Hart v. . Roper , 41 N.C. 349 ( 1849 )

James Roper died in 1833, leaving a will, which was admitted to probate at July Term, 1833, of the county court of Richmond. The testator left no children surviving him, but left a widow and two grandchildren, James C. Roper, one of the defendants, and Sarah, the wife of the other defendant. By the will the testator gave to his widow a negro girl named Lucy, and some other personal property, "to her and her heirs forever, and "lent to her for and during her natural life and widowhood" a tract of land and two negro men, Robert and Elias, and some personal property. The rest of the estate, both real and personal, was given to his two grandchildren.

(350) At the said term of the county court the widow entered her dissent; and the jury, appointed according to the provisions of the act of assembly, allotted to her, in addition to the property willed, to make up her share of the personal estate, the absolute estate in the negroes Robert and Elias; also a negro girl Nancy and two or three other small negroes, besides other personal property. This report was confirmed, and the widow accordingly took the negroes into her possession and retained them until her marriage, with the exception of Robert, whom she sold.

In November, 1847, the plaintiff married the widow. In January, 1849, she died, leaving the plaintiff in possession of the land, which had been assigned to her as dower, and the negroes and other personal property.

The bill then alleges that the plaintiff is illiterate, not able to read, ignorant of law and legal proceedings; that "he was entirely ignorant of the rights which he had acquired by his marriage, and also of the rights which his wife had acquired by her dissent, and of the extent of the interest and title which she had acquired to said property, and to which he had succeeded by his marriage; that a few days after the death of his wife the defendants claimed, or pretended to claim, under the will of James Roper, an interest in all the estate and property of his wife at the time of his marriage"; and, particularly, that they were entitled to two negroes, Elias and Robert, and the rent of the land for 1848 and 1849, and insisted that the plaintiff should surrender the two negroes and pay rent for the dower land; and finally, "your orator, being ignorant of his rights, did surrender the negro Elias and a negro girl Nancy, in place of Robert, who had been sold," and executed a note for $50 as rent for the land, and signed an instrument of writing, purporting to be a relinquishment or release to the defendants of all claim to the negroes; "and at the same time the defendants gave to your orator a paper-writing purporting to be a release and relinquishment of their claim to all the other property of his wife."

The bill proceeds: "Your orator is advised that the defendants (351) had no claim, interest, right, or title to the said negroes Elias and Nancy, or to any other property of his wife, and that no consideration passed from them to your orator; and that said release is in operative, defective, and void, inasmuch as there is no seal to said instrument of writing, no estate in the defendants for the release (if it be one) to operate upon, and no consideration upon which said writing was obtained; the same having been obtained from your orator in ignorance of his rights and by imposition and fraud."

The bill then offers to surrender the release or paper-writing given by the defendants, and prays that the negroes may be restored to the plaintiff, the release or paper-writing signed by him canceled, and his note of $50 credited with $25, the rent for 1848.

The defendants filed a demurrer. The first ground taken is that by the plaintiff's own showing the acts were done by him with a full knowledge of all the facts, and the whole ground for relief is that he acted in ignorance of the law.

Admitting the bill to be liable to this objection, it may be gravely questioned whether advantage can be taken of it by demurrer. The maxim, "ignorantia legis," etc., is founded upon the presumption that every one, competent to act for himself, knows the law. It (352) is necessary for the courts, whether in reference to civil or criminal matters, to act upon this presumption, however wide of the mark it may be in many cases; for, in the language of Lord Ellenborough, "otherwise there is no saying to what extent the excuse of ignorance might not be carried"; and there would be much embarrassing litigation, and no small danger of injustice from the nature and difficulty of the proper proofs. 1 Story Eq., 123

But while, on the one hand, whether a party knows the law is not left as an open question for inquiry, as it is whether he knows of the existence of a fact: on the other, the presumption that he knows it is not conclusive, but may be rebutted. For instance, if there be an intention to pass a freehold estate, and the vendee accepts a deed of feoffment, without livery, he will be relieved upon the ground that the was under a mistake as to the law; for, the intention being clear, the failure to effect it makes the mistake manifest, and rebuts the presumption. So, in McKay v.Simpson, post 452, relief was given because of a mistake of law as to the form of a transfer of bank stock. It is different, however, when the intention is carried into effect, because, in such cases, there is nothing to rebut the presumption, and the ignorance of the party can only be shown by going into proof, which is not admissible.

As this presumption is not conclusive, it would seem to follow that if a defendant, by demurring, admits that the plaintiff was ignorant of the law, the court must act upon the admission, and it may be that such would also be the case when the answer makes the admission, so as to dispense with the necessity of any proof to rebut the presumption. That it is so in the case of a demurrer is strongly sustained by the fact that the learned and diligent counsel for the defendant has not been able to cite any case in which the objection was taken by demurrer.

(353) We put our decision upon the ground that the bill is not liable to the objection; for it does not appear that the plaintiff had a full knowledge of all the facts. A fair construction of the bill leads to the conclusion that the plaintiff was "ignorant of the extent of the interest and title which his wife had acquired, and to which he had succeeded by marriage," in consequence of his ignorance of the facts, as well as of the law, upon which his title was founded.

The bill is hastily drawn. A confusion of ideas is introduced by the use of generalities and sweeping expressions, than which nothing is more calculated to destroy certainty, so much to be desired in all judicial proceedings. It does appear, however, that fourteen years intervened between the dissent and the marriage; that during the life of his wife the title of the plaintiff was not called in question; that she died a little over a year after the marriage; and that in a few days after her death the defendants "claimed under the will an interest in all the estate and property of his wife at the time of the marriage, and, particularly, that they were entitled to the two negroes, Elias and Robert, and the rent of land from the time of the marriage."

It is certain the parties knew the contents of the will. By it the land and the two negroes, Elias and Robert, were "lent" to the widow for her life or widowhood. Elias is surrendered; Nancy is substituted for Robert, who had been sold; and rent is exacted from the marriage, not the death of the widow.

It is almost as certain that the contents of the report of the jury were not known to the plaintiff, and possibly not to the defendants. In the absence of any admission that the plaintiff knew the contents of the report, his being ignorant of the extent of his title must be ascribed to his want of information as to this fact, rather than to suppose he (354) was so stupid as not to know the difference between an estate for the life or widowhood of his wife and the absolute estate. But if it is to be ascribed to both causes, the ground of demurrer fails.

The next ground is that, by the plaintiff's own showing, the instrument signed by the defendants, purporting to pass their interest in the rest of the property to the plaintiff, is void for want of seal, and that no consideration passed to make the transfer of the two slaves by the plaintiff to the defendants valid, as the instrument signed by him was not under seal, and, therefore, the plaintiff had a clear remedy at law.

This objection is based upon a misapprehension of the plaintiff's allegation. There is no allegation of a gift which would not be valid without a deed. The allegation is that the transaction was made to assume the form of a sale and delivery of the two slaves for a pretended consideration; whereas, in fact, there was no consideration, and the pretense of one was the means used to effect the fraud and induce the plaintiff to deliver up his property. This Court has concurrent jurisdiction in matters of fraud; and it would be a disgrace to any court, having jurisdiction, to decline to exercise it because the fraud is so palpable and gross that, possibly, redress might be had in some other court.

The third ground is that the $50 note is under the jurisdiction of this Court. That is true; but as the plaintiff has alleged an important equity, he is at liberty to add a small item, as it is connected with and tends to elucidate the main subject.

The demurrer must be overruled, with costs.

The opinion and decree will be sent, together with the other papers, to the court of equity below, to which the cause is remanded. The cause was removed to this Court under an act of the Legislature. There is no express provision as to what is to be done in a case like this. But it is a remedial statute, and by a liberal construction, in (355) connection with the other statutes, we infer that it was the intention of the Legislature to have the cases sent back, to be further prosecuted in the court below.

PER CURIAM. Ordered accordingly.

Cited: S. v. McIntyre [McIntire] , 46 N.C. 5; Smith v.Kornegay, 54 N.C. 43; Foulkes v. Foulkes, 55 N.C. 264;White v. Butcher, 97 N.C. 10; Kornegay v. Everitt,99 N.C. 34.