Opinion
(August Term, 1854.)
1. Whether a court of equity will reform a deed of gift of a slave so as to give a feme covert a separate property therein, upon the ground that the draughtsman mistook his instructions, such instructions not being in writing — Quere?
2. But certainly it will not do so unless the mistake is admitted in the answer or established by clear and convincing proof.
CAUSE removed from the Court of Equity of CALDWELL, Spring Term, 1854.
Gaither, for plaintiffs.
Avery, for defendants.
The bill alleges that the negro woman in question was the property of Thomas Jones, the plaintiff, who put her into the possession of his daughter, Mrs. Gill, and her husband; that afterwards, the husband having become embarrassed in his circumstances, Jones, the father of Mrs. Gill, applied to a highly respectable practicing attorney and directed him to draw up an instrument to secure the property to the wife, Mrs. Gill, for life with a remainder to her children, in such a manner that her husband could not control it or his creditors reach it for his liabilities; that in pursuance of these instructions the said attorney prepared for him and he executed the following instrument:
"Know all men by these presents, that I, Thomas Jones, of the county of Caldwell and State of North Carolina, for and in consideration of my natural love and affection for my daughter, Elizabeth Dogan Gill, wife of William L. Gill, do give, grant, bargain and sell to her, my said daughter, and her heirs forever, one negro girl, Louisa, about (338) ten years old, valued about three hundred and seventy-five dollars, to be my said daughter's own right and property during her life, and at her death, the said Louisa and her increase to belong to the heirs of my said daughter, Elizabeth Gill, as their own right and property, subject to their own use and control, to be disposed according to their own free will and pleasure. In witness my hand and seal, 6 November, 1845."
The plaintiffs, who are the said Thomas Jones and his daughter, Mrs. E. D. Gill, and her children, insist that by a proper construction of this instrument a sole and separate use in the said property is raised to the wife with a remainder to her children; but if the Court should be of opinion that such is not the proper meaning, they pray that the Court may order and allow that the same may be reformed so as to effectuate the intention of the parties. They allege that the defendants, who are judgment creditors, are about to have the property sold under execution for the satisfaction of their debts, and they further pray for an injunction and general relief.
The defendants answered, except William L. Gill, as to whom there was judgment pro confesso. Replication, commissions and proofs, and being set down for hearing, the cause was transmitted to this Court.
There was no written agreement between the parties or written instructions to the attorney who drafted the conveyance by which the alleged mistake can be shown.
Assuming that a court of equity has jurisdiction to reform a deed without some written evidence, it will certainly not do so unless the mistake is admitted by the answer or is established by clear and convincing proof, especially in cases where the conveyance is required by statute to be in writing.
For, although under this rule some few cases of apparent hardship may occur which the Court cannot relieve, it is better that it should be so than produce a general inconvenience and insecurity in (339) the enjoyment of rights by permitting a deed under which property has been held for many years to be upset and the property transferred to others upon mere parol testimony which is not of the character above indicated.
The plaintiffs have failed to establish the two most important allegations of their bill, i. e., that the attorney who drafted the deed was instructed, at the time he was employed, "to write it so as to secure the negro for the separate use of the wife, in such manner that the husband could not control it or his creditors reach it for his liabilities, with remainder to the children of the wife." The proof is that the attorney was instructed by the plaintiff Jones to draw "a deed of gift to his daughter and her children."
The other allegation, which the proof does not establish, is that Jones had reason to fear that his son-in-law Gill "was in doubtful circumstances and not doing well." The weight of the evidence leads us to the conclusion that in 1845, when the deed of gift was executed, Gill was in good credit and doing a prosperous business and that his circumstances did not become doubtful until some time in the year 1849.
The bill must be dismissed with costs as to the defendants Perkins and Avery.
PER CURIAM. Decree accordingly.
Cited: Kornegay v. Everett, 99 N.C. 34; Pollock v. Warwick, 104 N.C. 641.