Reed v. Cox
| Decision Date | 30 June 1850 |
| Citation | 41 N.C. 511,6 Ired.Eq. 511 |
| Court | North Carolina Supreme Court |
| Parties | RICHARD O. REED v. JOSEPH M. COX, ADM'R. . |
OPINION TEXT STARTS HERE
Where, at an execution sale, a person said, that, if he could buy a negro at a small price, he would convey him to the son of him against whom the execution was, and the negro was accordingly bought by him at one third of his value; Held, that this was only a parol promise, which did not bind the party making it, and that he could not be held to be a trustee for the son.
Appeal from a decree of the Court of Equity of Perquimans County, at the Spring Term 1850, his Honor, Judge ELLIS, presiding.
Heath, for the plaintiff .
A. Moore, for the defendant .
The bill alleges that a negro boy, named Nelson, the property of the plaintiff's father, was levied on by the sheriff to satisfy an execution against him: and that, at the sale, he was purchased by Jonathan Jacocks, the defendant's intestate, for the sum of fifty dollars. The bill further alleges, that, before the sale commenced, many persons, who were creditors of his father, being present, for the purpose of securing their debts, the deceased, who was the uncle of the plaintiff, “publicly proclaimed that that boy Nelson was the playmate of his nephew, your orator, and if they, the creditors of your orator's father, would allow him, the said Jacocks, at some small sum, to purchase the boy, he, the said Jacocks, would make a present of him to his nephew, your orator.” The bill states, that the testator did purchase him for $50, he being worth $150, received a bill of sale from the sheriff, took the boy into his possession, and that the defendant, his executor, still so has him. It prays that the defendant may be decreed to convey the boy, Nelson, to the plaintiff. “And if your orator is not entitled to have and receive the said slave as a gift from his uncle, then that your Honor will decree that the said Joseph M. Cox and his testator held and do hold the said slave in trust for your orator, and, upon the payment of the sum bi??d for said slave, with interest thereon, that your orator receive a title to said slave”-- and a prayer for an account.
The answer denies all knowledge of the transaction as set forth, and denies the right of the plaintiff to the relief he seeks.
Replication was taken to the answer, and upon the hearing, the Court decreed that the defendant should convey the negro Nelson to the complainant, and account, &c., from which decree the defendant appealed.
We are of opinion that the decree appealed from is erroneous. The bill does not contain such a statement, as authorises the Court to grant the relief asked for. The bill expressly states, that the promise made by the testator, Jonathan Jacocks, at the time of the sale, was, that he would make, at some future time, a gift, a present, of the negro Nelson, to the compainant, if he was permitted to purchase him cheap. That such was the fact, appears from the prayer of the bill; it is “that if the plaintiff is not entitled to receive...
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