of the land, would be erroneous; it should have been for an undivided
part. Ib.
19. An acknowledgment to admit a deed to record need not be in the very
words, but only to the effect, of the form prescribed by the statute.
Morse v. Clayton, 373.
20. Therefore, where a subscribing witness stated that the deed was signed,
sealed, and delivered in his presence, and in the presence of the other
subscribing witness, it is a sufficient compliance with the law, which pro-
vides that the witness shall swear that " he saw the grantor sign, seal, and
deliver the deed to the grantee; that he subscribed his name as a witness
to it in the presence of the grantor; and that he saw the other subscribing
witness (naming him) sign the same in the presence of the grantor, and in
the presence of each other, on the day and year therein named." Ib.
21. See Banks; Fraud; Vendor and Vendee.
1. T. F. W. conveyed to J. F. W. and W. R. L. property real and personal, in
trust, to secure G. B. against heavy indorsements and liabilities which he
was under for T. F. W.; J. F. W. and W. R. L., the trustees, sold a
large part of the trust property under the trust deed, which was purchased by
G. B., the beneficiary therein, but afterwards, at the instance of T. F. W.,
the grantor therein, refused to convey, upon the ground that at the time of
the sale, the state of facts did not exist, which, by the terms of the deed of
trust, authorized a sale: Held, that a deed of trust is but a power coupled,
perhaps, with an interest; to legalize the execution of the power, those cir-
cumstances must exist upon which the right to exercise it is made to
depend. Walker v. Brungard, 723.
2. See Deed; see Mortgage.
DEFENCE AT LAW.
See Vendor and Vendee.
1. Lang v. Fatheree, 7 S. & M. 404, explained; the proper judgment when a
demurrer is overruled is final, unless the demurrant crave leave to reply, in
which case leave should be given. Shields v. Taylor, 127.
DISTRIBUTEE.
See Executor and Administrator.
1. While it seems that the decree of the probate court allotting dower, is binding
and conclusive upon the representatives of the husband who are parties to
the decree, yet it is not so upon one claiming to hold title paramount to that
of the husband, and a stranger to the decree of the probate court.
Pickens v. Wilson, 691.
2. Upon the allotment of dower to the widow, in lands claimed by and in pos-
session of a third party by alleged paramount title, the remedy of the
dowress to assert her right and recover possession is by ejectment; and if
the widow be in possession, the claimant's redress is by like remedy. Ib.
3. The chancery court will not have jurisdiction of a bill filed by one
claiming to hold certain lands of the husband exempt from the wife's dower,
to enjoin the widow from proceeding to enforce a decree she has obtained in
the probate court against the representatives of her husband, awarding her
dower in the lands claimed by the complainant; the right of the widow to
possession of her allotment of dower, was purely a legal one, to be enforced
by her by ejectment when it could be resisted by complainant. lb.
DYING DECLARATIONS.
See Criminal Law.
The defendant in an ejectment is not in all cases estopped from setting up an
outstanding title, merely because he claims the property from the same
source with the lessor of the plaintiff; proof of that fact will make out the
case of the lessor of the plaintiff, but the defendant may then show title adverse
to that of the common source; or he may show title to a third person outstand-
ing, from that common source, superior to that of the lessor of the plaintiff.
Wolfe v. Dowell, 103.
1. It is not competent to prove by parol that a check, purporting on its face to be
for so much money, was designed by the drawer to be payable in the notes
of a depreciated bank, and was received with that expectation by the payee;
to permit the proof would be to vary a written contract by parol.
2. It is error to exclude competent testimony from the jury, for which the party
may except, even though the evidence excluded would not be sufficient of
itself to entitle him to a verdict. Phillips v. Burrus, 31.
3. If a judgment, under which the plaintiff in the court below claims title, is read
without objection there, the high court of errors and appeals will not en-
tertain the objection to it, that the record does not show it was founded on
due notice to the parties. House v. Fultz, 39.
4. In a trial of the right of property levied on under execution, the defendant in
execution is a competent witness for the claimant, who claims under pur-
chase from the same defendant. Ewing v. Cargill, 79.
5. It seems that, when proof is admitted, without objection, to the jury, it is too
late to remedy the omission to make the objection by asking of the court
instructions for the jury to disregard it. Edge v. Keith, 295.
6. The courts of late, and especially in this country, have leaned against the
exclusion of offers of compromise as testimony. Grubbs v.
Nye, 443.
7. During the progress of a suit upon a note, the issue being non assumpsit, the
defendant wrote to the plaintiff, admitting that he was surety upon the note
sued on, stating that he was old and unable to pay, but that his son would
pay the debt in five years without interest, provided a judgment should be
obtained against him; subsequently the defendant plead non est factum in
the case on the trial of which issue it was held, that the letter from the de-
fendant to the plaintiff was competent testimony for the plaintiff to prove
the admission of the defendant of the execution of the note. Ib.
8. In an action of ejectment the lessor of the plaintiff claimed the lands in contro-
versy, which were two lots in the town of Quitman, under a deed from the
former proprietors of the town, which conveyed all the land, except the
"lots which had been previously sold in said town, and which would more
fully appear by reference to the map of said town:" it was held, that parol
evidence was inadmissible on the part of the defendants, to show that the
lots in controversy had been previously sold; the deed referred to the map
for the lots already sold, and in the absence of proof that the map could not
be produced, parol evidence could not be admitted, except in explanation of
the map. Pool v. Myers, 466.
9. Where two parties claim in an action of ejectment from a common grantor,
and the plaintiff in the ejectment claims under a deed conveying all the lands
in a town, except those lots previously sold; and the defendants claim under
a deed subsequent in date two of the lots in the town; it was held, that the
common grantor, who, in both cases, had given covenants of warranty, was
not a competent witness for the defendants to prove that the lots in contro-
versy had been previously sold by him to the defendants, though the deed
had been executed subsequently to his deed to the plaintiff. His interest
would be direct in sustaining the latter sale, as if it failed he would be di-
rectly liable on his covenant; while his liability on the first covenant would
depend on the fact whether he had or not previously sold the lots. lb.
10. In an action in this state, involving the title to a slave sold under execution in
Alabama, on a justice's judgment rendered in that state, the party claiming,
under the sale in Alabama, made affidavit of the loss of the book kept by the
justice, in which the entry of the judgment and proceedings, as required by
the law of Alabama, was kept; and offered to prove by depositions, the con-
tents of the book and character of the entry in the case under which he
claimed: Held, that it was competent for the party to prove, by his own
affidavit addressed to the court, the loss of the justice's docket, with the
view of laying the foundation for the introduction of secondary evidence of
its contents; and upon the court's being satisfied of the loss of the docket,
to prove by parol its contents. Scott v. Loomis, 635.
11. A debtor conveyed his property to two trustees to secure certain debts and
liabilities, among others one to one of the trustees, and also certain other debts
on which the same trustee was the surety of the debtor; the property thus
conveyed was afterwards levied on by execution against the debtor, on judg-
ments junior to the deed of trust, and the trustee, not secured, claimed the
property as trustee, and gave a bond to try the right; on the trial, the trus-
tee who was secured by the deed, having released his power as trustee and
his interest under the deed to his co-trustee, (the claimant,) was offered as a
witness for the claimant, and excluded: Held, that he was properly ex-
cluded; he had a direct interest under the deed, which his release to his
co-trustee did not discharge; the creditors for whom he was surety for the
debtor, could not be deprived of their right by a release to the trustee.
Selser v. Ferriday, 698.
12. Held, further, that being incompetent at law by reason of interest, he would
be for the same reason equally incompetent in equity; and could not, there-
fore, be admitted as a witness in a subsequent suit in equity, commenced by
the trustee who had claimed at law, to enjoin the execution of a judgment
rendered against him upon such claim, on the ground that he had not had a
fair hearing at law, by reason of his co-trustee's testimony being ruled out.
lb.
13. See Bills of Exchange and Promissory Notes; when assignor of, witness.
See Criminal Law, for evidence in criminal cases, and weight of.
1. A sale of personal property under execution, on which there is a deed of
trust on the records, apparently unsatisfied, will, nevertheless, pass the title
to the purchaser, if in point of fact the deed of trust be satisfied.
2. A levy upon real estate constitutes no satisfaction of an execution, until con-
summated by sale; therefore, where an execution was levied on real estate,
and the sale enjoined, on the ground that other property was first liable,
and the judgment creditor levied another execution on the other property
designated, the sale of which was again enjoined on the ground that still
other property of the judgment debtor was liable before that; and the cred-
itor levied his third execution on the property last designated, which execu-
tion with the levy, was quashed because of the previous undisposed or
68*
levies; it was held, that the last execution was improperly quashed; and the
quashal of it no bar to the issuing of another execution.
Beazley v. Prentiss, 97.
3. Our statute (Hutch. Code 611,) directs, that upon payment of a debt secured
by mortgage, the mortgagee shall," at the request of the mortgagor, enter
satisfaction upon the margin of the record of such mortgage, which shall
forever thereafter discharge, defeat, and release the same; " when this
entry is made, the whole legal and equitable title revest in the mortgagor, as
if a formal reconveyance had been made. But until this is done, or some
other mode pursued to vest him with the legal title, the mortgagor, even
after payment of the debt, has but an equity. Wolfe v. Dowell, 103.
4. A deed of trust is but a species of mortgage, and is included in the statute,
(Hutch. Code, 111,) which provides for the entry of satisfaction upon the
margin of the record. Ib.
5. Where a debt, secured by a mortgage or deed of trust, is fully paid, but no
entry of satisfaction made of record, nor the legal title in the mortgagee or
trustee otherwise extinguished, the legal title still remains outstanding; and
though, in such case, the mortgage property is subject to execution against
the mortgagor, yet the purchaser will only acquire the equitable interest of
the mortgagor, to enforce which, he must resort to a court of equity, and
cannot recover the property so purchased in ejectment. lb.
6. Property conveyed by mortgage or deed of trust is not subject to sale under
execution at law, unless the whole of the debt secured be paid; when the
debt is fully paid, it is liable to such sale; and it seems this is the case,
whether the property be real or personal. Ib.
7. It seems that if the lands of A. be sold under execution against B., the sale
itself will be a nullity; and the purchaser will not be bound by his bid.
Smith v. The State, 140.
8. An equity of redemption in real estate, whether before or after the forfeiture of
the mortgage, is incapable of sale under execution against the mortgagor, in
this state, unless the whole of the mortgage money has been paid, and there
is nothing but the naked legal title outstanding. Boarman v. Catlett, 149.
9. The case of Doe on the demise of Helm v. The Natchez Insurance Company,
8 S. & M. 197, so far as it relates to the construction of the valuation law,
and the mode of appraising property levied on under execution, which is at
the time under appraisement from previous levies on other executions; and
also so far as it relates to the sale under the last execution of such previously
appraised property; cited and affirmed.
Natchez Insurance Company v. Helm, 182.
10. The Natchez Insurance Company being the owner of some land, the Planters'
Bank and Rhasa Parker having each judgments against the company, the
former for $1397, and the latter for $3761, levied executions on the land;
Stanton, Buckner & Co., after the other judgments, also obtained a judg
ment against the company for $16,212, and levied their execution on the
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