Browm v. Kinsey

• Decision Date: 30 June 1879
• Court: North Carolina Supreme Court
• Parties: CHARLES H. BROWM v. JESSE W. KINSEY, Executor.

81 N.C. 245

CHARLES H. BROWM

v.JESSE W. KINSEY, Executor.

Supreme Court of North Carolina.

June Term, 1879.

CIVIL ACTION tried at Spring Term, 1879, of JONES Superior Court, before Seymour, J.

The plaintiff assignee brought this action to recover the amount alleged to be due upon certain notes under seal, executed by Ivey King the defendant's testator to one Winefred Hill who subsequently assigned them to the plaintiff. The payment was resisted by the executor upon the ground of immoral consideration, in that, the said Winefred was living in adultery with the testator for some years during his life and up to the time of his death; and that the plaintiff took the notes past due with notice that payment was refused for the reason aforesaid. There was no evidence of any agreement or promise for future cohabitation made at the time of the making of the notes, nor of any statement that they were given for past cohabitation, and the court held that the notes being under seal were good without a consideration, and declined to submit the question to the jury upon the evidence in the case, stating that defendant should have shown the consideration to be illegal; that past cohabitation did not constitute an illegal consideration, while an agreement for future cohabitation did; and conceding the notes were given on account of the adultery, yet there was no evidence it was for future cohabitation. Defendant excepted. Judgment for plaintiff, appeal by defendant.

Messrs. Faircloth & Simmons and A. G. Hubbard, for plaintiff .

Messrs. Green & Stevenson and H. R. Kornegay, for defendant .

DILLARD, J.

The case in the court below was four appeals from a justice's court, founded on four bonds executed by the testator of the defendant on the 13th of September, 1872, to Winefred Hill, and assigned by her after due to the plaintiff. By order of the court the actions were consolidated, and the trial was had by a jury on the issue joined on the plea of immoral consideration, and the evidence relied on by the defendant being all in, His Honor being of opinion that the same was not such as reasonably to warrant a finding of the matter of avoidance pleaded, so held. Thereupon the verdict was for the plaintiff and the defendant appealed.

The question on the appeal is whether the evidence adduced was or was not such as in law to authorize and require the judge to submit it to the jury upon which to find the fact of immoral consideration alleged by the defendant.

The evidence was, that the testator of defendant died in October, 1872, and that about five years before his death Winefred Hill, the assignor of the plaintiff, gave birth to a bastard child begotten by him (said testator) and afterwards in the course of the same illicit intercourse, he executed to her a bond under seal for three hundred dollars. Winefred on her death said he owed her nothing, and that when the bond was delivered to her, testator made no declaration as to his reason or to the consideration moving him thereto. Upon the death of testator's wife, the said Winefred went to live in the house of testator, and took charge of his domestic business about a month before the testator died. And whilst there, on the 13th of September, 1872, during the continuance of the immoral connection, the testator took up the bond for $300 and destroyed it, and then and there executed to said Winefred the four bonds now in suit, one of them falling due on each first day of January in the next four succeeding years, stating at the time that they were executed in place of the bond for $300, and he made no declaration to the motive for the substitution or the consideration on which they were founded.

Upon the issue joined, the bonds under which the plaintiff claims, being under seal, the execution and delivery made them effectual at law, made them deeds, things done; and by the common law they had the force and effect to authorize plaintiff to recover without any consideration, with power, however, in the defendant to have the same held null upon proof of illegal or immoral consideration, not from any motive of advantage to him or his testator, but from consideration of the public interest and of morality....