57 Ala. 459 | Ala. | 1876
“Rec’d — Vernon, Miss., Nov. 24, ’60 — of my father, John A. Goodson, a negro girl, named Lavinia, valued at ($1,007) one thousand and seven dollars, which amount is-to be deducted out of my distributive-share of father’s estate, when divided. Mary Hood.
“Attest: T. O. Sampson, Justice of the Peace.”
The proof shows that Mrs. Hood signed this receipt; and being found among the papers of the deceased, if binding, and if the transaction remains unexplained, it amounts to conclusive proof that the slave, Lavinia, was received by Mrs. Hood as an advancement. The paper, on its face, is more than a receipt; it is a contract to account.
W. F. Goodson, son of intestate, testified that he delivered the slave to Mrs. Hood; that the slave was not received by his sister as a gift or advancement, because she was dissatisfied with the terms of the title executed by her father,, and which title accompanied the slave. Witness then left the slave with his sister, and agreed that a title should be drawn and sent to her, containing other and different stipulations, then agreed on. Witness testified that he took the-receipt, copied above, upon an express agreement and condition that he was not to deliver it to his father until such corrected title was executed and forwarded. He stated further that he delivered the receipt to his father, and that - no corrected title was ever made. No excuse or explanation is offered why the receipt was delivered, without requiring the performance of the condition, on which alone, he testified, he was authorized to make the delivery. There is much proof in the record, tending to show that the intestate never regarded the slave as having become the property of Mrs. Hood.
If the testimony of W. F. Goodson be true, the receipt was not lawfully delivered to his father, and it could not become a binding contract. It was signed and delivered only as an escrow; and the condition not having been performed, it could not be delivered so as to bind her. — See 1 Brick. Dig-308, §§ 31, 32, 34.
This receipt, or contract, was executed by a married woman, without the concurrence of her husband. All the testimony bearing on the question shows it was signed in Mississippi, and that Mrs. Hood then resided there. The validity of the paper, as a binding contract, depends on the law of that State. There is no proof before us, and there was none before the Probate Court, showing what was the law of Mississippi bearing on that subject. In such case, we are. bound to presume the common law prevailed there. — 1 Brick. Dig. 349, § 9.
Under the rules of the common law, such contract made by a married woman is void, and imposes no obligation, as a contract, on her.—Alexander v. Saulsbury, 37 Ala. 375. It could only amount to proof of an admission, made by her, that she had received such property. Such admission is not conclusive, but is, at most, only evidence to be weighed. Any other legal evidence, contradictory or otherwise, should have been received, bearing on the question of advancement. vel non.
The third charge given, while it did not take the same view of the receipt which we have expressed, was too favorable to appellant, and could not possibly have worked any injury to him.
There was no error in the second charge given.
Judgment affirmed.