The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1901-01-08
SUPREME COURT DECISIONS
lReported by Jos. L. SeaWel.)


be viewed upon appeal, unless based upon
incompetent evidence
The probate of a deed being a judicial
act. is presumed to be regular until the
contrary appears, and 1t cannot De col
Iaterally attacked.
The County Registers" certified copy
of a deed and its registration and pro-
bate. taken by the deputy clerk, ''in open
court over 100 years ago, as appears
from the books in the registers office,
is competent evidence in an action involv-
ing the title to the land conveyed, where
if appears that the registration books in
the registers office, is competent evil
dence in an action involving the title to
the land conveyed. where it appears that
tie registration books in the registers
office have been destroyed. And as the
probate was taken in "open court the
objection that it was taken by the deputy
clerk cannot be sustained.
Where, in such case, the probate shows
that the deed was acknowledged by one
under power of attorney for the grantor
and there is no evidence that the ac-
acknowledgement was irregular, the maxim
'omnia presumuntur," etc, applies.
BAILEY VS. BAILEY. No error.
Defendant Ito defeat the application
offered in evidence an agreement be-
tween plaintiff and defendant, to adjust
and settle all matters in reference to
their separate DrOperty-releasing all
right of dover and Of tenant by courtesy;
Held. that said contract was not bar
to plaintiffs claim Of alimony; the con-
tract is not against public policy-no sep
aration being limited but it is a business
transaction. authorized by Section 1885
and 1886 of The Code.
The order condemning enough of the
land to be sold to pay amount allowed as
alimony defendant being out Of the
State) was also affirmed.
AUSTIN V. MURDOCH, New trial.
1t was error to non-suit plaintiff and
dismiss the complaint in this action. The
complaint states a cause of action, and
the evidence relating to the deceit alleged
to have been practiced. and denied by de-
PENDANT with all the competent evidence
adduced on the trial, was more than a
scintilla and should have been submitted
othe jury upon the issues between the
parties.
ANGEL V. ANGEL. New trial
In an action on note where it turned
out that there had been mutual accounts
and dealings between the plaintiffs intes-
tate and defendant, it was held incr>~,-
petent under 500 Of The Code, for de-
PENDANT to testify that mo one had paid
him for those articles 1T being admitted
that payee in the note died intestate.
All mutual running accounts in this case
are presumed to be included in the set
tlement represented by the note, which
can be rebutted only by competent evil
dencp SmafherS Shook 80 n c.
1874, cited and approved.
CABE V VANHOOK. Error.
The action brought by the trustees of
Clarks Chapel to recover of defendant
$500 set apart by will to put up wall
around the Chapel Cemetery was held to
be no estoppel to the bringing of this
action to compel the defendant (the resi-
duary legatee) either to build the wall
or turn over the funds in his hands to
plaintiff to do So under the provisions of
the will. The former action was to
cover $500 to be expended by plaintiff:
while the present one is for specific per-
Torrance Of that clause of the will
there being sufficient funds in defen-
dant's hands to build the wall, and he
refusing to do So The plaintiff trustees
are the proper parties plaintiff in this
action.
TURPIN V. CUNNINGHAM. No error.
A mortgage in due form on a certain
bay horse six years old which | pur-
chased of said T." was filed for registra-
tion-the horse being left in possession of
the moTtgagor; after registration OF mort
gage ard before it fell due, the mortga-
gor traded. the horse to a party who
had no actual notice of the mortgage, and
after the mortgage fell due the horse
was traded from party to party until de-
PENDANT bought him, with no actual
knowledge of the mortgage, and the horse
in the meantime changed color; held
that the mortgage does not lose his
right to subject the animal to payment
of the lien because of his change of
color. "A horse may shed his color. but
a mortgage is not so easily shedded; it
sticks"
STATE V BRYSON. Error.
While the indictment for assault and
battery in this case is subject to criti-
cism for ''mutiplicity," it error
to quash it for "duplicity.' The assault
is sufficiently charged, and the ''other
statements of intention to beat,
spiracy," etc, may be treated as sur
plusage. Solicitors are advised to fol-
low precedentS
SMITH V. DURHAM. Error
Where a note is deposited as collateral
security for a debt which is afterwards
paid, an action of trover will lie for the
conversion of the note upon demand and
refusal to surrender it.
AIKEN V. CANTRELL. New trial.
The rule for calculation of interest
is laid down in Bum VS.. Moore, \. c.,
232 and has ever since been followed. A
departure from that rule in this case
is error and entities the appellant to a
new trial.
RABY V. STUMAN. Affirmed
promise to pay not in writing, is not
admissible as evidence of a new or con-
tinuing contract, to defeat the operation
of the statutory bar. Code 172.
BRITAIN V. HITCHCOCK New trial
Dispositions may be rejected by any
party motion in writing at any time
before the trial. Code 1861; Kerchner vs..
Reilly. 70 N. c.. III: WATSON VS.. LinSter