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Abel E Evans Vs Jos T Evans
This cause came on to be heard at the August Term 1848 of the 13th Chancery District of the So Division, on the Bill answers and proofs and by consent of parties was held under advisement for a decree in vacation to be rendered as of the Term when the cause was heard -
I had little difficulty in my own mind when the case was argued, but as the question present was to some extent a new one in this Stae, and was argued with great zeal and earnestness for the complainant, I desired to refresh my convictions upon the point of the Law involved by a careful reference to the authorities. This I have endeavored to do by a very careful examination of nearly every case to which I could find any reference, and without burthening this opinion with a citation of all of them, I shall now proceed briefly to state the result.
Looking to the Bill and the testimony taken to sustain it, and I think it can fairly and justly be regarded merely as an effort by a creditor of the [Denu?] of the Land to perfect a hard gift of it to voluntier throught the instrumentality of a Court of Chancery. That Thomas Evans the father of Carrie Evans gave the land in controversy to the latter, or at least designed to do so is I think clearly established byt that there was nay deed or other instrument valid in Law as a conveyance of the legal estate I think the evidence is wholly insufficient to show. If the Bill be critically examined it will be found to be very vaguely, if not timidly, worded on this point. It does not positively {aver} that thee was a deed of Gift - but speaks of a deed or other instrument, and shows I think very clearly that the complaintant himself was not prepared to rest his case upon the faction of a Deed by the father to the son. There as to the testimony, there is no witness who proves that any deed or memorandum of the gift that could bind or effect the Evanse, was ever made, except the evicence of Daniel Cook whose testimony on this point is clearly incompetent since it is certain that neither
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