Dunn v. . Tharp

39 N.C. 7

• Court: Supreme Court of North Carolina
• Decided: December 5, 1845
• Status: Published

Opinion

Gaston, J.

The specific execution of marriage articles, and the reformation of settlements executed after marriage, because of their not conforming to articles entered into before marriage,- are among the ordinary subjects'of equity jurisdiction. Parol agreements in consideration of marriage are within the statute of 29th Charles 2nd, and, therefore, in the English Courts, they are not executed, nor do they constitute a ground for correcting settlements actually made. But for that statute, such agreements, clearly established, would have the same claims to be enforced, as if they h,ad been manifested by writing. The reason of this provision in the statute was to prevent those unguarded expressions of gallantry and improvident promises thoughtlessly made, or artfully procured during courtship, being perverted into deliberate and solemn engagements, conferring a right to compel performance. When the alleged agreement in this case was made, we had no statute denying efficacy to it, unless reducedto writing. The only difference, therefore, which We can regard as existing between such an agreement by parol, and one in writing, is a difference in the degree of proof necessary to establish it. As an agreement, peculiarly liable to misapprehension and misrepresentation, it calls for the greatest caution in the consideration of the evidence, by which it is sought to be made out. In the present case, the extrinsic proofs are as full, clear, and satisfactory, as could have been desired,, and the instrument itself furnishes no slight testimony of the alleged mistake, for, after conveying to the trustees seven negroes, by name, it proceeds to declare the trusts with respect tó “ the nine negroes aforesaid.”

There is no contest here with cj-editors or purchasers, but it is one wholly between the widow and the administrator of the deceased.

The Court is of opinion, that she is entitled to have the mistake in the settlement corrected, as prayed for in her bill.

Per Curiam.

Decree accordingly.