The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-03-09
Supreme Court Decisions.
(Reported by JOS. L. seawell)

LEHEW, appellant VS.. HEWITT From
Brunswick. Error.
To reform a deed for mistake, the evil
dence must be clear strong and conVlnc-
ing and in such case it is for the jury
to determine from the evidence whether
the alleged mistake was made. There
was error in refusing to submit this
question to the jury.
WINBORNE ct al, appellants VS.. LUM-
Der co. From Chowan. Affirmed.
One tenant in common can recover the
entire tract against a third party, but
is entitled to judgment only for his pro-
portionate part of damages for cutting
timber from the land
BUTLER ct al, VS.. S. C. & GA. Elk. RAIL
WAY co. From Rutherford county.
Error.
Medical books are not admissible as
evidence before a jury to prove a sub
stantial fact, nor can they be read to the
Jury by counsel in his argument, there
fore. held that it was improper for coun
sci upon cross examination to read from
the medical book to the expert witness
and then ask him if he agreed with what
the book stated.
BARDEN VS.. STICKNEY, appellant,
From Washington. Action dismissed.
The object of the requirement that the
appeal shall be entered on the record is
to furnish proof OF the fact and is imma-
terial when the fact of the appeal having
been taken is not denied, and notice Of
appeal has been served in time or has
been waived. n
There is no implied warranty of title
in the sale of real estate, and in the alb
sence of fraud or bad faith an action
by the purchaser at a mortgage sale to
recover upon the implied warranty of the
mortgagee-title acquired by the pur-
chaser having proved defective-cannot
be maintained.
MARTIN VS.. MARTIN, appellant From
Northampton Error.
In an action for divorce a mensa on the
ground of cruelty, the complaint is insult
fcent if it fails to specifically state the
circumstances of the alleged acts of
cruelty, time, place, etc, and that the
acts were without provocation Such de-
fective complaint cannot be cured by
verdict.
The failure to file affidavit of good
faith with amendment to complaint rem
ders the amendment imperative.
ZIMMERMAN, appellant VS.. LYNCH. |
From Pasquotank. No error.
Plaintiff alleged that defendant sold
him a quantity of standing timber, but
defendants title proved defective and
plaintiff was prevented from cutting the |
timber; that defendant agreed that plain |
tiff should construct a tram-road upon |
the land; that the same has been built |
at great expense and is a loss to plaintiff |
since he cannot get the timber; defend |
ant moved to dismiss for that the COM |
plant did not state a cause of action in |
that it did not allege covenant of war
ranty or fraud by defendant. Plaintiffs
counsel stated that he could not amend |
the complaint and defendants motion to
dismiss was allowed Held no error.
Standing timber is of the nature of real |
estate and in the sale of realty there is
no implied warranty
AUSLEY, appellant, V. AMERICAN To-
BACC0 CO.. from Durham. Affirmed.
Where machinist is employed to OPP
crate machinery which he has construct
ed and has knowledge of any defects in
such machinery and the danger in OPP
Grating the same, he is held TO have as
sumed the risks incident to his employ
ment and cannot recover for damages re-
sulting therefrom.
Upon the trial of an action to recover
damages in such case, evidence is mad
MISSILE to show that the defect. which |
was the cause of plaintiffs injury has
been remedied since the accident occur
red.
PIPPEN, appellant V. INSURANCE
CO.. from Northampton, Affirmed.
Where an infant takes but a life. insur- !
ance policy and afterwards. while it is in
force and during his infancy, voluntarily |
returns the policy to the company and /
receives its cash value, and afterwards
dies, the surrender was a disaffirmance
the contract void alb initio, and his ad-
ministrator cannot retract or disaffirm |
the disaffirmance, and recover upon the
contract
GRAY ct al v. WILLIAMS ct al, appel
lants, From Camden. No error.
A donee cannot be put to an election
under will, unless his property. pro-
fessed to be conveyed by the will, is de-
scribed in the instrument itself with such |
sufficient and legal certainty as to en-
able him to know the property. Parol
evidence is not admissible to ascertain
and describe the property.
In such case there is no presumption
against the donee because she is the