Kimbrough v. Davis

• Decision Date: 30 June 1827
• Citation: 16 N.C. 71
• Court: North Carolina Supreme Court
• Parties: ELIJAH KIMBROUGH v. JOHN DAVIS AND SUSAN, HIS WIFE.

16 N.C. 71

ELIJAH KIMBROUGH

v.JOHN DAVIS AND SUSAN, HIS WIFE.

SUPREME COURT OF NORTH CAROLINA AT RALEIGH

JUNE TERM, 1827

An executory contract made in consideration of an intended marriage, whereby the parties covenant to make a provision for an illegitimate child of the wife, will, under the act of 1799, be protected in a court of equity, and its specific execution enforced in favor of such child against the husband.

From WAKE. The original bill charged that the defendant Susan was the mother of the plaintiff, and that upon an agreement of marriage between her and the defendant John, the plaintiff beingthen an infant, it was agreed that a negro girl and some other property should be conveyed to the plaintiff on his arrival at full age, with an ulterior limitation, in case he should die without issue, to the children of the defendants; that this agreement was made in consideration of the intended marriage, and that accordingly an executory

contract was drawn up by the defendant John, and signed by him and the defendant Susan; whereupon the marriage took place. The bill then averred that the plaintiff had arrived at full age, and prayed a specific execution of the contract. Under an order obtained on the filing of the bill, the defendants answered separately. From both answers it appeared that the plaintiff was the illegitimate child of the defendant Susan, who in her answer admitted the agreement and its consideration as charged in the bill. The defendant John, in his answer, denied that the agreement was made in consideration of an intended marriage, and insisted that the writing referred to in the bill was made to please the defendant Susan, who lived and cohabited with him before the marriage, and by whom he had several children, at a time when she was sick; and relied upon the fact that the agreement was voluntary on his part, as a defense against the specific execution thereof.

Proofs were taken and read at the hearing, from which the court inferred that the agreement between the defendants was made in consideration of an intended marriage.

TAYLOR, C. J. The case is that the complainant is an illegitimate child of the defendant's wife, and he alleges that immediately before the intermarriage of the defendant with his mother it was agreed upon between them, and in consideration of the marriage, that a slave and some chattel property belonging to his mother should be settled upon him and given to him when he arrived at the age of 21 years, subject to certain limitations.

The promise to give the negro is admitted by the defendant Davis and wife, and that they executed a writing to that effect. The consideration of the promise is denied by Davis and admitted by his wife; and the whole circumstances of the case render it probable that her agreement to marry him was the motive that induced his compliance with her request, for though she had lived with him several years before, and had children by him, yet without a marriage he had not a complete control over her property; and immediately after the writing wasexecuted the marriage took effect. The defendant Susan had children by her former husband, all of whom were provided for, and the defendant Davis was in circumstances fully sufficient to provide for the issue he had by her. The complainant was the only one of her children not provided for, and it was perfectly just and natural that she should stipulate for some provision for him before she finally surrendered her property to another husband.

If the paper signed had been executed with the formalities of a deed, and actually transferred the property, it would have been competent for this Court to give effect to it as between the parties, although it were voluntary, according to the distinction stated in Ellison v. Ellison, 6 Vesey, 662. If you want the assistance of...