The parol

The language of the law. Part Latin, part Anglo-Saxon, all confusing.

There’s nothing like a good family fight that ends up in court. If, that is, you can understand the lingo used in the court documents.

There’s almost always genealogical information of value tucked away in the records — in the case of The Legal Genealogist‘s Baker family, information about the offspring of a third great grand-uncle Josiah Baker of Bakersville, Mitchell County, North Carolina. But oy! For a non-lawyer, reading the court file could be painful.

Josiah, who died in Bakersville in 1881, had seven sons — but two (William and David) died in childhood and three (Newton, John and Joseph) died in the Civil War. Only two — Theodore and Charles — survived him. But Newton had had a son before he died,1 and therein lies the tale.

Newton Vance Baker was the son of Josiah’s first-born, Newton A. Baker and his wife Hannah Ledford.2 And in 1884, he sued his Uncle Charles over a land deal.

The court papers indicate that, before his death, Josiah deeded his land to his two surviving sons, Theodore and Charles.3

But, grandson N. Vance Baker claimed, there was a side deal between Josiah the father and Charles the son, who got a bigger piece of land than son Theodore: Charles was to buy a tract of 56 acres of land called the Dogwood Flats, and that land was to go to grandson Vance. The total price was $450, Charles was to pay it off over time, and Charles did “immediately put (Vance) in possession of the … tract … on which he at once began to work and … continued to work thereon ever since, taking and using the profits and proceeds thereof.”4

The hitch was that, by 1884, Charles hadn’t paid the whole purchase price, the seller of the Dogwood Flats was in court trying to get the land back, and Vance was caught in the middle. So he sued.

And, in his suit, he alleged:

Plaintiff is advised that by the terms, in parol, accompanying the deed by the … said Josiah Baker and assented to by the defendant, a trust was created in favor of the plaintiff which attached to the conveyance of the lands to defendant and which a Court clothed with Equitable Jurisdiction can enforce.5

“The terms in parol”? Say what?

Yep. To exactly understand what Vance was arguing, we need to understand yet another of those murky “why-won’t-they-just-speak-English” terms lawyers use.

And this isn’t a case of misspelled parole (with an e). Parol is a different word altogether — and it simply means spoken or oral, “expressed or evidenced by speech only; not expressed by writing; not expressed by sealed instrument.”6

Notice that there are two possibilities in that definition: either the side agreement was entirely verbal, never written down in any way; or that it was “not expressed by sealed instrument.” That’s because “the common law draws only one great line, between things under seal and not under seal.”7

In this particular case, the court papers don’t ever mention any writing, so in context it’s clear that this was one of those “not worth the paper it wasn’t written down on” handshake deals. Had there been any written evidence that the side agreement existed, it would have been one of the exhibits submitted to the court — and there was no such exhibit.

You’ll come across the term in a lot of legal records and court opinions discussing evidence. Other contexts in which it’s common include:

     • Parol arrest. One ordered by a judge or magistrate from the bench, without written complaint or other proceedings, of a person who is present before him, and which is executed on the spot; as in case of breach of the peace in open court.8

     • Parol evidence. Oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence, given by witnesses in court.9

     • Parol lease. A lease of real estate not evidenced by writing, but resting in an oral agreement.10

     • Parol promise. A simple contract; a verbal promise.11

And there’s one more that’s a bit different. You may come across a “parol demurrer” in very old court documents. That was a term used in early court cases involving land where one of the parties — usually the defendant — was still a minor. It meant that the case was suspended until the minor came of age.12

And young Vance? The case dragged through the courts for 10 years until it was finally dismissed at Vance’s request in 1894.13 In 1900, he was a boarder in the home of the Taylor family, whose daughter Phoebe became his second wife.14 He died at the age of 81 in Caldwell County, North Carolina, in 1944.15

Doesn’t look like he kept that land at all.


 
SOURCES

  1. Bible Record, Josiah and Julia (McGimsey) Baker Family Bible Records 1749-1912, The New Testament of our Lord and Savior Jesus Christ (New York : American Bible Society, 1867); privately held by Louise (Baker) Ferguson, Bakersville, NC; photographed for JG Russell, Feb 2003. Mrs. Ferguson, a great granddaughter of Josiah and Julia, inherited the Bible; the earliest entries are believed to be in the handwriting of Josiah or Julia Baker.
  2. Ibid.
  3. Mitchell County, North Carolina, Original Estate Records: file “Baker, Josiah 1882”; call no. C.R. 066.508.1; North Carolina State Archives, Raleigh; digital images, “North Carolina, Estate Files, 1663-1979,” FamilySearch.org (https://familysearch.org/ : accessed 16 Jun 2013).
  4. Ibid., verified complaint dated 23 Oct 1884.
  5. Ibid.
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 871, “parol.”
  7. Ibid.,“parol agreements.”
  8. Ibid.,“parol arrest.”
  9. Ibid.,“parol evidence.”
  10. Ibid.,“parol lease.”
  11. Ibid.,“parol promise.”
  12. Ibid.,“parol demurrer.”
  13. Mitchell County, North Carolina, Original Estate Records: file “Baker, Josiah 1882,” order of dismissal June term 1894.
  14. 1900 U.S. census, Mitchell County, NC, Bakersville, population schedule, enumeration district (ED) 89, p. 9A (stamped), dwelling/family 148, Vance Baker; digital image, Ancestry.com (http://www.ancestry.com : accessed 16 Jun 2013); citing National Archive microfilm publication T623, roll 1109; imaged from FHL microfilm 1375122.
  15. North Carolina State Board of Health, death certif. no. 2280, Newton Vance Baker, 8 Feb 1944; Bureau of Vital Statistics, Raleigh.
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6 Responses to The parol

  1. Gus Marsh says:

    Thanks, I learned something new today.

  2. B.G. Wiehle says:

    Interesting distinction between parol and parole!

    Was there any explanation in the case file why Josiah didn’t just gift the supposed extra funds directly to Newton Jr.? Also, if Charles had the funds from Josiah, and they weren’t used as intended, shouldn’t Charles have been in trouble on that count too?

    • Judy G. Russell says:

      There are lots of possible reasons: the big one may be that there wasn’t any cash in the house, just land, with the cash in the hands of the younger crowd. It may also be that Josiah thought Vance would blow through cash but couldn’t (or had reason not to) split his own existing lands to give Vance a part. And, of course, Vance might not have been telling the truth in his lawsuit at all.

  3. Well, I hope that Vance could lead a full and satisfying life without that land. Thanks for explaining all the legal variations of “parol.” Heh. I remember learning about “parol promise” in the old TV series with John Houseman, about law students. “The Paper Chase.” Loved that series.

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