Crass v. Tooker , 1 N.C. 162 ( 1793 )

CRAB's daughter being to be married to Tooker's son, it was agreed between them by indenture tripartite. viz. John Tooker, the father, John Tooker, the son, and Jane Crab, that John Tooker, the father, should find sufficient meat and drink to John Tooker, the son, and Jane his wife, and their children, during their lives, and that they should dwell with him in his own house: and it was provided, that if John, the father, and John, the son, and Jane, his wife, should dislike to live together, they should have such lands and cattle from the father, and should live elsewhere. John, the son, died, and Jane took another husband; afterwards she and John, the father, disagreed, and the record husband demanded the lands and cattle, and on refusal, brought an action of covenant. Taylor said, that the disagreement of the wife, after the death of John, the son, is a disagreement within the proviso.

The indenture is tripartite; therefore the disagreement of the wife cannot be in John, (the son’s) life time; for during the coverture, she cannot agree or disagree, and therefore it shall necessarily be intended afterwards. the first covenant, the father is to find meat and drink for the wife, after the death of his son; and this comes in lieu of it.

Contra. The disagreement ought to be by all jointly. If it had been a disagreement between use father and the son, it would not have been a disagreement within the covenant.

But all agreed, that the wife should have for herself and the son of John, meat and drink for life, and judgment was given accordingly by the court.

It was said by the court, that the power of disagreeing does not survive, any more than a devise that the feoffees shall sell, and one of them dies; as Bray's case in Dyer. Covenant that the son shall marry such a person, as A. B. and C. shall appoint, and A. dies; it is a joint act. 5 Rep. Brudnel’s case. Noy 86, Bendl. 186. Poph, 204.