The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-19
Supreme Court Digest.
(Reported by Jos. L. seawelI.)


fendant's set off pleaded in the action. is
less than 5000. was properly overruled in
the court below. Affirmed
In defendants appeal: In an action for
malicious prosecution, it is sufficient for
plaintiff to show that defendant. in in
stituting the prosecution, was influenced
by general misunderstanding Brooks V.
Jones. 33 y. C. 260. He need not show
special or particular malice. Error.
| JONES. appellant V. w. & n. RAILROAD
COMPANY. From Cumberland. New
trial.
The voluntary waving of preliminary
examination before the committing mag
istrate is prima facie evidence of pro3a-
bic cause for the accusation, subject to
Iebuttal by other competent evidence.
HOUSE, appellant " HOUSE. From
Wake. Reversed.
Where a husband has established his
legal ground for divorce by verde, Of a
jury finding that the wife committed the
adulteries alleged in the complaint the
husband cannot be denied judgment, in
his favor by matter in recrim'nation.
The husband is entitled to divorce ''If
the wife shall commit adultery" Code
~,
ground for divorce against the husband.
who comes under section 1885 ID. III
either party shall separate from the
other and live in adultery"
BRINKLEY V. SMITH. appellant. From
Columbus. New trial.
The probate of a deed by a subscribing
witness thereto, who simply swears that
he saw the grantor sign a deed, which
he does not identify as the deed offered
for probate. and that he saw the other
witness sign the deed, is defective, and
the certificate of the clerk of the Superior
court permitting registration of such deed
does lot validate the probate.
Twenty years adverse possession of
land by himself or those under whom he
claims will give title in fee to the pos
SCISSOR as against all persons not under
disability. Such possession must not only
be adverse, but must also be open, no
torious and continuous, under known and
visible boundaries.
FLANNER v BUTLER Both sides ap
pealed From New Hanover.
In plaintiffs appeal: Where land was
purchased in the wife's name with money
arising from notes which the husband
procured to be executed to her. aud
with money deposited to her credit in
bank by the husband to defraud his credi-
tors, and the wife was afterwards III
vorced from her husband it was held, in
an action by the husband to have the
wife declared trustee of the land 70.
his benefit; that the ''manipulations OF
the husband constituted a gift of the
money to the wife, and the land having
kcen purchased with her money, there
was no resulting trust in favor CO the
husband. Affirmed.
In defendants appeal: Where the
wife's father purchased land for her EGs-
band with the husbands money and had
the deed made to the wife without the
sands knowledge or consent aDc
contrary to his wish. but the husband
made no further complaint after being
informed by the wife's father that lit
was ell the same that what a mans
wife had was her husband s."
Held that the wife will be declared
trdstoe of the land for the husbands
benefit. Thurber V. LaRoCue, los n. c.
col. distinguished.
Where, in such ease, neither husband
nor wife was in actual possession os the
land bought with the husbands money,
the property being rented by the husband
and the rents collected by him until he
was divorced from the wife, Il was held
that the statute of Limitations did not
run against the husband. Faggart V.
122 ~ c. 755. Affirmed.
ARNOLD appellant V. DENNIS. From
Harnett New trial.
Where there is not sufficient statement
of facts to enable the court to pass upon
the matters involved, a new trial will be
awarded. (Arnold v Hardy, at this
term, is governed by this ruling and was
similarly disposed of
HOUSE, appellant V. S. y L. RAILWAY.
From Franklin. New trial.
Where testimony is conflicting and the
facts of the case are in dispute, it is the
duty of the trial judge to leave the ques-
ton of fact to the jury under proper in
structions-the burden of proving con-
tributory negligence in this case, resting
on the defendant.
The court cannot direct a verdict In
favor of party upon whom rests the
burden of proof.
NORFLEET, appellant V. BAKER From
BERTHE. Affirmed.
The question in this case is. Does the
lien cover the crops made upon the en-
tire tract of land, being those made by
II himself, and those made by his tenants,
or does it cover only those made by II?
And the court sustains the ruling below
that it only covered the crops made by
II himself.
1t was further held that it was clear
from the deed that the advances were
made to H Ito be by him expended in tic
cultivation of crop upon the following
described lands. and any other land that
he may cultivate" The parties intended
by the instrument to encounter the par
ticular crop made by II.
PAGE V. LIFE INSURANCE COMPANY
OF VIRGINIA, appellant. From Har-
nett. No error.
The possession of the insurance policy
by plaintiff is prima facie evidence (sub-
ject to proof to the contrary that the
first premium has been paid. II n. G.
1870; % N. c. 1913. And the possession Of