Carter's Executors v. Rutland, 2 N.C. 112, 1 Hayw. 112 (1794)

April 1794 · North Carolina Superior Court

2 N.C. 112, 1 Hayw. 112

Carter’s Executors v. Rutland.

Negroes sent with a daughter upon her marriage, or with a son-in-law and daughter, is prima facie evidence of a gift; and if the prop- rty remains any length of time with them, very strong proof will be re- • quired to show that only a loan, and not a gift, was intended.

The following facts were stated in this case by the parties as a case agreed, and submitted to a jury on the issue non detinet, under the direction of the court as to the law.

Facts agreed to, in the case of Lazarus Carter, Executor of Isaac Carter, v. Shadrach Rutland,

8/uulrach Rutland and Parthena Carter, daughter of Isaac Carter, of Hertford comity, were married the 12th day of November, 1775. About the middle of tiie year 1776, a negro woman, Nairn, with a young child, Saul, was sent by Mr. Carter, to said Shadrach and Parthena. —Naim’s issue since is, Bob, Hastie, Tibbie and Lydia. Some time in the year 1781, said Shadrach and Parthena were on a visit at Mr. Carter’s, and they were directed to take a negro boy, Peter, home with them. Again, in the year 1782 or 1783. said Shadrach and Parthena were on a visit at Mr. Carter’s, and they were directed to take a negro girl, Maggy, home with them — Maggy’s issue is, Homer, Penny, Violet and fFillis.

Mrs. Parthena Rutland died in August, 1788, and Mr.' Isaac Carter died the 8th July, 1792.

It was also admitted on the trial, that Isaac Carter bad bequeathed these negroes by his last will, to his grandchildren by Parthena, and the executor had made the usual demand, and that the Defendant was in possession.

Per Curiam

When a man sends property with his daughter upon her marriage, or to his son-in-law and daughter any short time alter the marriage, it is to be, presumed prima facie, that the properly is given abso-lately in advancement of bis daughter ; and when the property is permitted to remain in the possession of the son-in-law for a considerable length of time, au in this case, it will he necessary to prove very clearly, that the property was only lent by the father, and that it was expressly and notoriously understood not to be a gift at the time. The peace of families and thesecurify of creditors, are greatly concerned in the law being thus settled_ Every transaction in human life ought to be considered under its ordinary circumstances — these will sufficiently express the intention of the parties, and generally more unequivocally than the, appointed solemnities of the law. This property was given in the usual manner — that is, sent with them on their going to house-keeping, as it is called, or sent to them as soon as the parent could make the necessary arrangements in his farm or family for that purpose.

Under this charge, there was a verdict and judgment for the Defendant.

Note. — Vide Note to Farrel v. Perry, ante 2.