McCraw v. Edwards

• Decision Date: 31 August 1849
• Citation: 41 N.C. 202,6 Ired.Eq. 202
• Court: North Carolina Supreme Court
• Parties: K. J. McCRAW v. JOHN EDWARDS et al.

6 Ired.Eq. 202

41 N.C. 202

K. J. McCRAW

v.JOHN EDWARDS et al.

Supreme Court of North Carolina.

August Term, 1849.

When a party avers that a certain bond was given to him in South Carolina, as a donatio mortis causa, he must shew that his right accrues under some special law of South Carolina; otherwise the gift comes within the provision of the common or canon law, and there must be an express or implied delivery, and the title to be dependant upon the death of the donor.

Cause removed from the Court of Equity of Rutherford County, at the Spring Term 1849.

The defendants, John Edwards and George Edwards, gave a bond to one James McCarthy for $100, in the year 1843, and, in 1845, McCarthy died intestate in South Carolina, where he then resided. The bill states, that, a a few days before his death and in his last illness, McCarthy gave the bond, by way of donatio mortis causa, to one John Baber, with whom he resided, and that Baber afterwards disposed of the bond, and that, for a valuable consideration, it came to the plaintiff, without any recourse on his assignors. Afterwards, the defendant, John Edwards, took administration of McCarthy's effects in this State, and the present bill was filed to obtain payment of the bond.

The answer denies any knowledge or information of the alleged donation to Baber, but submits to pay the money to the plaintiff, if he should establish the gift, after discharging certain debts, which the intestate, McCarthy, owed. A witness for the plaintiff states, that, in McCarthy's last illness, and five or ten days before his death, he was called on by McCarthy to witness a power of attorney from him to John Baber, and also a verbal gift from McCarthy to Baber of all his effects, after payment of his debts. The plaintiff also examined Baber himself, who states that McCarthy gave him “all his notes, bonds and accounts, and all his land, during his last illness, and requested him to pay all his debts; and that the bond of Edwards was in his, the witness's, possession, at the time McCarthy died, and was among the notes and accounts McCarthy gave him.”

Baxter, for the plaintiff .

Guion, for the defendant .

RUFFIN, C. J.

The bill does not state, that the transaction between McCarthy and Baber derived any peculiar efficacy from the law of South Carolina; and, in the absence of such an allegation, we must assume that it did not, and are at liberty to suppose, that the validity of the gift depends upon the same rules...