Griffin v. Carter
| Decision Date | 31 December 1848 |
| Citation | 5 Ired.Eq. 413,40 N.C. 413 |
| Court | North Carolina Supreme Court |
| Parties | JESSE GRIFFIN et al. v. RICHARD CARTER. |
A motion to remove or discharge a sequestration does not stand upon the footing of a motion to dissolve an injunction, in the ordinary case of an injunction to stay execution upon a judgment at law. The Court, having secured the fund, will keep it secured, pending the litigation, unless the application was improvidently granted, or unless, upon the coming in of the answer, it appears, taking the whole together, that the claim of the plaintiff was unfounded, or the security unnecessary.
Although a Court of Equity will not adjudicate upon a legal title, yet it will take notice of what is necessary to constitute a valid legal title, when its aid is asked for, upon the ground of the legal title, and will require that the party should come forward with fairness and shew a title, which, prima facie, is a good one.
Prima facie, without proof to the contrary, the Court presumes that a limitation over, by deed, of personal property, made in another State, is void, because the presumption is, the common law prevails there.
Appeal from a decree of the Court of Equity of Northampton County, at the Fall Term 1848, disallowing a motion to remove the sequestration in the case, theretofore granted, his Honor Judge SETTLE presiding.
The bill alleges, that the defendant, in the County of Surry and State of Virginia, where he then resided, during the year 1818, executed a deed of gift to Nancy, one of the plaintiffs, who was his reputed daughter, by which, he conveyed to her a negro woman, to take effect at the death of the defendant, which said deed was properly attested and delivered, and afterwards proven by the subscribing witnesses, and registered in the said County of Surry; a copy is filed, and prayed to be taken as part of the bill: That in 1825, the defendant removed to the County of Northampton in this State, where he now resides; that in 1842 the plaintiff Griffin intermarried with the other plaintiff Nancy, and both reside in the said County of Northampton; that in 1843 the said deed of gift was exhibited in the Court of pleas and quarter Sessions of Northampton County, and ordered to be certified and registered; and that the negro woman has now six children.
The bill further alleges, that the defendant intends to remove to some of the Western States, and to carry the negroes with him, and the plaintiffs fear, from the bad feeling, which the defendant now has towards them, that, if he is allowed to take the negroes out of the State, he will so manage, as to deprive them of the use and enjoyment of the property after his death.
The prayer is, that the defendant may be enjoined from removing the negroes beyond the limits of this State, and that they may be secured, so as to be forthcoming to abide the final decree.
The defendant, in his answer, admits, that he did sign and seal a paper writing in the presence of witnesses in the County of Surry, State of Virginia, purporting to be a gift of the negro woman to the plaintiff Nancy, after his death, and that the copy, made part of the bill, he believes to be correct. But he denies, that the paper was ever delivered as his deed; and avers, that the plaintiff Nancy was, in 1818,an infant, not over four or five years of age. Heregarded her as his daughter, though not born in wedlock, and felt desirous to provide for her, in case of his death: for which reason, he had the paper writing drawn, and signed, and sealed it; but he stated to the subscribing witnesses, that he did not intend to part with it, but would keep it in his possession, believing that if he should die, it would be effectual to pass the title after his death; and he avers, that he never did deliver the paper as his deed, or consent to part with the possession: that in 1825, he removed to Northampton County in this State, bringing with him the plaintiff Nancy, who continued to reside with him, until 1830, when she married one John Carstophen: that he had kept the said paper all the time in his possession and continued so to keep it, until some time in the year 1832, when he had a severe spell of sickness, and, during his sickness, the said Carstophen procured access to his papers,...
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...the courts of our state will presume the common law to prevail in a sister state." 6 Am. & Eng. Enc. of Law (2d Ed.) 282; Griffin v. Carter, 40 N.C. 413; Brown Pratt, 56 N.C. 202; Gooch v. Faucett, 122 N.C. 270, 29 S.E. 362, 39 L. R. A. 835; Terry v. Robbins, 128 N.C. 140, 38 S.E. 470, 83 A......
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