cannot tell, as we have only the bare fact that the motion was overruled, without any copy of the motion or any recital of its contents. Judgment reversed. AMANDA BAZEMORE, plaintiff in error, v8. MARTHA DAVIS, defendant in error. (This case was argued at the January term, 1875. The court, not being satisfied, ordered a reargument at the following July term, when it was decided.) 1. The judge may direct counsel to amend their pleadings, so as to charge the value of improvements mentioned therein; and it is not error of which the opposite party can complain. 2. Where discovery is waived, it is not improper, but altogether proper, for the judge to caution the jury not to regard defendant's answer as evidence, and this caution may be given whilst the answer is being read. 3. Concluding counsel cannot read or comment upon authorities which he does not read or produce to the opposite counsel in the opening. Merely to name the books and pages from which he intends to read, is not sufficient; but the court can only deny him the privilege of using the authori ties, and has no power to compel him to furnish the books to opposing counsel. If the court agrees with concluding counsel on the law, and does not desire him to fortify his positions by authority, the judge may so state when the argument opens or afterwards. 4. It is not error for the court, in the presence and hearing of the jury, to call counsel's attention to a particular clause in one of the muniments of title in evidence, and ask them what they have to say why it should not be construed to have a certain legal effect adverse to the right claimed. 5. One of the rules of practice requires that counsel interrupting another for misstating the evidence, shall address himself to the court. When this rule is violated it is highly proper that the court should interpose peremptorily and put an end to the irregularity. And, on such an occasion, it is not inappropriate for the court to observe to the jury, that when counsel differ as to the testimony, it is their function to decide from the testimony itself how the matter was. 6. A marriage settlement executed and recorded in 1842, was embraced in the act of December 30th, 1847, and had to be again recorded, in terms of that act, in order for the record to operate as notice: 32 Georgia Reports, 165. The record of a settlement or trust deed is not constructive notice, except in relation to the property conveyed therein. It is not, of itself, notice as to property purchased by the trustee with the proceeds of that property. Bazemore vs. Davis. 7. A deed to a trustee, in trust for a woman and the heirs of her deceased husband, (there being but a single child,) conveys an estate in common for the benefit of the woman and child; and a purchaser from the trustee is charged, by such a deed, with notice of that kind of an estate only, and not with notice of an estate for life in the woman, with remainder to the child. 8. Although the mayor of Macon, in conveying certain advance fronts (formerly street or common,) could only convey the same to the owners of lots abutting thereon, yet, where one of such owners was a trustee holding by the above deed, for the use of the woman and child, as tenants in common, the mayor's deed would not necessarily vest a like estate in the trustee; but might, by express declaration of trust to that effect, convey an estate, in the advance front, for the woman's use during her life, with remainder for the use of the child. (a) A subsequent conveyance, in fee, of both parcels of land, made by the trustee, and describing him as trustee of the woman only, without referring to the child or to the first deed, and without defining what estate he held in trust, but referring to the second deed as having been made to him "as trustee aforesaid," by the mayor, on the day of its date, passes to the purchaser no title to any of the child's patent interest in either parcel of land. (b) This deed from the trustee to the purchaser under him, charges the purchaser with notice of the deed from the mayor to the trustee, and of all its terms, but notice of that deed is not notice that the woman had only an estate for life in the parcel of land covered by the other deed to the trustee, and that the remainder belonged to the child. 9. Where property is held in trust to the use and support, benefit and behoof, of a woman during her life, and to the maintenance and support of such children as she may bear, "and which shall form and remain to be her separate property and estate during her natural life, and then to such children as she may bear," the surplus income realized in her lifetime, over and above support for all the beneficiaries, belongs to her; and if mixed by the trustee with the proceeds of some of the corpus of the trust estate, and invested in lands, he taking title to himself, in trust for the woman and her only child, she will be the equitable owner, in fee, of such proportion of the land as the amount of income so invested bears to the whole investment. 10. If tenant in common improve the property while in possession and claiming to be sole owner, and with no permission or request from the co-tenant, the latter is not chargeable with the value of such improvements, beyond her share of the rents chargeable to the former. II. If a trustee for two persons sell and convey the whole property, in fee, purporting to act as trustee for one only, and a part of the price, or the proceeds thereof, pass from the trustee to that one of the beneficiaries not named in the transaction, such beneficiary must refund the same, in equity, to the purchaser, or to those holding under him as subsequent purchasers, before being allowed to recover the whole of her interest in the trust estate so sold and conveyed; but a recovery may be had for such part as remains, VOL. LV. 33. Bazemore vs. Davis. after deducting the amount received by the beneficiary, with interest thereon. In the application of this rule, it makes no difference that the beneficiary was not of full age when she received the money or its proceeds, provided the fund was secured by settlement upon her as a separate estate. She will, however, be chargeable only with such estate (for life or otherwise) as she actually took in the fund, and will not be responsible for any larger estate in it which her husband may have assumed and disposed of to other persons, unless she joined him in making such disposition after she arrived at majority. 12. If the trust property sold and conveyed by the trustee, as specified in the last preceding note, has since passed, by several parcels, into the hands of several separate purchasers, then, in accounting with any of such purchasers, the said beneficiary should bring back only so much of the proceeds with which she may be chargeable as will make the given purchaser's due pro rata proportion thereof, valuing each parcel, not in its present condition, but as it was when the trustee sold and conveyed the whole property. If the owners of all the parcels were before the court as parties, this basis of apportionment might be varied to meet any special circumstances giving rise to peculiar equities. 13. A settlement by husband, shortly after marriage, in trust for the sole and separate use and benefit of the wife during her natural life, and at her death, to such child as should be born of her by the husband, free from any debts the husband should ever contract, with a reservation to himself of the right of using, at his discretion, the rents, issues and profits, without accountability, during the coverture, or during his life, if the wife should die first, leaving offspring of the marriage, and with a further declaration that in case of his survivorship, all of the property, with its increase, should vest absolutely in him, operated not only during the coverture existing at the time of executing the settlement and raising the trust, but during a subsequent coverture established by a second marriage between the same parties after a divorce a vinculo matrimonii. 14. Consequently, the second marriage, though occurring in 1865, was not attended with the attachment of fresh marital rights upon any of the property embraced in the settlement. Practice in the Superior Court. Discovery. Argument of counsel. Marriage settlement. Registry. Notice. Trusts. Estates. Infant. Tenants in common. Improvements. Husband and wife. Divorce. Before Judge HILL. Bibb Superior Court. April Term, 1874. On July 21st, 1842, William H. Disharoon executed a postnuptial settlement by which he conveyed to James S. Miller one hundred and fifty-two acres of land in Twiggs county, Bazemore vs. Davis. certain negro slaves and certain promissory notes, "together with the right, profits and rents, issues and increase, that may arise or accrue out of the aforesaid land and negroes," in trust for the use and support of his wife, Sarah Disharoon, during her natural life, and to the maintenance and support of such children as she may bear to him, the said William H. The deed further provided that said property should remain her separate estate during her natural life, then to such children as she might bear to the said William H., and not be subject to the payment of any subsequent debt which might be contracted by the said William H., nor subject to be sold or conveyed by him; but that the right and title to the same. should be in said trustee subject to be used by the said William H. and the said Sarah during the continuance of the coverture, for their benefit and advantage, and for the purposes before mentioned. This deed was recorded on August 1st, 1842. William H. Disharoon died leaving a widow and one daughter, Amanda, the defendant to this case. One Peyton Reynolds succeeded Miller as trustee under the aforesaid deed. At the April term, 1848, of Twiggs superior court, on the petition of Sarah Disharoon, by her trustee, an order was passed authorizing such trustee to sell at public or private sale, the land described in the aforesaid deed, "the proceeds to be invested in real estate as may seem most advantageous by said trustee." This land brought $400 00. To this sum was added a like amount of $100 00, alleged to have been saved from the income of the aforesaid trust property, after providing for the support of the beneficiaries. With the $800 00 thus raised, on February 8th, 1850, was purchased from Harvey Moseley, as trustee for Lucinda S. Barclay, all that portion of a lot of land known and distinguished as lot number six, in the southwestern range, according to the plan. of the city of Macon, in Bibb county, containing two acres more or less. This conveyance did not follow the terms of the Disharoon deed, but was made to Peyton Reynolds, trustee of Sarah Disharoon and the heirs of William H. Disha roon. Bazemore vs. Davis. On June 10th, 1851, the mayor and council of the city of Macon conveyed to Reynolds, trustee, all that piece of land "known as the advance front to lot number six, in the southwestern range," etc. The title to this advance front (a strip of land ten feet in width taken from the adjoining street) was vested in strict accord with the Disharoon deed. This deed was made under an act of the general assembly and an ordinance passed in pursuance thereof, authorizing such conveyances of street or common to the owners of land abutting thereon. Sarah Disharoon having married one Henry B. Page, on December 10th, 1851, Reynolds, as her trustee, in consideration of $2,000 00, conveyed the aforesaid lot number six, with the advance front thereto, to one Job Taylor. This deed described the advance front as follows: "That portion or parcel of land known as the advance front to said lot number six, and deeded to the said Peyton Reynolds, trustee as aforesaid, by J. H. Washington, mayor of said city of Macon, on June 10th, 1851." To it was answered the following consent: "GEORGIA-BIBB COUNTY. "I, Sarah Page, hereby consent and agree to the making, executing and delivering the above and foregoing deed, freely, willingly, and of my own accord hereunto set my hand and seal, this tenth day of December, 1851. "SARAH PAGE. [L.S.]. "In presence of (Signed) "BENJAMIN H RUTHERFORD, "KEELIN COok, J. I. c. "Recorded November 2d, 1853." her mark. On October 8th, 1856, Charles H. Carden, as executor of Job Taylor, conveyed a portion of lot number six, with the advance front, to John Hollingsworth. Deed recorded May 2d, 1857. There was no reference in this conveyance either to the Disharoon trust deed or to the deed from Mosely, trustee, to Reynolds, trustee. In describing the property the advance front was referred to as follows: " Including the advance |