The plaintiff was engaged in the service of the defendant E. D. Austin for the year 1850, living in his family, during which time an intimacy sprang up between him and Caroline Gillespie, a widow lady, the daughter of Colonel Austin, aged about 22 years, which resulted in an engagement to marry. This she made known to her father, but it was violently opposed by him. At first she concurred, or affected to concur, with the wishes of her father, and informed him that she had discarded the plaintiff, and that he would leave the country. On 1 March, 1851, however, she informed her father that she had determined to marry the plaintiff without his consent, and that the marriage was to take place in three days thereafter. He then called her attention to an agreement which had been made between them long before any marriage was in contemplation, which was, that if she ever married again, she would convey to her infant son, the defendant Lueco M. Gillespie, all her interest in the tract of land which her late husband had willed as a support for her and their child during her life; also a certain negro named Mary and certain articles of furniture, consisting of a bed and furniture, a bedstead, bureau and washstand, which said agreement was founded on the following consideration: It turned out that the property left by her former husband for that purpose had proved insufficient to pay (259) the debts of the estate, and one of the slaves bequeathed specifically to his wife and child would have to be sold to make up the deficiency. A negro man bequeathed to her infant son had no wife, and it was agreed between Mrs. Gillespie and her father that he should be taken, instead of falling on one of the two in which she had a life estate who had wives in the neighborhood; and as an equivalent therefor, conveyances should be made to secure the property above mentioned, to wit, her interest in the land, the girl Mary, and the furniture, to her said *Page 210 son Lueco, and the slave of Lueco had accordingly been sold and the money applied in the payment of the debts. On this agreement and the facts connected with it being rehearsed to her, she made the conveyances accordingly. The defendant Austin says she did so willingly, and that when the one conveying the personal property was being prepared she insisted on putting in another slave named Vardry in which she had a life estate, which was done, and that she put in Vardry because she said Lueco's father ought to have given him to his son, and also insisted on putting in the articles of furniture above named, stating that she had bought them at the sale of her husband's estate for Lueco, and that she always intended to give them to him. He also says that she proposed to put in another slave, Linda, in whom she had a life estate, but he dissuaded her from doing so. The deed conveying her interest in the tract of land was made to E. D. Austin as the trustee and next friend of the said Lueco, and was dated 1 March, 1851; the other was made directly to her son Lueco, bearing the same date. On the next day after these deeds were executed, the father, Colonel Austin, started with his daughter to the State of Virginia, with a view, as he admits, to prevent the contemplated marriage from being solemnized. They proceeded to the house of a friend in the county of Davie, where they were detained by her indisposition, and during this delay the plaintiff came to that place and had an interview with the daughter. Colonel Austin then informed him of the existence of the deeds in question, notwithstanding (260) which they persisted in the purpose of marrying, which event took place on 11 March, 1851, at the house of the defendant Austin, to which they returned after the interview above spoken of. The notice of the deeds was given to the plaintiff on 4 March.
Asbury McDaniel, a witness to the deed, states in his deposition that Mrs. Gillespie was constrained to sign the instruments in question; that she was in tears when she did it, and said she would rather go to her grave than do so; that her father used no force or threats, but told her to sign. There was testimony going to show that McDaniel's character was bad, and that he was not worthy of credit on oath. There was other evidence as to the question of duress.
The girl Mary and the articles of furniture remained in the possession of the plaintiff and his wife from their marriage till her death, which took place in the fall of 1853. In January, 1854, Colonel Austin took possession of the negro girl Mary as the property of his grandson, Lueco M. Gillespie, and suit was brought in the name of John F. Foard, as next friend of the said Lueco, in the Superior Court of Rowan, for the value of the bed, bedstead, and other personal property, and a judgment obtained against plaintiff for the same. The bill was filed against Colonel Austin, the trustee, the defendant L. M. Gillespie, and J. F. *Page 211 Foard, his next friend in the suit at law, praying for an injunction to prevent the execution at law from being enforced, which was granted and was ordered to stand over and await the hearing in the cause. The further prayer is for the surrender of the two deeds as being a fraud upon the plaintiff's marital rights, and for the delivery of the girl Mary, and for an account of half the rents and profits of the tract of land given for the support of the said, Caroline, plaintiff's wife, and her son during her life. The plaintiff and Mrs. Gillespie had entered into an agreement to marry, and the day for its solemnization was fixed. Three days before the time fixed for the wedding her father induces her to convey all of her property, except the negro woman, in whom she had but a life estate, to the defendant Lueco M. Gillespie, her infant son, who was before sufficiently provided for by his father's will. After procuring this conveyance, the father still determined to prevent the marriage if he could. He starts off with her to Virginia. In Davie County, at the house of a relative, she becomes too much indisposed to proceed on the journey. The plaintiff goes there and has an interview, and learns from her the fact that she had been induced to execute the conveyance of her property to her son. Both the plaintiff and Mrs. Gillespie still insist that the marriage should take place. Whereupon she goes back home with her father, and the marriage is solemnized shortly thereafter.
1 Roper Husband and Wife, 164, upon an examination of the cases, comes to this conclusion: "It is presumed, therefore, that without the consent of the intended husband, the law will not permit any disposition of the wife's property to be made before the marriage then in contemplation, and that under no circumstances after a treaty of marriage has commenced will any such voluntary disposition of her property be binding on her subsequent husband. In the absence of other evidence of fraud, the time when the disposition or settlement was made must decide its validity, and attention to this circumstance will, as it is presumed, reconcile the principal cases. "This passage in Roper has been cited by this Court, with approbation, in several cases, but it was never before necessary to decide the precise point which is now presented — i.e., does notice of the conveyance made by the wife, imparted to the husband at any time before the marriage is solemnized, defeat his right to have the conveyance set aside? Or is it necessary, in order to bind him, that, after receiving notice, he should concur and give his consent thereto, which is usually done by his signature on the conveyance? *Page 212
(262) Spencer v. Spencer, 56 N.C. 404, after reciting the passage from Roper and making a reference to the other cases in which it is cited with approbation, is put on the ground that the notice is vague and indefinite. Taylor v. Rickman, 45 N.C. 278, where the husband actually signed the conveyance, is put on the ground of surprise because the paper was presented to him after the parties had met together for the purpose of being married.
The question depends on the time when the disposition or settlement is made, and the principle is this: if a woman, before she has a marriage incontemplation, gives away her property, the man who afterwards marries her has no ground of complaint on which he can stand before this Court, although he married expecting to get the property and without notice of the disposition previously made by her.
After the courtship has begun — that is, after the man has signified his intention to address the woman, and before the matter is concluded by her acceptance of the proposition — if she give away her property, and he has notice thereof and still proceeds in his courting, the disposition is binding upon him, although he did not concur and give his consent, because, at the time of his notice, he was not committed by a contract to marry, and his equity can only be put on the ground that he wasdeceived, which is repelled by the naked fact of notice, as in an action of deceit in the sale of a horse where it is proved that the vendee has notice of the defect before the trade was closed.
After the courtship or negotiation about and concerning the marriageis concluded, and the parties bind themselves by a contract to marry, neither can give away his or her property without the consent of the other, and the matter does not then rest upon a mere question of deceit which may be repelled by proof of notice, but involves a question of fraud on a right vested by force of a contract, for a breach of which an action will lie at law, although a court of equity will not enforce a specific performance for a reason growing out of its peculiar nature (263) — i. e., if the parties are unwilling, they cannot be forced to live together as man and wife should do; so a specific performance is impracticable, and the Court declines the jurisdiction on the same ground that it will not attempt to make parties proceed under a contract to carry on business as copartners in merchandise because, without mutual good-will and readiness on both sides, the object cannot be accomplished; still there is a valid contract embracing in its consequences the property of each of the parties, for, as is said in Roper, supra, 163,"the wife's fortune, in addition to his own, may be a weighty consideration and inducement for entering into the contract," and, of course, after the contract to marry in concluded she cannot convey her property without his concurrence; and if she does, the person taking it *Page 213 with notice will be converted into a trustee in order to prevent a fraud on the contract.
In our case, the father of Mrs. Gillespie, at whose instance the conveyance was made, and who was acting as the self-constituted prochienami of her infant son, had notice, and, indeed, procured her to make it for the express purpose of defeating the rights of the plaintiff vested by force of the contract to marry.
The ground mainly relied on by Mr. Boyden for the defendant, to wit, that the conveyance was for a valuable consideration, is not tenable for several reasons. We have seen that it was made with full notice of a preexisting contract and with the purpose of defeating it. In respect to the several articles of furniture brought by Mrs. Gillespie, her saying "that she intended to give them to her son" amounts to nothing and has no legal effect. In respect to the land and slaves, the alleged arrangement not being in writing was not valid or obligatory in law or equity, and, at most, the amount of it was that her specific legacy should abate ratably with that of her son, and she was to make good by fair contribution any abatement of his legacy caused by the sale of a slave given to him instead of one given to her — taking into consideration the fact the legacy to him was contingent upon the event of his (264) arriving at the age of 21, with a limitation over to her if he died under that age, and the legacy to her was for life, with a limitation over to the son if he arrived at full age. So that this understanding can in no sense be treated as a valuable consideration to support the absolute conveyance which she was induced to make to her son on the eve of her expected marriage, and it must be treated as mere security for any balance which, upon a final settlement of the estate, may appear to be due by reason of a necessity for an abatement of the specific legacies, taking into consideration the value of the legacy to her and the legacy to her son under the will of the testator.
There is still another view on which the ground taken by Mr. Boyden is not tenable. We are satisfied by the evidence that Mrs. Gillespie did not execute the conveyance voluntarily and of her own accord. She did so under moral, if not physical, duress, and consequently the conveyance is inoperative and of no effect. The testimony of the subscribing witness establishes the actual constraint; and if it be said he is a man of notoriously bad character, the reply is that "he was selected by the father," so he cannot object on account of bad character, for if so, there is no proof of the execution of the deed, and there is room for the imputation that such a witness was selected because the father did not choose to have a credible witness who could speak of the constraint and duress imposed on his daughter. If to this be added the fact that the conveyance was executed at the instance of a father by a daughter whose *Page 214 business he had charge of, who was living in his family and wholly dependent on him, and who having agreed to marry a man to whom her father had objections, was willing, in almost any way, to propitiate his favor, and the further fact that after all these concessions made by her and the deeds were signed according to his dictation, she is, on the next day — but two days before the day fixed on for her marriage — constrained by her father to start on a journey to Virginia, which purpose she defeated at the house of a relation by indisposition, either actual or (265) feigned, whereby her intended husband is enable to overtake them, clearly makes out a case of duress.
The plaintiff is entitled to a decree setting aside the conveyances as in fraud of his contract to marry, except so far as to give them effect as a security for any abatement which, in a settlement of the estate, it may appear her legacy was liable to in order to meet her ratable part of the debts of the testator, which, although not relied on in the bill as a distinct ground for relief, is relevant in reply to the allegation that the conveyance was for valuable consideration.
PER CURIAM. Decree accordingly.
Cited: Ferebee v. Pritchard, 112 N.C. 86; Brinkley v. Brinkley,128 N.C. 507, 509, 515; Brinkley v. Spruill, 130 N.C. 47.