McDonald v. McDonald

• Citation: 75 Am.Dec. 434,5 Jones 211,58 N.C. 211
• Court: North Carolina Supreme Court
• Decision Date: 31 December 1859
• Parties: COLIN McDONALD v. DANIEL McDONALD.

5 Jones Eq. 211

58 N.C. 211

75 Am.Dec. 434

COLIN McDONALD

v.DANIEL McDONALD.

Supreme Court of North Carolina.

December Term, 1859.

Equity will give effect to the assignment of a mere expectancy or possibility, not as a grant, but as a contract, entitling the assignee to a specific performance as soon as the assignor has acquired the power to perform it.

CAUSE removed from the Court of Equity of Cumberland county.

Margaret McDonald, of Sampson county, died in the year 1855, without issue, leaving the plaintiff, Colin McDonald, her next of kin and heir-at-law. Letters of administration on her estate were granted to the defendant, Daniel McDonald, at ________ Term, 1855, of Sampson County Court, and he took possession of her estate, consisting of eighteen negroes and $404,90, in good notes. In 1816, the defendant, as administrator, filed an inventory, in which he omitted to include the slaves, as property, for which he was bound to account, alleging, that he had purchased them from Colin McDonald, the sole distributee of the estate, and had taken a deed therefor; in the following words:

“Know all men by these presents, that I, Colin McDonald, of the county of Barbour, and State of Alabama, for and in consideration of the sum of one thousand dollars, to me in hand paid by Daniel McDonald, of the county of Cumberland, and State of North Carolina, have bargained, sold, transferred and conveyed, and by these presents do bargain, sell, transfer and convey, all the right, title and interest, both legal and equitable, which I now have, or may, at any time, hereafter have in and to the property, or estate, which Margaret McDonald, late of Sampson, but now of Cumberland county, has, that is to say, all the interest which I have, or may have, as one of the heirs-at-law and next of kin of Margaret McDonald; and the right, title and interest, which I have, or may have, in the property, which she now has, or which she may at her death; that is to say, all my right, title and interest in the lands, which she owns, or may own; all my right in the negroes which she now owns, or may hereafter have and own; all my interest in the bonds and notes that are now due, and that may be due and owing to her; all my interest in the money which she may have, and the interest which I may have as an heir-at-law, and as one of her next of kin, in any other property which she may own, it being to convey every thing I may be entitled to, to Daniel McDonald, of the county of Cumberland, and State of North Carolina, and I, Colin McDonald, of the county of Barbour, and State of Alabama, for and in consideration of the premises as above mentioned, do hereby relinquish and transfer my right, title and interest to him, the said Daniel McDonald, his heirs, executors, administrators, forever, free and discharged from any claim which I have or may have; free and discharged also from the claim or claims of any other person or persons whatsoever. And for the better securing the right, title and interest, which I hereby convey, I, for myself, my heirs, executors and administrators, to and with the said Daniel McDonald, his heirs, executors, administrators and assigns, covenant and forever defend from the lawful claims of any and all persons whatsover. In testimony whereof, I have hereunto set my hand and seal, this the 8th day of October, 1849, in presence of Wm. B. Wright.”

+------------------------------------+
                ¦(Signed,)¦COLIN McDONALD, [ seal.  ]¦
                +------------------------------------+
                

The nearest relations of the intestate, Margaret, at the time this deed was executed, were the plaintiff, Colin, and his brother, Neil McDonald, who were her cousins. Neil McDonald, who was the father of the defendant, died before the intestate, Margaret.

The bill alleges, that this deed was procured from the plaintiff by fraud and misrepresentation; that plaintiff is a weakminded old man; that the defendant proposed to purchase his interest in the property in dispute; and informed him that in the event of Margaret McDonald's death, he would be entitled to only one-third of her property; that this interest in one-third, was all that the deed was intended to convey, and that it was so understood by both parties. This much, the bill acknowledges to belong to the defendant under the deed, and it prays an account and conveyance of the other two-thirds.

The defendant, in his answer, denies having exercised any undue influence in procuring the deed above set out; he states that the plaintiff was then a resident of Alabama; that he came to this State in the year 1849, and applied to several persons proposing to sell his interest in the estate of Margaret McDonald; that he, at length, applied to defendant, and offered to take one thousand dollars for said interest; that plaintiff gave as his reasons for selling it, that he lived at a distance; that he was growing old, and it was uncertain whether he would out-live Margaret McDonald, and also his brother Neil. He denies that the plaintiff is stupid, ignorant and illiterate, though getting...