English rule in North Carolina

1918We have adhered to this rule, following the modern English doctrine from the earliest years of this Court and continuously to the present time, as will appear from our decisions,” citing the preceding cases and Featherstone v. Merrimon, 148 N. C., 199 .

1918We have adhered to this rule, following the modern English doctrine from (164) the earliest years of this Court and continuously to the present time, as will appear from our decisions," citing the preceding cases and Featherstone v. Merrimon , 148 N.C. 199 .

1943It is true that, nothing else appearing, the purchase by a father who takes title in the name of a child will not raise a presumption of trust, but, on the contrary, the purchase will be presumed, to be an advancement to the child —Egerton v. Jones, 107 N. C., 284 , 12 S. E., 434 ; and we may concede that this presumption has been broadened in this country to include purchase by a mother under like circumstances, although the English rule predicated the presumption not upon the bare parental relation, but upon the duty of the father to provide for the child; and the original basis for the rule

1943It is true that, nothing else appearing, the purchase by a father who takes title in the name of a child will not raise a presumption of trust, but, on the contrary, the purchase will be presumed, to be an advancement to the child —Egerton v. Jones, 107 N. C., 284 , 12 S. E., 434 ; and we may concede that this presumption has been broadened in this country to include purchase by a mother under like circumstances, although the English rule predicated the presumption not upon the bare parental relation, but upon the duty of the father to provide for the child; and the original basis for the rule

1927This idea is expressed in Ward v. Prospect Manor Corp., 188 Wis., 534 , 206 N. W., 856 : “It is now generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him.” The English rule is stated in Peek v. Matthews, L.

1927This idea is expressed in Ward v. Prospect Manor Corp., 188 Wis., 534 , 206 N. W., 856 : “It is now generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him.” The English rule is stated in Peek v. Matthews, L.

1927This idea is expressed in Ward v. Prospect Manor Corp., 188 Wis., 534 , 206 N. W., 856 : “It is now generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him.” The English rule is stated in Peek v. Matthews, L.

1927This idea is expressed in Ward v. Prospect Manor Corp., 188 Wis., 534 , 206 N. W., 856 : “It is now generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him.” The English rule is stated in Peek v. Matthews, L.

1924Speaking to this question in Rankin v. Jones, 55 N. C., 169, Pearson, J., said: “In Hassell v. Griffin, ante, 117, it is decided that the English doctrine, i. e., where, in consequence of the death or bankruptcy of a partner, a fund composed of the effects of the firm and individual effects is to be applied under the direction of a court of equity, the firm creditors are first to be paid out of the effects of the firm and the individual creditors out of the individual effects, the excess of either fund, if any, going in aid of the other, is so far affected by our statute making all contracts j

1924Speaking to this question in Rankin v. Jones, 55 N. C., 169, Pearson, J., said: “In Hassell v. Griffin, ante, 117, it is decided that the English doctrine, i. e., where, in consequence of the death or bankruptcy of a partner, a fund composed of the effects of the firm and individual effects is to be applied under the direction of a court of equity, the firm creditors are first to be paid out of the effects of the firm and the individual creditors out of the individual effects, the excess of either fund, if any, going in aid of the other, is so far affected by our statute making all contracts j

1923That, also, is the English rule,’ ” citing Ex parte Bost, 56 N. C., 482 ; Wood v. Parker, 63 N. C., 379 .

1923That, also, is the English rule,’ ” citing Ex parte Bost, 56 N. C., 482 ; Wood v. Parker, 63 N. C., 379 .

1923We may well apply to this case the words of Walker, J., in that case: “Without discussing the reasons upon which the rule is based, or endeavoring to fix a limit beyond which the parties may contract, it is sufficient to say that the terms of the present agreement are well within the principle under which such contracts are held to be valid. 9 Cyc., 525-533; Faust v. Rohr, 166 N. C., 187”; and in that same decision, page 434, he disposes of the objection raised by the defendant in this case against the provision for liquidated damages.

1923We may well apply to this case the words of Walker, J., in that case: “Without discussing the reasons upon which the rule is based, or endeavoring to fix a limit beyond which the parties may contract, it is sufficient to say that the terms of the present agreement are well within the principle under which such contracts are held to be valid. 9 Cyc., 525-533; Faust v. Rohr, 166 N. C., 187”; and in that same decision, page 434, he disposes of the objection raised by the defendant in this case against the provision for liquidated damages.

1918In United States v. Wong Kim Ark, 169 U. S., 649 , it was held that a Chinaman born in the United States of parents who were the subjects -of the Emperor of China was an American citizen, and the Court says of the English rule, “The fundamental principle of the common law with regard to English nationality was birth within the allegiance.” In 1907 Carl Gundlieh applied to Mr. Tower, Ambassador to Germany, for a passport for his minor son, upon the ground that he was an American citizen.

1918In United States v. Wong Kim Ark, 169 U. S., 649 , it was held that a Chinaman born in the United States of parents who were the subjects -of the Emperor of China was an American citizen, and the Court says of the English rule, “The fundamental principle of the common law with regard to English nationality was birth within the allegiance.” In 1907 Carl Gundlieh applied to Mr. Tower, Ambassador to Germany, for a passport for his minor son, upon the ground that he was an American citizen.

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981The court and Professor Webster find support in Welch v. Gibson, 193 N.C. 684 , 138 S.E. 25 (1927), in which our Supreme Court distinguished the English rule from the North Carolina rule with regard to the superadded words “equally to be divided” or “share and share alike”: It has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King’s Bench, 5 M. and S., 95, that the words ‘equally to be divided,’ or ‘share and share *511 alike,’ superadded to the limitation to the heirs, or to heirs of the body, d

1981The court and Professor Webster find support in Welch v. Gibson, 193 N.C. 684 , 138 S.E. 25 (1927), in which our Supreme Court distinguished the English rule from the North Carolina rule with regard to the superadded words “equally to be divided” or “share and share alike”: It has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King’s Bench, 5 M. and S., 95, that the words ‘equally to be divided,’ or ‘share and share *511 alike,’ superadded to the limitation to the heirs, or to heirs of the body, d

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981The court and Professor Webster find support in Welch v. Gibson, 193 N.C. 684 , 138 S.E. 25 (1927), in which our Supreme Court distinguished the English rule from the North Carolina rule with regard to the superadded words “equally to be divided” or “share and share alike”: It has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King’s Bench, 5 M. and S., 95, that the words ‘equally to be divided,’ or ‘share and share *511 alike,’ superadded to the limitation to the heirs, or to heirs of the body, d

1981The court and Professor Webster find support in Welch v. Gibson, 193 N.C. 684 , 138 S.E. 25 (1927), in which our Supreme Court distinguished the English rule from the North Carolina rule with regard to the superadded words “equally to be divided” or “share and share alike”: It has been held in England, ever since the leading case of Wright v. Jesson, in the House of Lords, 2 Bligh., 2, which overruled Doe v. Wright, in the King’s Bench, 5 M. and S., 95, that the words ‘equally to be divided,’ or ‘share and share *511 alike,’ superadded to the limitation to the heirs, or to heirs of the body, d

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981But in Ward v. Jones, 40 N.C., 400 , decided in 1848, and expressly followed with approval in Mills v. Thorne, 95 N.C., 362 , Gilmore v. Sellars, 145 N.C., 283 , and Haar v. Schloss, 169 N.C., 228 , it was held “that in all devises of land, made since that time (1784), the words ‘to be equally divided’ prevent the application of the rule in Shelley’s case, and that the first taker has only an estate for life.” 193 N.C. at 689 , 138 S.E. at 27 .

1981E.g., Virginia Iron, Coal & Coke Co. v. Dickenson, 143 Va. 250 , 129 S.E. 228 (1925); see generally, Annot., 6 A.L.R. 3d 177 § 3(b).

1981E.g., Virginia Iron, Coal & Coke Co. v. Dickenson, 143 Va. 250 , 129 S.E. 228 (1925); see generally, Annot., 6 A.L.R. 3d 177 § 3(b).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974Among the leading cases in this recent line is Carpenter v. Donohoe, 154 Colo. 78 , 388 P. 2d 399 (1964) , wherein the Court held that there is no basis for applying a different rule to the sale of a near completed house than to a completed house. *498 “That a different rule should apply to the purchaser of a house which is near completion than would apply to one who purchases a new house seems incongruous.

1974Among the leading cases in this recent line is Carpenter v. Donohoe, 154 Colo. 78 , 388 P. 2d 399 (1964) , wherein the Court held that there is no basis for applying a different rule to the sale of a near completed house than to a completed house. *498 “That a different rule should apply to the purchaser of a house which is near completion than would apply to one who purchases a new house seems incongruous.

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974The English rule has likewise been extended in the following cases: Bethlahmy v. Bechtel, 91 Idaho 55 , 415 P. 2d 698 (1966); Schipper v. Levitt & Sons, Inc., 44 N.J. 70 , 207 A. 2d 314 (1965); McKeever v. Mercaldo, 3 Pa. D. & C. 2d 188 (1954).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1974Among the decisions adopting the English rule in this country are Glisan v. Smolenske, 153 Colo. 274 , 387 P. 2d 260 (1963); Minemount Realty Co., Inc. v. Ballentine, 111 N.J.Eq. 398, 162 A. 594 (1932); Vanderschrier v. Aaron, 103 Ohio App. 340 , 140 N.E. 2d 819 (1957); Jones v. Gatewood, 381 P. 2d 158 (Okla. 1963); Hoye v. Century Builders, 52 Wash. 2d 830 , 329 P. 2d 474 (1958).

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968State v. Spence, 271 N.C. 23 , 155 S.E. 2d 802 ; State v. Love, 269 N.C. 691 , 153 S.E. 2d 381 ; State v. Hamilton, 264 N.C. 277 , 141 S.E. 2d 506 , cert. denied, 384 U.S. 1020 , 86 S. Ct. 1936 , 16 L.

1968Our view is succinctly stated in State v. Spencer, 239 N.C. 604, 609 , 80 S.E. 2d 670 , 674: “This jurisdiction, and the great majority of jurisdictions, follow the.early English rule that the segregation, separation, exclusion of witnesses, or ‘putting witnesses under the rule,’ as the procedure is variously termed, is a matter not of *386 right, but of discretion on the part of the trial judge.” A judge’s refusal to sequester the State’s witnesses is not reviewable unless an abuse of discretion is shown.

1968Our view is succinctly stated in State v. Spencer, 239 N.C. 604, 609 , 80 S.E. 2d 670 , 674: “This jurisdiction, and the great majority of jurisdictions, follow the.early English rule that the segregation, separation, exclusion of witnesses, or ‘putting witnesses under the rule,’ as the procedure is variously termed, is a matter not of *386 right, but of discretion on the part of the trial judge.” A judge’s refusal to sequester the State’s witnesses is not reviewable unless an abuse of discretion is shown.

1967Hoke v. Herman, 21 Pa. 301 ; In re Barrows’ Estate, 103 Vt. 501 , 156 Atl. 408 ; Holmes v. Goodworth, 7 L.J.

1967Hoke v. Herman, 21 Pa. 301 ; In re Barrows’ Estate, 103 Vt. 501 , 156 Atl. 408 ; Holmes v. Goodworth, 7 L.J.