merely between
two sets of crditors as to tn distribu
ton Of the fund.