Evidence: The plaintiff, Roxanna Norton, cestified that her father died January 25, 1864, and her mother died April 17, 1893; that her sister and she had $400 and a mare, and gave the same to their grandfather Chandler, with instructions to buy this land from Ramsey, which was done. "I afterwards found out that the deed was made to Mary A. Norton, my mother. I have been living there in the house on the land. Defendant married my mother in 1878, and has been cultivating a portion of the land for the last three years. I think the rental value is $300 a year. I have cultivated a small portion of it." On cross-examination: "I am 37 years old. Moved to this place in 1877. Lived there with my mother. Now live in the house with the defendant, who married my mother. Worked for him and my mother on the place. We all lived one year of this time on Laurel Creek. This was before they married. My mother lived on the land from the time they were married until she died. I am not married. We got a bounty of $75, and a pension of $8 per month, and $2 per month for each of us children, but did not get the privilege of running through with it. The money that bought the land was this bounty and pension money, which we delivered to our grandfather Andrew Chandler. When the land was bought, I was nearly 16 years old; my sister nearly 15. Don't think I told grandfather to whom to have the deed made, but told him I wanted land for our money and mare. Defendant tended the best part of the land ever since we moved there the second time, three years ago. He did not move off the land when he moved the second time." A. E. Treadway testified that he knew Chandler and Mary Norton. Mary Norton said she had bought the land with the children's money; that she had not schooled them nor clothed them well, in order to save this money to buy land for them. Andrew Chandler is said to be insane. "Question. Did you hear Chandler say whose money purchased this land? (Objected to by defendant. Objection sustained. Plaintiff excepted.) Question. Did you hear Andrew Chandler say anything about the deed to Mary Norton having been made to her by mistake? (Objection by defendant. Sustained, and plaintiff excepted.) Question. Did you ever hear Mary Norton say that she was holding this land for the children? (Objection of defendant. Sustained, and plaintiff excepted.)" On cross-examination this witness stated that Mary Norton said the children drew the money, that went to the purchase of the land, from the government. This was about the spring after she bought the land, in 1877. Emerline Brown testified: "I heard Mary Norton say that she was saving the children's money to buy them a home. I saw the money and the mare turned over to Chandler, to buy this land. Mary Norton sent the children with their

grandfather to see the land, and whether they would like to live there. Plaintiff lived there from the time the land was Durchased." Cross-examined: "Mary Norton drew this money from the government for herself and two children; gave it to Chandler; and rolled it up in $100 rolls. She was sick at the time the children went to see the land, and could not go. She was my sister. Defendant was present when she gave Chandler the money. She was the one who did all the talking at the time the money was given to Chandler. She said the money belonged to the children. She got the mare from Gilbert Tweed, and defendant took the mare to Chandler." Redirect: "My mother, the grandmother of plaintiff, had kept the money, and handed it to Mary A. Norton." The plaintiff rested. Evidence on the third issue, as testified to by defendant's witnesses: McDevit, the defendant, said: "I married Mary Norton in 1878. We had a child, which lived about one year. The girls lived with their mother, and were maintained by her. She controlled the land, and I have controlled it since her death. I never paid any rent on it. Mary would take out some of the tobacco money and claim it, and I used it when I wanted it. After she died, I bought the interest of Ardilly in the land. She claimed an interest in it." W. Wilson said: "I once tended a crop on this land. Mary Norton generally controlled it. When she did not, the defendant did." Ardilly Norton, the plaintiff's witness, said: "I sold the defendant one-fourth interest in this land."

When plaintiff rested her case, the defendant moved to dismiss the complaint, or for judgment as in case of nonsuit. Motion was overruled, and defendant excepted. The defendant then, at the close of all the testimony, he having during the progress of the trial taken various exceptions to the competency of testimony in due time, and had his exceptions duly noted, offered the following special instructions, which were refused by the court, to wit: "(2) If the jury find as a fact that the $400 that went for the payment of the land was money obtained from the United States government as bounty and pension for the death of H. Norton, it being admitted that Mary A. Norton was still a widow, and that the children lived with her and were cared for by her, then the money was the property of Mary Norton, and the plaintiff cannot recover as to that part, unless she shows by clear and convincing testimony that the money had been transferred to plaintiff and her sister for a valuable consideration." "(4) This being a suit in equity, plaintiff cannot recover unless she shows that the property in the money and the horse was obtained for a valuable consideration, the money and horse having once been the property of said Mary A. Norton." "(7) That, if the jury shall find as a fact that the defendant is the owner of one undivided

fourth interest of the land, in that event he is a tenant in common, and plaintiff cannot recover in this action. (8) That if the jury shall find as a fact that Ardelia Norton, the sister of plaintiff, sold a one-fourth interest to the defendant, the plaintiff cannot recover in this action; and it is competent to find such fact from parol testimony, if the jury find it sufficient, the plaintiff's witnesses having testified to such fact, and the evidence not having been objected to by plaintiff. (9) That, if the jury find as a fact that the horse that went as a payment on the land was at one time the property of Mary Norton, the plaintiff must show by clear and convincing proof that said horse was sold and delivered to plaintiff and her sister before it was delivered to Jake Ramsey, on the said land, before the jury can find that the horse was the property of the plaintiff and her sister. (10) The plaintiff, not having alleged fraud, must show that, at the time said deed was made, it was Mary A. Norton's intention to have the deed made to the plaintiff and her sister." Plaintiff moved to set the verdict aside, and for a new trial on the third issue. Motion refused. Plaintiff excepted. Plaintiff then moved to set the verdict aside, and for a new trial. Motion refused. Exception: (1) For refusal of court to admit testimony of A. E. Treadwell; (2) for refusal to charge the jury as requested; (3) to the charge as given, in that the court charged that, if the jury believed the evidence, they must find the third issue in favor of defendant, and for not charging that, if plaintiff had remained in possession of the land, she was not barred, and that, for the statute to run, there must be an adverse possession and holding; (4) for the refusal of the court to give plaintiff judgment on the verdict. The court erred in that (1) it appears from the testimony of both plaintiff and defendant that defendant McDevit is a co-tenant with plaintiff, and that both are in possession of the land, which prevents the statute of limitation from running; (2) that defendant only pleaded the seven-years statute, which is not effective, except where there is adverse possession alleged and proved, which are both wanting in this case. From the judgment rendered, the plaintiff appealed.

J. M. Gudger, Jr., for appellant. Zachary, for appellee.

W. W.

FURCHES, J. This is an action to declare a trust, and for possession of land. The complaint, as it is drawn, does not very distinctly state the plaintiff's cause of action. It is a mistake to suppose that the code pleading does away with the necessity of a correct statement of plaintiff's cause of action, or relieves the defendant from making a correct statement of his grounds of defense. While it is not necessary that this should be done with the technical exactness required under the old style of pleading, it should be done with substantial

accuracy. But the great object in pleading is to put matters in litigation upon their merits; and, when it appears to the court that this can be done, to prevent a failure of justice the court will proceed with the trial, as where it appears to be a defective statement of a good cause of action, but will not do so when it appears to be a statement of a defective cause of action.

We gather from the allegations of the complaint that in 1877 the plaintiff and her sister, Ardelia, were the minor children of Mary A. Norton, then a widow; that they were the owners of $400 in currency and a horse, the plaintiff then being 15 years old, and her sister 14; that at the request of the plaintiff and her sister and their mother, Mary A. Norton, this money and horse were put in the hands of one Chandler, the grandfather, to buy the lands described in the complaint for the plaintiff and her sister, Ardelia; that said Chandler bought the lands, and paid for them with this money and horse, but through mistake, or from some other cause, the deed was made to the mother; that the mother, the said Mary, afterwards intermarried with the defendant, McDevit, by whom she had one child, which lived to be about one year old, when it died, and the mother died on the 17th April, 1893, and this action was commenced on the 15th day of June, 1896; that the said Mary and the plaintiff and the defendant, after he married the mother, Mary, continued to live on said land until the death of Mary, and the plaintiff and defendant continue to live on the land until now; the mother and the defendant controlling a part of it, and the plaintiff working and controlling a part of it. The defendant denied that the land was bought with the money and means of plaintiff and her sister, and denied that there was any mistake or error in making the deed to his wife, Mary, and alleged that it has been more than seven years since said deed was made, and since plaintiff reached her majority, of 21 years, and insists that plaintiff's right of action is barred by the statute of limitations, if she ever had any right. The plaintiff admitted that she was 37 years old, and unmarried, at the trial.

On the trial, the plaintiff proposed to prove by one Treadway that he heard Mary, the mother of plaintiff, say that she was holding the land for the children. This was objected to by defendant, and excluded by the court. We do not see why this evidence was not competent, being a declaration while in possession, explaining the manner in which she was holding the land; she being the party under whom defendant is claiming.

On the trial the following issues were submitted: (1) "Was the money of plaintiff used in the purchase of the land, and, if so, how much? Ans. Yes; $200. (2) Was the mare, or any interest in the mare, given for the land, the property of plaintiff, and, if so, what was the plaintiff's interest in the mare? Ans. Yes; $50. (3) Did plaintiff's

cause of action accrue more than seven years before this action commenced? Ans. Yes." It is found by the first and second issues that the land in controversy was bought and paid for with the money and mare of plaintiff and her sister, Ardelia. This fact being found by the jury, without any further evidence or explanation, the law created a trust in favor of plaintiff and her sister. King v. Weeks, 70 N. C. 375. This is upon the idea of mistake or bad faith in not taking the deed to the party paying for the land. Lassiter v. Stainback, 119 N. C. 103, 25 S. E. 726. This is not what is known as an "express trust," against which the statute will not run until the trust is broken. Hodges v. Council, 86 N. C. 183; Hamlin v. Mebane, 54 N. C. 20; 2 Pom. Eq. Jur. §§ 988, 989, 991; 2 Lewin, Trusts, p. 886; Wright v. Cain, 93 N. C. 296. But it is a trust created by implication of law, against which the statute may run. 2 Lewin, Trusts, § 864; 1 Lewin, Trusts, § 180; 1 Pom. Eq. Jur. § 155.

But the plaintiff alleges that she has been in possession of this land, or some part of the same, all the time since the date of the purchase and deed to her mother. If this is true, no statute has run against her, as the statute does not run against a cestui que trust in possession. Stith v. McKee, 87 N. C. 389; Mask v. Tiller, 89 N. C. 423. But, if the statute had run, the plaintiff would not be barred in seven years. Section 153 of the Code does not apply to this case, but section 158, if any statute does. Ross v. Henderson, 77 N. C. 170.

The court charged the jury that, if they believed the evidence, the plaintiff's cause of action accrued more than seven years before the commencement of the action, that the same was barred by the statute, and they should find the third issue, "Yes." To this charge the plaintiff excepted. This was er

ror.

The deed from Ramsey to Mary Norton, mother of plaintiff, conveyed at least the legal estate in the land to her; and, the defendant, McDevit, having married her, and a child having been born alive by this marriage, the defendant is a tenant by the curtesy of the legal estate, at least. But, if it turns out that his wife only held the land as the trustee of plaintiff and her sister, this will destroy his tenancy by the curtesy.

The plaintiff and her sister being the only lawful heirs of their mother, Mary (rules 1 and 9 of section 1281 of the Code), upon her death the estate in the land descended to them, subject to the curtesy of the defendant, if there was no trust. But if the mother, Mary, held the land in trust for the plaintiff and her sister, as plaintiff alleges she did (and as we hold she did if the land was bought and paid for with their money), upon her death the legal and equitable estate united in the plaintiff and her sister, and destroyed

the defendant's claims to curtesy; and plaintiff, being a tenant in common, is entitled to be let into possession of one-half of the land. But, as the defendant claims to have bought a part of the interest of Ardelia (she says one-fourth), it seems to us it would be proper for her to make herself a party to this action, in order that the whole matter may be settled. But we do not consider her a necessary party, and it must be left to her whether she will make herself a party or not.

There were other matters discussed, not material to the determination of the appeal, and we do not consider them. There is error as pointed out, and a new trial is ordered. New trial.

RUSSELL v. HILL et al. (Supreme Court of North Carolina. May 3, 1898.)

APPEAL-REVIEW-CONFLICT IN RECOrd.

Where there is a material conflict in the record proper on appeal, and counsel concur that the same conflict appears in the record below, and hence cannot be cured by a certiorari, a new trial will be granted.

Appeal from superior court, Swain county. Action by D. S. Russell against Hill & Nelson. From a judgment for plaintiff, defendants appeal. New trial ordered.

R. L. Leatherwood, for appellants. G. S. Ferguson, for appellee.

erns.

PER CURIAM. When there is a conflict between the case on appeal stated by the judge, and the record proper, the latter govCases cited in Clark's Code (2d Ed.) p. 579. But here the conflict is in the record itself. Upon the issues sent up in the record, the second issue is answered "No," while in the judgment it is recited that it had been answered "Yes." If this were a mere clerical error in copying, it could be cured by a certiorari, or by amendment here. State v. Beal, 119 N. C. 809, 25 S. E. 815; State v. Preston, 104 N. C. 733, 10 S. E. 84. But counsel concur that the conflict is in the original record below. Such being the case, the only remedy is by a new trial.

COOK v. COFFEY.

(Supreme Court of Georgia. Jan. 22, 1898.) TRIAL OPENING AND CLOSE-EVIDENCE-ADMISSIBILITY-REVIEW-CONFLICTING EVIDENCE.

The evidence, though conflicting, authorized the verdict, and none of the errors assigned are sufficient to require the granting of a new trial.

(Syllabus by the Court.)

Error from superior court, Rockdale county; J. S. Candler, Judge.

Action by A. B. Coffey against J. A. Cook. Judgment for plaintiff, and defendant brings error. Affirmed.

The following is the official report: Cook bought from Coffey a mule, and gave him a mortgage upon it, as security for the payment of his (Cook's) promissory note to Coffey for $65, part of the purchase price, besides interest thereon and 10 per cent. attorney's fees in case of collection by suit. To an execution issued upon the foreclosure of the mortgage, Cook filed an affidavit of illegality, setting up that at the time of the trade the mule was warranted by the plaintiff to be sound, but that it was worthless, having then a disease from which he died; and the consideration of the note therefore failed. Further, the horse which the plaintiff had received from the defendant as a part of the consideration for the trade was worth $40 or $50, and defendant prayed judgment in his favor for the value of the horse. On the trial of the case there was a verdict for the plaintiff for the amount of the note, with attorney's fees as stipulated therein. The defendant made a motion for a new trial, which was overruled, and he excepted. The grounds of the motion were: "(1-3) The verdict was contrary to law, evidence, etc. (4) The court erred in holding that the plaintiff in fi. fa. was entitled to assume the affirmative, and to open and conclude the case, and in refusing to allow defendant to do so, counsel for defendant proposing, when the case was called in its order for trial, to assume the affirmative, and claiming the right to do so because defendant, by his illegality, had admitted that he had given the note which was the foundation of the mortgage fi. fa.; that it was for the mule, which the plaintiff in execution stated at the time was 'sound and all right,' and that defendant affirmed that the mule was diseased at the time of the trade, that the disease was at that time unknown to him, that the mule died from the disease in fourteen days from that time, and that he was seeking to recoup from the plaintiff the value of the horse which the plaintiff received from him. [This ground was approved by the court, subject to this correction: "Defendant's counsel proposed to assume the burden after the jury was stricken, and after the plaintiff had cpened his case, and offered his mortgage note, execution, and levy in evidence." The affidavit of illegality being only a plea of failure of consideration and setting up an express warranty by plaintiff, the court ruled that plaintiff was entitled to open and conclude the argument.] (5) The court erred in refusing to allow counsel for defendant to read in evidence 'sections on pages

116, 117, 118, and 119 of U. S. Department of Agriculture, on special diseases of horses, setting forth the symptoms of lung fever.' (6) The court erred in refusing to allow counsel for defendant to use 'sections pages 116, 117, 118, and 119 of U. S. Department of Agriculture, on special diseases

on

of horses,' to show, in his argument to the jury, that the symptoms in the standard works for the diseases of horses in lung fever conformed to the facts as detailed in [reference to] the disease of this mule by defendant as a witness." "(8) The court erred in charging: 'You and I are not here to make contracts. We have nothing to do with the hardships of the one side or the other in this case. It is your duty under the facts to find the truth, and mine to construe the contract.' The said contract of sale being in writing, construction of it was not necessary. [The seventh and ninth grounds are not approved.]" The evidence was conflicting as to the condition of the mule at the time of the sale, and as to whether there was a warranty.

Geo. W. Gleaton and A. C. McCalla, for plaintiff in error. R. W. Milner and J. R. Irwin, for defendant in error.

COBB, J. The official report states the facts. There was no error in ruling that the plaintiff was entitled to the opening and conclusion in the case. If, in a case like the present one, the defendant could assume the burden and take the opening and conclusion, it is necessary that he should do so befor the plaintiff offers any evidence. It appears from the certificate of the trial judge attached to the motion for a new trial that the defendant did not offer to assume the affirmative in the case until after the plaintiff had made out a prima facie case. This being true, it was proper to hold that the right to open and conclude was in the plaintiff. See Abel v. Jarratt (Ga.) 28 S. E. 453.

Complaint is made that the court erred in refusing to admit in evidence extracts from a book purporting to contain the opinion of experts on special diseases of horses. There was no error in this ruling. Johnson v. Railroad Co., 95 Ga. 685, 22 S. E. 694.

Another ground of the motion for a new trial assigns as error the refusal of the court to allow counsel for defendant to use in his argument to the jury certain sections on certain pages of "U. S. Department of Agriculture, to show that the symptoms in the standard works for the diseases in lung fever conformed to the facts" of the present case. It is impossible to ascertain from this assignment what book, paper, or document is referred to, and therefore we cannot tell whether or not its contents were proper matter for argument before the jury. This ground, therefore, presents no assignment with which we can deal.

The evidence on the two controlling issues in the case was directly conflicting. The charge excepted to was not erroneous for any reason assigned, and there was no error in refusing to grant a new trial. All the justices concurring. Judgment affirmed.

COBB, J. Argo filed in the justice's court an affidavit to foreclose a landlord's special lien against Fields for supplies which Argo claimed to have furnished him for the purpose of making a crop. To the execution issued upon this affidavit the defendant interposed a counter affidavit denying any indebtedness to the plaintiff. The case was tried before a jury, and a verdict was rendered in the plaintiff's favor. From the evidence it clearly appears that there was no relation of landlord and tenant existing between the plaintiff and the defendant, but that the relation that they bore to each other was that of landlord and cropper. The defendant applied to the superior court for a writ of certiorari, alleging in his petition that the verdict and judgment in the justice's court were erroneous, because there was no evidence showing the relation of landlord and tenant between the parties to the case. Upon the hearing of the case, the certiorari was dismissed. The plaintiff excepted, and assigns as error the refusal of the court to sustain his petition for certiorari.

It is indispensable, to the establishment of a lien in favor of a landlord for supplies furnished, to show that the relation of landlord and tenant existed. Civ. Code, §§ 2800, 3126.

Whenever the relation of landlord and tenant exists, the title to the crop raised upon the land rented is in the tenant; and this is absolutely essential to the existence of a lien, because, if the title to the crop be in the landlord, no lien can arise in his favor upon his own property. Whenever the relation of landlord and cropper exists, the title to the crop is in the landlord, and therefore no lien can arise in his favor for supplies furnished to his cropper. Civ. Code, §§ 3129-3131. He has a right to assert this title in order to protect himself for all supplies furnished to his cropper; but he cannot assert it by the foreclosure of a lien which does not arise from this relation, but only arises from the relation of landlord and tenant. The evidence showing conclu

sively that the relation existing between the parties was that of landlord and cropper, the verdict and judgment in the plaintiff's favor in the justice's court were erroneous, and the court erred in refusing to sustain the certiorari. Judgment reversed. All the jus

tices concurring.

MCDANIEL v. STATE. (Supreme Court of Georgia. Jan. 19, 1898.) CRIMINAL LAW-CONTINUANCE-BRINGING IN ACCUSED-HOMICIDE.

1. Where a motion is made to continue a criminal case upon the ground that the accused is physically unable to go to trial, and upon such question the testimony of medical experts introduced as witnesses is conflicting, the discretion of the trial judge in overruling the motion will not be controlled.

2. Where the accused is in court, and offers no sufficient reason for a postponement of the trial of his case, and the trial is in all respects legal and regular, it will not be ground for a new trial that he was improperly brought into court under an order of the judge.

3. The evidence warranted the verdict, and there was no error at the trial. (Syllabus by the Court.)

Error from superior court, Newton county; A. W. Fite, Judge.

Henry McDaniel was convicted of murder, and brings error. Affirmed.

J. M. Pace and E. F. Edwards, for plaintiff in error. W. T. Kinsey, Sol. Gen., for the State.

COBB, J. Henry McDaniel and his son Sanders McDaniel were jointly indicted, charged with the offense of murder. Henry McDaniel was admitted to bail. When the case against him was called for trial, his counsel moved for a continuance on the ground that the accused, while on his way to court that morning, had been thrown from a buggy, and had sustained injuries which rendered him unable to go to trial. The court heard testimony as to the accident, and as to the condition of the accused, and passed the case for two days. After the expiration of that time the case was again called, and the accused, being in bed at an hotel in the town where the court was being held, was, on the verbal order of the judge, brought into court by the sheriff. The motion for a continuance was renewed. Evidence as to his condition was heard at length, including the testimony of several physicians. Counsel stated that they would not be able to go to trial, with the accused in the condition he then was, as he would not be able to render them any assistance. The evidence of the physicians as to whether the accused was in a condition to bear the strain of the trial, and intelligently confer with his counsel during the same, was conflicting. The court overruled the motion for a continuance. Throughout the trial the accused lay upon a cot or lounge, except when making his statement to the jury; be