VENDOR AND VENDEE-CONTINUED.
dor, without a delivery of the possession, the vendor having died insol-
vent. Greenlee v. Gaines,
198
7. An innocent purchaser of land, affected by a judgment lien, has an equi-
table right, to be paid for improvements made upon the land. Br. Bank
at Montgomery v. Curry,
304
8. When an agent sells land in the name of his principal, without authority
to bind the principal, and the principal on being informed of the sale re-
fuses to ratify and confirm it, the vendee may abandon the land, and
the principal cannot, by afterwards offering to confirm it, enforce the con-
tract. Wilkinson, et al. v. Harwell,
660
9. S&M, holding the patent of the government, sold the land to W C, tak-
ing his notes for the purchase money, executing to him a bond for ti-
tle, when the purchase money was paid. WC put his brother, William
C, in possession, who paid the first note, and judgment being obtained on
the second, by an arrangement between the parties, the judgment was
discharged by D, who, by the consent of William C, received an assign-
ment of the bond from Wright C. Subsequent to this, William C filed a
bill in chancery against D, to obtain title to the land, after which D sur-
rendered the title bond to S & M, and took from them a conveyance of
the land. Held, that the possession of William C, he having produced
no written evidence of title, was not such an adverse possession as would
invalidate the conveyance to D. That the pendency of the suit in chan-
cery interposed no obstacle, and that the title of the defendant being pure-
ly equitable, could not be set up in a court of law, against the legal title.
Cawsey v. Driver,
818
WAREHOUSE AND WAREHOUSEMEN.
1. Warehousemen, are bound to take reasonable, and common care, of any
commodity entrusted to their charge; and if a loss occurs under circum-
stances which shows the want of such care, they are bound to make it
good. Hatchett & Bro. v. Gibson,
2. To determine whether a warehouse was fire-proof, a witness may describe
his own warehouse, and show how the plaintiffs' was built. Ib. 588
3. Proof of the rate of insurance, in the warehouse of the plaintiffs, and that
of T, and the practice of planters and merchants in insuring in either ware-
house, is inadmissible. Ib.
588
4. To prove that the warehouse was to be fire-proof, the advertisement of
the plaintiffs, and their receipts, as well as their declaration to the defend-
ant, after he had begun to store his cotton, were admissible evidence.—
Ib.
588
5. If it was a term of the contract, that the defendant's cotton was to be
stored in a fire-proof warehouse, and the cotton was lost by the failure to
provide such a house, the plaintiffs must make good the injury. The
fact that the defendant was in the warehouse, after he had begun to de-
liver his cotton, can have no influence upon the contract. Ib. 588
WAREHOUSE AND WAREHOUSEMEN-CONTINUED.
6. If, after a contract to store the defendant's cotton in a fire-proof ware-
house, the latter dispensed with the completion of the warehouse, and
consented that it need not be made fire-proof, such consent, if given, can-
not be withdrawn after a loss has actually occurred, though there was no
additional consideration for such consent. 16.
588
1. When power is given to an agent to sell a slave, an authority is implied
to make to the purchaser a warranty of title and soundness. Cocke v.
Campbell & Smith,
286
2. An agent authorized by parol to sell a slave, cannot execute a warranty
of soundness under seal, so as to bind his principal upon the warranty as
his deed; but such a warranty, though under seal, is evidence, as an ad-
mission of the agent, at the time of the sale, of the terms of the contract.
Ib.
WILLS AND TESTAMENTS, AND PROBATE OF.
1. In a contest about the validity of a will, the declarations of an executor
having no interest under the will, cannot be given in evidence. Roberts
v. Trawick,
68
2. When a will is propounded to the orphans' court for probate, and is there
contested, the admissions, or declarations, by one of several legatees of
the unsoundness of the testator's mind, or that fraud or undue influence
was practised upon, or exercised over him, cannot be received to invali-
date the will, to the prejudice of the other legatees. Ib.
68
3. If at the time of making a will, a testator is of sound mind, proof that
twelve years before he had made a will, making a different disposition of
his property, is irrelevant. Ib.
68
4. The declarations of the testator, made before, and at the time of the exe-
cution of the will, or so shortly thereafter as to form a part of the res ges-
tae, and necessarily connected with it, may be received, to prove fraud or
undue influence in its execution. Ib.
5. Upon a question of sanity, opinions of the capacity of the testator can on-
ly be given when preceded by the facts, or circumstances, upon which
they are based; and can only be given by those whose long intimacy, and
familiar and frequent intercourse with the deceased, qualifies them pecu-
liarly to detect any mental alienation. Ib.
68
6. Testimony conducing to prove the unnatural character of the will, is ad-
missible—as, that it deprived the most unfortunate of the testator's chil-
dren of any participation in his bounty—or, that the testator was old, was
in feeble health, of weak mind, or was prejudiced by his wife against his
children. lb.
See Slaves, 1.
See Trust, 4.
See Usury, 1.
1. Where a witness will receive a greater share of the estate by defeating
the will, than he would take under it, he is incompetent from interest to
testify against its validity. Roberts v. Trawick,
68
2. An assignee of a judgment, which is afterwards reversed, and remanded
by the supreme court for further proceedings, is an incompetent witness
for the plaintiff, upon the ground of interest. A witness may be rejected
for interest at any stage of the cause, when his interest is discovered.
Stewart v. Conner,
94
3. The party with whom the adultery is charged to have been committed, is
a competent witness for the other party. The degree of credit to be giv-
en to the testimony, is a question for the jury. The State v. Crowley, 172
4. When the plaintiff is offered as a witness under the statute, he cannot be
confined to the statement merely, that the account, or each item of it, is
just; but may prove all the facts and circumstances connected with it.
When the defendant is offered as a witness, he is confined to a denial of
the whole, or a portion of the statement of the plaintiff. Yarborough v.
Hood,
176
5. P, as sheriff, sold certain land, and after the sale, by a parol, or verbal
contract, acquired an interest in it, which interest he afterwards by parol,
sold to one A for a sum of money, and a house and lot, which was con-
veyed to him-Held, that he was an incompetent witness for the plaintiff,
the purchaser of the land, to prove the levy of the fi. fa. McCollum v.
Hubbert and Caple,
282
6. B, holding a note on L, transferred it to R, by a special contract, provid-
ing for its payment, which R afterwards assigned to I, who brought suit
against B, on the note, and transfer. B introduced a witness, who proved
that in a certain contingency, certain claims which he held on R, were to
be received and allowed, as payment or set off. Held, that R was a com-
petent witness for I, to prove that no such agreement was made, as he was
no party to the record, and his interest was equally balanced between B
and I. Further, that being competent, he was not rendered incompetent
by a release, and transfer executed by I. Isbell v. Brown,
383
7. One or more of several wrong doers, against whom nothing is proved, may
be acquitted, and examined as a witness for his co-defendants; but where
the least evidence is given against one of several wrong doers, who is
sued jointly, he cannot be discharged on the trial, for the purpose of be-
ing examined as a witness. Harris v. Mauldin, et als.
8. One to whom a stakeholder pays over money, as the supposed winner in a
horse race, after notice by the other party not to do so, is a competent
witness for the stakeholder, when sued by the supposed loser, for impro-
perly paying it over. Ivey v. Phifer,
See Evidence, 46, 47, 48.
See Husband and Wife, 6.
See Usury, 2, 4.284
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