Strong v. Menzies

• Decision Date: 30 June 1850
• Citation: 6 Ired.Eq. 544,41 N.C. 544
• Parties: WILLIAM R. STRONG et al. v. JOHN C. MENZIES et al.
• Court: North Carolina Supreme Court

6 Ired.Eq. 544

41 N.C. 544

WILLIAM R. STRONG et al.

v.JOHN C. MENZIES et al.

Supreme Court of North Carolina.

June Term, 1850.

When, in an injunction bill, the answer admits the equity charged in the bill but brings forward a new fact in avoidance of it, the injunction must be continued until the final hearing.

When a voluntary deed of her property is made by a woman, in contemplation of a marriage, afterwards consummated, without the existence of the deed being made known to the intended husband, this is in law a fraud upon him.

The case of Lindsay v. Etheridge, 1 Dev. and Bat. 38, cited and approved.

Cause removed from the Court of Equity of Rockingham County, at the Spring Term 1850.

Morehead, for the plaintiffs .

No counsel for the defendants.

PEARSON, J.

It is admitted, that, in 1824, one Sneed conveyed to the defendant, Menzies, certain slaves in trust, for the separate use of Elizabeth, the wife of the said Sneed, with a power of disposition by deed, will, or otherwise. Soon thereafter Sneed died; the slaves were taken into possession by the said Elizabeth; and Menzies removed from the State. On the 14th of August 1826, the said Elizabeth executed a deed, by which she gave five of the slaves (being all except one) to Erasmus Jones and the defendant Adolphus Jones, reserving to herself a life estate. In September or October 1826, the said Elizabeth intermarried with Robert Strong, the testator of the plaintiff, who took all of the slaves into possession and has kept possession of them ever since. In 1844, the said Elizabeth died. Erasmus Jones died some years before, leaving an only child, the defendant Eleanor, and Martha, his widow, who administered upon his estate and intermarried with the defendant Hamlin. After the death of the said Elizabeth, the slaves were demanded of the said Strong in the name of Menzies, the trustee, action of detinue brought and a recovery affected. At the time of his marriage, Robert Strong was a widower in easy circumstances, and Elizabeth Sneed owned no property, except the said slaves and a small piece of land.--The deed was attested by one Dunlap, the uncle, and G. W. Jones, the father of Erasmus and Adolphus, and was registered in November 1825. G. W. Jones was the cousin and intimate friend of the said Elizabeth. Erasmus and Adolphus Jones were quite young at the date of the deed.

The bill charges that the deed was executed without valuable consideration, and after marriage was contemplated between the plaintiff's testator and the said Elizabeth, in fraud of his marital rights, and without his knowledge or consent. The prayer is to have the deed cancelled and for an injunction.

The defendants admit, that the deed was made without valuable consideration. They do not deny that the marriage was in contemplation at the time it was executed, but simply say, “they do not know, how long before the marriage the deed was executed, but suppose it was but a short time.” “They insist, that the deed was fairly, legally, and honestly made, without any fraud upon the marital rights of the plaintiff's testator.” “They deny, that it is within their knowledge, or that it is their belief, that the deed was made without the knowledge or consent of the plaintiff's testator.” And “they deny, that the deed was a fraud upon the marital rights of the plaintiff's testator,” for the reason, that when the slaves were demanded, he at first offered to give them up, if he was indemnified against the claim of the Sneeds, and said he would take counsel; and for the further reason, that he refused to pay for medical attendance upon them. One of the slaves, who was inserted in the original draft, was left out of the deed; and the plaintiff's testator did not, in the life time of his wife, make any complaint, or attempt to have the deed set aside.

A motion to dissolve is heard upon bill and answer; and it is often said, that, upon the hearing, the answer is to be taken as true. This must be understood with much qualification, and, as a rule, is very apt to mislead. To obtain an injunction, the plaintiff must make certain allegations, upon which his equity rests and these he is bound to prove. If they are admitted by the answer,...