Slade v. Rhodes, 22 N.C. 24, 2 Dev. & Bat. Eq. 24 (1838)

June 1838 · Supreme Court of North Carolina

22 N.C. 24, 2 Dev. & Bat. Eq. 24

ALFRED M. SLADE v. ELISHA R. RHODES, et al.

An agreement whereby an agent is constituted to recover property by legal process, and is to receive one half for his compensation is infected with cham-perty, and will not be aided in Equity. And upon a subsequent contract for the sale of the interest of the principal to the'Agent, it must appear that the agency .was at an end when it was made, and that the agent had in all things acted with good faith, before assistance will be rendered to him.

This bill set forth that on the 31st Dec. 1819 one William D. Taylor the husband of Nancy Taylor, formerly Nancy Monk, conveyed to John West in trust for the separate use of the said Nancy, one undivided half of the personal property and choses in action, which they were entitled to receive under the will of her father Thomas Monk, deceased : that the said Thomas Monk, who died in the year before, had bequeathed all his property to his five children, viz., the said Nancy, Sally, Maria, Joseph and Martha : that Martha having died soon after hier father, and a division of the negroes that-were left by the said Thomas having been undertaken to be made on the day preceding the execution of the conveyance by Taylor to West, there had been set apart as the share of Taylor and wife one fourth part of the said negroes, thus including not only the fifth directly bequeathed to Taylor’s wife by her father’s, but also the fourth of a fifth which accruedi.to her as the next of kin of her deceased sister ; that a division was made of the negroes thus allotted to Taylor’s wife between the said Taylor and the said West, and that the latter, from the time of that division, and up to the time of filing the bill, in February 1822, had continually held the negroes delivered over to him in that division, as being conveyed by the said deed, for the separate use of the said Nancy. The bill further stated that Thomas Monk at the time of his death had under the will of Thomas Spiller, a vested remainder in certain other slaves, subject to an estate for life in one Mary Sherrod, which remainder passed by the general bequest in his will to his'said five children — that the said Mary died in the year 1824, that Joseph Monk, one of the five children of Thomas Monk died in the same year — that a petition was then filed in behalf of the said Sarah Taylor and fhe two other surviving children of her father, Sally and Maria, for the purpose of dividing the slaves in which Mary Sherrod had held a life estate — 1that the commissioners appointed under this petition put into a common or joint stock not only these slaves, but those which had been allotted to Joseph Monk in the former division of 1819, and on the 27th of December 1824, divided the whole into three shares, of which one third was then allotted to Sarah Taylor, and taken into possession by her said trustee, and the same had ever since been retained by him and his representatives, after his death until the last of the year 1829j and the beginning of the year 1830, when ne-groes Harry, Matilda and Rebecca came to the possession of the plaintiff. The bill stated that John. West died in 1829, and William Taylor in 1831 — that Kenneth West first administered on the estate of the said John, and after his death the defendant Elisha A. Rhodes — and that the defendant Martin B. Ballard intermarried with Nancy Taylor the widow of the said William Taylor, and has been appointed his administrator. The plaintiff then set forth that in August 1829 he had been appointed by the said William an agent to sue for and recover whatever money' or other property was due to him by reason of his marriage with Nancy Monk; that acting under this authority, he got into his possession the negroes Harry, Matilda and Rebecca, and retained them, believing that if he had not strictly a legal title, he was in equity entitled to them, or to their value — • that on the 11th of May 1830, a new contract was made between him and the said Taylor, by which for the valuable consideration of $500, Taylor assigned to the plaintiff all his estate in and to the negroes, naming them, which were allotted to the said Taylor’s wife in the division of 1824. The plaintiff then complained that in the division of 1819, the one fourth of Martha’s share of the negroes whereof Thomas Monk died possessed, had been subdivided between Taylor and West the trustee of Taylor’s wife, as personal property to which they were entitled under the will of said Thomas, whereas that fourth was not subject to Taylor’s deed inasmuch as it accrued to the said Taylor and wife as her distributive share of the said Martha’s personal estate; he also complained that the said West, under the division of 1824, received the whole of Joseph Monk’s share 0f his father’s negroes under the first division of 1819, to no Part whereofwas he entitled under Taylor’s conveyance, and that he received a third instead of a sixth of the negroes which belonged to her father at his death, subject to the then outstanding estate. The bill then charged that suit at law had been brought against him by Rhodes, the administrator of West, for the negroes Harry, Matilda and Rebecpa; averred that these negroes are of less value than the excess improperly received and retained by West under the division of 1824 ; prayed for an injunction to restrain that suit; and for a proper division between himself and the defendants, of the negroes allotted to West in that division, or for compensation in money because of his right to a part thereof. The defendant Elisha A. Rhodes averred that John West in the bill named, and his representatives, held the slaves delivered over to him in 1819 under a division with Taylor continually thereafter, and held those allotted to the said West in the division of 1824, continually thereafter, with the exception, as to those last mentioned of the three slaves Harry, Matilda and Rebecca, which he alleged were at the times stated in the bill, clandestinely seduced away, or forcibly taken into the possession of the plaintiff, for the sole and exclusive use of Nancy Taylor, as though she were a feme sole, and adversely to the said William Taylor, her late husband, and all other persons, and insisted upon such length of possession as a bar to the claim now pretended, under the act of 1715 for limitation of actions, and the act of 1820 for quieting the title of persons in possession of slaves; declared his personal ignorance of the other matters charged in the bill, and put the plaintiff to the proof thereof, and especially and preremptorily denied that the plaintiff ever purchased Taylor’s interest in the premises, or paid any consideration whatever therefor. The-defendants Ballard and wife denied that the pretended contract of purchase between the plaintiff and the said. Taylor was made for any valuable consideration, and insisted that if in truth it were so made, it transferred only such interest as Taylor then had ; that is to say a right to reduce into possession during the coverture, these his wife’s choses in actions, or to have them if he- survived his Wife.

Replication being taken to these answers the parties proceeded to their proofs. It is unnecessary to notice these except so far as they bear upon one allegation in the bill, put in issue by the answers, and essential to the establishment of the plaintiff’s case, viz: the assignment by Taylor to the plaintiff for a fair and valuable consideration.

In support of this the plaintiff produced the instrument, executed by Taylor, attested by Jno. E. Wood, as subscribing witness, dated the 11th of May 1830, and proved at May term 1830 of Bertie court. It recited a consideration of #500, paid by the plaintiff to Taylor, but the subscribing witness, who testified that he either saw it executed, or heard it acknowledged, declared that he saw no money paid, and was silent as to any security having been given to Taylor for the payment thereof. He testified however that at the 'time of the execution, Taylor was sober and as appeared to him, in his senses. ■ The plaintiff further exhibited a sealed note in his own handwriting, without witness or date, whereby he promised, on demand to pay Taylor #250, but with an express condition that “ this note is not negotiable.” On this was endorsed, in the plaintiff’s handwriting, a credit for #38"í^ó^'r, of the 13th of July 1830. He also exhibited an instrument under seal, from Taylor to the plaintiff of the 21st of August 1829, unattested, but acknowledged by Tay-. lor in open court, at the same term where the alleged assignment was proved, whereby Taylor authorized the plain-tiffin his name, and in the name of Taylor’s wife, to ask, sue for and recover, from any persons having possession thereof, such sums of money, real or personal estate, which the said Taylor derived by marriage with his said wife, and declaring that the one half that may be recovered by the said plaintiff should be applied to his sole and proper use, and the other half to the use of the said Taylor, and that the said power should be irrevocable, provided that, the plaintiff should proceed forthwith to reduce the said property into possession He relied also on the deposition of Figuras Lowe, a brother-in-law of Taylor, who stated that Taylor told him in 18 2 7, he thinks, (probably a mistake as to the year), that he had made a power of attorney to the plaintiff to sue for Taylor’s property; that in May 1830, Taylor wanted witness to go with him to Windsor to meet Slade, who, Taylor said, had agreed to buy the title, and take an assignment; ^iat w^tness furnished Taylor with a horse and gig, but did not accompany him ; that Taylor went off sober and that witness saw him on Thursday of the said week in Edge-combe county, at a cock-fight, where Taylor told him that he had assigned his right to Slade, who had paid him some money, and given his note for the residue of the price. What was 'the price, or what part was paid, Taylor did not tell the witness, and at that time Taylor was sober.

A mass of testimony was taken on both sides in regard to' Taylor’s capacity and habits. There was much discrepancy among the witnesses, but the result of the whole clearly established that he was originally of sufficient, but not above ordinary capacity, that when a boy he became addicted to intoxication, that for many years before his death he became a notorious and habitual drunkard, that he and his wife separated from each other before 1819, and lived apart ever after-wards, that he had no fixed habitation, and no apparent property, staying sometimes with Ms brother, and at other times where his brother boarded him, and.relying on Ms brother for the supply of his wants, that he was vexed with his wife, and was anxious and offered to sell or give away the claim which he understood that he had to property in the possession of her trustee, in order to spite her, that he was reckless of his interest, and confided blindly in those whom he supposed his friends, that after the alleged'purchase of the plaintiff he seemed as destitute of means as before, that his habits of drunkenness became more inveterate than before, and his understanding sunk more and more under them, as he approached his end, that he died in October 1830, a victim to these habits, that for a month or two before his death he had scarcely any of intellect left, and that in June 1830, it was at least questionable whether he had legal competency to make any contract, however simple, or however unim-. portant.

Iredell, for the plaintiff.

The defendants were not represented.

G4Ston, Judge,

after stating the pleadings and proofs as above set forth, proceeded as follows:—

The plaintiff is not in this court an assignee. It is impossible for us to declare upon these proofs, that the alledged assignment was for a fair and valuable consideration. The o instrument of the 21st of August 1829, shows a contract founded in champerty, the most odious species of maintainance, prohibited by the common law, and denounced by statute, where he who maintains the suit of another is to have a share of the thing gained as a compensation. It was not therefore in the capacity of Taylor’s agent, as the bill un-truely alleges, but as á purchaser upon shares of Taylor’s right to sue, that the plaintiff first interfered with this dormant claim, and got into possession a part of the negroes which gave rise to it. There should be clear evidence that this illegal contract was wholly abandoned, and one perfectly fair and unexceptionable substituted in its stead, before the character of the plaintiff’s claim can recommend it to the aid of this court. Now instead of abandoning it — after the alleged new contract was formed — and at the very term where that is offered ,for probate and registration — the plaintiff presents^ in court, as valid and subsisting, and Taylor acknowledges as still binding upon him, the very instrument August 1829. Must we not infer that the new contract, as it is termed, was new only inform, that it grew out of, and was subsidiary to, and in execution of the former? The note exhibited, if in truth it ever was in Taylor’s hands, of which there'is no proof, axtrinsic or intrinsic, is of so singular character as to yield no support to the plaintiff’s side of the issue. It was drawn up by the plaintiff, and has no date. We have therefore no means of judging when, nor for what it was executed. If given, as is pretended, in part consideration of an absolute purchase, what explanation is to be offered of the stipulation that Taylor should not negotiate it? Supposing that the true agreement between the parties was for a division of the property, confidently expected to be obtained, and that to hold out the appearance of an absolute purchase, it was deemed expedient that a note should be made by Slade, — the stipulation was probably inserted to prevent Taylor from using it in violation of the actual bargain. The endorsement of a payment on it in July, has no sanction from Taylor. It is^ in the plaintiff’s handwriting, without signature or witness, and is dated when Taylor had nearly if not quite reached complete fatuity. It is evidence at least at that time the note was in the plaintiff’s possession— when but a very trifling sum was alleged to be paid upon it, and it is not shown that it was found among Taylor’s effects at his death, nor otherwise than by the endorsement, that one cent was paid upon it. There is nothing then left for the plaintiff’s allegation of a purchase for a valuable consideration to stand upon, except Taylor’s acknowledgments — and if the proofs already considered lead to the result that the bargain was in truth for a division of the spoil, to which the parties were to give the semblance of a sale, it was to be expected of him not to hesitate in signing the instrument containing the formal acknowledgment of a consideration, and that in talking of the transaction afterwards, he should speak ofit as a sale. Nay it is'probable, as he said to some, that some money, a few dollars, might have been advanced to him to enable him to attend the cock-fight in Edgecombe, but it not to be credited if so large a sum as $250, was then actually paid to this reckless and indigent man, and a note passed for securing the sum of $250 more, that no show of either should be made, and that he should continue in appearance ever afterwards what at the time of the alleged purchase he truth was, destitute of all means of subsistence but those furnished by his brother. When to these considerations we add Taylor’s habitual drunkenness, mental imbecility, and blind confidence in those he supposed bis friends — notice the close connection between him and the plaintiff, evinced by the contract of August 1829 — and remember that the poor creature had been till then looking all around him in vain for some person who would accept on any7 terms, a transfer of his right, to vex his wife, and interfere with the property saved for her out of the wreck of the portion which he got in marriage — we repose in these acknowldgments no confidence whatever.

The plaintiff does not claim as assignee of a legal interest. His assignment is confined to Taylor’s interest, whatever it may be, in the property which was the subject of the division in 1824; and does not affect the property held under the division of 1819. If it can have any operation it is an assignment of his wife’s entire distributive share in the ne-groes which her deceased brother, Joseph Monk, obtained in the division of 1819, of her share also of those parts of the negroes of which.Thomas Monk died entitled in remainder, and which accrued to her deceased sister Martha, and to her deceased brother Joseph, and one half of the share which was bequeathed to her directly in these last mentioned ne-groes by her father. — When it was made, the subjects the assignment were held in open hostility to his claim. The plaintiff comes here to have it enforced as an assignment in Equity. It is not such, unless made fairly and for valuable consideration. And we are all decidedly of the opinion that it was not so made.

Without therefore noticing the other grounds of- defence, it is the opinion of this court that the plaintiff’s bill be dismissed with costs.

Per Curiam. Bill dismissed.