The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-05

/ the trial judge stated that ne was about
| to depart for the next court and could
not hear the motion and continued it TO
| the next term. but recited in the judg-
men the fact that the motion had been
made and entered ar order staying pro-
ceedings till the motion could be decided
| at the next term, and at the next term
another judge was on the bench and ad
| judged that he mad no power to grant the
motion, from which adjudication, there
was appeal, 1t is held that the con-
| tinuanee of the motion was improvident
and the judge who presided at the next
| term was without power to hear it; that
the motion might have been made in the
| Supreme Court but not having been
| made there, the remedy is by petition to
IN RE APPOINTMENT OF GUARDIAN
FOR ]. T. ANDERSON. From Fender.
| rehear.
| Where, in proceeding instituted be-
! fore the clerk, under 1870 of The Code
| for the appointment of a guardian, the
| clerk made an adjudication of the matter
without notice to the person for whom
! it was intended to appoint guardian
! and without summoning a jury, such
proceeding was a nullity, but where upon
refusal of the clerk to revoke the appoint
ment there was an appeal to the Superior
| Court and the appointment was revoked
and a jury of inquisition ordered, who
| found that the person was not an idiot
or lunatic, but was of unsound mind and
incompetent for want of understanding
to manage his own affairs, It was held:
"a That exception to the jurisdiction
of the Superior Court cannot be sus-
| tanned
(2) That the findings of the jury were
sufficient to meet the language and spirit
of the statute (sec. 1910 of The Code.
Armstrong VS. Short, N. c., II, dis
tinguished.
SYKES, appellant, VS., MOONE EFT AL
From Northampton. Affirmed.
Defendant was promised by the agent
of the owner of the land in controversy
that before selling it he would give de-
PENDANT an option to buy the same.
Thereafter the agent agreed to sell the
| land to plaintiff, but before executing
the deed informed plaintiff of his prom
Use to defendant, and plaintiff agreed that
| if the agent would convey to him he
| would convey to defendant If defendant
wished the land at the price paid by
| plaintiff, and there was evidence that the
agent would not have conveyed to plain
tiff if plaintiff had no. promised to con-
vey to defendant.
Held, that plaintiffs promise consti-
tuted a valid parol trust enforcible in
| equity; that such trust was not within
the statute of frauds and required no
consideration to support it.
Decisions of this court in reference to
parol trust reviewed by Walker, J., and
executed and executory trusts distin-
| guished.
| DEANS EFT AL, appellants, VS.. GAY.
From Nash. New trial.
Where there are conflicting clauses in a
will the last clause will be given effect
and the court will endeavor to ascertain
the testators intention by reading the
entire will in the light of surrounding
circumstances.
Where the second item of a will was:
81 desire that my daughter, NJ D., have
fifty acres of land to her and
her heirs forever" and the tenth item
was, 81 will and desire that the fifty
| acres of land given to my daughter, M
D., be kept for the benefit of her and her
children forever it was held;
% That the devisee took the legal til
tie in trust for her and all her children.
(2) That as the trustee or her chill
dren could not convey the equitable title
until her death, the purchaser at fore
closure of a mortgage of the trustee and
her husband, acquired only the legal ii
tie. subject to the trust and such pur-
chaser being in possession under and not
adverse to the trustee there was no
custer and the statute runs against the
cestuis que trust from the death of the
trustee. King VS.. Rhew, los n. c., 696.
distinguished.
LEIGH VS.. GARYSBURG MFG. Co, APP
pellant. From Northampton Affirmed
Where a contract for the pur chase of
standing timber provided that the pur-
chasers should cut and remove all the
timber within five years, and that the
purchasers should have the right to build
railroad or tramway across the land
'for the purpose of removing said timber,
and also any other timber that they may
find convenient to move over said tram
way or railroad" the only consideration
expressed in the contract being the pur-
chase price of the lumber, 1t was
Held, that the purchasers right to use
the tramway expired after five years, and
where the purchasers claim that the OBJ
ject of the contract was to give them the
right to use the tramway for an indef-
mite period in removing timber other
than that purchaser under the contract,
the burden of proving that fact is on
the purchasers.
In such case, the purchasers being a
private corporation, were not entitled to
assessment of permanent damages for
right-of-way under chapter 224, Public
Laws 1895; the most they could obtain
was a temporary easement under 2056
of The Code. as amended by CHAPTER 46,
Public Laws 1887.
A proceeding for the condemnation of
an easement has non of the essential
cbara cteristics of a counterciaim as de-
fned in section PA of The Code