Opinion · Supreme Court of North Carolina

Morisey v. . Bunting

Morisey v. . Bunting, 12 N.C. 3 (N.C. 1826)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1826-12-05
Topic: general

Ham Judge, delivered the opinion of the Court. — - The Judge charged the Jury in this case, “That as no consideration passes from the donee to the'donor, the law requires every parol gift to be a sedate, deliberate act, and therefore incautious expressions, or expressions used in a state of inebriety, would not be sufficient.” It is objected that the charge is incorrect, that a gift is good, if the person making it, had the use of his understanding, and was in earnest when he made it j although he did it without sedateness or deliberation, and was, at the time, in a state of intoxication. I understand the Judge, and the Counsel, both to mean, that every gift, in order to be valid, must have the free assent of the donor to it. The Judge considered deliberation and sedateness as evidence of that assent, but that incautious expressions, coming from a drunken man, were not. He did not say, that more deliberation was necessary in making a gift, than a sale; if he meant that, I do not coincide with him in opinion. The free assent of the party is as indispensable in the one case, as in the other.

Citator

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Cited by: 2 opinions

MORISEYv. BUNTING,12 N.C. 3(1826)

WILLIAM MORISEY and Wife v. DAVID BUNTING, Sr.

Supreme Court of North Carolina

December Term, 1826.

From Sampson.

1. In a parol gift, deliberation and sedateness on the part of the donor is only evidence of theanimus disponendi.

2. It seems that ifnon detinetand thestatute of limitationsare both pleaded, and the jury find "all the issues in favor of the defendant, " this Court will not examine the correctness of the charge on the latter plea.

3. When B said he had given negro C to A:Held, that the will of B of that date is admissible to explain his declarations.

DETINUE for negro slaves; pleasnon detinet, statute of limitations. On the trial, beforeNorwood, Judge, the plaintiffs claimed title by a parol gift made in 1802, from the defendant to the plaintiff, Ann, his daughter, and offered evidence of such gift. The witness who testified thereto stated that defendant said he would keep the slave till Ann married, or during his life, and that at this time the defendant had been drinking until he felt it, though not drunk. The plaintiff then proved by aPage 3witness that the defendant in 1812 said he had given the slave to his daughter Ann, upon which the defendant called another witness present when this declaration was made, who proved that afterwards, on the same day, the defendant said he had made a will, and defendant's counsel offered to give in evidence the will referred to, by which the negro was given to Ann. This evidence was opposed, but was received by the judge, not as direct evidence as to the title, but as a matter proper to be considered by the jury, together with the declaration of the defendant that he hadgiventhe negro, in order to ascertain his meaning in that expression. It was further in evidence that the slaves in question remained in the keeping and under the control of the defendant after the gift, up to the time of Ann's intermarriage with the other plaintiff, and that more than three years had elapsed after she came of full age, before the marriage and the commencement of this suit. And it also appeared that Ann, being an infant of tender years (4) residing with her father at the time of the alleged gift, continued to reside with him until her marriage, shortly after which suit was commenced. On this evidence, two questions were made: whether a gift had been proved, and, if so, whether the action was barred by the statute. On the latter point the plaintiff's counsel insisted that the defendant was a trustee for Ann, and therefore his possession could not be set up, by him, against her claim. The judge instructed the jury that, supposing the gift made, the defendant was in possession as thebailee, and not thetrusteeof Ann, and therefore not within the rule referred to by the plaintiff's counsel, which was confined to pure trusts, cognizable in a court of equity, and was not applicable to bailees in a court of law. That to bar the plaintiff, a possession adverse, and continued for three years after she came of full age, must be shown, and that the possession taken by the defendant under the void reservation of a life estate to himself would be consistent with the title of Ann, until the defendant did some act or made some declaration which changed the nature of his possession; that if he claimed the property as his own and treated it as such, this would render his possession adverse, whether she had expressed knowledge of the fact or not. Upon the evidence relating to the gift, the judge instructed the jury that as no consideration, in cases of gift, passes from the donee to the donor, the law requires every parol gift to be a sedate, deliberate act, and therefore incautious expressions, or expressions used when the speaker was in a state of inebriety, would not be sufficient.Page 4

The jury found "all the issues in favor of the defendant." A new trial was moved for, on the ground of misdirection and the admission of improper evidence, which being refused, and judgment given upon the verdict, the plaintiff appealed.

(5)Badger for the plaintiff.Gaston for the defendant

HALL, J.

The judge charged the jury in this case, "That as no consideration passes from the donee to the donor, the law requires every parol gift to be a sedate, deliberate act, and therefore incautious expressions, or expressions used in a state of inebriety, would not be sufficient."

It is objected that the charge is incorrect; that a gift is good if the person making it had the use of his understanding and was in earnest when he made it, although he did it without sedateness or deliberation, and was, at the time, in a state of intoxication.

I understand the judge, and the counsel, both to mean that every gift, in order to be valid, must have the free assent of the donor to it. The judge considered deliberation and sedateness as evidence of that assent, but that incautious expressions, coming from a drunken man, were not. He did not say that more deliberation was necessary in making a gift than a sale; if he meant that, I do not coincide with him in opinion. The free assent of the party is as indispensable in the one case as in the other. I am inclined to believe that the jury were not misled by the judge's charge in that respect.

As the jury have found for the defendant, on the plea ofnon detinet, it seems to be useless to say anything relative to the charge as to the statute of limitations. I will not observe, assuming it as a fact that the defendant was a trustee, (7) that nothing emanating from him would change that character, and put the statute of limitations into operation in his favor.

It appears that defendant had given negro Cloe to his daughter Ann, by his will, but had not given her all Cloe's children which she had after the alleged gift; andthat, after the date of the will, he made declarations that he had given Cloe to his daughter Ann. The defendant introduced the will, although objected to by the plaintiff, to explain to the jury what was meant by those declarations, namely, that he meant he had given her by his will. I can see no objection to this evidence; and from the view which I have taken of the whole case, I think the rule for a new trial should be discharged.Page 5