Washburn v. . Washburn.

39 N.C. 306 | N.C. | 1846

This case was formerly before this Court upon an interlocutory order made in the Court of Equity of Cleveland County. Upon that occasion, it was declared that, from the bill and the answers, the Court could not say, that Abraham Washburn, one of the defendants, was not a party to the (307) compromise, set out in the bill, and decreed that the injunction previously granted, should be continued until the final hearing. Upon being certified of this opinion, the parties proceeded to take the necessary steps in the Court below, to prepare the cause for a decision. Replication was taken to the answer, and the testimony and exhibits filed, and the cause is now here for hearing. The facts are shortly these: Gabriel Washburn died in 1825, and the plaintiffs and defendants are his next of kin or their proper representatives, and who, together with his widow, were entitled to his personal estate. At the February term, 1826, of Rutherford County Court, the defendant offered for probate, a paper purporting to be the last will and testament of Gabriel Washburn. This paper was admitted to probate in common form and the defendants were qualified as executors thereof, being, with their mother Priscilla Washburn, the widow, appointed to execute the same, at the succeeding July term of the County Court of Rutherford. The plaintiffs filed a petition to set aside the probate, and the Court ordered an issue to be made, to try the validity of the will. The issue continued untried until July term, 1827, when the following entries appear upon the records: "Gilbert Harrell, in right of his wife, against Abraham Washburn and Josiah Washburn, executors, etc. Will caveated, devisavit vel non, compromised. Terms filed." And an instrument was filed in the following terms: "North Carolina, Court of Pleas and Quarter Sessions, July term, 1827. Gilbert Harrell v. Abraham Washburn and Josiah Washburn, executors of G. Washburn, deceased. Petition to set aside a will. This suit is compromised on the following terms — Priscilla Washburn is to remain in possession of the whole estate, both real and personal, during her life, and at her death the land is to be divided between Abraham and Josiah Washburn, and all the personal property to be equally divided between the balance of the heirs of Gabriel Washburn, deceased. The costs of this (308) suit to be paid out of the personal estate." Signed by Gilbert Harrell and Josiah Washburn. Priscilla Washburn, the widow, at the March term, 1828, of Rutherford County Court, was appointed administratrix of her deceased husband, and Abraham Washburn, Josiah Washburn, John Harrell and Martin S. Elliott were his sureties. Soon after this compromise, the defendants divided between themselves the land belonging to the estate, and one of them took a portion of the negroes into his possession with the consent of the widow, who died in 1839 — upon which event the defendants possessed themselves of the rest of the negroes in dispute, and again propounded for probate the script, the subject of the previous compromise. What has become of this second attempt to prove that paper nowhere appears.

The defendants deny that the first probate was ever set aside, and admit, that a petition for that purpose was filed by the plaintiffs, in the proper court, and that during its pending, the compromise set forth in the bill was made, but deny that any person was bound by it, but the immediate parties who signed it, to wit, Gilbert Harrell and his wife and Josiah Washburn. The latter admits he signed it, but averred it was not to be binding on him, unless Abraham agreed to it and signed it also; neither of which he ever did. Abraham also denies that he was any party to it; but avers, that, as soon as he heard of it, he refused to become a party, or to accede to it; and that, in taking possession of the land and negroes, they were acting under the will of Gabriel Washburn, as devisees and legatees. The object of the bill is to set up and enforce the compromise set forth in it. There is no dispute as to the fact of the compromise, nor its terms. The only controversy is as to its effect. Josiah alleges, it never (309) bound him, because Abraham never acceded to it, and the latter denies he ever was a party to it. The same questions presented themselves, when the case was upon a former occasion, before us, and we then declared that the facts admitted by the answers were sufficient to continue the injunction previously granted to the hearing, and to put the parties to their proof. The testimony filed has not in any respect altered the view then taken of the equities of the parties. Josiah and Abraham Washburn, as two of the executors of the last will and testament of Gabriel Washburn and devisees under it, caused it to be proved in common form, without giving to the other parties interested any notice. A petition was filed by Gilbert Harrell and his wife, for the purpose of setting aside the probate. An issue of devisavit vel non was made up, to which the defendants were parties; and, during its pendency, the compromise now in dispute was effected, and entered upon the records of the court. This took place at July term, 1827, of Rutherford County Court, after which time there were no further proceedings in the case. In pursuance, however, it would appear, of the compromise, the widow at the March term following is, by the same court, appointed administratrix of her deceased husband, and the plaintiff Harrell and the defendant executed her bond as sureties for the faithful discharge of her duties. From March, 1825, until her death in 1833, she remained in undisturbed possession of the whole of the property, except so far as she permitted the defendants to take into their occupancy portions of it. No attempts were made by any of the next of kin, to disturb her, or to call her to account to obtain a distribution of what might be due and coming to them. Eleven years she enjoyed the property — in a manner perfectly consistent with the terms of the compromise, and her possession is acquiesced in by all the parties interested in the distribution of G. Washburn's estate. It is impossible to believe under (310) these circumstances, that the compromise was effected by Harrell and Josiah Washburn alone, and for their sole benefit; but it is evident it was so intended and so understood at the time, by all the parties, that it was made by them all. As to the allegations of the defendant Abraham, it is painful to remark upon them. He would have us believe, that a proceeding instituted by himself to establish the last will and testament of his father, in which he was deeply interested, had been stopped in its progress without his knowledge and consent — without eliciting from him any inquiries — any expression of discontent — or any effort, until eleven years thereafter, to cause the will to be proved. But more than this: immediately after the compromise, he not only acquiesces in the appointment of his mother as administratrix, but aids and assists her in her application, by burdening himself as one of her sureties, and signing the bond as such. In swearing to the answer filed by him, he has encountered a painful responsibility.

The defendants admit they took possession of the property as charged, but aver they did so in the character of devisees and legatees, and not under the compromise; and that the original probate never was set aside. The record sets out enough to satisfy us that the probate was called in; for it shows, that after the petition was filed and notice served on the defendants, an issue of devisavit vel non was ordered by the Court. But we are not left to deductions drawn from the fact admitted by the answers. The testimony in the cause fully sustains the charge in the bill, as to the compromise. Mrs. Langford testifies that she heard Abraham Washburn say, that he had agreed to the compromise. The testimony of this witness is assailed by several witnesses on behalf of the defendant, but her character is sustained by others as many in number, and is supported by the attendant circumstances. It is true, a court of equity will not decree against the positive averment of an answer, upon the testimony (311) of one witness, unless there are circumstances proved by other witnesses, which sustain it. Such is the case here. She is strongly corroborated by Major R. Alexander, a witness on behalf of the defendant; he is the surveyor who divided the land between the defendants, and states that the division was made after the compromise, and that he understood, from the defendants, that they were to take the land for their part of the estate of Gabriel Washburn. Another witness, Hosea Harrell, avers the same. We have, then, no hesitation in saying the compromise is established to our entire satisfaction. But it is said, if that be so, the Court can not grant to the plaintiffs the relief they seek against Abraham Washburn. The Act of 1819, Rev. St., Ch. 50, sec. 8, is relied on. The act provides, "that all contracts to sell any slave or slaves shall be void, unless such contract, or some memorandum thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person, by him thereto lawfully authorized, etc."

The objection is, that Josiah Washburn was not lawfully authorized by Abraham to act as his agent in making the contract; and, if he were such agent, he has not signed the name of Abraham Washburn, nor his own as such agent. The difficulty raised in this part of the case is, we think, answered by the Court, in Oliver v. Dix, 21 N.C. 165. It is there said — "the transaction was prior to the statute of frauds, and a contract of James, by parol, made by his agent, was good. But it would be equally so now, for the statute requires a writing, to be signed by the party to be charged therewith, or some other person, thereto by him lawfully authorized. Within the statute, the signature need not be that of the principal, nor in his name, but that of the agent is sufficient." We are of opinion, then, that the plaintiffs are entitled to the (312) relief they seek — that Josiah Washburn, in signing the contract of compromise, was the agent of his brother Abraham Washburn, and the latter is bound by it as well as Josiah. Although the appointment of Josiah as agent of his brother is not expressly proved, yet the repeated acts of Abraham, recognizing and adopting the terms of the compromise, and his long acquiescence under it, put it beyond his power successfully to deny it. 2 Kent Com., 613. As to the statute of limitations, we think it has no operation upon the rights of the plaintiffs. This is a bill for a specific performance of a contract — by the vendee against the vendors. As to diligence, it is obvious that the plaintiffs have been constantly urging their claims, either at law or in equity. It is a question of diligence.

PER CURIAM. DECREE FOR THE PLAINTIFF WITH COSTS.

Cited: Neaves v. Mining Co., 90 N.C. 475; Hargrove v. Adcock,111 N.C. 171.