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firing of a pistol behind defendant by plaintiff

Charles ASHTON, Appt., many years before the former quit living with the latter. From this circumstance, it is evi. DASHAWAY ASSOCIATION et al. dent that defendant did not regard himself in peril or danger of any kind from plaintiff. If

(....Cal.....) be bad regarded himself in danger, he would pot bave continued to live with her for five or 1. The donation by trustees of an in. six years after the firing of the pistol occurred. corporated benevolent association to As the evidence would not have justified a

each member in pursuance of an unanimous vote finding of extreme cruelty on the part of plain

of the members present at a meeting when the

vote was taken, of a certain sum for past serytiff, and as this court would bave reversed for

ices, wben no services had been rendered other such a finding, as not justified by the evi

than such as the parties were bound to render as dence, if it bad been made, it will not reverse

members, is a misappropriation of corporate for want of such finding, and send the cause

funds, the restoration of which may be compelled back for a finding on that issue.

by a member who was not a party to the transJudgment and order affirmed.

action.

2. A demand on the trustees of a corporaWe concur: McFarland, J.; Sharp

tion to restore funds misapplied is not necessary stein, J.; Paterson, J.

before an action by a member to compel such

restoration, where the trustees themselves were Fox, J.:

parties to the unlawful transaction, and defend I concur in the judgment. I think that the the action on the ground that their acts were first part of the second finding negatives every rightful allegation of extreme cruelty made by the de

(November 22, 1889.) fendant, and that a separate finding upon that subject was unnecessary. The other errors of A Superior

Court for the city and County of law, if they were errors, are of so insignificant a nature as that they could not possibly bave San Francisco denying his motion for new trial changed the result. It is true that consendies after a judgment of popsuit in an action brought at the foundation of every marriage, and with to compel the restoration of certain corporate out consent there can be no marriage; but as

funds alleged to have been misappropriated.

Recersed. was said in Campbell v. Campbell, cited by Mr. Justice Thornton, tbere are cases in wbich a

The facts sufficiently appear in the opinion. tacit consent will be inferred. Even under

Messrs. S.Heydenfeldt, Jr., and Joseph our Code it will be presumed that a man and

P. Kelly for appellant.

Messrs. Tilden & Tilden and David Mc. woman deporting themselves as busband and

Clure for respondents. wife bave entered into a lawful contract of marriage.” Code Civ. Proc. $ 1963, subd. 30. And after a quarter of a century of that kind

Sharpstein, J., delivered the opinion of

the court: of deportment towards each other, and towards the world, the parties ought to be estopped to ber of the Dashaway Association, against the

This was a suit by Charles Ashton, a memdeny such presumption. Then the couclusive presumption arising under subdivision 3, S 1962, corporation, its five trustees, and a majority of Id., ought to prevail: “Wbenever a party has the other members, to compel the restoration by his own declarution or act . : : intentionally The trial court ponsuited the plaintiff, who ap

of funds alleged to have been misappropriated. and deliberately led another to believe a particu. lar thing true, and to act upon such belief, be peals from an order denying his motion for a cannot, in any litigation arising out of such dec pew trial. The origi: al association was an unlaration or act ... be permitted to falsify it." | formed in January, 1859, at the Howard En

incorporated temperance society. It Works, J.:

gine House, by seventeen public-spirited men, I dissent. To my mind the evidence shows who took a pledge to abstain from all intoxiconclusively that these parties were never mar

cating drinks, except for medical purposes, the ried. Cohabitation and repute may be suffi necessity of which was to be certified by a plycient to raise a presumption of marriage, and, sician, and adopted a constitution and by laws. if undisputed, authorize a judgment so thai The initiation fee was fixed at twenty-tive effect; but here the testimony of both of the cents, and the dues at twelve and one half cents parties shows beyond any question, not only the undersigned, anxious to advance our own

a week. The preamble was as follows: “We, that the intercourse of these parties was illicit in the beginning, but that it continued to be so ing, not only amongst ourselves, but our friends,

interests, and to promote a spirit of good feelup to the time of their separation. The posi- and being impressed with the importance of tive and direct evidence of both of the parties concentrated effort to accomplish the object, is that there never was any promise or agree, and desirous of forming ourselves into an assoment to marry, or to live together as husband and wife. Therefore the evidence of cohabi ciation in which we may labor together for the tation and repute, wbich in this case is ex

end proposed, have framed the annexed con

stitution," etc. tremely weak and unsatisfactory, cappot and should not prevail. A mere presumption of a members to seek out their friends in the city

It was provided that "it shall be the duty of marriage, arising from cohabitation, cannot stand as against positive evidence to the con- and introduce to the members," and "'10 assist

and vicinity, and bring them to the meetings, trary by both of the parties interested.

those members who are in need to obtain emPetition for rehearing denied.

ployment, and aid and encourage the poor

was

and needy, as far as lay in their power.” | 500 was divided among 40 members, including The name adopied was the Dasha way the trustces. The answers deny that the deA ssociation,' the meaning of which is said fendants "unlawfully or fraudulen ly" took or to be that it was the object to encourage the received any of the money, or luat iley look members and their friends to “dash away" the or received any money "bat was held by said intoxicating cup from their lips. In May, 1859, corporation in trust, but do not deny the lako & more extended constitution was adopted. ing or receiving, and the evidence of the taking After reriting that the original plans were "10 is uncoutradicted. bring under our banner all inebriales, not only At a meeting of the members held in Dehere, but in other parts of the State,” it procember, 1883, the mivute-book shows the fol. vided for the establislıment of branch associ- lowing entry: "Brother Eagan then moved ations, ald that all persons adnuilled as mem- tbat ibe Association dorate 10 each member in bers should take the pledge. The substance of good standing the sum of $1,500 for past serv. the previous constitution was adopted. ices, on signing a receipt for the same. Car.

The enterprise seems to have received the ap- ried unanimouslv." And this is followed by probation and assistance of the public. The a receipt in the following form: "San Franpress gave it encouragement; the Reverend cisco, Deceniber 31, 1883. We, ibe under. Thomas Starr King consented to deliver a loc signer, members of the Dashaway Association, ture for its benefit; and donations of books, of acknowledge the receipt of $1,500, donated to building materials and of money were re. us for past services by order of the Associa. ceived. On one occasion the As ociation re- tion." This receipt was signal liy 49 members, ceived a “clonation in money" of $ 57.50; on including the trustees, the sum of $1,50J being another, a subscription of $1,200; on another, opposite cach name. $2,107.83; on another, $134.50; on another, It was admitted at Ibe trial that tbore were $154.75,-and letters of sympathy were re- no services rendered by the defendant members ceived from other States. In 1860 ibe Asso- other than in the line of bein, goud and efficient ciation purchased a lot on Post Sireit, near members of the urgupization, in accordance Dupopl, for the sum of $6.250, and a building with the constitution and by-law's and general was erected upon it for the use of the Associa: objects of the Association, and that that is all tion. This is ibe lot which was subsequently any of the defendants rendered 10 the society." sold, as mentioned below. It was morigaged The by-laws provide that “Do Ollicer of this for part of the purchase money, and subse Association sball receive compensation for bis quently olher mortgages were placed upou it. services, except the secretary and collector, In 1802 the Association was incorporated. The wbo shall receive such compensation as may articles were evidently framed under the pro- from time to time be fixed by the A-sociation." visions of the incorporation of "religious, so- It is admille: by the pleadings that the As cial, benevolent and learned associations." 1 sociation “still is” a corporation, and no pro Hittell, Gen. Laws, 1024 et 8cq.

ceedings for its voluntary dissolution are shown. There was no capital stock. The articles The argument for the respondents is that the state that the orgonization was “a benevolent organization was not a charity, in its legal Association, formed for the purpose of pro sense, and that therefore it could do what it moting ibe cause of temperance.” A "home" ple:sed with its properly. "Take all the evi. for the care of inebriales was provided, udiler dence," say the learned counsul. "search the the auspices of ibe Association; but for this pur. record through and through, and not one word pose a separate corporation was formed. indicating a charity can be found.” We do

The Association bad a numerous member- dot divd it necessary to decide this question, ship. “There were 8, 16.3 names before the in-and, for the purposes of this opinion, shall ascorporation, and 4,9:14 since the i corpora- suma that the Association stands upon the same tion." Io 1892, however, from some cause foc:ing as any otber private corporation. So which is not explained by the record, the mem- regarding ir, we think it clear that any mem. bership liad dwindled 10 59; and in ibe follow. ber bas the right to the aid of the courts in ing vcar vorice was given of a meciirgof mem selling aside such a plain misappropriation of bers to consider the question of selling the Ibe corporate funds as is above shown. That property above mentioned, in order to pay the lany slock holder or member bas tiis right in indebleviness, “und to reinvest in other prop equity is well established. The rule is bus erty suitable for the Association." Ai this slated in a recent work: “Even the majority meeting a resolution was passed that the trus. , bave no right to direct the affairs of a corpo tres be instructed to sell the property, pay the ration except in accordance with the provisindebtedness and purchase other cheaper ions of its charter, for the powers of the ma. properiy suitable for the uscs and purposes of jority are derived wbolly from the agreement The As ociation." A petition for leave 10 sell of the stockholders, as sel out in the charter; the property wns accordingly filed in the 911. aud every individual stock bolder has the right perior couri, stating, among other things, that to stand upoo his contract, and forbid any deihe Association was incorporated "purely and parture from its terms. It may accordingly solely for the benevolent and laudable purpose be stated as a rule that any departure from ibe of aiding anı prorroting the cause of iemper. chartered purposes of a corporation is an injury ance, and not pecuniary profit;" and the court to every individual stockholder, for wbich granted leave io sell, reciting in its order the equity will, under proper circumstances, pro above mentioned resolution. The property was vide a r:mely." Morawetz, Priv. Corp. $ 403. then sold for the sum of $150,000. Of this sum Another learned writer says: “It is ultra $45,000 was used in discharging ipilebiedness; rires and illegal for the board of directors to $31,543.54 was placed in savings Banks, where donate the funds of the corporation to chariit is to be presumed that it now is; and $73,- 1 table or public purposes, or to aid corporations

come.

of a similar character, however praiseworthy Wright v. Ororille 67. 8. & C. Mining Co. 40 the purj'ose of the donation may be. Nor can Cal. 20, in which case it was beld that a stock. the directors legally use the funds of the cor. bolder could compel the company to refund poration to induce promoters to abandlop a pru. the sum paid by him for the redemption of posed rival company. A stock bolder mav en corporale properly which the directors had join the directors from making free of tolls a allowed to be sold, and had wrongfully bridge from which a corporation derives its in- neglected to releem, and Wallace, J., deliver

The direciors niny be held liable foring the opinion, said: “It is settled that allowing the president to use the corporate courts of equity in this country will, at the infunds for lobbyiug purposes.

An uureason slance of a storkbolder, control a corporation able use of the corporate profits of a leased and its ollicers, and restrain them from railroad to build up and improve the lessor doing acts even within the scope of corporate Tailroad, without reference to ihe rights of the authority, if such acts, wben done, would, unformer, has been hield 10 be good cause of comder the particular circumstances, amount to a plaint on the part of a stockholder in the leavel breach of the very trust upon whicb, as we railroad company; and, in general, any mis- bave seen, the authority itself has been conapplication or waste of ihe property of a cor.ferred. Dolge v. Hovlsey, 59 U. S. 18 How. poration may be remeosed by a member there- 341 [15 L. ed. 404). of.” Cook, Stock and Stockholders, $ 674. "And upon the same principle the court will,

The Supreme Court of Rhode Island, in ref. even after such an act has been done, relievo erence to the misappropriation of cor, orate an injured stock boller from loss, if, in the funds by a director, saiil: “The jurisdi tion mean line, no superior equity has intervened, does not appear to be so firmly seliled and de- nor the rights of incoccut third parties atfined in England as in this country; but we do achcl.” See also Neally v. lin, 16 Cal. 145; not believe ary English juge bas over decided Beuch v. Cooper, 72 Cl. 09; Chicigo v. Cam. that a president or director who fraudulently eron, 120 111. 45, $ West. Rep. 507. converts or embezzles corporite funds cannot And the relief does not depend upon the exbe sued in equity by a stock bolder, when the istence of a frandulent inteni, although such corporation willfully neglects or refuses to intent very frcquently exis s. bring ibc suit. Indeed, to bold tbat a corpo. Now, in the present case there was a plain ration could gratuitously conlone or release misappropriation of corporate funds. The such a fraud by anything abort of unanimous corporation was not dissolveri, or, so far as apconsent would be monslious; for it would lie, pears, lo be dissolved. It was a simple case of in effect, lo boli tivat a president or director irusies who were in possession and in control wbo can control a majoriiy vote in the corpo- of corporate funils, acting in purisilince of a ration may rob or despoil it with impuuity." vote of the majority of ine mambers, “doHazard v. Durant, 11 R. I. 206, 207.

pating" the corporate furds to them-elies and In accordance with those principles, it has other meinbers upon the pretext of "past serv. been held viat a stockholuer may restrain the ices," although ihe fact was, as adinitled at directors from paying an unfounded claiin of the trial, that no services bad been rendered the secretary for ox'ra services (Butts v. Wool, other than such as the parties were bound to 87 N. Y. 317), and may compel the repayment render as members of the Association. The of funds misappropriated by the directors answers deny that the Association was not a (Sears v. liotchkiss, 25 Conn. 177), and may corporation for protit. But it is too plain for recover from a trustee property of ile co: pora discussion that this Jenial was unirue. Tbe tion which he has convered to bis own use corporation was not for profit. It articles de (Carpenter v. Roerts, 56 llow. Pr. 216), an' fine it as "a benevoleut' Association, formed may present corporate scrurities from being for the purpose of promoting the cause of misapplied to the belietit of other corporations temperance;" and it is eviucnt, as stated in the (Chucuyo v. ( ameron, 120 111. 447, 9 West. Rep. petition for leave los sell the property, ibat the 607), and may have annulled a lease made in Association WMS incorporated purely and excess of corporate powers (Mills v. C'entral R. solely for the benevolent a id laudable purpose Co. 41 N. J. Eq. i, 2 Cent. Rep. 239), and of aiding and promo ing the cause of iempermay prevent the collection of payment of a lax, apce, and not pecuniary protil." This being illegaliy levierd (Doulje v. Woolsey, 59 U. S. 18 so, the division of more than one half of the How, 131, 15 1. ed. 401), and may prevent corporate property among 49 members was a the payment of dividendis ont of a tund which | diversion of the same from the cause of temperought to bave been appropriated to rep:irs of ance, which was the “ benevolent and laudathe company's works (Dent v. Londoni Tramble" purpose of ibe institution, into the private ways Co. L. R. 16 Ch. Div. 34+), and may pre-l pockets of sid members. It was an aliemipt vedi the conversion of the corporate assets by to make a profit out of an undertaking wbich the officers (ttlanta Real Estute Co. v. Allanta was not for profit. It is not incopsis:ent with dat. Lank, 75 Ca. 45), and may have restrained the conclusion ibat ibe preanble of the conacts which amount to a violation of trust, or a stitution of the unincorporated association breach of the charter (arch v. Eastern Á. Co. staled that the object of the memiers was "lo 40 N. II. 548; Wilcor v. lickel, 11 Neb. 154; ad vanre our own interests.” It is perfectly Tenc'out v. Docs Moines B. G. Street R. Co. 75 clar, from the circumstances, that this meant Iowa, 127; Nancierson v. ('on mercinl Bank, 23 their interes.s wich res;vert to temperance and Pa. 379), or which amount to a fraud upon the sobriely. But, aside from this, the old consticompany (Ryan V. Leuven voorth, A. & N. W. tution was supersedel by the idilicles of incorR. Co. 21 Kan. 365), or to a breach of its poration, which explicitly detine the ovject of charter. Cook, Siock and Stockholders, $ 672. ile Association, as above slated.

In California the rule was laid down in If such a trausaction as appears bere would be sanctioned, the majority of the members of trustees were parties to the transaction. Unany club, or social, religious or benevolent so- der these circumstances, it was not necessary ciety, could, witbout winding up the concern, for the plaintiff to demand that they should divide up the funds whenever they felt in need take action. “The law does not require a of a little money. It does not appear tbat the useless act to be performed; and when it is plaintiff consented to the proceeding; he is not claimed, from the answer, that, if a demand shown to have been present at the meeting at had been made, it would bave been refused, it which the resolution above quoted was “unan does not lie in the mouth of the defendant 10 imously carried;" bis name does not appear object tbat no demand was made." Parrott v. on the receipt above set forth; the resolution Byers, 40 Cal. 622, 623. See also Henth v. Erie offered by bim at the meeting preliminary to R. Co. 8 Blatchf. 347; Moraweiz, Priv. Corp. the sale seems to us to have been perfectly $ 395; 3 Pom. Eq. Jur. 10. proper; and his subsequent proceedings show, We see no material error in the admission of to his credit, that he was not a parly to the evidence; but, if there had been, it would not transaction.

affect the result here. McCloud v. OʻNcail, 16 It is argued for the respondents, bowever, Cal. 397. that a member or stockholder cannot have re- The order appenled from is reversed, and the dress for any wrong or injury to the corpora- cause is remanded for a new trial. tion “until after he has exhausted all the We concur: McFarland, J.; Thornton, means within bis reach to obtain redress of bis J. grievances. He must make an earnest effort with the managing body of the corporation.” A petition for rebearing was subsequently This is undoubtedly the general rule. But the granted, and on May 3, 1890, Sharpstein, complaint alleges ihat the trustees of the cor- T., delivered the opinion of the court: poraiion “control and manage its affairs, and This appeal was beard in Department 2, were parties to the said unlawful and fraudu- wbich reversed the judgment and order of the lent acts, being aided and abeuted by the said court below. An opinion was tiled November other defendants members; that it would be 22, 1889. Afterward a petition that the cause futile and useless to make a demand upon said be beard in bank was filed and granted and corporation defendant, or upon its trustees or the case has been argued in bank, but the arofficers, to commence à suit to obtain the relief gument bas failed to convince us that the dewhich the plaintiff seeks, or any relief what- cision of the department was erroneous; and ever.” The answers deny that the trustees for the reasons stated in the opivion of the

were ever parties to any unlawful or fraudu- department the judgment and order appealed lent Transaction," but do not deny the re- from are reversed. mainder of the allegation; and from the whole We concur: Works, J., Thornton, J., case it is apparent that tbe defendants claimed Paterson, J. the right to do what they did, and that the

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NOTE.-Notice; lis pendens.

of the contents of exhibits. Walker v. Goldsmith Two things seem indispensable to give effect to 14 Or. 149; Center v. Planters & M. Bank, 22 Ala. the doctrine of lis pendens: (1) that the litigation 743; Hayden r. Bucklin, 9 Paige, 511: King v. Billy must be about some specific thing which must nec-28 Conn. 693; Murray v. Ballou, 1 Johns. Ch. 506: essarily be atfected by the termination of the suit; Low v. Pratt, 53 III. 438: Miller v. Sherry, 69 U.S. and (2) that the particular property involved in the Wall. 237 (17 L. ed. 8:27); Jones v. Lusk, 2 Met. (Ky.) suit must be so definite in the description that any. 356; Lewis v. Mew, I Strobb. Eq. 180; Griffith v. one reading it can learn thereby what property is Griffith, Hoffm. Ch. 153; Stone v. Connelly, 1 Meta intended to be made the subject of litigation. (Ky.) 652. Houston v. Timmerman, 17 Or. 499.

While strangers to the record are not affected Notice of lis pendens does not take effect until with constructive notice of the pendency of an acservice of process, or its publication in case of an tion involving the title to land lying in another absent defendant. Cassidy v. Kluge, 73 Tex. 154: county, unless the notice required by N. C. Code, Tharpe v. Dunlap, 4 Heisk. 674; Skeel v. Spraker, 8 $ 229, bas been given, even purchasers for a valua. Paige, 189; Murray v. Finster, 2 Johns. Ch. 155; ble consideration are atfected with notice of an acHeatley v. Finster, 2 Johns. Ch. 158.

tion brought in the county where the land lies, if The doctrine of lis pendens operates as notice on- the pleadings describe it witb reasonable certain. ly from the time the complaint is filed and sum• ty; and they take title subject to the final decres mons is served, and of such facts as are alleged in rendered in the action. Spencer v. Credle, 102 N. the pleadings, which are pertinent to the issue, and C. 68

but a separate tract lying wholly in one county, I law of Phebe Benton instituted proceedings in the action is not brought in the county where the Court of Common Pleas of Union County, the subject of the action is located, a bona fide Ohio, for partition of the premises described in purchaser of the property for a valuable consid- the petition; and that at a public auction in eration, without actual notice, and residing in the county where the property is situated, will partition be, Lewis Benton, became the purnot be charged with constructive notice of the chaser of the premises, and afterwards sold pendency of such action at the time of his pur. them to Aaron Clover, who entered into poschase, so as to prevent his acquiring a valid inter- session of the same. est in the property.

Aaron Clover and Nancy Clover, by their 8. The heirs of P. brought an action in joint answer to the petition, set up the pur

the Court of Common Pleas of Union County to chase from Lewis Bezton, and prayed that partition two tracts of land situated respectively their title might be protected. in Union County and Delaware County, and al- The court of common pleas found that the 80, to set aside a deed, duly recorded, from P., mortgage from Daniel S. Benton to Mary J. to D. and L., of the Delaware tract, and to re-Shafer was the first and best liep on an undicover the same. The land in Union County was vided forty eighth part of the 1227 ac’es of not an entire tract with the land in Delaware land; that Daniel S. Benton did not have any County, but the two were separate tracts, one title to the premises in the petition described, situated entirely in Union County, and one en by virtue of the deed from Phebe Benton to tirely in Delaware County. While the action was Daniel S. Benton and Lewis Benton, but pending in the court of common pleas, and be owned in fee simple the undivided forty-eighth fore the rendition of final judgment in the case, D., one of the defendants, mortgaged his interesi part of the premises, as weir-at-law of Phebe in the Delaware tract to M., who was, at the date Benton, at the time be executed the mortgage of the commencement of the action, and ever to Mary J. Shafer; that the condition of de. since has been, a resident of Delaware County. feasance in said mortgage bad been broken, M. had no actual notice of the pendency of the and that Mary J. Shafer was thereby entitled action, at the time of taking the mortgage; was in bave the defendants' equity of redemption not a party to the action; and the final judgment foreclosed. rendered in the action was never recorded in

The plaintiff excepted to the judgment of the Delaware County. Held, that under 88 5055 and court of common pleas, and appealed to the 5056 of the Revised Statutes, M. was not charged circuit court. In the circuit court the cause with constructive notice of the pendency of the action, so as to be prevented from acquiring an dence embodied in an agreed stutement of

was submitted on the pleadings, and the evi. interest in the subject matter thereof covered by the mortgage, as agninst the title of the parties facts, which is as follows: to the pending litigation.

It is agreed by the parties in this action:

That a case was commenced and prosecuted (March 4, 1890.)

in Union County, Obio, in which Stephen

Cranston and others, heirs-at-law of Puebe ERI RROR to the Circuit Court for Delaware Benton, deceased, were plaintiffs, and Orson

County to review a judgment in favor of Benton Daniel S. Benton, Lewis Beplon and plaintiik, rendered upon appeal from the Court others were defendants, by petition tiled Janof Commop Pleas, in an action brought to fore- uary 17, 1880, in wbich the pluiolitf sought to close a mortgage. Affirmed.

set aside the deed of conveyance made by

Phebe Benton to said Daniel S. and Lewis Statement by Dickman, J..

Benton of the tract of land in Delaware CounThe defendant in error, Mary J. Shafer, filed ty, Obio, upon wbich Mary J. Shafer boliisihe her petition in the Court of Common Pleas of mortgage which she seeks to foreclose in the Delaware County, against Daniel S. Benton action at bar, and also to recover the said real and the plaintiffs in error, Lewis Benton, estate situate in Delaware Couniy, Ohio, and Aaron Clover and Nancy Clover, asking for tbe partition of the same amoug the beirs of the foreclosure of a mortgage made to ber Oc said Phebe Benton, deceased. Also in the tober 28, 1982, by Daniel S. Benton, on the one same action was sought the partition of another undivided fourth part of 1224 acres of land in tract of land in Union County, Ohio, among Delaware County, Obio, described in a deed I said heirs. And that the land in Union Coundated August 9, 1878, from Phebe Benton to ity, Ohio, is not a continuous or entire tract Lewis Benton and Daniel S. Benton, in which with the said land in Delaware County, Ohio, she conveyed to them the undivided half part but are separate and independent tracts several thereof. The mortgage was given to secure miles a part. the payment of Daniel S. Benton's note for The land in Delaware County is in Virginia $571.28, dated October 17, 1882, payable one Military Surveys Nos. 2516 and 2897, and the year after date, with interest at 8 per cent per land in Union County in Virginia Military Surannum, and was duly recorded in Delaware vey No. 4404. County, November 23, 1882, in vol. 28, p. 149, That Mary J. Shafer was not a party to said of the Records of Mortgages,

action in Union County. Daniel S. Benton was in default for answer That the suit in Union County was pending and demurrer.

when Daniel S. Benton executed and delivered The defendant, Lewis Benton, set forth in the mortgage to Mary J. Sbafer on the lands in his answer to the petition, that Daniel S. Ben. Delaware County, but the final decree in said ton was not the owner of the one-fourth part tion was not rendered until March 10, 1883, of the real estate described in the petition, but, in tbe District Court of Union County, on apas one of the beirs-at-law of Phebe Benton, peal from the decision of the court of common was the owner of only one forty eighth part pleas wbere judgment bad been rendered in thereof; that in January, 1850, the heirs-at- favor of said Lewis and Daniel S. Benton, sus

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