DEEDS AND BONDS-CONTINUED.
2. Although a deed recites, that the grantor has "granted, bargained, and
sold," a tract of land, the title will not pass, if from the whole instrument,
and a contemporaneous agreement executed by the parties, it is evident a
title bond was intended by the parties, and not a conveyance of the land
in præsenti. Chapman v. Glassell,
50
3. A vendee, holding only a bond for title, cannot resist a recovery at law,
when the vendor sues to recover the possession. His remedy is in equity
to file a bill to redeem. A purchaser from the vendee without notice, is
in no better condition, as it was his duty to inquire into the nature of the
title he was purchasing. Notice to quit previous to the institution of the
suit, is not necessary. Chapman v. Glassell,
I. To authorize the reading of a deed of trust in evidence, the execution of
the deed must be proved, though it is recorded. Brock v. Headen, 370
2. To authorize the registration of a deed of trust, the certificate of the pro-
bate should show, that it was executed on the day and year mentioned in
the deed, and that the witnesses subscribed it in the presence of the ma-
ker of the deed, and in the presence of each other. Ib.
370
3. An instrument which on its face purports to be under seal, will be con-
sidered a deed, though a scrawl is omitted to be made opposite the name.
Shelton v. Armor, et al.
4. A certificate of probate of a deed which recites, that “W. E. acknow-
ledged his signature to the annexed deed, to W. B., for the purposes there-
in mentioned," is not sufficient to authorize the registry of the deed, or the
reading a certified copy as evidence. Ib.
647
5. A voluntary deed, delivered to the grantee, conveying to him slaves, re-
serving to the grantor a life estate, is operative at common law against
purchasers, and subsequent creditors, and is also valid as between the
grantee, and the personal representative of the grantor, although he dies
in possession, and his estate is declared insolvent. Adams v. Broughton,
Adm'r, &c.
731
6. When such a deed is made in another State, and the property brought af-
terwards into this State by the grantor, there is no law requiring the deed
to be recorded. Ib.
731
7. Such an instrument, if made and delivered to a person in being, is a pre-
sent gift passing the title immediately, and therefore not testamentary in
its character. lb.
8. A conveyance of slaves by deed by one residing in Georgia, reserving to
the donor the possession of the slaves during his life, and not made in
contemplation of a removal of the slaves to this State, is valid in this
State, without the registration required by the statute of frauds. Ib. 731
See Drunkenness, 3.
DEBTOR AND CREDITOR.
See Chancery, 18.
See Partners and Partnership, 6, 7.
1. A demand before action brought, is not necessary, unless a demand is ne-
cessary to render the detention unlawful. Brock v. Headen,
371
2. When an agent instructed to sell a horse, exchanges it for another, the
act is a conversion, and the agent becomes liable to the owner, for the
value of the animal, without a demand. Ainsworth v. Partillo,
1. When a commission issues to three persons to take a deposition, if the
parties appear before one of the commissioners, and cross-examine the
witness, they cannot afterwards object, that one commissioner had not au-
thority to act. Douge v. Pearce,
has made the com-
Scott v. Baber, 182
2. A deposition will not be rejected, because the clerk
mission returnable to a day when no court was held.
3. The objection cannot be made for the first time at the trial, that the com-
missioner was related to the party taking the deposition, for the purpose of
suppressing it. lb.
4. A general objection to the reading of a deposition, as evidence, will not
authorize the raising particular objections to it, in the appellate court.
The objection must be specifically raised in the primary court. Donnell
v. Thompson,
440
5. Where the rejection of a deposition, cannot, according to the rules of law,
work any injury to the party offering it, its improper rejection, will not be
an error for which the judgment will be reversed. lb.
440
6. An objection to an entire deposition is not good, if part is sufficient. The
objectionable part should be pointed out. The fact, that certain parts of
the deposition were rejected, cannot make the refusal of the court to sus-
tain the objection to a greater extent, an available error. Hatchett & Bro.
v. Gibson,
588
1. A consent by husband and wife, to live apart, does not authorize either to
charge the other with a desertion from bed and board, with the intention of
voluntary abandonment. Jones v. Jones,
2. A marriage solemnized in this State, is not dissolved by an abandonment
of one of the parties, unless sanctioned by a divorce in due form. Wells
v. Thompson,
1. One who considers Talladega county as his place of residence, and re-
mains in Wetumpka during the winter, or business season, and declares
that he never intended to abandon his residence in Talladega, is qualified
to vote in that county. The State ex rel. Spence v. The Judge of 9th Judi-
cial Circuit,
2. When by birth, or residence, one has acquired a fixed domicil, a tempora-
ry absence, on business or pleasure, with the intention of returning, and an
actual return, in accordance with such intention, will not work a change
of the domicil. Ib.
1. When dower is assigned, out of adjoining lands, lying in contiguous
counties, the party at whose instance it is done, cannot afterwards com-
plain that the court had no jurisdiction to make an allotment out of the
county. Adams, and wife, v. Barron, Adm'r,
205
2. A return of the sheriff, that he has assigned dower to the widow, "as
shown by the annexed return," is sufficient, as it will be presumed, that
the return annexed, is the report of the commissioners. Ib.
205
3. A designation of the tracts allotted as dower, by their designation at the
land office, is sufficient, without describing them by metes and bounds.
lb.
205
4. An assignment to the widow, and putting her in possession, is sufficient,
though she has a husband. Ib.
205
5. Notice of the time of the confirmation of the report of the commissioners,
is not necessary. If injured by such confirmation, a motion should be
made in the same court to set it aside. lb.
205
6. The widow of one deceased, has no right to occupy a plantation belong-
ing to her husband, several miles distant from his residence, in a town,
as keeper of a hotel, until it is allotted to her, as part of her dower; con-
sequently cannot retain the rents upon the ground of quarantine. Smith's
Heirs v. Smith's Adm'r,
329
7. The orphans' court cannot award damages to the widow, upon the allot-
ment of dower. lb.
329
8. An administrator has no power to purchase the widow's dower right in
land, with the personal assets. Nor will the fact, that the purchaser of
the estate supposed the dower was extinguished, legalize the purchase
made by the administrator of the widow's right. Ashurst's Adm'r v. Ash-
urst's Heirs,
1. Although drunkenness reduces a man to a state of temporary insanity, it
is no excuse for crime which is the immediate result of it. So, upon a
trial for an assault with intent to murder, it is not error for the court to
charge the jury, that the drunkenness of the prisoner should have no effect
upon their consideration. The State v. Bullock,
2. Nor is it any ground of equity, that the witness was intoxicated. A par-
ty who voluntarily goes to trial, with a witness in this condition, does so
at his peril. Governor v. Barrow,
540
3. A deed made by one who from excessive intoxication is deprived of the
use of his reason, so that he is incapable of giving his serious, deliberate
consent to the act, may be avoided, both at law and in equity, though the
party claiming under the deed may have had no agency in producing the
drunkenness. Donelson's Adm'rs v. Posey, et al.
EJECTMENT AND TRESPASS TO TRY TITLE.
1. The judgment in an action of trespass to try title, has no greater effect, as
a bar to another action for the same land, than a judgment in ejectment.
Camp v. Forrest, and another,
114
2. In an action of ejectment, a notice to quit is not rendered necessary, by
proof of a contract between the defendant, and a stranger, between whom
and the lessor of the plaintiff, no connection is shown in respect to the ti-
tle of the property. Pelty v. Doe ex dem. Graham,
1. In the case of a contested election, the circuit judge, under the act of
1840, acts as the returning officer, although he is clothed with power to
re-examine and recount the votes, and to reject such as are illegal; and a
mandamus will lie to compel him to give a certificate of election to the
party legally elected, when it is withheld by the judge from him. The
State ex rel. Spence v. The Judge of 9th Judicial Circuit,
2. The word "Pence," was written on a ticket, cast at an election for she-
riff, at which Spence was a candidate. On counting out the votes, the
managers called in the voter, who declared that he did not intend to vote
in the sheriff's election, and therefore wrote the word "Pence" on his
ticket. Held, that it was properly rejected by the managers. Ib. 805
3. When a vote is improperly rejected by the managers of an election, upon
a contest before the circuit judge, he has not the power to consider the vote
as cast for the candidate, whom the voter declares he intended to vote for.
But if the improper refusal to permit the vote to be cast changed the re-
sult, the election should be declared void. Ib.
806
4. One who considers Talladega county as his place of residence, and re-
mains in Wetumpka during the winter, or business season, and declares
that he never intended to abandon his residence in Talladega, is qualified
to vote in that county. Ib.
806
5. When by birth, or residence, one has acquired a fixed domicil, a tempo-
rary absence, on business or pleasure, with the intention of returning, and
an actual return, in accordance with such intention, will not work a change
of the domicil. Ib.
806
ELECTIVE FRANCHISE CONTINUED.
6. The ballots, or votes themselves, are higher evidence of the number of
votes cast, than the certified lists of the votes sent by the managers at each precinct, to the managers at the court house, and if either party received more votes than were counted for him, the circuit judge should correct the mistake, and count the votes. lb. 806
7. If the managers at an election are legally appointed, and duly qualified to act, the right of one elected cannot be impaired by the neglect or omission of the managers, in preserving the votes after the election is over, in the manner prescribed by the statute. The statute prescribing the mode in which the ballots shall be preserved after the election is dirctory merely. lb. 806 8. When the ballot box of a precinct is found to contain six more votes than were returned by the managers, for one of the candidates; when two of the managers swear that they believe he received more votes than were counted for him, and certified to the managers at the court house, and there is no proof that the additional votes were fraudulently inserted in the ballot box, after the election, the circuit judge should allow them. Ib. 806 ERROR.
1. If a defendant in chancery, omits to move the chancellor, to dismiss the bill for not having been filed in the proper county, he cannot assign it for error in this court. Br. B'k at Mobile v. Rutledge and Watts,
196 2. No objection can be taken in the appellate court, for the allowance, or rejection of any item of the account, or for the failure to allow commissions, unless an exceptive allegation be filed in the orphans' court, showing the ground of admission, or rejection. Long v. Easly, 239 3. The refusal of the court to permit the sheriff to amend an execution, pending the trial of a cause, cannot be assigned for error upon the judgment in the cause. McCollum v. Hubbert and Caple,
4. The refusal of a court, pending a motion against the sheriff, to permit him to amend his return, cannot be assigned as error in the judgment upon the motion. If the party is prejudiced by the refusal, the remedy is by mandamus. Caskey, et al. v. Haviland, Risley & Co. 314 5. A clerk of the circuit or county court, must issue a writ of error on the application of any one against whom a judgment is rendered in his court, make out a complete transcript of the record, and deliver them to the party, his agent, or attorney, and has no right to require his fees to be paid in advance. Parker and wife v. McGaha, Adm'r, 344
6. The refusal of a court to non-suit a plaintiff, because his recovery is less than $50, is not a matter revisable on error. Ainsworth v. Partillo, 460 7. A writ of error cannot be prosecuted on a judgment of the court refusing to quash, in the naine of the deceased party, as defendant to the writ.
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