The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-10-04

him to his daughter, Rachel. There
was no evidence of payment of the
legacy to the person under whom
plaintiffs intestate claimed. The
only testimony was the will, the in
Ventory and account sales of the exec
utor of Nathan Garner, the report of
the commissioner of property in
hands of executors in 1868, and re-
ceipts from two other legatees, given
in 1868, for amounts much smaller
than the bequests in said will 'in full
of all due from said executor
Held: l. That such facts con-
stituted no evidence of payment of the
legacy such as TO charge the estate
in favor of the plaintiff, since the
presumption of payment arising at
end of two years under Rev. Code,
Oh. 46. had been rebutted by plain
tif's evidence that the legacies had
been unpaid after the expiration of
such term.
2. The presumption of payment
from lapse of time arises only be-
tween the executor and legatee, debtor
and creditor, and can not arise to
create a liability to a third person on
the part of the person who should
have received the legacy.
8. The fact that a debtor could or
ought to have paid is not proof or pre-
sumption in favor of one seeking to
charge the creditor. a party, relying
on such payment must prove it.
4. Porter, Appellant, V. T. j. Arm
strong ct al. Stevens, Bcasley &
Weeks, and Shepherd &NShcpherd
for Appellant; f.. a. Bryan and j.
L. Bland, for Appellee. Brown, j.
Modified ana Affirmed.
/. The constitutionality of Chapter
30 of the Code. relative to drainage
laws is settled by repeated decisions
cf the Court and>is no longer an open
question.
2. A finding by a judge in setting
aside a report of commissioners APP
pointed under the act that they had
been guilty of gross indiSCretiOn
while hearing this cause is sufficient
to justify the discretion of the Court
in setting aside the report, whatever
other reason may have been assigned.
3. An order of a Judge in such case
in which he attempted to instruct new
commissioners as to their duties was
improper Code Section 80, and
for the guidance Of the commissioners
and the correctness of their report
being the subject of review
\. l.. Marlborough ct al, appellants, VS..
w. r. Hughes ct al. w. NJ. Person
and L. Y. Hicks, for appellants; T..
5. Spruill for appellecs. Walker, j.,
New Trial.
der power given in a contract to one
defendant, the co-defendant being the
purchaser at the sale.
The land was sold under deed of
trust to secure the payment of debts
-9ad~ brought by defendant Hughes uia-
der an agreement With plaintiffs that
he should sell back to them at the
price and interest Later, plaintiffs
and defendant Hughes made written
contract stipulating certain payments
to be paid 10 him by plaintiffs in liqui-
datiOn Of a fixed ~~: at which said
land was to be re-conveyed to them,
and with a power OF sale in Hughes
in case of default, the amount fixed
being expressed in such contract as "a
reasonable advance" on price paid by
amendments. constituting the charts
defendant. There was default in the
payments and the land was sold by
Hughes under the power to the de-
fendant Davis There was an allega-
ton by plaintiff that defendants were
mutually interested - the purchase of
the land at the sale by Hughes. The
jury found with the defendant and
the plaintiffs excepted and appealed.
Held: 1. A contract to buy land for
accommodation to be held with pow
er of sale for certain stipulated pay
ments constituting a reasonable ad-
vance" to the purchaser, the price of
Teconveyance being fixed by the par
ties, is not onerous or usurious in the
absence OF fraud or other vitiating
element.
2. An instruction asked and not
given in response to the prayer cannot
constitute reversible error if subse-
quently given in the charge of the
court
8. Where there is evidence that the
attorney of trustee for the sale of
land specifically divested himself of
attorneyship in the tranaction and af-
forwards represented a purchase at
the sale, his subsequent representa-
ton of a purchaser thereat, does not
in law fix him as attorney for the
trustee, that question being one for
the jury.
4. Where in the trial of an action
to set aside sale certain writings
presumably in possession of one of
the parties and having relation to the
subject matter Of the controversy are
not produced in evidence the jury may
consider that such writings, if pro-
duced would throw light on the trans
action and as tending to show that
they would make against the party
adverse to him in whose possession
they are presumed to be. Failure to
SO instruct the jury, upon prayer, is
error.
Emcline KiIIlman ct al, appellants, vs..
}. B. Holland, ct al. W. ID. McIver,
for appellants; w. w. Clark, for ap-
pellecs COnnor, j. Affirmed.
Action for recovery of land. Plain
tiff claimed under a chain of title
consisting of a deed from Joseph
Markell to Jno. Peter Markell made in
1871 upon the trust for the sole and
separate use of Caroline Markell wife
of the grantor,for life with directions
that he grant and convey said proper
ty to such persons and for such inter
terests or estates as she might by
writing appoint during her cover
ture, and after her death to surrender
the property to the children of Caro-
line and Joseph Markell then living.
By successive conveyances the prop
erty in 1855 vested in r. a. Russell
on the trusts set out in the original
deed. Caroline Markell died in 1908.
The plaintiffs are daughter and
grand daughter respectively. The de
PENDANTS claim under a deed executed
by T. G.. Wall and wife, Janet to Sam
uel Bishop in 1856. The deed recites
that tho land had been contracted to
be sold to William Hollister, father
II 4