Tate v. Tate

• Decision Date: 31 December 1834
• Citation: 1 Dev. 22,21 N.C. 22
• Parties: JAMES H. TATE et al. v. DAVID TATE et al.
• Court: North Carolina Supreme Court

1 Dev. & Bat.Eq. 22

21 N.C. 22

JAMES H. TATE et al.

v.DAVID TATE et al.

Supreme Court of North Carolina.

December Term, 1834.

An advancement to the children of a first marriage, made before a second was contemplated, is not a fraud upon the second wife's right to dower, and this as well where she knew of the deed before her marriage, as where she was ignorant of it.

THE plaintiffs alleged that David Tate the elder, on the 16th of August, 1814, executed a deed of bargain and sale, by which he conveyed to his children all his land in fee; that the bargainees being infants, the deed was delivered to Hugh Tate, their uncle, to keep for them; that it remained in the custody of Hugh until his death, which happened in the year 1816, when the bargainor, having after its execution intermarried with Christian Tate, a defendant, went to the widow of Hugh, and obtained the deed before it was registered, and cancelled it, by tearing off his signature, and that of the witnesses. That afterwards, David, the elder, made a voluntary conveyance of a part of the same land, to his son, the defendant. David, and one of the bargainees in this first died; that he made similar settlements upon Samuel W. Tate, also a defendant, and to Rebecca Woodward, a plaintiff, who were his children, and bargainees in the cancelled deed.

The cancelled deed was filed as an exhibit, having been found among the papers of David, the elder, after his death. The plaintiffs were the children of David Tate, the elder, by his first wife; the defendants were his widow and a child born of her, and those of the issue of his first wife, who have received other deeds for part of the land included in the first. The prayer was to have the deed set up, to enjoin the suit of the widow for an assignment of dower, for an account of the rents and profits, and for a partition.

The answers and the proofs are so fully stated in the opinion of the Chief Justice, as to render any abstract of them useless.

Badger, for the plaintiffs .

Pearson, for the defendants .

RUFFIN, Chief Justice, after stating the substance of the bill as above, proceeded:

That such a conveyance will be established against the donor himself if it was completed as a deed, was the point of the decision in Tolar v. Tolar, 1 Dev. Eq. Rep. 456, and upon principles that are clear beyond doubt. The equity is not in the nature of the right, but to have the benefit of a legal title, of which the evidence has been lost by spoliation. The relief is a reconveyance with covenants against intermediate encumbrances, or acts of the parties making it.

The case of Tolar v. Tolar, 1 Dev. Eq. Ca. 456, approved.

The first question is, whether the instrument ever was a deed. The answer of the youngest child disclaims of course all knowledge on her part, and against her the plaintiffs must prove their case strictly. Enough remains on the paper to satisfy us, upon inspection, that it was once executed. A part of the signature of one of the subscribing witnesses is still to be seen; and the widow of Hugh Tate, proves that her husband had it in his possession for safe keeping in the form of a deed, and that upon his death the donor applied for it, and took it away. These circumstances, are not necessary in the case, except as confirmations of the positive testimony of Ezra M. Tate to this point. That witness is one of the donees, and assigned his share to the others, to render him competent.

He proves that the deed was drawn by the late Judge Paxton, then at the bar; was executed by his father, in compliance with a dying request of his mother; was attested by John Paxton, and Hugh Tate the brother of the donor; and was then delivered to Hugh Tate, for the benefit of the children mentioned in it, and to be kept for them. The witness states that he was the eldest of those children, and was then about eighteen years old, and that the youngest was about the age of three years; that his father was not embarrassed, though somewhat indebted, and that he retained other property amply sufficient to pay his debts.

This evidence is precise and full to the execution of the deed by signing, sealing, and actual delivery. When supported by the existence of the paper itself, by the appearances on it indicating execution, and by the testimony of Mrs. Tate that her husband had it in his custody as a deed, it seems to be entitled to full credence, notwithstanding the relation the witness bore to the instrument, and bears to the parties. But whatever doubt might be raised from those circumstances, of the credit to which this witness is entitled, it is dissolved by the answers of the defendants. That of Mrs. Tate, states, that at the date of the deed, her husband, as he told her after her marriage, was indebted, and for the purpose of securing his property to his children, that he executed the deed; but as he had extricated himself, that he should tear, or had torn off his name, for the consideration had failed, and “therefore the deed ceased to have any legal or binding effect upon him.” She adds, indeed, that she did not understand that the deed was delivered for the benefit of the bargainees; and that she is convinced “if it was delivered as stated by the plaintiffs, it was conditionally to be re-delivered to the donor, if he should be able to discharge himself from his debts.” The opinion of this defendant as expressed in the latter extract from the answer, is of little avail, as it is inconsistent with the words she gives as those of her husband, and with his professed object. If the deed ever had any “legal or binding effect,” it could not “cease” to have it for any of the reasons, or by any of the acts mentioned by him; and if the design really was to defraud creditors, the only opinion that can be entertained, is, that the parties would at least give to the transaction all the forms of a perfect and executed conveyance. The answers of the other defendants admit, almost by necessary implication, a delivery to Hugh Tate for the donees. They do, in express terms, admit the formal execution, attestation, and delivery to Hugh Tate. They do not expressly say that it was delivered to him for the donees, but that is almost a necessary inference from other parts of the answer. For the point insisted on, is the insufficiency of such a delivery, in point of law, to give effect to the end. They say, “that as all the children were under age, and some of them of very tender years, the deed was handed to Hugh Tate, to be kept by him until the said children should arrive at age, and be capable of receiving said deed; and they insist that the donor had a right to cancel the paper, as it had never become his deed, by delivery to the bargainees themselves, or by their assenting to the delivery to Hugh Tate.” In a subsequent part of the answer these defendants state more explicitly, “that they are advised, that as all the children were under age at the time the conveyance was made, the handing the deed to H. Tate, did not amount to a legal delivery, but required the assent of the children to such delivery after their arrival at age, and that before such assent, the father had a right to cancel the instrument.” We are obliged to read this answer, as putting the defence upon the legal points, that to the validity of a delivery, it is essential that it should be made to the party himself, or, if to a third person, that the party should expressly assent to it, and that no such assent was given here, or could be given, because the donees were infants. It does not deny that there was a delivery by the donor of the instrument as his deed privately, nor that the delivery to Hugh Tate was for the donees, and that he might keep the deed on their behalf, but, on the contrary, the affirmative upon those points is taken to be admitted, not simply as being tacitly yielded, but as necessarily implied from the manner of stating the facts in the answer. But whether the answer be viewed as barely not denying those facts, or as impliedly admitting them, is but of little consequence in this case. The case is not heard on the answers, but the facts are established by proof of witnesses. The answers are resorted to, as tests of the witnesses' credit; and to that purpose they are equally effectual, whether they admit or evade the charges in the bill.

Upon the testimony of the witness, an absolute delivery for the benefit of the children is clearly established. That was intended to be a delivery to the children, one of whom, the witness Ezra, was present and assenting. The points made in the answer upon the legal effect of such a delivery do not admit of discussion. When the maker of a deed parts from the possession of it to any body, there is a presumption that it was delivered as a deed for the benefit of the...