The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-06-22

said 49, acres is subject to deed of
trust for about $1,650 balance of pur-
chase money on same, and the words
in the warranty clause, shat the same
| is free from all membranes whatever
except as above stated" establish
trust in equity in favor of defendant for
the security of the debt mentioned in
the deed of trust. Plaintiff MORTGAGE
should sell the land under the require
ments of the deed and first pay the debt
due defendant.
MCKENZIE VS.. HOUSTON, appellant.
From Union. No error.
A grantor cannot by parol agreement
change a line about which there is no
uncertainty either in the deed or the
survey. The distance in this case must
control, and the word stone used in
the deed be regarded as imaginary only
The description concludes with the
further description land known as lot
No. of the plot" of B. F. H., and has
the effect in law of fixing the line be-
tween the lots, as it was defined and
located in the plot and survey. David
son VS.. Arlege So N. c. 1926.
Where a wife Joins her husband in
the execution of a deed. she acknowl-
edges the joint receipt of the purchase
money and joins in the covenant of war
ranty; and no presumption can arise
that she joined in the deed only to re-
lease her dover and homestead.
-
CAWFIELD vs. OWENS. From Ruther-
ford. Affirmed.
Plaintiffs claim to the land in dispute
is founded on a deed executed to her by
the mortgage to whom the defendant
had decided the land to secure a debt
but whose wife did not join in the Decd
and at the time of its execution there
was a docketed judgment against the
mortgagor. The land was conveyed to
the mortgagor in 1863 His real estate
was worth less than $1,000; Held, that
as there was judgment in force against
the husband under which execution might
have issued the mortgage was void, and
| the expiration of the lien of the judgment
could not bring into existence that which
never had vitality, and the plaintiff
claiming under said deed gets no title to
the "Covington tract
Held further. that no deed made by
! the owner of the homestead shall be
valid without ioinder of the wife. Const.
Art. X, Sec. s.
McNEELY VS.. MICA AND LUMBER CO.,
appellant. From Mcdowell. New trial.
The vice president of the defendant
company, in an action of ejectment, was
introduced by the defendant to prove
where an old man said certain corner
of the land was, and the plaintiff OBJ
jected upon the ground that the witness
was the vice president of the defendant
company and the court sustained the OBJ
lection under section $50 of The Code;
Held error. it was not a transaction
or communication between the witness
and any one under whom the plaintiff
claimed title.
ORR, appellant, VS.. BELL TELEPHONE
CO. From Mecklenburg. New trial
Action for damages for injuries re-
ceived in taking down a telephone pole
caused by alleged negligence of defend
ant in failing to provide the employee
with pixies the usual implements
used in doing such work. Shovels were
used here as directed by the boss" in
charge of the work, whose duty it was
to have the hands get the proper tools,
ETC., which defendant says it had in it's
tool house; Held, error in dismissng
the action as upon non-suit.
COLLIER, appellant, VS.. BURGIN. From
Mcdowell. Affirmed.
The plaintiff, a book publishing con-
Germ in New York, employed agents here
to sell it's books. Shipments were made
to plaintiffs branch offices and agents,
and the books were packed in separate
boxes, which were not opened until de-
livered to purchasers. Defendant sheriff
demanded the tax under section 81 chap
ter 8, Act 1901, and plaintiff refused;
Held that such sales are not exempted
from the payment of tax and that the
above statute is not an interference
with Interstate Commerce.
This case differs from a shipment
from one State to a purchaser in an
other State; in such case the property
passes to the purchaser or eonsignee
upon delivery to the carrier. But here
the books were shipped by the plaintiff
in another State to the plaintiff in this
State and there is no commerce about it.
CLINARD, appellant, VS.. BRUMMEL.
From Davidson. Affirmed.
In ejectment, it appeared that the
land had been divided between heirs at
law in 1856 and the report thereof was
put in evidence showing that the land
in dispute, lot No. 5, was allotted to
plaintiff, and lot No. z. to E. Affidavit
was filed in 1857 alleging that No.
should have been assigned to E and No.
Z to plaintiff, and asking for a rehear-
ing of the report of the division of the
lands of Alexander Clinard's heirs, and
this was endorsed by the commissioners
as an amended report assigning No.
to E and No. to plaintiff, but it was
not acted upon by the court; while the
report as originally made was properly
confirmed and recorded; Held, that the
amended report cannot be sustained, and
as it is admitted that defendant and
those under whom he claims have held
possession under color of title for thirty
years or more, the title ripened into a
perfect one and the plaintiff cannot re-
cover.
GREEN VS.. GREEN, appellant. From
Jackson. Error.