The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-10-25
Supreme Court Digest.
(Reported by Jos, l., SeaWell

(Reported by Jos. L. Seawell.)
FOLB, appellant V. INSURANCE CO.
From Cumberland. No error.
In the absence OF a special agreement,
an insurance premium must be paid IN
money, and where an insurance agent de-
liVers a policy to a merchant and re
ceives a suit of clothes in payment of
the premium, such transaction constitutes
fraud on the principal (the insurer) and
IN the event of loss before the agent re-
mits the amount of the premium to TIE
insurer, the insurer is not liable.
SOLICITOR, appellant v. WILLIAMS.
From Duphn. Modified and affirmed.
The Clerk of the Superior Court has
power to allow a guardian the amount
CT past expenditures for the wards sup
port, etc., where it was found that the
same exceeded the amount of the in
come, but was necessary to maintain the
ward IN his station in life.
Where there was evidence before the
referee that the rent of the land of the
ward should have been more than the
sum bid at a private renting, it was
held that there should have been a find
ing from the evidence on that question,
and the case will so back that the matt n
of rent of the wards land may be In
CURED into.
DRAKE V. HOWELL, appellant. From
Hartford. New trial.
Action to recover damages for cutting
and removing timber from land. A WIT
ness was allowed to testify that he
bought the trees from defendant under a
verbal contract. and this was held to be
error, on the ground that the title to
real estate or any interest in or COLI
corning the same cannot pass by parrot
McPhaul V. Gilchrist. 90 N. C. 169 and
recent cases. Standing trees are part
of the realty.
The plaintiffs action is in effect one
for trespass in removing the trees, ana
III order to a recovery he must show eth
er actual or constructive possession,
which was not done in this case.
1t was also held that the plaintiffs con-
tention that the defendant was estopped
either by the deed of 1897 or by that OF
1900, cannot be sustained. Estoppels must
be mutual.
PERKINS. appellant V. BRINKLEY.
From Warren. Affirmed.
deed for land made in contemplation
OF marriage was upon the following
trusts; The land is conveyed to A B IN
trust as annuity of rents for Miss -
during her life, and it is understood that
she will not claim any right or interest
in any property now owned or may here
after be owned by the party of the first
part, and she relinquishes all right IF
dover, etc. Was it the duty OF the de-
PENDANT to take the land into his
sion, rent it out and pay the rents to
the plaintiff? The court hold that the
trust declared in the deed is indefinite,
but that it must be construed TO mean
that the cestui que trust is to be permit
tel to collect and use the rents as her
separate estate.
The reason which existed, prior to Tire
Constitution of 1868, for constituting de-
claration OF trust for married woman
as an active trust, has ceased. Difference
between active and passive trusts pointed
out.
Held that the court below committed
no error in ruling that the defendant was
not liable for the rents collected by tho
husband of the plaintiff, ana the judgment
below is affirmed.
SOLOMON V. WILMINGTON CO., appel
liant. Affirmed.
Action for special Injunction on the
ground that an increased rental for the
use of the sewer of the defendant COR
roratiop would be a breach of the al
legged contract between the parties, and
that the new rental IS exorbitant and dis.
eliminating in that some patrons have
been offered more advantageous terms
and more reasonable rates than plaintiff.
Both allegations were denied: Held no
bp lr1iu I
the final hearing.
To cut off the sewer connection from
a dwelling may seriously affect the health
OF the family in addition to working great
Inconvenience.
The court say, whether the piaintlh
is entitled to specific performance of the
contract, ard to what extent the defend
ant could perform it without impairing
It's power to perform its duties TO the
public, or whether the rates are discrimi-
mating, etc, are questions to be determln-
ed upon the final hearing; and If the
plaintiff shall establish his contention in
respect to his contractual rights against
the defendant, he would be entitled to a
perpetual injunction.
The rule that the violation OF cor
tract Of water company to furnish wa
tSt IOE may lUlllcb an ire
parable injury, is applicable to a case
like this.
MACARTHUR V. MATHIS, appellant. From
Duplin. Error.
Action by plaintiff to recover possession
o. a lot of lumber. Defendant owned q
tract of land on which timber trees were
standing, and he sold part of them 10
one N. at certain price. N. contract
ed with plaintiff for saving the trees
into lumber for which he was to pay
plaintiff a certain sum. and he gave plain
tiff a chattel mortgage 10 secure per-
torrance of this contract, but the mort
gage was never registered.
After saving the trees, the plaintiff
moved his mill from the land. leaving a
lot of sawed lumber piled up near where
the mill stood. The defendant then mott
fed the plaintiff and n. not to remove
the lumber until lie was paid for the
trees. n. told the defendant to take 4
and sell it to pay his claim and the de-
PENDANT sold part of 4, but all left on the
lend was not sufficient TO pay either the
Plaintiff or tho defendants claim. Upoa
these facts the court below gave iuGg
ment for the plaintiff: Held, error
Al 4 = a.. ...,