# Brown v. . Clegg

> Supreme Court of North Carolina · June 5, 1849 · 41 N.C. 90

URL: https://www.frixlaw.com/law-library/cases/3667441

## Case

- **Full name:** Andrew Brown & Al. vs. Nathaniel Clegg & Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** June 5, 1849
- **Citations:** 41 N.C. 90
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Pearson
- **Judges:** Pearson
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Pearson, J.
A Court of Equity will compel the discovery of a secret trust, to enforce it, if lawful, or declare it void, if unlawful, whenever the fact of its not being declared in the conveyance, creating the legal estate, is caused by fraud or circumvention, or is the result of accident or mistake, or the omission is by design, the trust being unlawful and the object of secrecy being to evade the policy of the law ; the Court in all these cases proceeds upon the idea of preventing fraud.
The trust alleged in this case is an expressed
verbal trust,
which the parties did not choose to set out in the deed. It is not admitted by the answer. There is no allegation, that fraud or accident prevented its being set out in the deed. On the contrary, the bill states, that “no written promise or other memorial of this undertaking, on the part of Carloss, was executed, the parties having an unbounded confidence in his honesty and friendship.” So, the question, intended to be raised, is, can a bill of sale for
slaves be added to
by parol proof, so as to show, that, although absolute upon its face, it was upon a trust, no fraud being alleged, and no reason being assigned, why the trust was not expressed in the
deed'!
*93
The question is one of much interest. We do not feel at liberty now to dispose of it, because the decision of the case does not make it necessary, and we prefer to put the- decision upon another ground — especially, as the proof made of the trust is very vague and uncertain, com sisting mainly of the recollection of conversations held' with Garloss, in reference to. the slaves, not agreeing as to the- precise nature of the trust, arui stating no facts or circumstances
cle/sars
the deed, so as to make it probable, independent of
mere
words, that there was a trust.
As-to the plaintiff Joseph Winter, the bill must
he
dismissed, because he was not born until after the trust was executed ; and its being for Mrs. Winter and her children) would, in the absence of any words to enlarge the meaning, be confined to the two children, then in
esse..
As to the other plaintiffs, th© bill must fee dismissed!,, because there is nothing to repel the presumption, that-the trust or equitable estate has been satisfied ©r abandoned. The intestate ef the defendant held the slaves, as his own, for nearly twenty years; during which time-there was no. recognition ©f any right
on
the part of the-plaintiffs. This case furnishes a strong illustration of the wise policy of the statute. It is an attempt to. set up a
verbal
trust, after the death ©f the original parties, and after the lapse of 21 years! Mrs. Winter, now Mrs. Brown», married soon after C-ariess took the slaves into possession. No reason can be assigned, why she did not set up her claim
%
there is no saving on account of coverture Ira the Statute, and as a husband has a right to receive satisfaction, release, or abandon an equitable ©state of his wife in slaves, there is nothing to repel the presumption.
Th© same observation is applicable to th© claim of Mrs. Marks and her sister. It may be, that, if the pleadings, had been amended, so as to make the allegation of infancy and set forth the dates ©f their respective marriages,, there might have been something to ¡repel ike pres’amp
*94
tion, as to them ; but there is no such allegation, and, although it is quite probable, that they were both infants at the time the trust was executed, and when Carloss took possession, we are bound by the pleadings.
Per Curiam.
Bill dismissed with costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3667441. Public record. Not legal advice.