Poston v. Gillespie

• Court: North Carolina Supreme Court
• Writing for the Court: PEARSON
• Citation: Poston v. Gillespie, 5 Jones 258, 58 N.C. 258, 75 Am.Dec. 437 (N.C. 1859)
• Decision Date: 31 December 1859
• Parties: WILLIAM A. POSTON v. LUECO M. GILLESPIE AND OTHERS.

5 Jones Eq. 258

58 N.C. 258

75 Am.Dec. 437

WILLIAM A. POSTON

v.LUECO M. GILLESPIE AND OTHERS.

Supreme Court of North Carolina.

December Term, 1859.

Where parties have bound themselves by a contract to marry, neither can give away his or her property without the consent of the other, and notice before the marriage of such a gift, does not hinder the party injured, from insisting on its invalidity.

Where a father, with whom his daughter resided, and who was habitually under his influence and control, urged upon her, two days before the time fixed upon by her for her marriage, to sign a deed giving away her property, which she did with reluctance, and with earnest protestations against the act, it was Held that such conveyance was inoperative and of no effect, as against the husband.

THIS was a bill for an injunction, and to set aside two deeds, as being in fraud of the plaintiff's marriage, sent from the Court of Equity of Rowan.

The plaintiff was engaged in the service of the defendant, E. D. Austin, for the year, 1850, living in his family, during which time an intimacy sprang up between him and Caroline Gillespie, a widow lady, the daughter of Col. Austin, aged about twenty-two years, which resulted in an engagement to marry. This she made known to her father, but it was violently opposed by him. At first she concurred, or affected to concur with the wishes of her father, and informed him that she had discarded the plaintiff, and that he would leave the country. On the first of March, 1851, however, she informed her father that she had determined to marry the plaintiff without his consent, and that the marriage was to take place in three days thereafter. He then called her attention to an agreement which had been made between them long before any marriage was in contemplation, which was, that if she ever married again, she would convey to her infant son, the defendant, Lueco M. Gillespie, all her interest in the tract of land which her late husband had willed, as a support for her and their child during her life; also, a certain negro named Mary, and certain articles of furniture, consisting of a bed and furniture, a bedstead, bureau and washstand, which said agreement was founded on the following consideration: It turned out that the property left by her former husband, for that purpose, had proved insufficient to pay the debts of the estate, and one of the slaves bequeathed specifically to his wife and child, would have to be sold to make up the deficiency. A negro man bequeathed to her infant son, had no wife, and it was agreed between Mrs. Gillespie and her father, that he should be taken, instead of falling on one of the two in which she had a life-estate, who had wives in the neighborhood; and, as an equivalent therefor, conveyances should be made to secure the property above-mentioned, to wit: her interest in the land, the girl, Mary, and the furniture, to her said son, Lueco, and the slave of Lueco had accordingly been sold and the money applied in payment of the debts. On this agreement, and the facts connected with it, being rehearsed to her, she made the conveyances accordingly. The defendant, Austin, says she did so willingly, and that when the one conveying the personal property was being prepared, she insisted on putting in another slave, named Vardry, in which she had a life-estate, which was done, and that she put in Vardry because, she said, Lueco's father ought to have given him to his son, and also insisted on putting in the articles of furniture above named, stating that she had bought them at the sale of her husband's estate for Lueco, and that she always intended to give them to him. He also says that she proposed to put in another slave, Linda, in whom she had a life-estate, but he dissuaded her from doing so. The deed conveying her interest in the tract of land, was made to E. D. Austin, as the trustee and next friend of the said Lueco, and was dated 1st of March, 1851; the other was made directly to her son, Lueco, bearing the same date. On the next day, after these deeds were executed, the father, Col. Austin, started with his daughter to the State of Virginia, with a view, as he admits, to prevent the contemplated marriage from being solemnised. They proceeded to the house of a friend in the county of Davie, where they were detained by her indisposition, and during this delay, the plaintiff came to that place, and had an interview with the daughter. Col. Austin then informed him of the existence of the deeds in question, notwithstanding which, they persisted in the purpose of marrying; which event took place on the 11th of March, 1851, at the house of the defendant, Austin, to which they returned after the interview above spoken of. The notice of the deeds was given to the plaintiff on the fourth day of March.

Asbury McDaniel, a witness to the deed, states in his deposition, that Mrs. Gillespie was constrained to sign the instruments in question; that she was in tears when she did it, and said she would rather go to her grave than do so; that her father used no force or threats, but told her to sign. There was testimony going to show that McDaniels' character was bad, and that he was not worthy of credit on oath. There was other evidence as to the question of duress.

The girl, Mary, and the articles of furniture, remained in the possession of the plaintiff and his wife, from their marriage, till her death, which took place in the fall of 1853. In January, 1854, Col. Austin took possession of the negro girl, Mary, as the property of his grandson, Lueco M. Gillespie, and suit was brought in the name of John F. Foard, as next friend of the said Lueco, in the Superior Court of Rowan, for the value of the bed, bedstead, and the other personal property, and a judgment obtained against plaintiff for the same.--The bill was filed against Col. Austin, the trustee, the defendant, L. M. Gillespie, and J. F. Foard, his next friend in the suit at Law, praying for an injunction to prevent the execution at Law from being enforced; which was granted, and was ordered to stand over and await the hearing in the cause.--The further prayer is for...