1. Paper in form of deed not rendered testamentary by reserva-
tion of life estate, with use and occupancy, in the maker.
Williams et al., ex'rs, vs. Tolbert et al., 127.
2. Facts surrounding the making of papers offered as testament-
ary in this case do not indicate that they were so intended by
the maker. Ibid.
3. Attestation by three witnesses, at suggestion of a lawyer, does
not make instruments testamentary.. Ibid.
4. Infant, deed of, voidable not void. Nathans vs. Arkwright
et al., 179.
5. Recital of payment of one dollar as consideration of quit-claim
deed, sufficient. That it was not actually paid does not affect
validity of conveyance. If not paid it was recoverable. Ibid.
6. Instrument, though in form of deed, evidently intended to pass
no estate until death, construed to be a will. Sperber vs.
Balster et al., 317.
7. Deed being absolute on its face, with possession thereunder, suit
on the ground that it was intended as security for debt so that
creditor could sell, reimburse himself and pay balance to
debtor, that he had sold but paid nothing to debtor was de-
murrable, no fraud, accident or mistake being alleged. Hall
vs. Waller, 483.
8. Deed void for usury made to secure debt, on contest over title,
charge was properly refused that deed could be foreclosed as
an equitable mortgage superior to homestead taken after it
was made. Anderson vs. Tribble, 584.
9. Homestead cannot be defeated by prior deed void for usury;
nor can this be done by calling instrument an equitable mort-
gage. Ibid.
10. Absolute deed to secure debt, though bond to re-convey on pay-
ment be given, conveys title. Thaxton et al. vs. Roberts, 704.
See Trust, 1; Estates, 1; Infancy, 1-5.
1. Motion to dismiss counter-affidavit to distress warrant takes
precedence of motion to dismiss warrant; but where counter-
affidavit was sufficient to retain case in court, plaintiff was
not hurt by failure to hear his motion first. Drake vs. Daw-
son, 174.
2. Counter-affidavit setting out facts amounting to plea of recoup-
ment, and alleging "that the sum distrained for, or some part
thereof, is not due," is good. Ibid.
3. Distress warrant purporting to be based on affidavit of plaintiff,
which was not sworn to by him, but by his attorney only on
the best of the latter's knowledge and belief, was bad, and
was properly dismissed. Ibid.
4. Distress warrant having been levied, and counter-affidavit made
and returned into court, proceeding amounts to a suit for
rent, and pending it an action cannot be brought for rent
covered by the warrant. Plea of lis pendens would be good,
unless former action was so defective that no recovery could
be had on it. Chisholm et al., vs Lewis & Co., 729.
DOMESTIC RELATIONS. See Contracts, 4; Husband and Wife.
DOWER.
1. Widow, who is sole executrix and joint legatee with a child, mak-
ing warranty deed to land individually and as executrix, is not
entitled to dower therein. Churchill vs. Bee & Co. et al., 621.
2. Having sold a portion of the realty and bought it herself, paid
the co-legatee part of the price, and mortgaged the land to
him to secure balance, amounts to election to take under the
will, and she is not entitled to dower in such land. Ibid.
3. Widow being executrix will not impair right to dower, but acts
as such not consistent with exercise of right should be con-
strued to manifest election to take under will in lieu of dower.
Ibid.
4. Ignorance of estate by widow who was sole administratrix, or
of her right to dower therein, cannot be set up by her to
show that election was not made freely and knowingly. Ibid.
1. Homestead, taken subseqnently to making of deed to secure
debt, is no defense to ejectment under deed. Thaxton et al.
vs. Roberts, 704.
2. Recovery in ejectment, though under deed to secure debt, is
conclusive on all questions arising under the deed and its
consideration which would have been the subject of a legal
defense. Ibid.
See Infancy, 6, 7; Practice in Superior Court, 18.
1. Deed declared void for fraud, grantee holds alone as trustee for
grantor and his heirs. Equity will not interfere at the in-
stance of a purchaser from one who received a voluntary
conveyance from the grantor after deed sought to be set aside
was made. Bozeman et al. vs. Cox et al., 67.
2. Grantor has a clear legal remedy under facts of this case.
3. Minority of members of church of congregational form of gov-
ernment wrongfully seizing church property and retaining
same exclusively, contrary to wishes of majority, and depos-
ing officers and trustees, furnished ground for equitable relief.
Bates et al., trustees et al., vs. Houston et al., 198.
4. Security who has paid off part of fi. fa. is not entitled to equitable
relief because purchaser of property from principal buys fi. fa.
to protect himself. Cherry vs. Singleton, 206.
5. Persons seeking equitable relief must come with clean hands.
May vs. Huntington, 208.
6. Money loaned, deed taken as security, and bond to reconvey
given, if by inadvertance deed was not signed by debtor,
bill for specific performance would lie. Storey vs. Weaver,
296.
7. Motion to dismiss bill because there is common law remedy, too
late at trial term. Coston vs. Coston, 382.
8. Bill to recover interest in property, alleged to have been illegally
sold for taxes by sheriff and bought in by joint owner with
complainant, failing to show legal or equitable title, dismissed
on demurrer. Carver Cotton Gin Co. vs. Barrett & Caswell
et al., 526.
9. Technically there is no non-suit in equity, but bill will be dis-
missed where no recovery could be had under the evidence,
Result being same, calling dismissal a non-suit will not cause
reversal. Hart vs. Henderson, 568.
10. Decree should be based on verdict so far as it finds on facts
submitted; deductions of law by jury will be disregarded,
and decree based on facts found and those admitted.
Churchill vs. Bee & Co. et al., 621.
11. Equity laying its hand on an estate may fully administer it; but
where, in consequence of priorities not fully exhibited in
pleadings and verdict, chancellor remands details to be ad-
justed by administrator under supervision of ordinary, this
court will not interfere. Ibid.
12. Counsel fees for bringing fund into court should be fixed by the
jury on proof of value of services, and the chancellor should
decree payment; but where the chancellor has decreed fees
without a verdict, and they are reasonable, this court will not
interfere; especially where point is not insisted on. Ibid.
13. Equity is careful of rights of innocent purchasers. Boardman,
next friend, et al. vs. Taylor et al., 638.
14. Long pending of first affidavit of illegality and that transactions
between the parties cover considerable time, will not give
equity jurisdiction, if issues made, or which can be made by
amendment, can be determined at law on illegality. Gunn,
guardian, vs. Woolfolk, 682.
15. Surety or guarantor, whether complainant is, can be determined
at law. Ibid.
16. So also whether a surety be discharged by conduct of the holder
of a note, or not. Ibid.
See Levy and Sale, 1; New Trial, 1; Constitutional Law,
4; Amendment, 10-11; Injunction and Receiver, 8.
1. Conveyance to a woman for life, with remainder to her children,
coupled with a power in her to convey to trustees to hold
until her youngest child becomes of age, and then to divide
among all the children, with rights of survivorship between
them in case some should die without issue; and in the event
all should die leaving no issue, then over to certain children of
the donor-vests the remainder absolutely in the children of
the tenant for life on the youngest attaining majority, and the
death of all or the last one after that event, without issue,
will not entitle the donor's other children to the property.
Doty, admistrator, vs. Wray, administrator, 153.
2. Will left estate during life or widowhood to wife of testator,
with remainder to children; on her marriage she was to draw
out her portion to be used for life, and on marriage of any
child he should draw out his portion, and balance be kept
together till death of wife, then divided. In case of death of
a child without issue, or leaving issue who should die before
becoming of age, portion of such child should be divided
among surviving children: Held, that limitation over termi-
nated with time of distribution. Child surviving wife and
receiving distributive share, took absolutely. Bailey et al.
vs. Ross, administrator, et al., 354.
3. Widow taking dower, and general legatees making agreed
division before her death, shares so received vested absolutely
and without limitation over. Ibid.
4. Conveyance was made to trustee for woman for life, with re-
mainder to such child or children as she might have in esse at
her death, and in default of children, to grandchildren living at
the time of her death, with power to trustee to sell and rein-
vest with the consent and approbation of the person or per-
sons for whose use he may, at any time, hold said property;
trustee sold with the consent of the life tenant only—a usee
in remainder being in life at the date of the sale-life tenant
survived all her children, and died leaving grandchildren:
Held, that the sale by the trustee only conveyed the life estate,
and did not divest the title of the grandchildren. City Coun-
cil of Augusta vs. Radcliffe et al., 469.
1. One beneficiary of ordinance allowing encroachment on street
is estopped from denying its validity as against another
beneficiary. Kirtland vs. Mayor, etc., of Macon, et al., 385.
2. No estoppel under facts of this case. Harrold, Johnson &
Co. vs. Morgan, for use, 398.
3. Surety on treasurer's bond under act of 1876, who did not make
oath as to capacity to respond, and who signed with knowl-
edge that others did not make oath, possibly estopped from
claiming discharge; especially since bond recited taking of
oath, though none was attached. Mayo, sheriff, vs. Ren-
froe, 408.
1. Affidavit of witness used on motion for new trial to weaken the
force of her testimony by interrogatories at the trial, was not
admissible on a second trial, though witness had died and her
interrogatories were again used. Bessman vs. Girardey et
al., 18.
2. Compromise decree between a city and tax payers to enjoin col-
lection of special tax for subsequent year is not admissible in
a suit by one of complainants to recover tax paid in prior
years. Mayor, etc., of Savannah, vs. Feeley, 31.
3. Cross-interrogatories substantially answered by immediate re-
sponse or reference to answers to direct interrogatories, tes-
timony not suppressed. Schaefer vs. Georgia Railroad, 39.
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