Executors of Willingham v. Executors of Simons

1 S.C. Eq. 272

• Court: Court of Chancery of South Carolina
• Decided: June 15, 1792
• Status: Published

Opinion

On a full view of this case, there appears to us, hut a single point on which the decision of the case must ultimately rest: That is, whether, the last payment by Wil-lingham to Mrs. Simons, although illegal in the first instance, is by any subsequent act of colonel Simons, her husband, so far sanctioned, as to render it a good and valid payment. If it is to bo so considered, this determines all other points that have been brought into contest: ui ronu'tU-'u JACiuicr uiu uauiuiuit nwr ¿taa», üuhuiw uu-to him: Nor is there the least evidence, to shew the contrary. Nor is there any evidence offered to shew that Colonel Simons ever made any attempts to return the money to Willingham, and to insist on his right to the negroes, only that as the defendant says several years after he heard him once upbraid Willingham for the manner in which he had paid the money. From whence we must conclude, that there was such a consent and acquiescence on the part of Colonel Simons in the receipt of the money, as will be binding on him: Consequently the whole original contract has been fully completed on the part of Willingham. One thing however we would wish to be particularly attended to, which is, that we are decidedly of opinion the payment to Mrs. Simons was io ail intents illegal: — Nor can any payments to a wife, of mo ■ ney owing to the husband, ever he made legal but by some subsequent act, or some very strong presumptive consent of the husband, which is so in the present case. As to the bill of sale from Willingham to Simons, it ap - pears to be absolute, but when contrasted with other evidence, particularly the letter from Simons, which is subsequent to the bill of sale to Willingham, it is clearly shewn to have been intended as conditional. It is however made so by Simons himself, because he demands either the negroes or money: Then cither the delivery of the negroes or payment of the money would have been a satisfaction of the debt. The latter was what Willing-ham chose, and as we have already said must be taken as a satisfaction and full discharge of the original mu-ny that lhe money was paid over to Col. Simons her bus-band, but rather acquiesce in the charge that it was paid tract.

JUNE, 1792. v

lt is therefore decreed, That the heir at law of Col. Simons do forthwith execute titles to the person entitled to the same as representative of Willingham: That the hill of sale, by Willingham to Simons for the four negroes be delivered up to be cancelled, and the injunction be made perpetual, and the costs of this suit be paid out of the estate of the defendant’s testator.