Tuck v. Bowie

Eccleston, J., delivered the opinion of the court. The negroes included in this replevin, were originally the property of the appellant’s testator, but at the time of his decease, they were- in the possession of his son, the appellee. It is alleged on the part of the defence, that in contemplation of a marriage between the appellee and the daughter of John T. Stoddart, an agreement was entered into between the fathers of the intended husband and wife. In which it was stipulated, that John T. Stoddart should purchase a farm for the use of his daughter a.nd her husband; and that R. W. Bowie should place on said farm, personal property to a certain amount.

That the farm was purchased and possession given to the husband and wifé. That R. W. Bowie put upon the farm in part execution of his portion of the contract, the negroes in dispute. At the trial, three bills of exceptions wmre taken. The first, arises upon the question as to the admissibility of testimony, designed to prove the agreement, and the delivery of the negroes in part performance.

This proof was objected to upon the ground, that there was no evidence of any writing, to take the case out of the statute of frauds, and that part performance could not supply this defect. It was also urged in argument, that the testimony should have been rejected, because it did not appear in this exception that the defendant had any knowledge of the agree ⁹⁴ ment, and if lie knew nothing of its existence, it was no inducement for the marriage. That a parol agreement, purely executory, is void under the statute of frauds, there can be no doubt. And when there has been part performance, the unexecuted portions of the con- . tract cannot be enforced in a court of law.

But in equity, parol proof is sufficient to entitle a party to a specific performance. It has been contended on behalf of the appellees, that the subsequent delivery of the negroes, rendered a written agreement unnecessary, and gave a right of possession, which in this action, will prevent a recovery by the plaintiff. Although it may be conceded that the appellee, in a suit at law, could not recover property included in this agreement, but never delivered, it does not necessarily follow, that he cannot successfully resist the present claim. But the argument urged by the plaintiff’s counsel assumes, that part performance will not, in a court of law, afford any protection to a defendant, even as to the property actually delivered.

The authorities referred to on this point, do not furnish an instance in which the right of a defendant to personal property is involved. Jackson vs. Pierce, 2 John. R., 221, is an action of ejectment. The defendant had but an equitable title.

In New York and other States of the Union, such a title in ejectment, will not prevent a recovery by the plaintiff, having a legal title. When the character of the suit, and the nature of the property are considered, it is not perceived that the language of the court can apply with any force to the subject before us. By ejectment, the party may be turned out of possession, and his only relief would be to enforce a specific performance in a court of equity. It may very properly be said under such circumstances, that part performance is not available at law, but in equity.

In Pennsylvania however, where they have no separate chancery court, possession held under a parol agreement, is a good defence in ejectment. 2 Serg. & Rawle, 354 . In Kidder vs. Hunt, 1 Pick. 328 , the principle decided is, “that part performance of a parol agreement relating to an interest ⁹⁵ in land, does not take the contract out of the statute of frauds, so as to sustain an action at law for damages, for the breach of the contract. But assumpsit will lie for the expenses incurred in such part performance.” Reference has been made to other authorities on this branch of the case, but they relate to bills filed to enforce specific performance of unexecuted portions of verbal agreements. These cases do not present directly the question involved in this issue.

There is no effort here to set up, either as the foundation of a suit, or by way of defence, an equitable title to land claimed under an unwritten contract, by virtue of having received the possession. Nor does the appellee seek to recover personal property under such a contract, which was not delivered to him. But he simply claims the right to hold certain negroes received by him under the agreement already mentioned. And the evidence to prove the agreement and delivery, are the declarations of the party under whom the appellant claims.

A contract void under the statute, cannot be established by subsequent parol admissions only, as to its having been made; but such admissions will be received as evidence, if they acknowledge, not only the existence of the agreement, but also that it has been in part executed. See Dugan et. al., vs. Gittings, et. al., 3 Gill, 156 ; and Hall vs. Hall, 1 Gill, 388 and ’9. The action of replevin in this State, requires the plaintiff to prove his title to the property, and also his right of possession at the time the'writ issues. Possession of personal property is prima facie evidence of a right of possession.

When that right is assailed by evidence of title in the plaintiff’s testator, his declarations, (adverse to his interest,) as a general rule, must have an important bearing upon the issue. Looking to the first exception, (and this we are confined to at present,) it appears that R. W. Bowie said, “that he had placed the negroes in controversy on the Nottingham farm, on which the defendant then resided, in part performance of an agreement entered into by him and John T. Stoddart, in reference to the marriage of the defendant with Miss Stoddart, (daughter of the. said John T. Stod ⁹⁶ dart,”) which statement was made after the marriage, and repeated in frequent conversations. These admissions show, that under an existing marriage contract the negroes were delivered. There is no restriction or qualification of the right of possession, by any condition to be performed, or by any limitation in regard to time., which time has expired; nor is there any reference to a failure to comply on the part of J. T. Stoddart.

Such an acknowledgment dispenses with the necessity of proving a written agreement. We will now proceed to consider the objection, that the defendant had no knowledge of the alleged contract, and therefore it constituted no inducement for the marriage. In support of this objection, we have been referred to Atherley on Marriage, 27 Law Lib., 82. 1 Bl. Ch.

R., 289, Ogden vs. Ogden. Atherley and Chancellor Bland, both, rely upon the same authority, which is Ayliffe vs. Tracy, 2 Peere Will., 65. The report of the case is very short, but it is distinctly stated, that the intended husband knew nothing of the letter which it seems was used in evidence. The authority of this case is somewhat questioned by Atherley, in note 1, on page 82, in consequence of a mistake, on the part of the lord chancellor, as to the facts.

According to this note the promise, if any existed, was actually made by the father of the lady to his intended son-in-law, and the letter spoken of was written to the daughter, informing her of what had transpired. Among other grounds for dismissing the bill, the lord chancellor said: “That the plaintiff did not know of the letter, and therefore could not be supposed to have married in confidance of it.” In Ogden vs. Ogden, Chancellor Bland decided, that the letter in that case formed no inducement for the marriage, because it was written after the engagement took place. These cases go no farther than to establish the position, that where the party is shewn to be ignorant of the agreement, it is no part of the consideration. Here we have no direct or positive proof, as to whether the appellee had or had not, a knowlédge of the contract prior to the marriage.

But assuming that such knowledge must be shewn to exist, ⁹⁷ positive proof need not be given. It may be inferred from circumstances. To make a valid parol gift of negroes, there must be a delivery. In Isaac vs. Williams, 3 Gill, 278 , the Court of Appeals say: “The defendant had offered evidence from which the jury might find a gift of the negroes to the plaintiff’s wife, and on the hypothesis of the existence of such a gift, to make it valid by a true construction of the act of Assembly, the jury must have found that there was an express delivery of the negroes, and the transfer of the use and possession of the negroes from the defendant to the plaintiff.

But evidence of a witness who saw the delivery was not necessary. The delivery, like other facts, may be proved by inferential testimony.” When two persons are thinking of a matrimonial alliance, and there is no objection to its consummation manifested by the friends of either; but on the contrary the parents enter into an arrangement to provide ample means for their support; nothing can be more natural, than for the father of the intended husband to inform his son of that which is so well calculated to promote and accomplish his wishes. And if in the entire absence of all proof, of any other means of providing for the maintenance of a family, than those which are to come from the parents, the marriage takes place, and the property contemplated in the arrangement, or a considerable portion of it, is actually found in the possession of the husband, and acknowledged by his father to have been placed there by him under the agreement, a rational mind, in the absence of any proof to the contrary, might infer, that the son had a knowledge of the agreement, and that without going into the field of wild and speculative