Cox v. Hill

Le Grand, C. J., delivered the opinion of this court. The bill in this case was filed by Clement Hill, for the pur-* pose of having determined, by the proper judicial tribunals, to-whom he was to pay a sum of money due by him on a single-bill, executed in favor of Mrs. Cornelia Lansdale, now deceased. The facts which it is important we should notice? may be thus stated: Mr. Hill, to secure the payment of a sum of money borrowed from Mrs. Lansdale, executed what he' calls his single bill in her favor, payable five years after date. On the 8th of August 1843, she executed and delivered toiler daughter, Mrs. Cox, wife of John F. Cox, the following paper: “From natural affection for my daughter, Eliza Cox,, and in consideration of one dollar to me paid by her, I do hereby give, grant, sell, assign and make over to her, and toiler heirs and assigns, a certain debt of three thousand, five hundred dollars, due to me by Clement Hill, for money loaned-to him; said debt is now represented by his note, dated 1st November 1841, payable five years after date, with interest,, payable annually, and is endorsed by Mrs. Ann S. Hill, but it may be put in some other form.

But I reserve to myself, and to my own use, said interest as it falls due, (or so much there ²⁸³ of as I may receive,) during my natural life. It being my intention by this writing to secure said sum or debt, with the unpaid interest on the same, to my said daughter, Eliza Cox, and her heirs, at the time of my decease, without reference to my will, or devise of my other property. Washington city, August Sth 1843. Cornelia Lansdale.

Witness, W. C. Board - man.” A copy of this assignment was delivered to Mr. Hill, who subsequently, that is to say, on the 1st of November 1847, took up the original evidence of his indebtedness by executing under seal, together with his mother, the said Mrs. Ann S. Hill, an obligation payable to the order of Mrs. Lansdale, live years after date, for the sum of $3500. It appears Mrs. Cox died sometime in the year 1851, and that after her death, Mrs. Lansdale assigned and delivered to her daughter, Mrs. V. Sprigg, the bill of Mr. Hill and his mother. The controversy arises out of these two assignments. It is not denied, that if she was not precluded by the paper signed by her on the 8th of August 1843, Mrs. Lansdale had a perfect right to assign and deliver the bill to Mrs. Sprigg, and, that the latter would be entitled to the fund now due and owing on it by Mr. Hill and his mother.

If the execution and delivery of the paper, dated the 8th of August 1843, constituted a complete and perfect gift, then it was incompetent for Mrs. Lansdale to assign, as she did, the bill to Mrs. Sprigg. The first inquiry therefore is, what was the effect of the paper of the 8th of August 1843? This question suggests another, which is, what was the character of the paper to which the assignment referred? It has not been exhibited in evidence, and the reference to it, in different parts of the record, is under different designations.

In the bill of complaint of Mr. Hill, it is described as a single bill, and admitted to be such in the answers of Mr. and Mrs. Sprigg. It, is called a note in the assignment of Mrs. Lansdale, and in the answer of the appellants. We conclude from all the record it was a single bill; that is, had attached to the signature of Mr. Hill a seal. It seems to be but a just inference from all that has been disclosed to us, that such was its character, and, that the parties indifferently designated and mentioned it as a note, and ²⁸⁴ as a single bill.

It is perfectly apparent, that Mrs. Lansdale was not aware of the distinction between a note and a single bill, for, when she comes to assign the obligation bearing the seal of Mr. Hill and his mother, she, by an endorsement on it, says, “I hereby assign and deliver to my daughter, Y. Sprigg, the within note.” We shall therefore consider it a single bill, as alleged by Mr. Hill, and admitted by Mr. and Mrs. Sprigg. It has not been contended on the part of the appellant, that it was a gift causa mortis, but that it was a donatio inter vivos. In either case however, in some particulars, the law is the same. Both at law and in equity, delivery is essential to the validity of the gift.

A mere promise is not sufficient, for, until the act is complete, there exists the locus penitentice. 2 Kent, 438. But, it is said, there need not be, in all cases, an actual delivery of the thing to the donee; that this can be dispensed with, provided there be any thing done which is equivalent to it. There is, undoubtedly, a class of cases where a trust has been .created by the donor, either in himself, or in another, which makes it unnecessary there should have been a delivery to the donee. Of this kind is the case of Ex-parte Pye vs. Ex-parte Dubost, 18, Vesey, 145.

There Lord Eldon held, that although a court of equity will not assist a volunteer, yet if the act be completed the court will act upon it; and also, that although an agreement to transfer stock would not be enforced, yet if the. party declared himself to be the trustee of that stock, it became the property of the cestui que trust without more, and the court would act upon it. In the case now before us, there is no evidence of a delivery to the wife of the appellant, nor to any one else as trustee for her. It is true Mr. Boardman testifies, that he understood and believes the single bill referred to in the paper of the 8th of August 1843, was by Mrs. Lansdale delivered, for the benefit of her daughter, Mrs. Cox, to another daughter, Mrs. Thomas. He moreover says, that Mrs. Thomas, in his presence, admitted to Mrs. Cox, the paper had been delivered to her, and promised to hand it to the latter immediately after the death of their mother.

This testimony is but hearsay, the witness not professing to have any personal knowledge of such delivery. Besides, Mrs. Thomas, in the ²⁸⁵ most emphatic and unqualified manner denies ever having made any such acknowledgment or promise; and disclaims, with equal emphasis, any knowledge of the existence of the paper up to a comparatively recent period. There is no evidence that the