Moreland vs. Hunley.

had property more than sufficient to pay his debts, that he did pay them, and had Hope and his land, etc., left, (one witness saying this residuum was worth $3500.00;) that the gift by Nettles to his daughters was made to keep her husband from spending the property, and that defendant took his bill of sale with full knowledge of the deed of gift.

For the points made during the progress of the case see the motion for a new trial. The verdict was for $4300.00 for the plaintiffs. The defendant moved for a new trial upon the grounds, 1st and 2d, That the verdict was contrary to the evidence, the charge of the Court, etc. 3d, Because the Court erred in declining to charge the jury as requested by defendant's attorneys, in writing, that if said deed of gift was not fraudulent and void, and was good and valid for any purpose, then it conveys the entire title to the negroes to Mrs. Harrington, and her children took no interest under it, and the plaintiffs cannot recover, and further that plaintiffs have no title and cannot recover. 4th, Because the Court erred in this, that during the progress of the trial defendant's counsel made the point that said deed of gift conveyed no title to plaintiffs, and that they could not recover under it, which was overruled by the Court. 5th, Because the Court erred in declining to give the following in charge to the jury, as requested in writing by defendant's counsel; that, if the proof shows the contract (deed of gift,) to have been made in the State of Alabama, and with intent to hinder or delay creditors, then the laws of Alabama will control the same, and that although the defendant may have had notice of the said voluntary conveyance by said deed of gift, still if defendant afterwards purchased said negroes for a valuable consideration he is not affected by such notice of said voluntary conveyance. 6th, Because the Court erred in admitting in evidence the letters of guardianship granted in Carroll county, Georgia, to Isham S. Helton. 7th, Because the Court erred in granting the order for plaintiffs to substitute the name of the guardian as plaintiff in place of the next friend by whom suit was instituted, and who had died.

This motion remained in statu quo till April Term, 1867,

Moreland vs. Hunley.

when said defendant amended his said motion as follows: 8th, Because since the trial of said cause the slaves for which said suit was brought have been emancipated by the Government, and that all property in them has been destroyed, and without the fault of the defendant in said action; and defendant alleges that if allowed a new trial he will be able to prove by his own testimony that he purehased said negroes and paid a full and fair price for them, and bona fide believed he had a good title to them, and held them in good faith as his own property.

The Court granted a new trial, and this is assigned as error.

G. J. WRIGHT, D. P. HILL, MULLINS, for plaintiffs in error. MOBLEY, INGRAHAM & RAMSEY, for defendant in error. HARRIS, J.

1. The new trial granted by the Judge below was evidently upon the sole ground that the deed of Nettles made in Chambers county, Alabama, conveyed in the habendum an estate to the children of Mrs. Harrington inconsistent with that given to Mrs. Harrington in the premises.

In this interpretation of the deed of Nettles, we think . there was error. The words of conveyance are, "do give and grant unto my said daughter a negro woman and her children, to have said negroes and their increase unto my said daughter and her children, free from the control of her husband, and from all liability to pay any of the debts of said husband."

Did

To vest at common-law a fee simple estate in Mrs. Harrington, the words "and to her heirs" were essential; without them, by the uniform adjudications of the English Courts, she could only have taken an estate for life. she take more by the deed in this case? No statute of Alabama has been shown, or decision of her highest Court referred to, which will authorize us to assume that the principles of the common-law have been altered by or departed from in that State. The common-law of necessity, then, furnishes

Bivins vs. Bivins.

the only rule for the interpretation of instruments made in other States. Controlled by its familiar principles, we are constrained to hold that, under the deed of Nettles, that Mrs. Harrington took a life estate only in the slaves, remainder to her children.

If this reasoning is correct, it is impossible that there can be any inconsistency of estates, as supposed by the Judge below.

2. The whole testimony in the cause seems to have been fully considered and passed upon by the jury, and the Judge having refused to grant the new trial upon any ground connected with it, but only upon the law point which we have just disposed of, we think that this old litigation should be arrested, and accordingly reverse the judgment, granting a new trial.

MARTHA BIVINS, plaintiff in error, vs. JAMES H. BIVINS, defendant in error.

A bill filed against a defendant to require him to execute a title to land upon the ground of fraudulent procurement of the title thereto, in his own name, is not such a suit respecting titles to land, as will give jurisdiction to the Court in the county where the land lies, where the defendant resides in a different county. In such a case the defendant must be sued in the county where he resides.

Equity. Jurisdiction. Demurrer. Decided by Judge WORRILL. Schley Superior Court. October Term, 1867.

The averments of this bill, which are necessary to an understanding of the decision, are but few.

Mrs. Bivins averred that James H. Bivins, of the County of Taylor, had by fraud, (stating the facts upon which the charge of fraud was based,) obtained title in himself to certain valuable lands, which were situated in Schley county, when in fact he should have taken the title to her. Her prayer was that he should be made to convey said lands to

Bivins vs. Bivins.

her. The bill was demurred to upon the ground that, it appearing by the bill that the defendant resided in Taylor county, and nothing being averred to give jurisdiction to Schley county, except the bare fact that the land was in Schley county, the Superior Court of Schley county had no jurisdiction over the case.

The demurrer was sustained, and this is complained of here.

BLANFORD & MILLER, B. HILL, for plaintiff in error, cited Smith vs. Bryan, 34th Ga. R., 53; 18th Ga. R., 719, 368.

EDWARDS & HOLSEY, S. HALL, for defendants in error, cited Penn vs. Ld. Baltimore, 2 W. & T's. L. cases, p. 2d, p. 308, Adams vs. Lamar, 8th Ga. R., 83, Code, sections 3032, 4125, and Smith vs. Bryan, 34th Ga. R., 59.

WARNER, J.

The error assigned to the judgment of the Court below in this case is, in sustaining the demurrer to complainant's bill, and dismissing the same for want of jurisdiction.

The bill was filed in the county of Schley, alleging that the defendant had fraudulently procured the title to certain lands, situated in the last named county, to be taken in his own name, praying that he might be decreed to convey the same to the complainant, and account for the rents and profits thereof. It appeared on the face of the bill that the defendant resided in the county of Taylor. It is contended that the Superior Court of Schley county had jurisdiction under that clause of the Constitution, which declares that "all cases respecting titles to land shall be tried in the county where the land lies," that this case was "respecting title to land." The object of this bill, as we understand it, was for purpose of obtaining a title to land, rather than to try, or litigate that title; neither the possession, or the right of possession to the land in Schley county, was involved. The question presented by the record in this case, comes fully

the

Dougherty, et al., vs. Jones, et al.

within the decision of this Court, in Smith vs. Bryan, 34th Ga. Rep., 59, and must be controlled by it. Let the judgment of the Court below be affirmed.

WILLIAM DOUHERTY et al., plaintiffs in error, vs. SEABORN JONES et al., defendants in error.

1. While a Judge of the Superior Court may, either in term or vacation, upon application by either of the parties litigant, appoint an auditor, still the assent of the parties is necessary to a reference of the matters in dispute to such auditor, as also the appointment of the particular person as auditor. An auditor so appointed, upon reasonable notice to the parties of when and where he will sit to hear the evidence of the parties and investigate their accounts, may proceed and report the result of his scrutiny to the Court. When the Judge below appointed an auditor, when one party objected to the appointment and to the person appointed, he erred.

2. General observations as to the appointment of masters in chancery, their duties, etc.

3. A motion to remove a receiver was properly refused, when he had had no reasonable notice, in writing, of such motion. He was entitled to such notice, in writing, specifically setting forth the grounds for the motion.

Equity. Appointment of auditor, etc. By Judge WORMuscogee Superior Court. November Term, 1866.

RILL.

On the 24th of August, 1846, Daniel McDougald conveyed to Seaborn Jones and Robert B. Alexander a large number of city lots in Columbus, Georgia, and various other lots of land elsewhere, and divers stocks and choses in action, in trust: first, to sell said property and collect said assets, and to pay themselves and such attorneys or solicitors as they might need in carrying out the trust; second, to pay off all debts or claims against him, upon condition that the holders should, within six months, give him a full release; and lastly, the residuum was to go equally to such creditors as would not give such releases. All his endorsers or securities, by paying the debts for which they were such and filing