Licey v. Licey

• Decision Date: 08 January 1847
• Citation: 7 Pa. 251
• Parties: LICEY <I>v.</I> LICEY.
• Court: Pennsylvania Supreme Court

7 Pa. 251

LICEY v. LICEY.

Supreme Court of Pennsylvania.

December 28, 1847.

January 8, 1847.

Dec. 28.

Chapman, for plaintiff in error.—Delivery and cancellation of a bond is the legal evidence of satisfaction of the debt: Whitehill v. Wilson, 3 Penna. Rep. 412. This is conclusively shown by the form of pleading, which requires profert, unless matter of excuse be averred and proved.

Ross and Dubois, contrà.—In the court below, we relied on the fraud of the defendant; but that being taken from the jury, the question is, can the judgment be sustained? The cases of donationes causa mortis are inapplicable, and those only inter vivos are to be considered. There it is held that the gift between the parties must be complete, and not executory, as, where notes are given, they cannot be enforced: Fink v. Cox, 18 Johns. 145; Wright v. Wright, 1 Cow. 598. So, where releases not under seal are executed without consideration, they are invalid: Miller v. Hemler, 5 Watts & Serg. 486. So of the assignment of a judgment by parol and without consideration: Kennedy v. Ware, 1 Barr, 445; Story's Eq., § 1040 c. [GIBSON, C. J. — There is a distinction between a gift and an assignment — the latter is only available in equity, and will only be enforced so far as there is a consideration.]

Jan. 8. GIBSON, C. J.

There is a ground on which, however, the cause was not ruled below, that is fatal to the judgment. If the defendant's evidence be true, the bond in suit was given up by the obligee to be cancelled, and it was cancelled. Was not the debt, therefore, gone? There is a plain and well-founded common-law distinction, in this particular, between things which lie in livery and things which lie in grant. As the former pass by force of the livery, of which the deed is only evidence, they cannot be revested by destroying the instrument, for a right can be dissolved only by the means which created it; but, as the latter exist only by force of the deed, they necessarily cease to exist when it no longer sustains them. So far was this carried in respect to things which depend on a deed, that an accidental destruction of the seal was held, in the earlier cases, to destroy the right, though a different rule prevails at present, by which the donee is allowed to show the truth. But cancellation, eo animo, will now, as it ever has done, destroy any right which stands exclusively upon the instrument. Thus a lease for years might have been surrendered by cancellation before the...