Bullock v. Tinnen, 5 N.C. 271, 2 Car. L. Rep. 271 (1815)

July 1815 · Supreme Court of North Carolina

5 N.C. 271, 2 Car. L. Rep. 271

Bullock v. Tinnen & wife.

The complainant, Micajah Bullock, exhibited his bill against Nancy Bullock, (who afterwards intermarried with the defendant Carns Tinnen,) as administratrix of her former husband, Philip Bullock, charging that said Philip died intestate and without any children—that the complainant was entitled, as the representative and next of kin, to two thirds of the estate of said intestate, in the hands of the said defendant—and charged, that negro woman Betty and her children Jenny, Jordan, Davy and Leathy, with other property, came to the hands of said defendants. To which bill the said Nancy, before her intermarriage, filed an answer, admitting that her husband and intestate Philip, died on the 17th November, 1807—that the negro woman Betty and her children Jenny, Jordan, Davy and Leathy, with other property, came to her possession, but alleges, that on the day after the death of said Philip, the said Micajah did fully, freely, wholly and absolutely relinquish and yield up to this defendant, all the right and interest which he had, or might have, to any part of his said son’s estate, by reason of his having died intestate. Whereupon the following issue was made—Did the complainant, after the death of the intestate, yield and relinquish to the defendant, all his right and interest in the intestate’s estate—if any, what part thereof, and what relinquishment did he make? If he did, upon what consideration, and whether by parol or writing, and at what time?—Whereupon the jury returned the following verdict—That on the 19th day of November, 1807, the complainant, Micajah Bullock, did yield and relinquish to the defendant, a certain negro woman by the name of Betty, and her children—that the consideration that influenced that relinquishment, was the love and affection the complainant had to the defendant Nancy Tinnen, (then Nancy Bullock;) and further—that the relinquishment was made by parol, on the day aforesaid, and that the said Nancy, then Nancy Bullock, was not present.

Upon motion to dismiss the bill, as seeks distribution of Betty and her children, it is referred to the Supreme Court to determine and adjudge what decree shall be made.

The case was argued by

Browne and Norwood for the complainant, and Nash for the defendant.

Taylor, C. J.

delivered the opinion of the Court.

Whatever wishes the circumstances of this case may be fitted to inspire, the Court are not apprised of any authority or principle of law, by which the transaction between Bullock and his daughter-in-law can be supported.

The delivery of possession has ever been deemed necessary to complete the gift of chattels, except they are granted by deed, or are incapable of being delivered. “ Every thing that is not given by delivery of hands, must be passed by deed. The right of a thing, real or personal, may not be given in nor released by word."-Noy. maxim 33. If the gift does not take effect, by the delivery of immediate possession, it is then not a gift but a contract, the performance of which can only be compelled upon good and valuable consideration.-2 Bl. 442. It has even been held that if a man, without consideration, deliver a thing to another to be given to a third person, he may countermand it at any time before delivery over.-Dyer 49.

The rule of the civil law appears to have been less strict, with respect to gifts, than the common law; but though it did not require a delivery, the presence of the party, to whom the gift was made, was deemed essential. It substituted, besides, other ceremonies, which were perhaps as well calculated to make the transaction public, and to guard against haste and imposition, as those required by our law. It is the object of all laws to enforce the performance of those contracts and engagements which grow out of the relations and state of society; and the ceremonies requisite to their validity are designed to fix and ascertain the intention of parties, and the degree in which they mean to incur a legal responsibility. No man who deliberately makes a promise, can in morality or honor, recede from the performance of it, without very sufficient reason; but the law lends its aid in compelling the performance of those engagements only, which are contracted under prescribed ceremonies, and evidenced by certain proofs of deliberation. A man may have a present intention to do a thing, or may intend to do it in future, and express himself to that effect, without meaning at the time, to lay himself under a legal obligation. And it may well be doubted whether it would be wise, if it were practicable, to give legal effect to those promises which are made without due deliberation, or under the influence of some strong emotion, the presence of which, in a greater or less degree, interrupts the calm decisions of the judgment:—whether the heart abandon itself to the transports of joy, or is weakened by the sympathy of grief, something is deducted from the prudence and circumspection which the mind exercises in the ordinary concerns of life. The Court overruled the motion to dismiss the bill.