Sharp v. Parmer

• Decision Date: 31 December 1838
• Citation: 20 N.C. 255
• Court: North Carolina Supreme Court
• Parties: BENJAMIN SHARP, ADMK. OF ANNA SHARP, v. MOSES PARMER.

20 N.C. 255

BENJAMIN SHARP, ADMK. OF ANNA SHARP,

v.MOSES PARMER.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1838

Against Public Policy—Executory Contract.

1. No action can be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice, or the prohibition of a penal statute. Therefore no action can be sustained upon a promise to settle an estate and pay over the distributive shares to those entitled, without taking out letters of administration upon such estate.

2. No distinction is now recognized between an act malum in se and one merely malum prohibitum: for the law would be false to itself if it allowed a party, through its tribunals, to derive advantage from a contract made against the intent and express provisions of law.

THIS was an action of assumpsit, commenced in the name of Benjamin Sharp and his wife, Anna, and upon the death of the wife, continued by the said Benjamin as her administrator. The defendant pleaded the general issue, and upon the trial at Edgecombe on the last circuit before his Honor, Judge Saunders, it appeared that the plaintiff was entitled

in right of his wife to a distributive share of the estate of one Jerusha Farmer, deceased, and thereupon made an agreement with the defendant, who was also a distributee, that the latter, instead of taking out letters of administration on the estate of the said Jerusha, should collect and sell the estate, and, after paying the debts, divide the residue among those entitled to distribution.

The defendant, in pursuance of this agreement, sold the property and paid the debts of the said Jerusha, and a balance remaining in his hands, the plaintiff demanded the share to which he was entitled in right of his wife, and upon the defendant's refusal to pay the same brought this suit.

His Honor being of opinion, upon these facts, that the right of action vested in the plaintiff alone in his own right, and not in the plaintiff and his wife, directed a nonsuit to be entered, and the plaintiff appealed.

RUFFIN, C. J. The point, whether the right of action on this contract, supposing it to be a lawful and valid contract—is in the husband in his own right, or survived to him as administrator of the wife, involves much nice learning. We are relieved from going into it by other matter apparent in the record, upon which we are satisfied that neither the husband nor the husband and wife together could have an action upon this contract. It is an agreement between the next of kin of an intestate for an administration of the estate and its distribution by one of them without obtaining letters of administration, or taking the oath of office, or giving bond. This is prohibited by the act of 1715, Rev., ch. 10, ss. 4 and 5, under a penalty of fifty pounds. (See 1 Rev. Stat., ch. 46, sec. 8.) After a vast number of cases upon the subject it seems to...