Orange County NcArchives Court.....Clendenin & MacDaniel, Rebeccah Patton V. 1819
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 11, 2009, 6:04 pm

Source: Nc Reports
Written: 1819

Rebeccah Patton, by her Guardian John Patton v. Joseph Clendenin and John 
MacDaniel

From Orange

May Term 1819

A. devised four hundred acres of land to his son William, and added to the 
devise,"I allow my son William to maintain my wife as long as she lives." 
William sold the land to Defendants; and the widow filed her bill, charging 
that at the time of their purchase, they had notice of the devise, and that it 
was agreed between them and William, that they should maintain her during 
life, and therefore the land was sold to them at a price much below its true 
value. The bill prayed that Defendants might be decreed to afford to 
Complainant, a maintenance, &c.

A motion to dismiss the bill disallowed; and in considering this motion, it is 
not necessary to decide whether the devise to William charges the lands with 
the maintenance of the widow; for the bill charges that upon the sale to the 
Defendants, a support for complainant was left in their hands, being deducted 
from the value of the lands for that purpose.

A consideration is necessary to raise an Equity, but not to transfer it; and 
when once raised, it is to be transferred like all other rights, upon legal 
evidence of the will of the owner to make the transfer.

The bill charged that John Patton being seized and possessed of a valuable 
real and personal estate, departed this life in 1799, having previously 
published in writing his last will, duly executed to pass his lands; which 
will, after his death, was admitted to probate in Orange County Court. That in 
and by the said will, he devised "to his son William four hundred acres of 
land, including the plantation whereon I (the testator) now live, likewise I 
allow my son William to maintain my wife as long as she lives." That 
complainant was the widow of the testator, who some time after his death 
became of nonsane mind, and John Patton was appointed her guardian; that 
William Patton, the devisee, took possession of the land devised to him, and 
in 1802, sold and conveyed the said land to the Defendants Joseph Clendenin 
and John MacDaniel.

The bill then charged, that by the terms of the devise to William Patton, the 
maintenance of the Complainant was charged upon the land devised; that the 
defendants had notice of this charge upon the land before they purchased from 
William Patton, and that it was expressly understood between them and him, 
that they were to take upon themselves the burthen of supporting the 
complainant during her life; and that in consequence of this understanding, 
the land was sold to them at a price much below its real value. That at the 
time of their purchase she was living on the land; that they or one of them 
placed her in the care of one John Brigham, giving to him one hundred dollars 
for her use, and taking from him a bond conditioned for the maintenance of 
complainant; that this fund had been exhausted and Brigham neglected to give 
her a maintenance; that her guardian, John Patton, had applied to the 
Defendants to advance money, or provide for her such a maintenance as she was 
entitled to, and they had refused. The bill prayed that an account might be 
taken of her maintenance, and the Defendants be decreed to pay such sum as 
might be found due on such account, and be further decreed to pay for her 
annual support thereafter such sum as the Court might think reasonable.

Upon hearing the hearing of this case, it seems to have been the object of the 
counsel, on both sides, to place the decision on the question, "whether the 
devise to William Patton charged the maintenance of the complainant upon the 
land;" and an attempt was made to get this question decided upon a motion to 
dismiss the bill. This motion was referred to this Court, and the bill and a 
copy of John Patton's will, with the motion to dismiss, formed the case. This 
Court disallowed the motion, without deciding the question arising under the 
will, saying that the agreement charged in the bill, between William Patton 
and the Defendants, raised an Equity in favor of the Complainant.

Henderson, Judge: The motion to dismiss, should not prevail; because the bill 
states, that upon the sale to defendants, a support for the Complainant was 
left in their hands, being deducted from the value of the land for that 
purpose. It is therefore a trust fund raised upon a valuable consideration for 
the benefit of complainant, who stands not as a mere volunteer, but one having 
a claim upon the devisee for support. Not that we believe a consideration 
necessary in the transfer of an Equity, but only necessary in the transfer of 
an Equity, but only necessary to raise an Equity; and when once raised, to be 
transferred like all other rights, upon legal evidence of the will of the 
owner to make the transfer. It is therefore necessary to decide the question, 
whether the devise of the Complainant's maintenance was a charge upon the land.

Cited: Love v. Belk, 36 N.C. 173; Davis v. Hill, 75 N.C. 229; Chasteen v. 
Martin, 84 N.C. 395; Thurber v. LaRoque, 105 N.C. 306; Dover v. Rhea, 108 N.C. 
92.

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