Harris v. Harris

• Decision Date: 31 December 1850
• Citation: 7 Ired.Eq. 111,42 N.C. 111,53 Am.Dec. 393
• Court: North Carolina Supreme Court
• Parties: NANCY HARRIS et al. v. HERBERT HARRIS et al.

7 Ired.Eq. 111

42 N.C. 111

53 Am.Dec. 393

NANCY HARRIS et al.

v.HERBERT HARRIS et al.

Supreme Court of North Carolina.

December Term, 1850.

A feme covert, entitled to a separate estate in personal property, unless there be some clause of restraint of her dominion, may convey it and do all other acts in respect to it, in the same manner, as if she were a feme sole, whether a trustee be interposed or not.

The cases of Dick v. Pitchford, 1 Dev. & Bat. Eq. 480, Miller v. Bingham, 1 Ire. Eq. 423, Frazier v. Brownlow, 3 Ire. Eq. 237, and Newlin v. Freeman, 4 Ire. Eq 312, cited and approved.

Cause transferred from the Court of Equity of Rutherford County, at the Spring Term 1842.

Upon the pleadings and proofs the following case appeared:

On the 11th of May 1835, Frederick Ward conveyed a negro girl, Jinny, to Thomas Ward, “in trust to and for the separate use of Nancy Harris, the wife of William Harris, and free from any control of the said William, during the natural life of the said Nancy, and upon the death of the said Nancy upon further trust to hold the said negro and her increase to the sole and separate use of Elizabeth Ledbetter, the wife of Richard Ledbetter, and Sally, the wife of John Scorey, both to be equally interested in said trust; and upon the happening of the death of the said Elizabeth or Sally or both, the said Thomas is to hold the said negro and her increase for the benefit of their children; one half to the children of Elizabeth and the other half to the children of Sally.” Elizabeth Ledbetter and Sally Scorey were the daughters of William and Nancy Harris. The negro girl was in the possession of Harris and wife; and, in March 1838, William Harris, being much indebted and judgments rendered against him for debts for which his sons-in law, Ledbetter and Scorey, were bound as his sureties, William Harris and his wife, Ledbetter and his wife, and Scorey and his wife sold the negro woman and one of her children, then six months old, to the defendant, Herbert Harris, for the price of $700, and those six persons made a deed to said Herbert for them, with a covenant of general warranty: and he took them into his possession. He paid the consideration money partly in discharge of the debts mentioned, partly to William Harris, and partly to Ledbetter by the direction of the other vendors. Scorey and wife have four children; and in September 1841 this bill was filed by Mrs. Harris, Mrs. Ledbetter, Mrs. Scorey, and her four children, against Herbert Harris, William Harris, Ledbetter, Scorey, and Thomas Ward, and charges that Herbert Harris knew of the existence and contents of the deed made by Federick Ward, and that, with such knowledge, he purchased the negroes from William Harris for an inadequate consideration, and that, supposing that he could make his title good thereby, he, by persuasions and false suggestions and promises and undue influence and control over them, caused and procured the plaintiffs, Nancy, Elizabeth and Sally, and their husbands, to sign the deed for the slaves--Ledbetter being induced to do so by receiving a part of the purchase money, and the said Scorey by getting to himself another child of Jinny, then in his possession. The prayer is, that the defendant, Herbert, may be compelled to surrender the slaves and their increase and account for the hires, so that the purposes of the deed of settlement may be performed, ??n ??o general relief.

The answer of Herbert Harris denies all the allegations of fraud and undue advantage, sets forth the terms and purposes of his purchase, and the conveyance to him, and insists on his title thereby acquired.

Guion, for the plaintiffs .

Bynum, for the defendants .

RUFFIN, C. J.

The plaintiffs have failed to establish any extraneous circumstance to impeach the conveyance to the defendant. Indeed, the allegations of the bill are expressed in such general terms, that one must suppose that no relief could be expected on them; and that it was intended to put the relief on the ground, that the conveyance by a married woman of a slave, held by a trustee to her sole and separate use, is inoperative. The opinion of the Court, however, is to the contrary; and we hold that a feme covert, entitled to a separate estate in personal property, unless there be some clause of restraint of her dominion, may convey it and do all other acts in respect to it in the same manner, as if she were a feme sole. That is the settled law of the Court of Equity in England, and was, long before the revolution; and it is therefore obligatory upon the Courts here, just as much as any other established rule of property, derived from our ancestors. To go no further back, it was unquestionable law in Lord HARDWICKE'S time. In Peacock v. Monk, 2 Ves. 191, he points out the difference in that respect between real estate, and personalty, or the profits of real estate, which in fact is personalty and goes to the executor; and he gives the reasons for the difference. As to personal property, he says, where the wife has a separate use in it, “she may dispose of it by an act in her life time or by will. She may do it by either, though nothing is said of the manner of disposing of it”--that is, in the settlement, or articles. That has never been denied in England from that day to this, though the grounds of the rule have been often stated in subsequent cases, and the principle itself more distinctly explained. In Fettiplace v. Georges, 1 Ves. Jr. and 3 Bro. C. C. 8, it was, for example, stated in terms, that personal property, settled or agreed to be settled to the separate use of a married woman, may be disposed of by her as a feme sole to the full extent of her interest, although no particular form for doing so is prescribed in the instrument. The principle of that rule is, that she takes separate property as hers exclusively, with all the rights and incidents of property; of which one, and a most important one, is the right of disposition. This principle has been applied to all cases since, in whatever form they may have arisen. Thus she may convey personalty in which she is entitled to a separate use in reversion, as well as a present interest. Sturgis v. Corp 13 Ves. 190. She may sell or give even to her husband, since in respect of that property they are regarded as distinct persons, like other strangers; though the Court will scrutinize such dealings upon a natural suspicion of actual constraint on her. Powlet v. Delavet, 2 Ves. 663.-- Squire v. Dean, 4 Bro. C. C. 326. She may not only convey her separat?? property, but, without the consent of her husband or trustee, she may encumber it by mortgage, or charge it by contracting debts, as by giving a bond for so much money merely. Fettiplace v. Georges, and Halme v. Tenant, 1 Bro. C. C. 16, 2 Dickens 560. Other instances need not be cited as evidence, that, in the last case, Lord THURLOW laid down the rule as correctly as he did explicitly, which he took from Peacock v. Monk, that a feme covert, acting in respect of her separate personal property, is competent to act in all respects as if she was a feme sole. He says, it was impossible to say the contrary. Now, beyond all controversy, the ground of that rule is not any capacity or power supposed to be imparted to a married woman by her husband or by the instrument, creating the separate use, as a capacity or power thereby created and subsisting by itself apart from the property; but it arises out of the ownership of the property, and the right such absolute ownership imparts to the person, to do with it as she pleases. When equity adopted the principle, allowing that separate property might be vested in a married woman, which the law denied, it followed, as being inherent in the jus proprietatis, that there should be the jus disponendi. That is declared in all the cases to be the principle; and there is no contradiction among them. Even when a gift is made in general terms to the sole and separate use of a feme covert, and the instrument goes on to add, that she may dispose of it in some particular manner, as by deed or will, yet she may do so in any other manner, by reason of her general property, in which the power is merged. Elton v. Sheppard, 1 Bro. C. C. 532. Hales v. Margerum, 3 Ves, 299. Such being the nature of a feme covert's right to dispose of her separate property--conferred by equity, not created by the settlor--the doubt was, whether any restraint upon the right of alienation by the provisions of the deed was admissible. Upon principle, it, unquestionably, was not; because the common law denies such a restriction, and in respect to equitable estates the general rule is, that equity follows the law. But this anomaly was admitted by the Court of Equity, in order the more effectually to protect the wife from the control or solicitations of her husband, and thereby make the separate property a more effectual provision. As was observed by Judge GASTON, in Dick v. Pitchford, 1 Dev. & Bat. Eq 480, the controversy upon that point is settled by authority in England in the cases cited by him. But that very controversy only shows more conclusively, that, but for provisions in the instrument in restraint of the anticipation of profits or alienation of the capital, the right of disposition existed as an absolute right belonging to the owner of the property. Is there any reason, why the Judges of this Court should not hold the law to be the same here: or, rather, why we should not be obliged so to hold? There seems to be none whatever--no plausible ground for setting up a new rule upon their own arbitrary will. If there had been any legislation on the subject, at all incompatible with the law our ancestors brought with them: if there were any thing in those rules repugnant to or inconsistent with the form of government, as it is expressed in the statute, respecting the parts of the common law to be in force here, then the Judges ought to conform and mould the...