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Robert M. Withers, Plaintiff in error, v. William B. Greene, Administrator of Richard May, deceased U.S. 213 (1850)

handle is hein.slavery/ussccases0271 and id is 1 raw text is: JANUARY TERM, 1850. 213 Withers v. Greene. articles, these subsequent acquisitions would not be bound by it. But this is a mistake. The instrument provides for subsequently acquired property by either of the parties, as well as the present, and in such cases there is no doubt but that it follows the limitations of the settlement, the same as the property then in possession. (10 Yes. 574, 579; 9 ib. 95, 96; 7 ib. 294; 6 ib. 403, note, Boston ed.) Looking, then, at the instrument as complete in its direc- tions and limitations in the settlement of the estate, and as presenting the case of an executed trust, the difficulty set up against the complainants when claiming under marriage articles disappears; for, being the beneficial owners, and vested with the equitable title, a court of equity will interpose, and compel the trustee, or any one standing in that relation to the estate, to vest them with the legal title. We are of opinion, therefore, that the court below erred in giving judgment in favor of the defendants on the demurrer to the bill, and that the decree should be Teversed. Order. This cause came on to be heard on the transcript of the rec- ord from the Circuit Court of the United States for the District of Georgia, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court. ROBERT M. WITHERS, PLAINTIFF IN ERROR, v. WILLIAx B. GREENE, ADIINISTRATOR OF RICHARD MAY, DECEASED. The laws of Alabama place sealed instruments, commonly called single bills, upon the footing of promissory notes, by allowing the defendant to impeach or go into their consideration ; and also permit their assignment, so that the assignee can sue in his own name. But in such suit, the defendant shall be allowed the benefit of all payments, discounts, and set-offs, made, had, or possessed against the Eame, previous to notice of the assignment. The construction of this latter clause is, that where an assignee sues, the defendant is not limited to showing payments or set-offs made before notice of the assignment, but may also prove a total or partial failure of the consideration for which the writing was executed.

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