the nature of the evidence required, and the character of the punishment inflicted for the offense of which he was charged, were concerned, the law had not been changed, and as to these he was duly tried by the laws in force at the time the offense was committed. It was competent for the legislature to change the proceedings in the courts of the state, and his rights were not affected unless some existing right was taken away or impaired, or some additional burden placed upon him, not existing at the time of the commission of the offense. He had no vested right to be proceeded against in one preliminary mode more than the other; and we think there is no force in his objection that he was not sent before an examining justice under the mandate of a law which had been repealed; and we are of opinion to affirm the judgment complained of.

WILSON V. COMMONWEALTH. (Supreme Court of Appeals of Virginia. March 13, 1890.)

JURY-POWER TO ISSUE VENIRE.

1. Under Code Va. 1887, § 4020, providing that any court in which a person accused of felony is to be tried may at any time cause a venire facias to issue for his trial, it is proper for the circuit court to issue a venire for trial of one indicted in the county court, but who elects to be tried in the circuit court.

2. The fact that the law authorizing the circuit court to issue the venire facias for the jury was passed after the crime was committed is no ground of reversal, as the change took away no vested right, but related only to the procedure. Following Jones v. Com., ante, 1005.

Anderson & Staples, for plaintiff in error. R. Taylor Scott, Atty. Gen., for the Commonwealth.

LACY, J. This is a writ of error to a judgment of the circuit court of Henry county, rendered on the 19th day of October, 1889. The plaintiff in error was indicted, in the county court of Henry county, at the November term, 1887, for an alleged murder committed on the 15th day of October, 1887, and at the December term of the said court he elected to be tried in the circuit court of the said county; was tried in the circuit court May 28, 1888, when the indictment was quashed. He was rearrested, and again indicted in the county court at the June term, 1888. He again elected to be tried in the circuit court of the said county, where he was tried, and convicted of murder in the first degree on the 21st of May, 1889. He was then, on his motion, granted a new trial. He was again tried at the October term of the circuit court, 1889, and again convicted of murder in the first degree, and judgment rendered accordingly, and he was sentenced to be hung on the 29th day of November, 1889. Exception was taken to the refusal of the court to quash the writ of venire facias, and upon writ of error to this court he excepts to this ruling of the trial court, upon the ground (1) that the venire facias should have been issued by the county court in the first instance, and not by the circuit court; and (2) upon the ground that the law which authorizes the circuit court to issue the writ had been enacted by the new

Code, which went into effect May 1, 1888, subsequent to the commission of the alleged offense.

The first ground of error assigned is wholly untenable, as by section 4020 of the Code of Virginia it is provided that "any court in which a person accused of felony is to be tried, or the judge of such court in vacation, may at any time cause a venire tacias to issue for his trial;" and he was tried in the circuit court by his own selection, and the writ of venire facias was issued by that court in conformity with the law. And the second ground of assignment, referring to the conformity of the proceedings with the new law in existence at the time of the trial, rather than that existing at the time the offense was alleged to have been committed, is equally untenable, for reasons fully set forth in the opinion of this court rendered at this term, and just read, in the case of Jones v. Com., ante, 1005. The change in the law under which he was tried did not affect any vested right of his, but related only to the form of the proceedings; and we are of opinion to affirm the judgment of the circuit court of Henry, appealed from here.

STATE V. LEONARD.

(Supreme Court of South Carolina. March 8, 1890.)

HOMICIDE-INSTRUCTIONS-CASE ON APPEAL.

1. On a trial for murder, an instruction which makes the guilt or innocence of the accused entirely dependent on the question of his sanity is reversible error, in the absence of anything in the record to show that the facts and character of the case required no further charge.

2. Oral or printed statements of counsel, which should have been embodied in the "case," will not be considered on appeal, unless personally admitted by the opposing counsel.

Appeal from general sessions circuit court of Laurens county; ALDRICH, Judge. Ball & Watts and Geo. W. Dillard, for appellant. The Attorney General, for the

State.

SIMPSON, C. J. The defendant (appellant) was convicted of murder at the September court of general sessions for Laurens county, 1889. The "case" prepared for and submitted on his appeal is exceedingly meager, no general facts stated, and nothing but the fact of his conviction, and the short charge of the judge, appearing therein. And inasmuch as we are confined to the record, and can know nothing of the character of the case, except what appears in the "case," or brief, upon which the appeal comes to us, we are fearful in this case our conclusion will do injustice to the circuit judge. If, so, however, this is not our fault, as it is well established that we cannot go beyond the record; it having been frequently held and announced by this court that the "case, as prepared by the appellant and consented to by the respondent, will govern us. Looking, then, to the record here, it appears that on the trial of the defendant for murder, with no statement therein as to the character of the defense, or any circumstances connected therewith, his honor charged the jury that the guilt or innocence of the defend.

ant of the crime charged depended entirely upon the question of the sanity of the accused; the whole charge being as follows: "Gentlemen of the Jury: There are very few remarks that I have to make to you, gentlemen. If you believe the prisoner at the bar was of unsound mind when he committed the act, why, he is not guilty. If he knew right from wrong, and could think clearly, and yet did the killing, although there was no motive for it that you could see, he is guilty beyond a doubt, if you believe he knew right from wrong. There is nothing else in the case but that. Give the record to the jury. Now, doubtless, this would have been a correct charge, if the only defense set up was insanity, as in such a case there would be no positive necessity for the jury to be instructed as to the different degrees of homicide; it being impliedly admitted by the only defense relied on that the accused is guilty if he fails to make good the single defense interposed. But nothing of this kind appears in the "case." It is true it was stated by the solicitor in his oral argument before us that such was the character of the case below, but the respondent's attorneys were not present, and there was no admission from them that such was the fact. No doubt this was true, and in all probability this was the basis of his honor's charge; but, it not appearing in the record, we cannot take cognizance of it. No statement at the bar, either orally or in the printed argument of counsel, unless personally admitted by the opposing counsel, can be regarded by this court, and allowed to supply facts which, if relied on, might and should have been incorporated in the "case" in the first instance. general proposition of law in murder cases, his honor's charge would be error; and, as there is nothing in the record here which shows that the said charge was made in a case where the facts and character thereof demanded no other, we are compelled to grant a new trial, and to this end it is the judgment of this court that the judgment of the circuit court be reversed.

MCIVER and MCGOWAN, JJ., concur.

As a

SMITH et al. v. TANNER et. al. (Supreme Court of South Carolina. March 8, 1890.) CONVEYANCES by MARRIED WOMEN-FAMILY SET

TLEMENTS.

Where a mother conveys her land to her children to be equally divided among them, on her death, by three disinterested persons, an agreement between the children after her death to sell the land by agents appointed for that purpose, being in the nature of a family settlement, the title of a married daughter, whose husband received her share of the proceeds, will be held to have passed by the conveyance of the agents, especially after the lapse of over 30 years, though she failed to join in the conveyance as required by statute to pass the inheritance of a married

woman.

Appeal from common pleas circuit court of Spartanburg county; W. H. WALLACE, Judge.

Thomson, Nicholls & Moore and Stanyarne Wilson, for appellant. Duncan & Sanders, for respondents.

SIMPSON, C. J. Mary Lindler, in 1848, conveyed her property, including the real estate in question here, to her 10 children, upon certain terms, etc., the land to be divided at her death into lots, as nearly equal as possible, by three disinterested men. She died in 1854. Soon afterwards the children and their husbands, Charity Smith, plaintiff, being one of said children, and at that time the wife of A. E. Smith, entered into a written agreement, by which they appointed two agents, authorizing them to sell the property, and to divide the proceeds among the grantees, and at the same time entering into bond to abide the agree ment. In October, 1854, the agents sold the land in two lots, A. E. Smith, the husband of Charity, becoming the purchaser of one of them, and it seems that A. E. Smith received his wife's share in both tracts. This tract bought by A. E. Smith was afterwards sold as his land by the sheriff. The other tract was bought by one Simpson Lindler, which by subsequent transfers finally went into the possession of the defendant Tanner. In the deed of the children to Simpson Lindler, Charity did not join. A. E. Smith, husband of Charity, died in 1886; and in June, 1887, the action below was commenced by the said Charity and the other two plaintiffs, children of a deceased daughter of Mary Lindler, to recover their alleged interest in the lands in possession of Tanner. At the trial his honor, Judge WALLACE, dismissed the complaint. Charity Smith has alone appealed. The circuit judge in his decree, after stating the facts as above, concluded as follows: "This brief statement of facts is decisive of the case, and the complaint must be dismissed. Although Charity Smith did not sign the deed, she is bound by her agents' act, duly appointed, who sold the land and received the purchase money. Besides, it has been more than thirty years since the purchaser, and those who held under him, have been in possession of the land under proper title. The two minors were both of age in 1864, and any right they may have had to a recovery is long since barred by lapse of time. It is ordered and adjudged that the complaint be dismissed.

It is proper to state here that, the question of title having been set up by Tanner, several issues were referred to a jury, all of which were affirmed in favor of Tauner. Appellant's exceptions raise several ques tions on the charge of his honor, and also assail the correctness of the decree. The argument of appellant's counsel, however, is addressed principally to two alleged errors in the decree, to-wit: That his honor erred in holding (1) that the family agreement appointing agents to sell the land, etc., referred to above, bound the plaintiff Charity, and therefore she could not recover; and (2) that there had been more than 30 years since the purchaser, and those holding under him, had been in possession, etc., which barred plaintiff's claim. There is no doubt but that the agreement referred to was made, all parties signing it, and that the agents appointed acted by selling the land without opposition or protest from any one, and that the proceeds were divided, the hus

band of the appellant receiving her share. It was also in evidence that the appellant did not join in the deeds executed to the purchasers, as the law required, so as to convey the inheritance of a married woman. It is true, too, that more than 30 years had elapsed since said sale by these agents. Now, did his honor err in his rulings upon these facts? We think the agreement, and the proceedings thereunder, was in the nature of a family settlement, and intended to effect a family settlement of the rights and interests of the parties concerned. 7 Amer. & Eng. Cyclop. Law, 807. The joint tenants under the deed of Mary Lindler, all of whom except two were her children, and two her grandchildren, and it being a family settlement, it must have the effect of such settlement. Now, the vital question is, where there are married women interested in real estate involved in such settlement, will their title pass by the sale of agents appointed to sell, in the absence of the execution of a regular deed in the mode required by statute for married women to convey their inheritance? Or, rather, after the consummation of such settlement, can the married woman dispute the title of the purchasers on the ground that no such deed had been executed, especially after the lapse of 30 years or more, although she has only become discovert within a short time before she brings action. Courts of equity have uniformly upheld and sustained family arrangements in reference to property, where no fraud, imposition, or overreaching appears, with a "strong hand." said in the text-writers: "In such family arrangements the court of chancery has administered an equity which is not applied to agreements generally." Story, Eq. Jur. § 132; Pom. Eq. Jur. § 851; Trigg v. Read, 42 Amer. Dec. 461; Bossard V. White, 9 Rich. Eq. 483; Stockley v. Stockley, 1 Ves. & B. 30. And such arrangements will be held binding when, in cases between strangers, the like agreements would not be enforced. It is needless to go into the reason of this doctrine. It is sufficient to say that it is well established, and has often been applied, both in England and America. In the recent case in our court of Kennedy v. Badgett, 19 S. C. 591, an arrangement similar to the one here was upheld, though married women were of the family, and entered into the agreement by the execution of papers with their husbands.

Asis

If this was a contest between the original parties to the arrangement, one or more trying to break it up as against the others, the court of equity would hardly lend its aid to such an effort; and we see no reason why Tanner, who claims through this arrangement, should occupy any worse position than the parties themselves. True, married women, before the constitution of 1868 was adopted, could not renounce their inheritance or convey real estate, except in strict accordance with the mode prescribed by statute; but this was not universal. In partition cases by the court, their title passed sometimes without this formal mode. The proceeding here was, in substance, a partition, not by the court, it is true, but by regular appointed agents, authorized to sell; and, if necessary, the court might enforce and consummate the v.10s.E.no.26-64

99

sale by specific performance. We think the decree of his honor may be sustained upon the above grounds, and also upon the further ground of the lapse of time. Sasportas v. De La Motta, 10 Rich. Eq. 51. Chancellor WARDLAW said: "The interests of mankind require us to presume that the long enjoyment of a claim is rightful, and, in protection of such claim, that a grant of land from the state, or of administration from the ordinary, or of any muniment of title, once existed, and, if not produced, that it has been lost by devouring time. Citing Smith v. Smith, Rice, 232, and McQueen v. Fletcher, 4 Rich. Eq. 152. See, also, Bossard v. White, 9 Rich. Eq. 483; and Willingham v. Chick, 14 S. C. 103; Hutchison v. Noland, 1 Hill, (S. C. )224. This case seems to us to be a very strong case for the interposition of this presumption. Here the land was sold in 1854 by the direct agreement and direction of all the parties interested; the object of the sale being to effect a partition of the land. After the sale the proceeds were distributed by the appointed agents, all acquiescing. More than 30 years have elapsed, and now action has commenced on the ground that the plaintiff was a married woman, and, though she signed with the others all the preliminary papers leading up to the sale, she did not renounce her inheritance to the purchaser. Under such circumstances, the law might well presume, under the authorities supra, that such a deed was once executed, and that it had been lost by "devouring time. It is the judgment of this court that the judgment of the circuit court be affirmed.

McIVER and MCGOWAN, JJ., concur

TowN COUNCIL OF MCCORMICK V. CALHOUN. (Supreme Court of South Carolina. March 15, 1890.)

TOWN COUNCIL-POWER TO CALL JURY.

Gen. St. S. C. § 842, provides, in reference to trial justices in criminal cases, that a jury mav be organized "from the vicinity." The charter of McCormick confers on the town council "the same powers which a trial justice has, to try, fine, and punish any person or persons violating any town ordinance." Held that, in such cases, the council was not bound to summon its jurors from those living within the town, but persons living in the vicinity were competent as jurors.

Appeal from common pleas circuit court of Abbeville county; J. H. HUDSON, Judge. Eugene B. Gary, for appellant. Perrin & Cothran, for respondent.

SIMPSON, C. J. The defendant was tried before the town council of McCormick and a jury, charged with selling intoxicating liquors in violation of the ordinance of the town. He was convicted. Two of the jurors resided outside of the limits of the town, but in the vicinity; and the defendant made the point before the circuit court, on appeal, that these two jurors were incompetent, because not residing within the town. This exception was overruled by the circuit judge, and this is now complained of in the appeal here.

The charter of McCormick makes no special provision for a jury in trials for the

violation of its ordinances. It, however, "confers upon the town council the same powers which a trial justice has, to try, fine, and punish any person or persons violating any town ordinance. Act 1882, 18 St. 137. Now, section 842, Gen. St., provides, in reference to trial justices in criminal cases, that a jury may be organized from the vicinity in a certain way; and as the charter of McCormick confers the same power upon its council as is thus conferred upon trial justices, it seems clear that as the two jurors here objected to resided in the vicinity, they were competent. See the case of Burton v. Williams, 11 S. C. 293. It is the judgment of this court that the judgment of the circuit court be affirmed.

McIVER and MCGOWAN, JJ., concur.

HARRISON V. LIGHTSEY. (Supreme Court of South Carolina. March 15, 1890.)

ADMINISTRATORS-PURCHASE OF LAND.

An administrator bought land, which his intestate had sold, by surrendering the note and mortgage taken by intestate in payment. The conveyance was to intestate's widow, and his infant son. It was afterwards resold in probate proceedings, to which the infant was not properly made a party. Held, that the infant's remedy was not against the purchaser, but was against the administrator, since he, being accountable for the note and mortgage, became the owner of the land for which the note and mortgage were exchanged.

Appeal from common pleas circuit court of Barnwell county; W. H. WALLACE, Judge.

W. A. Holman, for appellant. Robert Aldrich, for respondent.

SIMPSON, C. J. One J. L. Lynes was indebted to W. H. Harrison, late of Barnwell county, in the sum of $600, evidenced by note given in the purchase of a certain tract of land, which note was secured by a mortgage upon the premises bought. Harrison died, leaving a widow and son surviving, his heirs. B. F. Lynes was duly appointed administrator of the estate: and the said note and mortgage, with the other personal assets, went into his possession. The administrator and the widow filed a petition in the probate court stating: That J. L. Lynes was insolvent. That the land in question had been sold to him at an exorbitant price. That nothing could be made out of the note further than by the foreclosure of the mortgage. That Lynes was willing to give up the land, and in fact had conveyed it in fee to the said widow and her son, the plaintiff here. Whereupon the probate judge decreed and ordered the administrator, B. F. Lynes, to cancel and deliver up the said note and mortgage, which was done; and then the probate judge ordered the said land sold for distribution among the heirs of the said Harrison, and for the payment of his debts that might be due after exhausting the personalty. At this sale the defendant Lightsey became the purchaser, receiving a conveyance from the probate judge. That the widow gave her consent to said sale, and elected to

take one-sixth of the purchase money in lieu of dower, etc. At the time of this proceeding the plaintiff was a minor, of tender years, and was not a party thereto, except that Mr. M. C. Tobin, it seems, was appointed his next friend by the judge of probate, who consented to act, and indorsed on the petition his consent to the prayer of the petition; but upon what authority, or at whose instance, the appointment was made, does not appear. The plaintiff, recently arriving at age, instituted the action below, claiming that he was a joint tenant with the defendant in the proportion of two-thirds of the land, and demanding partition, and an accounting for rents and profits for the time defendant had been in possession,-some 10 years. At the hearing, his honor, Judge WALLACE, dismissed the complaint, with costs. The ground of this dismissal is not stated in the decree; but it seems to be agreed among the counsel that it was based upon the theory that the land had assumed the character of personalty when conveyed, under the circumstances, to the heirs of the intestate, and that said heirs were not necessary parties to the proceeding in the probate court which resulted in a sale to the defendant Lightsey, as stated above. The plaintiff, in his exception, imputes error to the decree as to the ground, supra, upon which it was based, and also upon the ground that his honor, inasmuch as Lynes, the purchaser, had abandoned the premises, and was out of possession, should have held that title had vested in the heirs of Harrison before the proceedings in probate court. The defendant gave notice that he would seek to sustain the decree upon the ground that the plaintiff could not claim the land under the probate proceedings, and then repudiate the sale thereunder, and that plaintiff's cause of action, if any, should be against the administrator, for a misappropriation of the mortgage, etc.

We do not know by what legal authori ty the probate proceedings referred to were had. Nor do we think that the plaintiff here was properly made a party, so as to bind him, even if the probate court had jurisdiction of the subject-matter. Finley v. Robertson, 17 S. C. 435. Supposing the deed from B. L. Lynes to the widow and her son was a valid deed, conveying the fee of the land to them, yet by what aothority could the probate judge order it sold in aid of the personalty? It had not come to them by descent, and it was not liable in their hands for the debts of the ancestor; nor could it have been partitioned between them by the said proceedings in said probate court, as the law to such end had not been conformed to. The administrator bought the land by surrendering to the previous purchser, J. L Lynes, the note and mortgage which he held; and, although the title was conveyed to the widow and son of the intestate, yet we think there was a realty trust to said administrator, and that the land was really his, he being still accountable to the estate for said note and mortgage, and that the plaintiff's claim is against said administrator, as a distributee of his father's estate, for his share thereof, if any still due:

the administrator being liable for the value of said note and mortgage, as the law may require, under the circumstances, subject, of course, to such credits and payments, if any, as he may have made to the plaintiff. It is the judgment of this court that the judgment of the circuit court be affirmed.

MCIVER and McGowAN, JJ., concur.

WHEELER v. MARCHBANKS et al. (Supreme Court of South Carolina. March 15, 1890.)

USURY-WHAT CONSTITUTES LOAN.

G. bid off land at a master's sale for $1,045, one-third cash, balance in one year, but paid nothing thereon. She offered to let defendant have all but 5% acres of it at that price on the terms of the sale. Defendant, desiring longer time for payment, applied to plaintiff to advance the purchase price, and give her longer time in which to pay. He agreed to advance the purchase price to the master, and sell her the land, less the 5% acres, for $1,306,-$400 cash, balance in installments through a period of six years. Plaintiff advanced the purchase price to the master, who executed title to G., who in turn conveyed the same, minus 5 acres, to plaintiff. Defendant paid the $400, gave her note to plaintiff for $906, for which plaintiff gave a written receipt, in which he agreed to convey the land to defendant on payment of the note. Defendant took possession of the land. Held, that the transaction was a sale, and not a loan, and was therefore not usurious.

Appeal from common pleas circuit court of Greenville county; J. H. HUDSON, Judge. Decree of the court below: "This action was brought to enforce payment of balance of purchase money for a tract of land described in the complaint, under a contract of sale entered into between the plaintiff, John Wheeler, and defendants' intestate, one Axana Marchbanks, on the 4th day of November, 1882. The defendants set up as a defense that the contract was usurious. The master, to whom it was referred to decide all the issues of law and fact, sustains the defense; and the plaintiff excepts to his report. After a careful consideration of the pleadings, testimony, report of the master, and plaintiff's exceptions, and after hearing arguments of counsel for plaintiff and defendants, I have reached the conclusion that the master is in error and the exceptions of the plaintiff are well taken, and must be sustained. The tract of land mentioned in the complaint was bid off at the instance of, and for, one E. C. Gilreath, at the master's sales, on the 4th day of November, 1882, for the price of one thousand and forty-five dollars. The terms of the sale required the payment of one-third of the purchase money in cash on the day of the sale, and the remainder twelve months thereafter. E. C. Gilreath paid no part of the purchase money, and her only purpose in bidding off the land was to secure the title to a small portion of the tract which adjoined her. Axana Marchbanks wished to purchase the land, and had in the hands of the master four hundred dollars which she could apply as a payment on account of the purchase money, but feared she would be unable to meet the payment of the

credit portion within the twelve months required by the terms of the master's sale. She applied to E. C. Gilreath, who was willing to let her have the land upon her complying with the terms of the master's sale, and permitting her (Gilreath) to retain the portion of the tract which she desired. Axana Marchbanks desired longer indulgences, and applied to one S. C. Dickson, who was acting for the plaintiff, to advance her the purchase money, and grant her longer time in which to pay the credit portion. After one or more conferences with the defendant George W. Marchbanks, the husband of Axana, and who was acting as her agent in the negotiations, Dickson, as the agent of the plaintiff, agreed to advance the purchase money to the master, and to sell her the tract of land (except five and one-half acres, which E. C. Gilreath wished to retain) for thirteen hundred and six dollars; Axana Marchbanks agreeing to pay the four bundred dollars in the hands of the master, S. J. Douthit, as a cash payment, and the remainder in installments covering a period of six years, according to the terms of the note set out in the complaint. In pursuance of this understanding, the plaintiff advanced the amount for which the land was bid off to the master, S. J. Douthit, who executed title to E. C. Gilreath, and she in turn conveyed the same, less five and one-half acres, to the plaintiff. Axana Marchbanks thereupon executed to the plaintiff a note (Exhibit B) for nine hundred and six dollars, bearing date the 4th day of November, 1882, and payable in installments as follows, to-wit: The interest, and one hundred dollars of the principal, each of the first three years after date, and the remainder of the principal to be divided into three equal payments, with interest payable annually. In a separate instrument, (Exhibit A,) of the same date, the plaintiff bound himself, upon payment of the above note, to execute to the said Axana Marchbanks title to the said tract of land. Axana Marchbanks died some time in the year 1883. She had during her life, and the defendants since her death have had, possession of the land, and have received the rents, issues, and profits thereof since the 4th November, 1882. The payments upon the notes above mentioned, amount, in the aggregate, to one hundred and ninety-one dollars; and there still remains due and unpaid on said note, of principal and interest, at this date, eleven hundred and sixty-one dollars and thirty seven cents, ($1,161.37.) The statute against usury does not apply to this case. The transaction between the plaintiff and Axana Marchbanks amounted simply to a contract for the sale and purchase of land; and the excess which Axana Marchbanks agreed to pay to the plaintiff above the amount for which the land was bid off at the master's sale was profit on the sale of the land in consideration of indulgences granted to the purchaser, and was not in violation of the statute against usury. Axana was unable to buy the land for $1,045 upon one-third cash, and balance on a credit of one year, but felt able, and was willing, to buy for $1,345, upon one-third