two cents ($10,374.52), exclusive of interest at the date of said deed; to have and to hold the same, to and for her sole and separate use, to her, and her administrators and assigns, forever. Witness my hand and seal this 13th day of January, A. D. 1883, and in the 107th year of the independence of the United States of America. H. E. Bissell. [Seal.] In the presence of J. B. Bissell, L. O. Blocker."

"State of South Carolina, Colleton County. Whereas, on the 13th day of January, A. D. 1883, I, H. E. Bissell, did release, assign, and transfer unto Sarah H. Bissell the withindescribed debt of my brother J. B. Bissell, Inclusive of all interest; and whereas, the word 'inclusive' in said release was by mistake in said release written 'exclusive': Now, know all men by these presents that I, H. E. Bissell, for the purpose of correcting said error, and in consideration of one dollar to me paid, do hereby release, assign, transfer, and confirm unto the said Sarah H. Bissell, her heirs, executors, and administrators, the said debt as described herein, together with all interest now due and to become due thereon. Witness my hand and seal this 4th day of January, A. D. 1886. H. E. Bissell. [L. S.] In presence of J. B. Bissell, M. S. Fripp."

These deeds are written on trust deed of 25th September, 1876, and also duly recorded.

To this complaint the defendant Henry Edward Bissell made the following answer:

"(1) Answering the first article of the said complaint, he denies that the plaintiff, George W. Egan, on the 21st of December, 1896, became the purchaser from the defendant Sarah H. Bissell, and is now in possession, of that plantation or tract of land known as 'Bonny Hall Plantation,' situate in Beaufort county, but, on the contrary, shows and alleges that the plaintiff, Geo. W. Egan, on the 21st December, 1896, was well aware that the said Sarah H. Bissell could not sell or convey to him the said plantation known as 'Bonny Hall Plantation,' and that she was not in possession thereof; and this defendant further shows that the said Geo. W. Egan was not, at the date of the bringing of this said action, in possession of the said plantation, but that this defendant was in sole and exclusive possession thereof.

"(2) In answer to the allegations of the second article of the said complaint, this defendant shows and alleges that, being Informed that the said Geo. W. Egan contemplated a purchase from the said Sarah H. Bissell of the said plantation or tract of land known as 'Bonny Hall Plantation,' he duly notified the said Geo. W. Egan that this defendant was in possession thereof, and also held the legal title to the said plantation, and that the said Sarah H. Bissell could not convey the same to him, and that for greater certainty, on the 19th of December, 1896, anterior to the purchase by the said Geo. W. Egan from the said Sarah H. Bissell of the

said plantation, this defendant, in writing, duly notified the plaintiff that he possessed the legal title to the said Bonny Hall plantation, and held the same, and was in possession of the same, in trust for the payment of the debt of $10,374.52, with interest thereon, mentioned in the trust deed of Bonny Hall plantation from J. Bennett Bissell to this defendant, dated 25th September, 1876; and that the said Geo. W. Egan, notwithstanding the said notice, and with full knowledge of the same, and with the full knowledge that this defendant was in exclusive possession of the said Bonny Hall plantation, as trustee under the terms of the said deed, and, further, with the full knowledge that this defendant claimed that he was entitled to the payment of the said sum of $10,374.52, with interest aforesaid, out of the said plantation, still proceeded, and thereafter, on the 21st December, 1896, received from the said Sarah H. Bissell the conveyance of the said property, with the intention to defeat the claim of this defendant.

"(3) In answer to the allegations of the third article of said complaint, this defendant respectfully shows that he has no knowledge or information sufficient to form a belief as to what statements or information have been given by the said Sarah H. Bissell to the said Geo. W. Egan; but this defendant respectfully shows and alleges that the history of the transaction and of the instruments in writing referred to in the said third article is as follows, to wit: That the relations between this defendant and his brother, the late J. Bennett Bissell, were of the most friendly, close, and intimate character; that this defendant was employed by his brother, the said J. Bennett Bissell, to act as manager of his planting business on the several rice plantations in the counties of Colleton and Beaufort, including the said Bonny Hall plantation; that at the time of the making of the said trust deed, on the 25th September, 1876, the said J. Bennett Bissell was indebted to this defendant for salaries, and other moneys to him then due, in the sum of $10,374.52, and that the said J. Bennett Bissell, for the protection and security of this defendant, made, executed, and delivered to him the said trust deed of the 25th September, 1876, to secure the said amount; that thereupon the said J. Bennett Bissell placed this defendant in possession of the said Bonny Hall plantation, both as trustee having charge thereof and as manager of the same, but, by agreement between the said J. Bennett Bissell and this defendant, it was understood and agreed that the said J. Bennett Bissell should be allowed to plant the said plantation, for the purpose of supporting his family and of paying over the amount due and becoming due to this defendant, and that this defendant should remain in possession and act as the manager in charge of the same, and that this defendant should receive from the said J. Bennett Bissell a fair

the

and proper remuneration for so acting as manager, to be paid to him per annum, in addition to the amount mentioned and secured to him in the said trust deed; that thereafter the said J. Bennett Bissell, finding it necessary to raise funds for the purpose of carrying on the planting of the said Bonny Hall plantation, requested of this defendant that he should assign his claim for amount still due to him as mentioned and secured by the said trust deed of the 25th September, 1876, so that the said plantation could be mortgaged for raising that amount; and this defendant shows and alleges that both the said instruments of writing referred to in the said third article were executed by him without valuable consideration whatsoever, but at the request of his said brother, and solely for the purpose of allowing the said plantation to be used temporarily for raising sums of money needed by the said J. Bennett Bissell, and for that purpose only, and that, where the same were paid, the said assignment to said Sarah H. Bissell became invalid, null, and inoperative; and this defendant further shows and alleges that the amounts to secure which he agreed to waive the priority of payment for the amount so secured to him, and executed his assignment to the said Sarah H. Bissell, as he is informed and believes, have all been paid.

"(4) This defendant, further answering, shows that thereafter his business relations with this said brother continued as aforesaid, up to the time of the death of his said brother, on the 2d day of May, 1892, during the whole of which period he was in possession of the said Bonny Hall plantation; that no settlement ever was had between his brother and himself, but that there existed a continuous mutual reciprocal running account between his said brother and himself, wherein he was entitled to credit for the amount due him as set out in the said deed of September 25, 1876, and to the annual amount due him for his services to his said brother, as well as for sundry amounts by him at various times loaned to his said brother, and he was to be debited for the amounts drawn by him from what was known as the store upon the said Bonny Hall plantation, and such will appear to his debit upon the books of said store, but this defendant cannot exactly state the amounts, as the said books are not in his possession, but were in the possession of the said J. Bennett Bissell; and that, upon the ascertainment of this balance, this defendant will appear to be largely the creditor of the said J. Bennett Bissell for the said original amount mentioned and secured to him in the deed of the 25th September, 1876, with interest, notwithstanding the payments from time to time made to him on the store account as aforesaid, and, by agreement, to be credited on account of the interest due on the said amount secured by the deed of the 25th September, 1876, if sufficient to do so.

“(5) In answer to the allegation of the

fourth article of the said complaint, this defendant has no information sufficient to form a belief as to what said plaintiff may be informed by his co-defendant, the said Sarah H. Bissell, but saith that no appointment or conveyance made by the said Sarah H. Bissell at any time after the death of the said J. Bennett Bissell could be operative to defeat the just claims of this defendant, whereof the said Sarah H. Bissell and the said Geo. W. Egan were fully informed.

"(6) And, further answering the said complaint, this defendant shows and alleges that he has sole and exclusive possession of the said plantation, and holds a legal title to the same, and prays that an issue in due form be framed for the trial of his right and title to the said premises, as herein alleged."

The answer of the defendant Sarah H. Bissell admits all the allegations of the complaint, and alleges that she is the sole executrix, legatee, and devisee of her husband, who died testate on 2d May, 1892, and holding, as she does, the bonds and mortgage of the plaintiff for $20,000, the credit portion of the Bonny Hall plantation, she is most concerned as to the claim set up by the said Henry Edward Bissell; that said claim is fictitious, since the said Bissell assigned all his claims to her under his two deeds therefor; that no sum is due by the estate of her testator to said Henry Edward Bissell; that, even if the claims of said Henry Edward Bissell were assigned to her, they are barred by the statute of limitations, and not enforceable in a court of equity, because the same are stale claims; and that said Henry Edward Bissell has never accounted to her as trustee under the deed of 25th September, 1876; and she now demands a strict accounting thereunder.

At a hearing before Judge Witherspoon, at the circuit court for Beaufort, at its September, 1897, term, there was a motion noticed to have an order passed by the judge, under the provisions of section 274a of the Code of Civil Procedure, whereby the jury would pass upon the issues as to whether the original debt of $10,374.52 referred to in the deed of trust executed on 25th September, 1876, has ever been paid, or if the same, or any part thereof, was at the date of the death of J. Bennett Bissell still due and owing by him to the said Henry Edward Bissell, and is still due and owing; and also as to whether the assignments from the said Henry Edward Bissell indorsed upon the said deed of trust had not been made without any consideration therefor, but only for the temporary purpose of assisting J. Bennett Bissell to raise mon ey, which money so raised had been fully paid; with a provision that Henry Edward Bissell should be the actor in the trial of such issues. The complaint and summons were served in January, 1897, and the answer of Henry Edward Bissell was served on the 20th February, 1897, and that of Sarah H Bissell on the 23d February, 1897.

*

Section 274a of the Code reads as follows: "In all equity causes the presiding judge may in his discretion cause to be framed an issue or issues of fact to be tried before a jury. Upon the first day of the term immediately after the call of calendar three, the presiding judge shall call for cases in which issues are desired, and if any are presented in which such issues are, in his judgment, proper, he shall at once cause the issues to be framed and placed upon the proper calendar for trial, and the findings of fact upon such issues by the jury shall be conclusive of the same. *

This notice was only served upon the plaintiff. However, when the cause was called up, and the complaint and answers were read, the plaintiff and the defendant Sarah H. Bissell interposed a demurrer to the answer of the defendant Henry Edward Bissell, on the ground that such answer, by its allegations, did not state a valid defense to the cause of action set up in the complaint. Judge Witherspoon heard both the demurrer and the motion, and thereafter passed two orders,-one overruling the demurrers, and the other settling the issues, as proposed by the defendant Henry Edward Bissell, to be tried by a jury, under section 274a of the Code of Civil Procedure. both orders an appeal was taken.

From

It must be apparent, however, that, if there was error in the circuit judge in overruling the demurrer to the answer of Henry Edward Bissell, the appeal as to the order settling the issues for trial by a jury must be sustained; for, in that event, there is no propriety in such an order for issues. Therefore we will first direct our attention to the matter of appeal from the order of Judge Witherspoon overruling the demurrer.

It may be observed that any pleading to which a demurrer is interposed must, for the purpose of testing the validity of such demurrer, be assumed to be true, so far as its facts are well pleaded. The demurrers in the case at bar being directed against the answer of Henry Edward Bissell, we ought, in the first instance, to see what allegations of fact in the complaint are admitted by it. In this view, it appears that the answer has admitted that J. Bennett Bissell executed the deed of 25th September, 1897, whereby he conveyed the Bonny Hall plantation to Henry Edward Bissell, in trust to secure the payment, in their order, of the debts of the grantor to Charles H. Simonton, referee, to Charles S. Bennett & Co., and to Henry Edward Bissell; that the debts held by Charles H. Simonton, referee, and Charles S. Bennett & Co., have been long since paid; and, further, that said Henry Edward Bissell did execute deeds in 1883 and in 1886 whereby he assigned to the said Sarah H. Bissell his debt for $10,374.52, and all interest thereon, to her heirs and assigns; and he further admitted that, by the terms of the trust deed of 25th September, 1876, said Bonny Hall

plantation was to be held by him in trust for Sarah H. Bissell, with power of appointment for her by deed or will, or, in lieu thereof, for her, her heirs and assigns, forever, after the payment of the debts named in the deed. By his said answer he does not deny the fact that Sarah H. Bissell has conveyed the tract of land known as "Bonny Hall" to George W. Egan, nor that Sarah H. Bissell did execute the deed of appointment to him as her trustee. Now, let us see what these admissions amount to in law.

First, the deed of trust itself should be construed: (a) It is evident that his deed of trust is not a "mortgage," in the sense that term is used, certainly so far as the grantor J. Bennett Bissell is concerned; for he not only conveyed the Bonny Hall plantation to Henry Edward Bissell, his heirs and assigns, forever, but he provided, further, that the fee-simple estate, after the payment of the indebtedness to Charles H. Simonton, as referee, to Charles L. Bissell & Co., and to Henry Edward Bissell, should vest in the person or persons named in the deed of appointment, if made in the lifetime of the said Sarah H. Bissell, or as set forth in her last will, and, in the event she should not make such appointment by deed or will, then the said lands should vest in the said Sarah H. Bissell, and her heirs and assigns, forever. There is no provision in the said deed wherein or whereby the said J. Bennett Bissell remains vested with any estate whatsoever in said Bonny Hall plantation. (b) It is also evident, by the terms of the trust deed, that no estate is provided in said Bonny Hall plantation for the said Henry Edward Bissell, except as a trustee. As to him, as an individual, it is only provided that the said Bonny Hall plantation is to secure his specific debt of $10,394.52, and the interest thereon from the 25th September, 1876. It will be noticed that his power as trustee is simply to hold the title until the three debts named in the deed are paid, and then solely for the said Sarah H. Bissell, in fee simple. (c) It is also manifest that Sarah H. Bissell is not to be entitled to the Bonny Hall plantation until the three debts are paid or discharged, but, upon the payment of said debts, the said lands are to be hers in fee simple. These are our views as to the trust deed in question.

Next, we will consider what effect the admitted allegations of said complaint will have, in view of our construction of the trust deed. In the answer of Henry Edward Bissell it is not denied that the debt to Charles H. Simonton, as referee, and the debt of Charles S. Bennett & Co. are not fully paid, and also that the plain legal effect of the two deeds, executed in 1883 and in 1886 by Henry Edward Bissell, was to vest the ownership of said claim for $10,394.52 in Sarah H. Bissell absolutely. Now, unless this ownership of said claim can be defeated, it is manifest that all the conditions contained in the deed of trust of 25th September, 1876, have been per

formed whereby a deed of appointment or disposition by will of the fee-simple estate in the Bonny Hall plantation may be made by Sarah H. Bissell, or, in lieu thereof, that the said plantation vests in the said Sarah H. Bissell, in fee simple. The deed of the said Sarah H. Bissell executed in May, 1896, whereby she executed her power of appointment, by vesting the title in the said Henry Edward Bissell in trust for herself, her heirs and assigns, forever, would be operative for the purpose of vesting the fee-simple title in herself, so that her deed of 21st December, 1896, to the plaintiff for said Bonny Hall plantation would be valid, unless the claim of Henry Edward Bissell was not truly assigned to her in 1883 and 1886. So now we must consider the effect of the allegations of the answer of the said Henry Edward Bissell, by which it is sought to render inoperative and void his assignment of his claim secured by the trust deed of Sep-❘ tember 25, 1876. First and foremost, we observe an entire absence, even by implication, of any allegation that the said Sarah H. Bissell has ever, verbally or in writing, by herself or through any agent, made any agreement, or had any understanding, that the deeds of assignment of his claim for $10,374.52, made to her by Henry Edward Bissell, should not mean exactly what upon their face they purport to mean. The answer only alleges that J. Bennett Bissell procured Henry Edward Bissell to execute these assignments in order that he might raise money to make crops upon the said Bonny Hall plantation, by placing the temporary mortgage upon the said lands for that purpose. We cannot understand how J. Bennett Bissell could mortgage these lands. By his deed of 25th September, 1876, he had devested himself of all power over said lands. Indeed, by the deed of trust such a mortgage would have invaded the purposes of such deed. We cannot appreciate the force of the suggestion that these mortgages were for a temporary purpose, except as all mortgages are executed in the belief that the sum secured by them will be paid without a foreclosure, but the chapter of accidents in this life, as to mortgages, is too palpable in the results there recorded to allow us to speak of a temporary use of a mortgage in connection with agricultural lands. The fact that those temporary loans have been paid will not answer any purpose, unless Sarah H. Bissell was a party to the agreement of Henry Edward Bissell and J. Bennett Bissell. It must be manifest, therefore, that the circuit judge was in error in overruling these demurrers, but, in abundance of caution, while we overrule the demurrers, we deem it proper to state that the defendant Henry Edward Bissell should be allowed to answer over, provided the allegations of his answer present allegations of new facts.

Both orders appealed from must be reversed. My opinion is that it should be the judgment of this court that the orders of the circuit court be reversed, and that the action be remanded to that court for such further proceedings as may be necessary; but, the justices being equally divided, under the constitution of this state the circuit judgment is affirmed.

JONES, J., concurs. GARY, A. J., dissents.

McIVER, C. J. (dissenting). Not being prepared to assent to the conclusion reached by Mr. Justice POPE, I propose to state briefly my own views. There can be no doubt that, under the express terms of the deed of 25th September, 1876, the title to Bonny Hall vested in Henry Edward Bissell, for the purpose of performing certain trusts therein declared, and that, until all of those trusts were performed, Mrs. Sarah H. Bissell would have no interest in or right to Bonny Hall. Passing by the first two trusts declared in that deed, as they are conceded to have been performed, the real inquiry in this case is whether the third trust has been performed. That trust is "to secure and pay unto the said Henry Edward Bissell" the debt mentioned in the deed, amounting to something over $10,000. As I understand it, there is no claim, on the part of appellants, that this $10,000 debt has ever been paid in money, but their claim is that such debt has been extinguished or discharged by the two assignments from Henry Edward Bissell to Sarah H. Bissell of that debt. The defendant, while admitting the formal execution of these assignments, alleges in his answer that such assignments were without consideration moving from Mrs. Bissell, the person named as assignee, but were executed at the request of J. Bennett Bissell, the person who created the trust for a temporary purpose, which has been accomplished, and that said assignments thereby became inoperative, null, and void. If these allegations in the answer be true in point of fact (and they must be so taken to be, in considering the demurrer), then I am inclined to think that the third trust cannot be regarded as performed, and hence that the legal title still remains in Henry Edward Bissell, and will there continue, until the debt to him has been paid or otherwise legally discharged. It seems to me, therefore, that there was no error in overruling the demurrers, and none in the order framing issues to determine the fundamental fact upon which the respondent's claim of title rests. The cases of Kaphan v. Ryan, 16 S. C. 357, Moffatt v. Hardin, 22 S. C. 26, and Groesbeck v. Marshall, 44 S. C. 544, 22 S. E. 743, cited by counsel for re spondent, are sufficient to show that it is competent to introduce parol evidence to show the purpose for which an obligation under seal, or other like instrument, was given.

(123 N. C. 740)

STATE v. LAWSON et al. (Supreme Court of North Carolina. Nov. 28, 1898.)

FORMER JEOPARDY-FORCIBLE ENTRY AND DETAINER EVIDENCE.

1. The only distinction between forcible trespass and forcible entry and detainer being that the former is as to personal property and the latter as to realty, and the distinction not always being observed, acquittal of the former is bar to prosecution for the latter, it being admitted that it was "the same transaction," and there being no evidence of personal property.

2. Evidence that prosecutor was in possession of land, which he sowed to grain, and that, while he was away, the three defendants came with plow, hoe, axe, and mattock, and commenced plowing up the grain, and that he, learning this, went and ordered them to desist, but they refused, and continued to plow it up, and he, being "afraid to say much to them," did not stay long, and they continued to work the land, and held it that year, authorizes a conviction of forcible entry and detainer.

3. An acquittal of two persons on trial for forcible entry and detainer is not evidence, on the trial of a third, that they were not present with him.

Appeal from superior court, Stokes county; Coble, Judge.

John W. Lawson and W. J. Cheatham were convicted of forcible entry and detainer, and appeal. Reversed as to Lawson.

A. M. Stack, for appellants. The Attorney General, for the State.

CLARK, J. Cheatham, Lawson, and Collins were indicted for forcible entry and detainer. Lawson and Collins pleaded former acquittal, as well as not guilty. The solicitor admitted that they had been tried for forcible trespass at last term for this same transaction, and acquitted. The court erred in refusing the prayer of defendants Lawson and Collins to instruct the jury to sustain the plea of former acquittal as to them, though the jury cured this as to Collins by acquitting him. It is true, the same act, with an additional circumstance, may be an offense against two statutes (State v. Stevens, 114 N. C. 873, 19 S. E. 861; State v. Robinson, 116 N. C. 1047, 21 S. E. 701), but the only distinction between forcible trespass and forcible entry and detainer is that the former is as to personal property and the latter as to realty, which distinction is not always observed. State v. Davis, 109 N. C. 809, 13 S. E. 883. There being in evidence nothing of personal property, on the admission of the solicitor that it was "the same transaction" we must take it that it was the same offense. State v. Nash, 86 N. C. 650.

The defendant Cheatham further contends it was error to refuse the prayer for instruction that there was no evidence to warrant a conviction as to him. There was evidence by the state that the prosecuting witness was in possession of the land, had sowed rye thereon, and in March the three de fendants came on the land, and began plowing up the rye; that he was not present

when they entered, but when he learned of it he went where the defendants were, and ordered them to desist, but they refused, and went on, and plowed up the rye, and he was "afraid to say much to them," and did not stay long; that they worked there that day, and Cheatham held and worked the land that year. In the defendants' evidence it appeared that they three went on the land with plow, hoe, axe, and mattock, and acted as prosecutor stated. It is true, defendants denied possession of the land by prosecutor, and asserted that there was no demonstration of force. Upon this conflict of evidence the court properly submitted the case to the jury, and, we presume, under proper instructions, as the charge is not sent up, not being excepted to. The appearance of defendants in such force, with axe, mattock, hoe, and plow, with the avowed and executed purpose to plow up the rye the prosecutor had sown, and in spite of his personal protest, was reasonably calculated to put him in fear, and he says he was in fact put in fear, was "afraid to say much,"-and left the invading host in possession then and for the balance of the year, which was some evidence of the truth of his statement. Indeed, in State v. Davis, 109 N. C. 809, 13 S. E 883, it is said: "It is not necessary that the party shall be actually put in fear. State v. Pearman, 61 N. C. 371. It is sufficient if there is such demonstration of force as to create a reasonable apprehension that the party in possession must yield to avoid a breach of the peace. State v. Pollok, 26 N. C. 305; State v. Armfield, 27 N. C. 207. Such demonstration of force may be a 'multitude' or by weapons. State v. Ray, 32 N. C. 29, citing State v. Flowers, 6 N. C. 225; State v. Mills, 13 N. C. 555." It was not necessary that the prosecutor should be present at the very moment of entry. He could not be present at every point in his premises. The defendants did not enter with his permission, and when he found they were there he ordered them off; but, relying on their numbers, they intimidated him, and remained in forcible possession. State v. Webster, 121 N. C. 586, 28 S. E. 254; State v. Woodward, 119 N. C. 836, 25 S. E. 868; State v. Davis, supra; State v. Lawson, 98 N. C. 759, 4 S. E. 134.

The defendant Cheatham further relies on State v. Simpson, 12 N. C. 504, that the entry of three, though without violence (if against the prohibition of the party in possession who is present), is a sufficient demonstration of force; and that, Lawson and Collins having been acquitted on a former trial, he alone could have been present on this occasion, and, there being no physical violence, threats, or weapons, he could not be guilty. But this case must be tried by the evidence in this case, and by the evidence of the state -and, indeed, according to defendants' own evidence-all three defendants were present. If, in the former trial, Lawson and Collins