and heir at law of old Knuckles, and by his consent made titles to Thompson, the present plaintiff, in 1791. Three other witnesses were next called; all of whom proved that Huey must have been a minor, under age at the time when this bond or deed was given to Knuckles. The defendant lastly relied upon possession; and produced witnesses to prove that Major Bullock, his father, got possession in 1773, and kept it till he died, in 1791. Here the testimony on both sides was closed. BAY, J. The fee of the land in dispute has been regularly traced from Clark to Huey, and from Huey to Thompson. On the part of the defendant two titles have been set up: First, a sheriff's sale to Knuckles; secondly, a deed from Huey to Knuckles. The court has already given an opinion on this sheriff's sale. No proof is now before the court respecting it: the jury, of course, can take no notice of it. With respect to the deed from Huey to Knuckles, it is clear law, that if he was under age at the time the deed was made, it is good for nothing. This must depend, however, upon the nature of the testimony given. It is a matter of fact for the consideration of the jury. But if they believe the witnesses on that head, there can be very little difficulty about it, as they all are clear that he was under age when this deed was made. But admitting that Huey was of age at the time this deed or bond was given, it has appeared in evidence that, after the death of old Knuckles, he made another deed of this land to the plaintiff, Thompson, by the consent and approbation of young Knuckles, heir at law of his father, who delivered him up his bond or deed to his father. And this last deed to Thompson is first on record; and, consequently, will have a preference, under the act to prevent deceits by double conveyances, &c. As to the possession on the part of Major Bullock, which the defendant lastly relied on, it was not carried further back than the year 1773, and therefore cannot avail him; for it will not give him five 1794. Thompson V. Bullock 1794. years' peaceable enjoyment (the time required in the sta Thompson tute) previous to the 1st of January, 1775. V. Bullock. Verdict for plaintiff, 37. with costs. Orangeburgh SCARBOROUGH against GEIGER. ASSUMPSIT on an acceptance of an order or inland bill of exchange. The bill was drawn by one Bradley, as attorney for Thompson, in favour of the plaintiff, on the defendant, as sheriff of Orangeburgh district, and payable out of the proceeds of the sale of lands, which the defendant sold as sheriff of that district, which bill was accepted by the defendant. The defence set up by the defendant was, that funds had never come into his hands to enable him to take up the draft. It came out in evidence, that the lands had been sold six years previous to the acceptance; and that, before the order was drawn, the defendant had said he would accept the draft in favour of the plaintiff, when spoken to concerning it. BAY, J. observed to the jury, that as this order was drawn on, and accepted by, the defendant, six years after he had every information respecting the funds whereby to take it up, he should not now be allowed to take advantage of it, and say he had no funds, especially as it was his duty, as sheriff, to resell the lands, if the first purchase-money was not paid, and raise the money out of it. Verdict for plaintiff. Hunt then gave notice of a motion for a new trial, on the ground of misdirection in the judge, but afterwards relinquished it. 1794. Scarborough V. Geiger. BOONE & Wife against SINKLER, Executor of DURAND. A devise to a niece, of 4,000l. to be paid to her one year after her marriage, mean time to remain in the executor's hands, he pay for the same, THIS case came before the court upon a special verdict, which stated "that John Boone devised 4,000l. to his niece, Mary White, to be paid to her one year after her marriage; and, in the mean time, to remain in his executors' "hands, they paying interest for the same. That Levi "Durand, the defendant's testator, who was one of the "executors of John Boone, paid Miss White her legacy, in "1779, which she received when money was greatly de"preciated. That Thomas Boone, the present plaintiff, af- riage portion, "terwards intermarried with Miss White," and the question submitted to the court was, whether the loss sustained by the depreciation of the money, should be sustained by the plaintiffs or the estate of Durand, who had paid it before it was, by John Boone's will, payable ? Pinckney, on behalf of the plaintiffs, contended, that this 4,000l. was intended as a marriage portion; every thing, therefore, which tended to lessen or reduce it, was in derogation of the rights of marriage. The money was not to be paid till a year after marriage. It contemplated an event of that kind, and probably might have been intended for provision of a family. Any payment, therefore, before the event occurred, was void, and tended to defeat the inten is not a mar but a vested legacy. Therefore, a payment made to such legatee by the executor, on her arriving at full age, is good, notwith standing it is not a year af ter marriage. 1794. Boone V. Sinkler. tion of the testator. That it was the duty of an executor to carry the intention of his testator into execution, and not to defeat it. To shew that it was in derogation of the rights of marriage, the counsel cited several authorities, particularly 1 Eq. Ca. Abr. 300. where it is laid down, that payment to a father was quasi no payment. That payment to a feme covert is not good-the husband will recover it over again. 1 Vern. 261. That if a woman, privately, before marriage, releases a bond for 1,000l. without consideration, and then marry, the payment is not good, and the husband will recover the bond. 2 P. Wms. 360. 1 Eq. Ca. Abr. to the same point, being in derogation of the rights of marriage; also, 2 Vern. 17. The counsel further contended, that the conduct of Durand had a very suspicious aspect; he was a residuary legatee of the testator, and trustee of the young lady; it was his duty to have protected her rights, but, instead of that, he paid her off in trash of paper-money, which was of little or no value. This, he said, was that kind of conduct which did not deserve the countenance of this court. Pringle, contra, admitted that if the sum had been intended as a marriage portion, and the payment had been made to defraud the intended husband, the doctrine laid down by the plaintiffs' counsel, and the authorities in support of it, might have applied. But this was not a marriage portion; it was only a legacy. Nothing could be a marriage portion but what is left by a father. No marriage portion could be given by a collateral relation. All the arguments of the plaintiffs' counsel, were founded on an idea that this payment was made in derogation of the rights of marriage; and that too, with an immediate idea of defeating the intended rights of the husband; whereas, nothing of that kind was stated in the verdict, or submitted to the court, and of course they could not presume it. That instead of a marriage portion, it was a vested legacy, which did not depend on marriage as a precedent condition. The year after marriage was only directed as the time when it was payable. Its being payable with interest, made it a vested legacy; and to this point he cited 2 Eq. Ca. Abr. 540. 542. where it is settled, that if a legacy be devised to be payable at twentyone, it will go to his executor. But if it was given upon his arriving at the age of twenty-one years, here it would be a lapsed legacy, unless it was payable with interest, then it would be a vested legacy. 2 Com. 270. to the same point. A. devised 500l. to be paid at twenty-five years of age, and in the mean time, interest; this was deemed a vested legacy. 2 Vern. 508. After having cited these authorities in support of the position laid down that this was a vested legacy, and not a marriage portion-he next contended, that being a vested. legacy, it was transferable; and if so, might be released, although the time of payment was not arrived, if she was of full age. Ambler, 750. 2 Vern. 181. It was next asked, whether, in case Durand did not choose to pay interest for money, there was any law to oblige him to pay it? He supposed there was none. Then, if the person to whom it was payable, chose to receive it, he again asked if there was any law to prevent it? He supposed not. But admitting that it depended upon a contingency, yet even in that case, a release of such contingency, would be good. 2 Eq. Ca. Abr. 89. A possibility is releasable. Upon this ground, a devise of 3,500l. at twenty-one years of age, or marriage, was held transferable, Talb. 117. and if so, releasable. A dying before the contingency, yet it is transmissible, if not intended to defeat a precedent condition. 2 Atk. 621. 2 Eq. Ca. Abr. 89. 1 Rutledge, in reply, argued, that it was very evident that this sum of money was intended by the testator as a marriage portion. That blood is a good consideration to raise uses; and being a sister's daughter, she might have come in under the statute of distributions, if there had been no will. This ought to be considered as a marriage settlement, payable one year after marriage; and if so, then it was a breach of trust in the executor, who in this respect, might be considered as a trustee, to pay the money before the marriage had taken place. It was a contingent interest, which she 1794. Boone V. Sinkler. |