Den Ex Dem. of Brinegar v. Chaffin , 14 N.C. 108 ( 1831 )

The lessors of the plaintiff claimed as heirs at law of Mary Brinegar. The defendant, under a deed of bargain and sale from the same Mary Brinegar, which purported to have been executed by her under the name of Mary Jacks, jointly with a second husband, Richard Jacks, and the only question was as to the validity of this deed. No privy examination of the feme had been taken, but the defendant offered to prove that in fact no valid marriage subsisted at its execution, between Richard Jacks and Mary Brinegar, as Jacks then had a (109) wife living, to whom he had been married before his pretended marriage with Mary Brinegar. The lessors of the plaintiff objected to this testimony, insisting that if the defendant claimed under a deed, which recited a marriage between Richard Jacks and Mary Brinegar, he was estopped to deny that marriage. His Honor admitted the evidence, and the existence, at the execution of the deed, of the former marriage of Jacks, being clearly established, a verdict was returned for the defendant, and the plaintiff appealed. Recitals in a deed are estoppels when they are of the essence of the contract, that is, where unless the facts recited exist, the contract, it is presumed, would not have been made. As if A. recites that he is seized in fee of certain lands, which he bargains and sells in fee, he is estopped to deny that he is seized in fee, for without such seizin, it is fair to presume that the contract would not have been made. But if the recital be that he is seized in fee by purchase from C., here neither the bargainor nor bargainee is estopped from averring and proving that he is seized by purchase from D., unless it appear (110) that the seizin in fee by purchase from C. was part of the contract, and without which it would not have been made. For ordinarily the seizin only is of the essence of the contract, and how and from whom derived are but circumstances. So of every other recital. And this distinction reconciles the many apparent contradictions in the books, some declaring that recitals are estoppels, and others that they are not. In the case under consideration, that the feme was the wife of Jacks was not of the essence of the contract. It formed no part of it. It was a mere circumstance of description, more unfavorable to the defendant, or rather the bargainee, than if she had been sole. For if sole, the deed was effectual by sealing and delivery. If she was covert, her private examination was necessary to make it her deed. In truth, her coverture was a fact, for which the bargainee neither gave nor received anything. Nor did he on that account receive anything by the deed, which he would not have received if she had been sole. Neither did it form the basis, nor in any manner move or conduce to the contract. It is, therefore, mere matter of evidence, and like all other evidence, may be rebutted by contrary proof. The evidence, therefore, that Jacks had another wife living at the time of the marriage, disproving the recital, was properly admitted.

But the case does not rest upon general reasoning. If A. S., by her deed, reciting that she is a feme covert when in truth she is a feme sole, grants an annuity, it is a good grant, for that is but a void recital, although the grantee had not put it in his writ; and it cannot be a conclusion to him when he shows the deed. Viner's Ab. M., s. 8, pl. 11; Perkins, s. 40. So if a feme covert, reciting by her deed that she is afeme sole, grant an annuity, this is a void grant, and she shall not be concluded by this recital. Perks, 41, note.

The other position taken by the plaintiff's counsel, that a husbandde facto, embracing the case of Jacks, in the present instance, is entitled to all the rights of a husband de jure, and the wife subject to all (111) the disabilities of a feme covert, leads, I think, to consequences which make the proposition felo de se. It gives all the rights of a husband, both to the person and the property of any woman whom he may either deceive or persuade to have the marriage ceremony performed between them, and all at the same time, thereby investing him with marital rights over one hundred women. It cannot be so. The cases bear the counsel out only in this (which is reasonable), that in all but a few cases, perhaps only in cases of crim. con., and those which affect the husband in his conjugal rights, an actual legal marriage need not be proven. In those cases it will not do to infer a marriage from circumstances, as long cohabitation, or the like. But in other cases, a marriage may be inferred from those circumstances. In cases of the latter kind, "never united in legal matrimony" is a bad plea, because it draws the question from the courts of common law to the ecclesiastical courts, which require proof of an actual marriage, celebrated according to the forms of the church. Whereas, if left to be tried on the fact of marriage, it will then be tried upon such proofs as the party may offer, viz.: either proof of an actual marriage, or proof of long cohabitation. It is not to be inferred from this distinction that courts of common law will sanction a marriage by giving to the husband the marital rights, where it is shown that he is entirely incapable of contracting marriage, from any cause, as from having a wife living at the time, although the second marriage is attempted to be proven by showing that the marriage ceremony was actually performed, or by showing a cohabitation and leaving it to be inferred. Whatever may be the effects of such a marriage, whether actually proven or inferred from cohabitation and the like, as to the acts of the woman whom the man calls his wife, in regard to the rights of others, I am satisfied it confers on him no rights and imposes on her no disabilities.

PER CURIAM. Judgment affirmed.

Cited: Gathings v. Williams, 27 N.C. 494; Pritchard v. Sanderson,84 N.C. 303; Fort v. Allen, 110 N.C. 191; Williams v. Walker, 111 N.C. 610;Lumber Co. v. Hudson, 153 N.C. 100; Chilton v. Groome, 168 N.C. 641;Freeman v. Ramsey, 189 N.C. 796.

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