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Jacob Brinegar and Mary Prock

Jacob Brinegar and Mary Prock

Posted: 7 Dec 2012 12:16PM GMT
Classification: Query
After 20+ years, I am finally getting around to adding the info I have. I wanted to share. I hope this information helps everyone.

Richard Jacks b abt 1739 in Baltimore County, MD

Married Mary Sparks abt 1768
They had
Nicholas, Guardian, Charity, Diana and Elizabeth

Then he LIVED WITH Mary Ann Prock, without divorcing Mary Sparks. (abt 1779)
They had
Rev. Richard, Solomon, Larkin, Jobe, Polly, Sally

Mary Ann Prock married 5 Dec 1768 first to Jacob Brinegar (1745-1783), then she was with Richard Jacks after Jocob died.

Cases argued and determined in the Supreme Court of North Carolina, Volume 3
By Thomas Pollock Devereux, George Edmund

Dei? ex dem. of Jacob Brinegar et at.
r.


Gariand Chaetin.

Neither party to a deed of bargain and sale is estopped to show, thaone of the bargainors was a feme tole, although the deed recites thai she was covert.

Ejectment, tried at the last circuit, at Rowan, before his Honor Judge Swain.

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; hut Oie defendant offered to prove, that in fact no valid mar

i iage subsisted at its execution, between Bichard Jacks Jvn 1831. aud Marti Brinegar, as Jacks then had a wife living, to whom he had" been married before his pretended marriage Bn"1i8** with Mary Brinegar. The lessors of the plaintiff ob- Cmmx. jected 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.

Winston, for the plaintiff, contended, 1st, That a marriage de facto drew after it all the legal consequences of a marriage de jure, and cited Morris v. Miller, (4 Bur. 2057) Dirt v. Barlow (Doug. 170) Alleynev. Grey (2'Sa/fc. 437) S. C. (Comberback 131.) 2d. That the defendant was estopped to deny that Mary Jacks was, & feme covert, and cited Norwood v. Stevenson (^nd.227) Co. Lit. s. 374, 230, 231, a. Com. Dig, Estoppel, A 2. •

A'ash, contra, insisted that the defendant, by, accept-. ing the deed executed by Mary Brinegar, under the name of Mary Jacks, as the wife of Richard Jacks, was not, stopped to show that she was a/ eine sole, and cited xMoore v. Willis (2 Hawks 558) Co. Lit. 13S, 6. 3 Thomas Co, 431. 2 do. 415. Com. Dig. Estoppel, C. E. 3. James v. London (Cro. Eliz. 37) Brereton v. Evans (do. 700) Buncombe v. Wingfield (Hob 254.) 1 Thorn. Co, 133*. 10 Fiji. Ab. 455.



HennEBsoif, Chief-Justice.—Recitals in a deed are estoppels when they are of the essence of the contract; A party to a, that is, where unless the facts recited exist, the contract topped by s it is presumed, would not have been made. As if A re- recital, unless^ cites, that he is seized in fee of certain lands, which he (,e the moving bargains and sells in fee. He is estopped to deny that cause of the exehe is seised in fee, for without such seisin, it is fair to deed, presume that the contract would not have been made. But if the recital be that he is seised in fee by purchase from C, here neither the bargainor nor bargainee is stopped from averriug and proving, that he is seised by

1

Jvn» 1831. purchase from D, unless it appear, that the seisin in fee ^^^""K by purchase from C was part of the contract, and withv. out which it would not have been made. For ordinarily Qhaffi*. the seisin 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 arc 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 itsolc. the deed was effectual by scaling 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 auy thing. Nor did he on that account receive any thing 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 e vidence, 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 c.inclusion to him, when he shows the deed. (Viner's Jib. J)/, s. & pi. 11. Perkins s. 40.) So if a feme covert, reciting by her deed that she is a feme sole, grant an annuity, this a void grant and she shall not be concluded by thisTccital. (Perkins 41, note.)

The other position taken by the plaintiff's counsel, that a husband de facto, embracing the case of Jacks, in. the present instance, is entitled to all the rights of a husband dejure, and the wife subject to all the disahililieaotafemetaroert, leads, I think, to consequences, which Jtn»nl83I.

make the proposition/eZo de se. It gives all the rights of a

husband, both to the person and the property of any wo- „.

man whom he may either deceive or persuade to have the Ciumir.

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 where the lmi

in all but a few cases, perhaps onlv in cases of crim. con. !,a.nd s"e?foran 1 1 injury to his ma

and those which affect the husband in his conjugal rights, rital rights, he an actual legal marriage need not be proven. In those ^lenXzTtion'rrt" oases it -will not do to infer a marriage from circum- the marriage, stances, 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 But in those question from the courts of common law to the ecclesiastical courts, which require proof of an actual marriage, ^eisnot a procelebrated according to the forms of the church. ETiftlrn^ fi^■ Whereas, if left to be tried on the fact of marriage, it cireumstances, 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; aKho' 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.


Den Et_ Dem. Brinegar V. Chaffin.

[:j Devebeui Law, 108.)

Recitals In Deed— When Parties Not Estopped Bt.—Recitals in a deed are estoppels when they are of the essence of the contract; but the parties to a bargain and salo deed are not estopped to show that one of the bargainors was a feme-sole, although the deed recites that she was a feme-covert.

Ejectment, tried at the last circuit at Rowan. The lessors of the plaintiff claimed as heirs at law of Mary Brinegar, and the defendant claimed under a bargain and Halo deed from the same Mary Brinegar, which purported to have been executed by her under tho name of Mary Jacks, jointly with a second husband, Richard Jacks. The only question was as to the validity of this deed. There was no privy examination of the fema taken; but the defendant offered to prove that no valid marriage, at the time of its execution, subsisted between the grantors, as Jacks had a wire living at the time of his pretended marriage with 'Mary Brinegar. The lessors of the plaintiff objected to this testimony, on the ground that if tho defendant claimed under a deed which recited a marriage, he was estopped to deny that marriage. The judge admitted the evidence; and the existence, at the date of 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.

Winston, for the plaintiff. 1. A marriage dc facto draws aftei it all the legal consequences of a marriage dejure: Morris v. Mater, 4 Bur. 2057; Birtv. Barlow, Doug. 170; Allojnev. Grey, 2 Salk. 437; S. C., Comberback, 131. 2. The defendant was estopped to deny that Mary Jacks was a feme-covert: Norwood v. Stevenson, And. 227; Co. Lit. s. 374, 230, 231, a; Com. Dig., Estoppel, A. 2.

Nash, for the defendant. The defendant, by accepting the deed was not estopped to show that Mary Jacks was a femesole: Moore v. Willis, 2 Hawks. 558; Co. Lit. 133, b; 3 Co. 431; 2 Id. 415; Com. Dig., Estoppel, C. E. 3; Jamesy. London, Cro. Eliz. 37; Brereton v. Evans, Id. 700; Duncombc v. Wingfteld, Hob. 254; 1 Co. 133; 10 Vin. Abr. 455.

Henderson, C. J. 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 seised in fee of certain lands, which he bargains and sells in fee. He is estopped to deny that he is seised in fee, for without such seisin, it is fail to presume that the contract would not have been made. Bot if the recital be that ho is seised in fee by purchase from C, here neither the bargainor nor bargainee is estopped from averring and proving that he is seised by purchase from D., unless it appear that the seisin in fee by purchase from C. was part of the contract, and without which it would not have been made. For ordinarily tho seisin 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 tho many apparent contradictious 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 bargaineo, 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 tho 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 soh'. Neither did it form tho basis, nor in any manner move cr 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 can not be a conclusion to him, when he shows thedeed: Vin. Abr. M., sec. 8, pl. 11; Perk. sec. 40. So if a feme-covert, reciting by her deed that she is a feme-sole, grant an annuity, this is a void grant, and she shall not be concluded by this recital: Perk. 41, note.

The other position taken by the plaintiff's counsel, that a husband de faclo, embracing the case of Jacks, in tho present instance, is entitled to all the rights of a husband dejure, and the wife subject to all 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 nt the same time, thereby investing him with marital rights over one hundred women. It can not be so. The cases bear the couneel 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 tho 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 tho like. But in other cases, a marriage may be inferred from these 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 u> bo tried on tho fact of marriage, it will then be tried upon such proofs as the party may offer, viz., either proof of au actual marriage, or proof of long cohabitation. It is not to bo inferred from this distinction, that courts of common law will sanction a marriage, by giving to tho husband the marital rights, where it is shown that ho is entirely incapable of contracting marriage, from any cause, as from having a wife living at the time; although tho second marriage is attempted to bo proved, by showing that the marriage ceremony was actually performed; or by showing 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 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 Cukiam. Judgment affirmed.

Cited in Gatliings v. William*, 5 Ired. Law, 494, in support of the position that bigamy repels the right to administer on the estate of husband or wife: or to the distributive share of the decedent's estate; or to the acquisition of the personal property of the wife by the husband.

Estoppel Bt Recitals In Deed.—A party who has admitted a fact in his deed, is estopped not only from disputing the deed, but every fact whidi it recites: Stow v. Wyse, I8 Am. Due. 99; see, also, on this subject, note to Graff v. Cattleman, 16 Id. 754.

Re: Jacob Brinegar and Mary Prock

Posted: 8 Dec 2012 1:03PM GMT
Classification: Query
Surnames: Brinegar, Jacks
MANY thanks for posting this! Do you have a scanned copy of the original? I would be most grateful for one if so.

Do you have an exact birthdate for the son Richard Jacks? All I've seen is ca. 1780, which would put his birth well before Jacob Brinegar's death.

Also, do you have any information on Jacob and Mary's son Joshua?

My Brinegar page is at http://www.momslookups.com/generations/brinegar.html, and you can reach me by e-mail at ncgen@mindspring.com

Elizabeth Harris

Re: Jacob Brinegar and Mary Prock

Posted: 10 Mar 2013 5:35PM GMT
Classification: Marriage
Online copy of the mentioned court case document: http://archive.org/stream/casesarguedandd05courgoog#page/n11...

Re: Jacob Brinegar and Mary Prock

Posted: 10 Mar 2013 5:36PM GMT
Classification: Query
As your transcribed copy contains many typos, one can access this document in its original at:

http://archive.org/stream/casesarguedandd05courgoog#page/n11...

unfortunately, I haven't found a way to print or copy it as it is the actual book.

Re: Jacob Brinegar and Mary Prock

Posted: 10 Mar 2013 5:42PM GMT
Classification: Query
Many thanks for the link! If you figure out a way to save or print it, I will be most grateful.

Re: Jacob Brinegar and Mary Prock

Posted: 10 Mar 2013 10:19PM GMT
Classification: Query
If I figure out how to print it, will let you know. I imagine that you could contact the archives unit where this is held and order a hard copy - probably on the web site somewhere.

Do you happen to know who the said "Garland Chaffin" is that is named as the defendant, and why he would have any claim to Jacob Brinegar's estate?

I apear to be a descendant of Richard Jacks through his daughter, Mary Polly Jacks - and have found two different descriptions of who her mother is - either Mary Sparks or Mary Prock. Do you have any concrete evidence of any of the offspring of any of these people?

Any help you might give is appreciated.

Re: Jacob Brinegar and Mary Prock

Posted: 11 Mar 2013 12:31PM GMT
Classification: Query
Surnames: Chaffin, Brinegar, Jacks, Prock
Garland Chaffin appears in the 1820 Rowan Co. census, Forks of the Yadkin district (which became Davie Co. in 1836), in the 26-45 age bracket, with seven children. I don't know exactly where he fits into the Chaffin family in this area, but this hint gives me some more motivation to try to find out, and to look for connections from him to the Brinegar and Jacks families.

I've been assuming that your Polly is Mary Prock's daughter, but I have no dates for her, and no proof. My ancestor is Joshua Brinegar, who I think was the youngest child of Jacob Brinegar and Mary Prock.


Re: Jacob Brinegar and Mary Prock

Posted: 11 Mar 2013 5:30PM GMT
Classification: Query
Thanks, Cousin. If I find out anything, I'll let you know.
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