Lenoir County NcArchives Court.....Fordham, V. Miller's Administrators 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:14 pm

Source: Nc Court Reports, Vol 11, 1826
Written: 1825

December Term 1825

FORDHAM v. MILLER'S ADMINISTRATORS. 

From Lenoir.

A father, by deed, gave a negro to his daughter, and provided in it, that if 
she should die without children the slave should return to his family. The 
deed was put into the father's possession to be recorded, and afterwards, 
before it was recorded, the daughter, by parol, relinquished all claim under 
the deed, and exonerated her father from all obligation to have it registered, 
and authorized him to destroy it. She afterwards married and died. Her husband 
filed this bill to set up the conveyance: Held, that after the daughter's 
voluntary renunciation, she would not have been entitled to the aid of the 
Court to set up the conveyance: and that the husband, succeeding to her 
rights, could claim nothing more than she could. Independent of this 
objection, whether the Court would set up this conveyance for the husband's 
benefit, thus giving it a different operation from what the parties intended, 
quere?

The bill alleged that Philip Miller, the defendant's intestate, some years 
before the filing of this bill, partly in consideration of value, and partly 
of natural love and affection, conveyed, by an instrument of writing under his 
hand and seal, a negro woman slave Judith, and a negro boy slave Essex, to his 
daughter Nancy Miller: that in pursuance of the conveyance, Nancy took 
possession of the slaves and kept them for many years notoriously as her 
property, with the consent of Philip Miller; that Philip Miller afterwards 
prevailed on Nancy to put the writing into his possession for the purpose of 
carrying it to Court and acknowledging it for registration, but that he never 
did carry or acknowledge it in Court, nor returned it to his daughter, but 
fraudulently kept or destroyed it; that afterwards Nancy Miller intermarried 
with Fordham, (220) the complainant, she then living at the house of her 
brother William Miller, and having in her possession Esex and Judith with her 
increase; that Essex came immediately into the possession of Fordham, and 
Judith and her children were permitted to remain a short time after the 
marriage at the house of William, until Philip Miller took them into his 
possession and claimed them as his; that Nancy, wife of the complainant, was 
dead, and that her husband was her administrator, and as such had demanded the 
woman Judith and her increase, and had also applied for the instrument of 
conveyance, but that Philip Miller peremptorily refused to give up the negroes 
or instrument.

The answer of Philip Miller stated, that Nancy Miller, having attained the age 
of 32 years without marrying, and with no particular prospect of marriage in 
view, requested the defendant's intestate Philip Miller to make some provision 
for her in such way that she should have a maintenance for her life, and that 
in case of her marrying and leaving issue, the property then settled should go 
to her children; but in case she did not marry or leave issue, then that the 
property should return to the family of Philip Miller; that deeming the 
request reasonable, Philip Miller made and subscribed an unsealed paper 
writing, the purport of which was, that Nancy should have Essex and Judith and 
her increase during the natural life of Nancy, and then the property to be 
disposed of according to the contingencies mentioned above; that this paper 
was witnessed and delivered to the witness with a distinct understanding 
between all parties concerned that it was only made to secure the provision 
for Nancy in the event of her father's suddenly dying without a will, but that 
it should be subject to any alteration he might think proper to make by will; 
that the only consideration was the affection which he felt for his daughter, 
nor was any consideration of any kind mentioned in the paper. Some time 
afterwards, in a conversation between Philip Miller, Nancy, and (221) her 
brother William Miller, it was suggested, that to prevent accidents from 
death, it would be well to have the paper recorded, and it was delivered to 
Philip Miller for that purpose. It happened, however, that he did not attend 
the next term of the Court which occurred, and before another term occurred, 
Nancy went to the house of Philip Miller, and told him, that as it was not 
recorded, it might as well be let alone altogether; that she was willing her 
father should take back the right; and that what she was to have, Philip 
Miller might give her by his will; and this being acceded to, no farther care 
Was taken of the paper, which is now lost or mislaid.

Taylor, Chief Justice.—The allegations in the bill, as to the deed of gift of 
the female slave, are sufficiently made out by proof, and there seems to be 
little doubt of the deed of gift having been placed in the hands of Miller for 
the purpose of being registered. But the objection made to setting up the deed 
is, that, after the defendant had it in his possession, his daughter agreed to 
waive all claim under it, and trusted to her father making a provision for her 
by his will. Her declarations to this effect were frequent a very few days 
before her marriage, and in point of fact it is established. This seems to be 
one of the cases where a written agreement may be so far waived by parol, that 
it may be a defence to a bill for a specific execution; for it was here an 
entire abandonment and dissolution of all claim by virtue of the deed, and 
restoring the parties to the situation they were in before it was made. But it 
may well be questioned, whether, if this were not a solid ground of defence, 
this Court would feel justified in setting up the agreement so as to give it, 
a different operation from what the parties intended. That was, that if the 
daughter died without children, the slave should return to the family. The 
husband made no settlement, and was apprised of the circumstances of his wife 
before (222) marriage; his equity is at best doubtful. The bill must be 
dismissed.

Hall, Judge.—This is a bill brought by the surviving husband, who has taken 
out letters of administration on the estate of his deceased wife, for negro 
Judith and her increase, which he alleges belonged to her. If she had any 
title to the property in question, she derived it from the deed which it is 
admitted by both parties the defendant her father executed to her, and which 
it is also admitted was returned to the father for the purpose of being 
registered. If the matter rested here, although the father may have mislaid or 
destroyed the deed, the rights of the daughter would not be impaired, provided 
the contents of the deed could be established. But the evidence shows that 
afterwards, before the marriage of the daughter with the complainant, she 
released her father from any obligations which he was under to have the deed 
registered, and restored to him all right which he had to the negro before it 
was executed, hy authorizing him to destroy it, and saying, if she lived and 
should have children, she had rather rely on the provision which he should 
make for her by will. If she herself was living, she could not claim the 
interposition of this Court, to set up this deed against her own voluntary 
consent given for its destruction, when she was a free agent, and where it 
does not appear that any fraud was practised upon her to procure that consent. 
As the complainant cannot be in a better situation than she would be if living 
and single, as to the property in question, I concur in the opinion that the 
bill should be dismissed.

Henderson, Judge, concurring also,

Bill dismissed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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