"Dear Sister Antillico
Kirksey*
WILLIAM
R.
CASTO** AND VAL
D.
" .• The Story of Kirksey v.
RICKS'**
TABLE OF CONTENTS
1.
II.
INTRODUCTION . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . .
323
A.
THE OBSCURITY OF KIRKSEY V. KIRKSEY . . . . . . . . . . . . . . . . . . .
323
B.
THE MYSTERY OF KIRKSEY V. KIRKSEY . . . . . . . . . . . . . . . . . . . .
324
C.
THE FAME OF KIRKSEY V. KIRKSEY. . . . . . . . . . . . . . . . . . . . . . .
326
WHAT HApPENED
327
A.
THE PARTIES
327
1.
Angelico Kirksey . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
327
2.
Isaac Kirksey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
330
B.
III.
335
THE CONTROVERSY: WHY INVITE AND WHY EVICT?
THE LITIGATION . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . .
353
A.
THE LAWYERS
..........•........................
354
B.
THE JUDGE . . . . . . . . . . . . . • . . . . • . . . . . . . . . . . . . . . . . . .
355
C.
THE TRIAL . . . . . . . • . . . . . . . . . . . . . • . . . • . . . . . . . . . . . .
356
D.
ISAAC'S NEW LAWYER FOR THE APPEAL • . . . . . . . . . . . . . . . . .
360
K
THE SUPREME COURT . . . • . . . . . . . . . . . . . . . . . . . . • . . . . . .
361
F.
THE BRIEFS
362
.
* Both authors wish to thank the late Allan Farnsworth and Judith Maute and Joseph Perillo for
comments, as well as participants in the AALS Contracts section listserv, whose thoughts about Kirksey
v. Kirksey are reported anonymously below as coming from Professors A-Z. See infra Part IV.C.
(copies on file with authors).
** Allison Professor of Law, Texas Tech University. © 2006, William R. Casto and Val D. Ricks.
Professor Casto wishes to thank Dean Kenneth Randall for his support of tIlis project while Professor
Casto was the Tom Bevill Visiting Chairholder of Law at the University of Alabama. Professor Casto
also wishes to thank Professor Daniel Benson for his support from the Paul Whitfield Hom Professorship.
*** Vinson & Elkins Research Professor and Professor of Law, South Texas College of Law.
Professor Ricks wishes to thank Angela Wilderman, the nation's foremost expert on Kirksey family
genealogy; Norwood Kerr of the Alabama Archives; Monica Ortale and the Fred Parks Law Library at
South Texas College of Law; and, for valuable research, Derek Mueller and Dorian Cotlar.
321
[Vol.
94:321
THE OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . .
365
AFTERWARDS . . . . . . . . . . . . . . . . . . . . . . . . . . • • • . . . • . . . . . .
370
A.
THE KIRKSEY OPINION IN THE NINETEENTH CENTURY . . . . • . . . . .
372
B.
KIRKSEY IN THE TWENTIETH AND TWENTY-FIRST CENTURIES . . . • .
372
C.
THE SECRET OF KIRKSEY'S SUCCESS
375
322
THE GEORGETOWN LAW JOURNAL
G.
IV.
V.
CONCLUSION........................................
ApPENDIX I: KIRKSEY TRIAL REcoRDS
.....•...........•........
1844-1846
A.
TALLADEGA CIRCUIT COURT RECORDS
B.
TALLADEGA COUNTY MINUTE BOOK CIRCUIT COURT
1840-1844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
382
383
383
386
CIRCUIT COURT TALLADEGA COUNTY, TRIAL DOCKET BOOK
1844-1844. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
387
II:
KIRKSEY APPELLATE REcORD. . . . . . . . . • . . . • . . . . . . . . .
387
ApPENDIX III: KIRKSEY IN VERSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
395
ApPENDIX
Kirksey v. Kirksey
(Ala. 1845)
Error to the Circuit Court of Talladega.
Assumpsit by the defendant, against the plaintiff in error. The question is
presented in this Court, upon a case agreed, which shows the following facts:
The plaintiff was the wife of defendant's brother, but had for some time
been a widow, and had several children. In 1840, the plaintiff resided on
public land, under a contract of lease, she had held over, and was comfortably
settled, and would have attempted to secure the land she lived on. The
defendant resided in Talladega county, some sixty, or seventy miles off. On
the 10th October, 1840, he wrote to her the following letter:
"Dear Sister Antillico-Much to my mortification, I heard, that brother
Henry was dead, and one of his children. I !mow that your situation is one of
grief, and difficulty. You had a bad chance before, but a great deal worse now.
I should like to come and see you, but cannot with convenience at present.
* *
>1<
I do not !mow whether you have a preference on the place you live on, or not.
If you had, I would advise you to obtain your preference, and sell the land and
quit the country, as I understand it is very unhealthy, and I !mow society is
very bad. If you will come down and see me, I will let you have a place to
raise your family, and I have more open land than I can tend; and on the
account of your situation, and that of your family, I feel like I want you and
the children to do well."
Within a month or two after the receipt of this letter, the plaintiff abandoned
her possession, without disposing of it, and removed with her family, to the
[Vol. 94:321
365
370
372
RIES
372
375
382
383
383
386
: BOOK
387
387
395
2006]
THE STORY OF KIRKSEY V. KIRKSEY
323
residence of the defendant, who put her in comfortable houses, and gave her
land to cultivate for two years, at the end of which time he notified her to
remove, and put her in a house, not comfortable, in the woods, which he
afterwards required her to leave.
A verdict being found for the plaintiff, for two hundred dollars, the above
facts were agreed, and if they will sustain the action, the judgment is to be
affirmed, otherwise it is to be reversed.
Rice, for plaintiff in error, cited 4 Johns. 235; 10 id. 246; 6 Litt. 101; 2
Cowen, 139; I Caine's, 47.
W.P. Chilton and Porter, for defendant in error, cited I Kinne's Law Com.
216,218; Story on Can. 115; Chitty on Can. 29; 18 Johns. 337; 2 Peters, 182;
I Mar. 535; 5 Cranch, 142; 8 Mass. 200; 6 id. 58; 4 Maun. 63; I Conn. 519.
ORMOND, J.-The inclination of my mind, is, that the loss and inconvenience, which the plaintiff sustained in breaking up, and moving to the
defendant's, a distance of sixty miles, is a sufficient consideration to support
the promise, to furnish her with a house, and land to cultivate, until she could
raise her family. My brothers, however think, that the promise on the part of
the defendant, was a mere gratuity, and that an action will not lie for its
breach. The judgment of the Court below must therefore be reversed, pursuant
to the agreement of the parties.'
1.
INTRODUCTION
A. THE OBSCURITY OF KIRKSEY V. KIRKSEY
The question is
allowing facts:
l for some time
"tiff resided on
vas comfortably
lived on. The
y miles off. On
rd, that brother
uation is one of
deal worse now.
e at present.
l live on, or not.
,ell the land and
know society is
have a place to
'Od; and on the
I want you and
.ntiff abandoned
'f family, to the
Kirksey v. Kirksey, quoted above in full, has become one of the most famous
cases in American contract law. The court's opinion, however, is quite ordinary.
It announces no new doctrine and neither elaborates nor explains established
doctrine. The anthor's writing style is not particularly impressive, and his
analysis-like his reputation-is obscure. Today courts might very well reach
the opposite result on similar facts. 2 For the most part, courts have ignored the
case. Aside from a few desultory citations in Alabama, 3 Kirksey received no
judicial attention whatsoever in the nineteenth century. Its last appearance in
Alabama was in 1891 as a bit player-the last case in a throw-away string cite.'
Nevertheless, forty years later Kirksey returned to the judicial stage-this time
1. 8AIa.131(1845).
2. Kirksey was decided before the advent of promissory estoppel, and there once was a modern
consensus that the plaintiff in Kirksey would prevail under a promissory estoppel theory. Langer v.
Superior Steel Corp., 161 A. 571, 572-73 (Pa. Super. Ct. 1932); see also JOHN MURRAY, MURRAY ON
CONTRACTS 228 n.37 (3d ed. 1990); Melvin Eisenberg, Donative Promises, 47 U. CHI. L. REv. 1, 19,
28-29 (1979); James Gordley, Enforcing Promises, 82 CAL. L. REv. 547, 579 (1995); Harry W. Jones,
An Invitation to Jurisprudence, 74 COLUM. L. REv. 1023, 1027-28 (1974). But see infra notes 408-11
and accompanying text.
3. Head v. Baldwin, 3 So. 293, 294 (Ala. 1887); Bibb v. Freeman, 59 AIa. 612, 617 (1877); Hubbard
v. Allen, 59 Ala. 283, 299 (1877); Hawkins v. Hndson, 45 AIa. 482, 495 (1871); Bowin & Co. v.
Sntherlin, 44 Ala. 278, 280 (1870); Morris v. Lewis' Executor, 33 Ala. 53, 57 (1858): Erwin & Williams
v. Erwin, 25 Ala. 236, 242 (1854); Forward v. Annstead, 12Ala. 124, 127 (1847).
4. See Hart v. Steele, 10 So. 243, 244 (Ala. 1891).
324
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
in Pennsylvania-as a "leading opinion."s Seventeen years later, Kirksey arrived in the Big Apple as a "famous case.,,6 After that there is nothing. Kirksey
has not been cited by a single court since 1949. Indeed, over the last 150 years,
Kirksey has been cited outside of Alabama on only three occasions."
B. THE MYSTERY OF KIRKSEY V. KIRKSEY
Notwithstanding the surprising paucity of judicial citations, Kirksey truly is a
famous case. Most first-year students and all contracts professors know the
case's story of personal tragedy, good intentions gone awry, intrafamilial squabbling, and a broken promise. Kirksey is famous because it is a great teaching
case-especially for first-semester students. Although the case seems straightforward and even simple, many ambiguities and puzzles lie beneath its still
surface. Countless professors in countless classes have queried: Why did Isaac
Kirksey invite his sister-in-law "Antillico" (an aberrant spelling of Angelico, we
discovered8 ) down to Talladega? Was he bargaining for something when he did?
How many children did Angelico bring? Did Isaac mean for the children to
work on his plantation (did he bargain for their labor)? Did Isaac and Angelico
have an affair (was the consideration meretricious)? Why did Isaac move to
evict his sister-in-law? Was she unbearable as a neighbor? Why did she sue?
What result was she seeking? What evidence was presented at trial? Did she
have evidence of consideration other than her trip to Talladega? Was her lawyer
incompetent? Did the law of the time support Angelico's legal position, or is
Ormond's conclusion based on something other than legal authority? Did the
appellate court usurp the jury's factfinding role? Why did the dissenting judge
write the majority opinion? Whatever happened to Angelico and her small
children?9 The ensuing classrOOJ]l discnssion intrigues both professor and student. The case has even inspired poetry (of a sort). 10
Asking these questions serves pedagogy, though the questions are consistent
with as many pedagogical objectives as there are questions. Indeed, our informal poll of contract law teachers revealed a long list of objectives for which
professors use Kirksey. Because Kirksey is not a leading case, its very obscurity
leaves the professor free to take the case wherever she will. That is one reason
professors and students enjoy the case: it is delightfully ambiguous.
We intend to spoil that ambiguity and answer all of these questions. Henry
Kirksey, Angelico's late husband, was the poorer brother of the entrepreneurial
and litigious Isaac Kirksey, the writer of the letter. Though Isaac's invitation
suggests to us today that Isaac was kind and generous, Isaac had an ulterior
5. Langer, 161 A. at 572.
6. In re Baer's Estate, 92 N.Y.S.2d 359,361 (Surrogate's Ct. 1949).
7. In addition to the two cases cited in notes 5 and 6, supra, see Housman v. Commissioner of
Internal Revenue, 105 F,2d 973, 975 (2d Cir. 1939).
8. See infra note 21.
9. This question appears in Jones, supra note 2, at 1027-28.
10. See infra Appendix III.
.
[Vo!. 94:321
years later, Kirksey arJere is nothing. Kirksey
over the last 150 years,
occasions.?
,Y
tions, Kirksey truly is a
s professors know the
'ry, intrafamilial squabe it is a great teaching
case seems straightfor~s lie beneath its still
lueried: Why did Isaac
pelling of Angelico, we
omething when he did?
~an for the children to
)id Isaac and Angelico
Thy did Isaac move to
,or? Why did she sue?
ented at trial? Did she
adega? Was her lawyer
,'s legal position, or is
:gal authority? Did the
id the dissenting judge
ngelico and her small
lOth professor and stuluestions are consistent
ons. Indeed, our infor,f objectives for which
case, its very obscurity
vil!. That is one reason
mbiguous.
these questions. Henry
: of the entrepreneurial
)ugh Isaac's invitation
, Isaac had an ulterior
[ousman v. Commissioner of
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
325
motive. He meant to place Angelico on public land to hold his place-his
preference-so that he could buy the land later from the U.S. government at a
lucrative discount. He was bargaining for her to act as a placeholder, and she
knew it, though using that evidence later in court was problematic. We explain
why these facts are missing from the Kirksey opinion.
Angelico brought at least six and as many as nine children with her, but Isaac did
not bargain for labOl: He had many slaves. Nor was there an affair. In fact, Isaac
remarried, apparently happily, six months before inviting Angelico. Also, ,Angelico
was not unbearable as a neighbor. Isaac and Angelico had known each other for
twenty-five years. Isaac was married to Angelico's sister for eighteen of those years.
They had been neighbors earlier, near Huntsville, before Isaac moved to Talladega.
He knew what kind of neighbor she was when he invited her.
Isaac evicted Angelico because a change in the laws made Isaac ineligible to
buy government land at a discount, but the same law allowed Angelico a right to
the land on which Isaac placed her, at the same discount price Isaac had sought.
Only by evicting Angelico could Isaac hope to retain that land. Facts presented
at trial, as reported in the trial and appellate court records (attached to this
Article as appendixes) but omitted from the pnblished opinion, suggest Isaac's
motive for his invitation and the eviction. Angelico sned because she wanted the
land itself, we believe. The amount of the jury verdict-$200-is the much
discounted price charged by the government for such property.
Angelico's lawyer for both the trial and appeal, William Chilton, had a
sterling reputation. A former law parmer of the trial judge, Chilton replaced
Justice Ormond on the Alabama Supreme Court in 1848. Isaac's lawyer, Green
T. McAfee, a former Talladega County Judge, was perhaps less competent.
Isaac fired ,McAfee after the trial and hired Samuel Rice for the appeal. Rice
also later served on the Alabama Supreme Court, from 1855 to 1859. On appeal,
both Angelico and Isaac were represented by the state's rising legal stars.
The law of consideration at the time supported both the majority's opinion
and Justice Onnond's dissent. Two strands of consideration doctrine, one
focused on bargain and one focused on action taken in reliance, existed in
American contract law and the law of Alabama at the time. Ormond, the
dissenter, probably wrote the majority opinion because he was assigned the case
before it was argued. The court did not deem the case sufficiently important to
change the assigmnent.
Finally, Angelico stayed in Talladega County until May 1845. She paid Isaac's
court costs after the appeal was decided, then moved back nortll, to Madison County,
where she had first lived in Alabama. She later moved to Arkansas to live with her
son, and apparently died in the l860s. Isaac continued to prosper, gathering more land
and money about him for the next ten years. His fortune diminished only slightly in
the 1850s. Isaac died in 1865, at the end of the Civil War, leaving numerous creditors
and an estate large enough to litigate. I I
11. See Kirksey v. Kirksey, 41 Ala. 626 (1868).
326
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
C. THE FAME OF KIRKSEY V. KIRKSEY
::11
,;1
,I;
Answering Kirksey's mysteries showed us iliat no one who has ever taught the case
has had any real understanding of what actually happened. Our realization and the
case's obscurity caused us to ask why this case is in the casebooks at all. The answer
is a delightful story of the case's discovery by Samuel Williston. Williston origioally
thought of Kirksey as a conditional gift case. (Angelico may have been the mother of
Williston's tramp.)!2 But Williston changed his mind about Kirksey in the 1920s and
began to think of the facts of the case as fit for "promissory estoppel." The ambiguity
of the opinion made this change of mind possible. Williston's dual use of the case
embedded it in his teaching, his treatise, his mind, and his students' minds, until the
case became one of contract law teaching's prirruuy sources. Ironically, the opinion's
rise to fame was only possible because of its mystery-what the case does not say, its
obscurity, has made it available to teachers who wish to provoke students' analytical
skills with the possibilities that Justice Onnond's sparse opinion leaves open.
In this Article, we tell what actually happened in Kirksey v. Kirksey-the
story Ormond left out. We fill in the omission that made the case so valuable in
Williston's thinking. We tell the story chronologically, because it is a good
story. The story itself is important to the teaching of contract law. Kirksey's
primary significance today lies in its use as a tool for introducing students to
some of the more rudimentary aspects of the law of contracts. The Kirksey story
enhances and explains Kirksey's importance. Our research, and the story we tell,
center on resolving the mysteries suggested by the published opinion and the
opinion's later use in contract law teaching.
As we wrote, we discovered other narrower but valuable approaches----{)ther ways
to tell the story. First, and most obviously, Angelico's life as we know it is a tale about
patriarchy.!3 Second, the story might be told as a narrative about race relations.!4
12. See infra note 396 and accompanying text.
13. Angelico's role in life, from this view, was primarily to bear and care for children-fourteen of
them born over a twenty~six-year period, the last in 1838. When her husband died, his brother took up
her cause. On his default, she hired a male lawyer to sue before a male judge and twelve male jurors.
On appeal, three "fathers of the state" decided she should take nothing but instead should pay Isaac's
costs. There is only one woman in this legal tale, and everywhere she turns she is at the mercy of the
male-dominated culture and legal system. It may be coincidence that the loser of the case was a woman,
or not, but either way, Angelico's life is bound up in a patriarchal worldview. We did not expect to see a
different pattern, actually, given the time period. Angelico died while dwelling in her son's home. We
do not know whether the illiterate Angelico was happy with her role Or not. She personally has no
explicit voice in the story, except through what the men in the story chose to say for her. No plaintiff
was allowed to testify in her own cause at the time. Blann v. Beal, 5 Ala. 357 (1843); Watkins v.
Watkins, 2 Stew. 485 (Ala. 1830).
)
,
14. Isaac's many slaves were key to both his desire for land and the increasing wealth that allowed
him to act, or seem to act, generously toward Angelico. Isaac's relations with his slaves also reveal
much about his personality and shed light on his interactions with Angelico. Angelico, too, benefited
from slavery, and was at times a slaveholder. Though one might sympathize with Angelico's plight as a
woman, bemoan that Ormond could not find one more vote for her, and regret that Angelico's voice as
plaintiff is silenced in the court, the law at least attributed to Angelico the capacity to contract and
allowed her standing to sue, which i~ more than can be said of the slaves that both Isaac and Angelico
used to support the scheme around which Isaac's promise was made.
[Vol. 94:321
has ever taught the case
Our realization and the
looks at all. The answer
ton. Williston originally
lave been the mother of
7rksey in the 1920s and
;tappel." The ambiguity
l'S dual use of the case
udents' mirids, until the
Ironically, the opinion's
he case does not say, its
'oke students' analytical
n leaves open.
rksey v. Kirksey-the
he case so valuable in
because it is a good
ontract law. Kirksey's
Itroducing students to
lctS. The Kirksey story
, and the story we tell,
ished opinion and the
pproaches--other ways
e know it is a tale about
about race relations. 14
2006]
THE STORY OF KIRKSEY V. KIRKSEY
327
These themes are exactly what one would expect to find in Alabanla in 1840. Third,
the facts also suggest a philosophical comment about the mle of law and question
what the mle of law meant in America at the time. 15 Finally, there is contract law
history here relevant to the doctrinal development both of the bargain theory of
consideration (which appears fully fonned in 1845, before Holmes) and of promissory estoppel. But confining our work to anyone of these themes would have
diminished the value of our research to contract law teachers and students. Kirksey's
primary value is as a teaching case. Contract law teachers and students are interested
in all of these themes, and Kirksey's value in part lies in its being "about" all of them,
as well as its including the puzzles presented by the Kirksey opinion. Our research is
most valuable if we include facts relating to every facet from which Kirksey may be
approached.
So we begin tlle story. Part II of tlle Article focuses on Kirksey in the
nineteentll century. A significantly more complete description of tlle parties and
the underlying dispute is presented. Here, we explain why Isaac Kirksey invited
his sister-in-law to live near him only to displace her two years later. In Part III,
we review tlle litigation itself through the lens of the surviving trial and
appellate court records. Finally, Part IV tells what happened afterwards, first to
the parties and then to the Kirksey opinion. Part IV tllerefore focuses also on
Kirksey's use in legal education in the twentietll and early twenty-first centuries.
The Article reviews tlle case's appearance and use in casebooks and treatises.!6
Then tlle Article turns to Kirksey's use in classroom discussions and the extent
to which tlle historical record is consistent with pedagogical speculations about
the case.!? Along tlle way, Kirksey's puzzles are solved.
II. WHAT HAPPENED
A. THE PARTIES
1. Angelico Kirksey
tre for children-fourteen of
md died, his brother took up
dge and twelve male jurors.
tt instead should pay Isaac's
18 she is at the mercy of the
;er of the case was a woman,
1oI. We did not expect to see a
:lling in her son's home. We
not. She personally has no
~ to say for her. No plaintiff
'la. 357 (1843); Watkins v.
~reasing
wealth that allowed
with his slaves also reveal
.co. Angelico, too, benefited
e with Angelico's plight as a
gret that Angelico's voice as
he capacity to contract and
l1at both Isaac and Angelico
In tlle early 1800s, thousands of Scots-Irish families left North Carolina and
trekked westward through Tennessee. Many wound up in northern Alabama. !8
15. The "preference" laws enacted by Congress throughout the first half of the nineteenth century
(and discussed throughout this Article, especially in Part II), conferred an enormous economic benefit
on hundreds of thousands of American citizens who were squatting illegally on federal land. The
government rewarded them for their lawlessness, capitulating when it could not control its citizenry.
Just what "the rule of law" meant in this time period is uncertain. Isaac himself took a Holmesian "bad
man" approach to the law-Isaac being the bad man. See Oliver Wendell Holmes, The Path of the Law,
10 HARV. L. REv. 457 (1897); see infra text accompanying notes 64-84. In late 1842 or early 1843,
Isaac threatened to evict Angelico, an action we suspect also was overreaching and depended for its
efficacy on Angelico's powerlessness or incomplete lmowledge of her rights. See infra text accompany~
ing notes 196-98.
16. See infra Part Iv'B.
17. See infra Part rv:C.
18. DANIEL S. DUPRE, ThANSFORMING THE COTION FRONTIER: MADISON COUNTY, ALABAMA 1800-1840,
at 1 (1997).
328
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
John Connolly was a fairly typical member of this westward migration. As a
teenager, he fought in the American Revolution and held the rank of sergeant in
the Third Georgia Continental Line.!9 After the war, he married Obedience King
and started a family in North Carolina, where his fifth child, Angelico, the
plaintiff in Kirksey, was born in 1792.20 Although her name is spelled "Antillico" in the Kirksey opinion, the Court's spelling is aberrant. 2! She always went
by the name"Angelico," or within the family simply as "Gelico.',22
Not much is known about the Connolly family. Angelico was the fifth child,
but there were more to come. John eventually fathered twenty-eight children?3
His ninth child, Mary, was born in 1802. The family was very poor,24 and both
the father and Angelico were illiterate, which probably explains the many
spellings of her name. 2S The Connollys knew another Scots-Irish family, the
Kirkseys, in North Carolina,26 and Angelico apparently married Henry Kirksey
in North Carolina about 1813.27 Subsequently, the Connollys and the Kirkseys
left the state, traveled through Tennessee, and settled in Alabama. In 1819,
i i
J",
r
"
II
il
,
I
"I!
,'
,,'I:!:i'
"
19. MARJE ADELE KIRKSEY DARRON, FROM JAMESTOWN ONWARD: GENEALOGY OF DARRON, KmKSEY,--GRAVES, LEA, CONNALLY, HARPER, LoNG, AND WHITTINGTON AND ALUED LINES 141 (1980); LOUISE JULICH,
ROSTER OF REVOLUTIONARY SOLDIERS AND PATRIOTS IN ALABAMA 137-38 (1979~. We use the spelling
"Connolly," but John's name is also spelled "Connally." Variant spellings of a person's name were
common in the nineteenth century. See, e.g., infra note 21. In a society where many were illiterate, the
spelling of a name frequently was a phonetic approximation.
20. DARRON, supra note 19, at 141.
21. In the trial court, Angelico's name is spelled Antilico in the Writ and the Declaration but
Angelico in the Judgment. Trial Record, Kirksey v. Kirksey (Ala., Talladega Circuit Ct. Fall Term 1844);
in TALLADEGA CIRCUIT COURT RECORDS 1844-1846 [hereinafter Kirksey Trial Record]. A transcript of the
Kirksey Trial ReGOrd is fmmd in. ,Appendix L The Alabama Supreme Court files variously spell her
name "Angelica," "Angelic," "Antilico," and "Antillico." The "Antillico" spelling in the Court's
opinion comes from the parties' agreed statement of facts. Appellate Record, Kirksey v. Kirksey, No.
2598 (Ala., filed Dec. 18, 1844) [hereinafter Kirksey Appellate Record] (on file in the Alabama
Archives, Montgomery, Ala.). A copy of the Kirksey Appellate Record is found in Appendix IT. For
other aberrant spellings, see Letter [Tom Florence Holman to Bena Kirksey (Jan. IS, 1969) (copy on file
with authors) ("Anjelico" and "Anthilico"); Orphans Court Minutes 1839-1846, Marshall County, Ala.,
at 46 ("Gilico"); DARRON, supra note 19. at 69 ("Jellico").
22. See DARRON, supra note 19. at 69, 141-42.
23. JULICH, supra note 19, at 137-38.
24. When John Connolly's will was written in 1837, he said, "It is known that I have and possess but
very little of the wo~ld's goods and that I have a wife and Many Small Children." Last Will and
Testament of John W. Connolly, Probate Record IS, Madison County, Ala. The many small children
were by his second wife Eliza E. He noted that the children of his first wife still lived and tllat he had
raised ''them to Such Condition as they now. and that each of them is now able with and by honest
industry to Support themselves." Therefore he left all of his "little property" to his second family. Id.
25. Neither John Connolly nor Angelico could sign his or her name. Id.; Deed of Henry Kirksey &
Wife to David Moore (Feb. 18, 1839), Deed Record Book R, Madison County, Ala. The 1850 Census
states that Angelico could not "read or write." U.S. Census 1850, Madison County, Ala., available at
http://www2.census.gov/prod2/decennialJdocuments/1850a-17.pdf.
26. DARRON, supra note 19, at 68.
27. The precise date and place of their marriage is not known. In 1880, their second son, John W.
Kirksey, see DARRON, supra note 19, at 69, said that he was sixty-four years old and was born in North
Carolina. U.S. Census 1880, Madison ,County, Ala. The 1830 Census listed John as being between the
ages of fifteen and twenty. U.S. Census 1830, Madison County, Ala. Another, older son is also listed. [d.
[Vol. 94:321
ward migration. As a
he rank of sergeant in
LITied Obedience King
child, Angelico, the
me is spelled "AntilOt. 21 She always went
ielico."Z2
;0 was the fifth child,
'enty-eight children?3
very poor,24 and both
y explains the many
cots-Irish family, the
larried Henry Kirksey
Uys and the Kirkseys
o Alabama. In 1819,
.LOGY OF DARRON, KIRKSEY,
; 141 (1980); LOUISE JUL1CH,
1979~. We use the spelling
s of a person's name were
~re many were illiterate, the
it and the Declaration but
Circuit Ct. Fall Tenn 1844),
Record]. A transcript of the
files variously spell her
spelling in the Court's
lrd, Kirksey v. Kirksey, No.
.] (on file in the Alabama
2006]
THE STORY OF KIRKSEY V. KIRKSEY
329
Henry and Angelico lived on Hobbs Island, about twenty miles from Huntsville
in Madison County, Alabama. 28 Henry purchased farm land there from the
federal government?9 Henry also bought a farm a few miles away, off the
island, next to the Connollys' farm. 3o By 1830, Henry and Angelico had nine
children. 3l Over the next ten years, they had five more. 32
The 1820s and 1830s were boom times in Alabama, but the Panic of 1837
ended this era of speculation and prosperity.33 The state's monetary and banking
system was based primarily upon credit, and capital ventures were financed by
debt. Most money took the form of banknotes issued by banks with scant specie
reserves. A confluence of international and national policies brought the inordinate reliance upon debt and grossly inflated paper currency to a halt. In
Alabama and elsewhere, people began demanding payment of debts in gold or
silver rather than banknotes, and the economy collapsed. The banks suspended
specie disbursements, and Alabamans who had significant debts when the Panic
struck were simply unable to meet their contractual obligations. The situation
was so bad that in the summer of 1837 the state legislature passed a statute
approving the banks' suspension of specie payments. More significantly, the
statute rescheduled the payment of debts to the state-controlled banks, including
the Branch Bank in Huntsville. 34
The Panic probably prompted Angelico and Henry to move to another county.
Hemy owed money to the Branch Bank in Huntsville, and the 1837 statute
extended his debt by three years with three progressively larger annual payments. 35 In February 1839, a month before the second payment was due,
Angelico and Henry sold 240 acres of l:jlld in Madison County for the sum of
$1700 and moved to neighbOling Marshall County, where they apparently
Llrt
0"
found in Appendix It. For
:Jan. 15, 1969) (copy on file
846, Marshall County, Ala.,
that I have and possess but
I Children." Last Will and
l
t. The many small children
e still lived and that he had
w able with and by honest
to his second family. Id.
; Deed of Henry Kirksey &
mty, Ala. The 1850 Census
1 County, Ala., available at
, their second son, John W.
: old and was born in North
Jolm as being between the
" older son is also listed. [d.
28. DARRON, supra note 19, at 69.
29. MARILYN DAVIS BAREFIELD, OLD HUNTSVILI:..E LAND OFFICE RECORDS & MILITARY WARRANTS
1810-1854, at 129 (1985).
30. Patent Records, Huntsville No. 2342, Isaac Kirksey, assignee of Henry Kirksey (May 20, 1828)
(on file at the National Archives, Washington, D.C.) (showing that Henry purchased the land in 1819
and made payments until 1826, then assigned the land to Isaac in 1827 before the patent issued); Patent
Records, Huntsville No. 2344, Isaac Kirksey, assignee of John Connally, assignee of David Connally
[sic] (May 20, 1828) (on file at the National Archives, Washington, D.C.) (showing that David
Connolly purchased property just to the north of Henry's plot in 1814 and assigned the property in 1814
to John Connolly (attested to by Thomas Connolly, JP), that John Connolly made payments until 1826,
then assigned the land to Isaac Kirksey in 1827 before the patent issued). Both of these records show
adjustments of Henry Kirksey's and Jolm Connolly's payment amounts and due dates following the
Huntsville land market crash of 1819-1820. See, e.g., Act for the Relief of Purchasers of Public Lands
Prior to the First Day of July, Eighteen Hundred and Twenty, ch.12, 3 Stat. 612 (1821).
31. U.S. Census 1830, Madison County, Ala.
32. U.S. Census 1840, Marshall County, Ala.
33. See WILLIAM BRANTLEY, BANKING IN ALABAMA 1816-1860, at 337-59 (1961); WILLIAM ROGERS ET
AL., ALABAMA: THE HISTORY OF A DEEP SOUTH STATE 138-425 (1994).
34. An Act To Extend the Time of Indebtedness to the Bank of the State of Alabama and to Its
Branches, 1837 Ala. Acls9, 9-10, § 2.
35. See id. The first payment was 25% of the principal, and the second two payments were 37.5%
each. [d.
330
I
,;1.
THE GEORGETOWN LAW JOURNAL
[VoL 94:321
engaged in cotton farming on leased land. 36 At this time they had nine male and
three female children living with them. 3? The next year the loan extensions
imposed by the legislature expired, and the Branch Bank filed hundreds of
lawsuits against defaulting debtors. In August 1840 alone, seventy-eight default
judgments were entered in the Bank's favor, including one for $268.65 against
Henry Kirksey.38 In October the court issued a writ to execute upon Henry's
property,39 but to no avaiL The Kirkseys were no longer in the county, and the
Sheriff of Madison County had no authority to cross the line into Marshall
County.40
In any event, Henry died sometime in August 1840,41 soon after the default
judgment was entered. In early September, Angelico and a Kirksey relative
were appointed administrators of Henry's estate, but the court revoked their
appointroent three weeks later for failure to post a bond, and Angelico's second
son, John W. Kirksey, was appointed in their stead:2 Eventually the son's
appointment was also revoked for failure to post a bond. 43 Although the estate
had significant assets, including a crop of cotton," when the estate was finally
settled two years after Henry's death, not much was left. The Branch Bank and
other creditors received fourteen cents on the dollar.45 Perhaps the family looted
the estate. We do not know.
2. Isaac Kirksey
While Henry and Angelico were encountering financial hardship, Henry's
brother Isaac46 fared far better-first in Madison and then in Talladega County.
Isaac is a familiar figure in American life. He was a working-class man who,
36. Deed of Henry Kirksey & Wife to David Moore, supra note 25. The Kirksey decision recites that
Angelico "resided on public land, under a contract of lease." Kirksey v. Kirksey, 8 Ala. 131, 131
(1845). TIlere is no record of any Kirksey owning land in Marshall County during the 1830s and 1840s.
See BAREFIELD, supra note 29, passim; MARGARET MATTIfEWS COWART, OLD LAND RECORDS OF MARSHALL
COUNTY, ALABAMA (1988).
37. U.S. Census 1840, Marshall County, Alabama.
38. Madison County Court Minute Book 1840-1841, Aug. Term 1840, Nos. 5966-6044, Madison
County, Ala.; Branch Bank v. Henry Kirksey, Madison County, Ala.
39. Madison County Court Execution Docket 1830-1845, Aug. Term 1840, No. 6010/5339, Madison County, Ala.
40. See Jones v. Bll1Cter, 41 So. 781, 782 (Ala. 1906); Sheriffs and Constables, in 43 CENTURY
EDmoN OF THE AMERICAN DIGEST § 101 (1903).
41. The initial application for letters of administration for Henry's estate was on September 5, 1840.
Orphaps Court Minutes 1839-46, Marshall County, Ala., at 46.
42. [d. at 46-47, 56.
43. [d. at 74, 79. The court entered a judgment against John W. Kirksey in respect of any property
sold subject to a credit for payments made. [d. at 79. Ultimately, the court rendered a judgment in the
amount of $769.95. Marshall County Probate Court Minutes 1839-1844, Marshall County, Ala., at 209.
44. Orphans Court Minutes 1839-46, Marshall County, Ala., at 96, 105.
45. Final settlement of the estate of Henry Kirksey (Nov. 24, 1842), Marshall County Probate Court
Minutes 1839-1844, Marshall County, Ala., at 209-12.
46. Although his full name was James Isaac Kirksey, he always went by his middle name and never
included his first name in his signature. DARRON, supra note 19, at 76. Similarly, his brother Henry was
actually named William Henry, but like his brother he dropped his first name. [d. at 69.
[Vol. 94:321
:hey had nine male and
ar the loan extensions
ank filed hundreds of
~, seventy-eight default
ne for $268.65 against
execute upon Henry's
. in the county, and the
the line into Marshall
2006]
THE STORY OF KlRKSEY V.
KlRKSEY
331
during a lifetime of constant wheeling and dealing, managed to amass a sizeable
fortune. Nevertheless, when he died, he was still desclibed as "a laboring man, a
Blacksmith by trade.,,·7 Isaac was "tall, very fair and fine 100king.,,·8 He was
Scots-Irish and reputedly spoke in a "Scotch brogue.,,·9
soon after the default
md a Kirksey relative
Ie court revoked their
and Angelico's second
. Eventually the son's
.43 Although the estate
1 the estate was finally
The Branch Bank and
rhaps the family looted
cial hardship, Henry's
n in Talladega County.
)rking-class man who,
~
Kirksey decision recites that
v. Kirksey, 8 Ala. 131, 131
,during tlle 18308 and 18408.
) LAND RECORDS OF MARSHAlL
), Nos. 5966--6044, Madison
1840, No. 6010/5339, Madi-
Constables, in 43 CENTURY
~e
was on September 5, 1840.
Isaac Kirksey (by permission, Robert R. Darron)
Isaac was born in North Carolina and, as a boy, migrated across Tennessee
to Alabama with the rest of the Kirksey family and the Connollys. In 1821,
Isaac married Angelico's sister, Mary Connolly, and already had his own
"smith's shop."sO He was an ambitious man with an eye out for any
opportunity to make money. As a young man, he began buying and selling
land in Madison County.5l He eventually bought land from Henry and the
ey in respect of any property
It rendered a judgment in the
vlar8hall County, Ala., at 209.
arshall County Probate Court
Iy his middle name and never
lilarly, his brother Henry was
(le. [d. at 69.
47. Kirksey v. Kirksey, 41 Ala. 626, 630 (l868) (testimony of James Montgomery, who had known
Isaac since 1835).
48. DARRON, supra note 19, at 76.
49. Letter from Florence Holman to Lunda Brown (Aug. 13, 1965) (on file in the Kirksey File at the
Clayton Library, Hous~on, Tex.).
50. 124 ALABAMA RECORDS 50, 54 (Kathleen Paul Jones & Pauline Jones Gandrud camps., 1961).
51. See 103 id. at 76:
332
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Connollys.52 But he did not restrict himself to land transactions. He also
bought and sold human beings. In 1830, he owned thirteen slaves. 53
By the early 1830s, Isaac and his wife were well established in Madison
County. In 1830, he was thirty-three, and Mary (whom everyone called Nancy)
was twenty-eight. 54 At the time, they had three boys and two girls. 55 He was
appointed Justice of the Peace in 1832 and served in that capacity for the rest of
his life. 56 In 1830 he and four other men bought "two acres for the use of the
Methodist Church.,,57
But Isaac and Nancy did not stay in Madison County. In the 1820s much of
central Alabama was ruled by the Creek Indians, but in 1832 the Creeks ceded
the last of their land to the federal government, and part of this cession became
Talladega County.58 At the same time, the first cotton gin in Alabama was built,
and cotton quickly became the state's most important crop.59 Isaac saw the
enormous agricultural potential of the new counties. He sold his property in
Madison County"° and in 1834 moved his family to Eastaboga in the northern
part of Talladega County, where he established a plantation. He called his new
home Locust Grove. 61
Isaac was not a simple farmer who tilled his own land. Locust Grove was a
cotton plantation, and most of the work was done by slaves. In Alabama and
elsewhere, an individual who owned fifty or more slaves was a large planter,62
and twenty slaves was "roughly a minimum for the plantation method.,,63 By
1840 Isaac was almost a large planter, with forty-seven slaves, and in 1850 he
owned fifty human beings. 6' His plantation at this time was not one large,
contiguous stretch of land. 65 Generally an Alabama plantation of that period
52. See supra note:i\O.
53. U.S. Census 1830, Madison County, Ala., at 115; see also 201 ALABAMA RECORDS, supra note 50,
at 26 (referring to page 359 of Madison County Deed Book H to show that Isaac bought a slave in
1822); Hinton v. Isaac Kirksey (Ala. ell. 1833), in 138 ALABAMA RECORDS, supra note 50, at 88
(showing that Isaac traded a male slave for a woman and her children).
54. DARRON, supra note 19, at 76, 141.
55. U.S. Census 1830, Madison County, Ala.
56. 1 ALA. SEC. OF STATE, COMMISSION REGISTER 444 (1819-1832) (on file at the Ala. Dep't of
Archives & History, Montgomery. Ala.); 2 id. at 322, 326 (1832-1834).
57. 71 ALABAMA RECORDS, supra note 50, at 62.
58. E. GRACE JEMlSON, HISTORIC TALES OF TALLADEGA 65-70 (1959).
59. THOMAS PERKINS ABERNETHY, TH:E FORMATIVE PERIOD IN ALABAMA 1815-1828, at 30-32 (rev. ed.
1965).
60. Deed from Isaac Kirksey and wife Mary to Jo1m E. Taylor (Feb. 2, 1833), in 124 ALABAMA
REcORDS, supra note 50, at 60; Deed from Isaac Kirksey and wife Mary to David Moore (Aug. 6, 1836),
in 124 id. at 64; Deed [TOm Isaac Kirksey to Levi Hinds (Oct 7, 1835), in 124 id. at 68.
61. DARRON, supra note 19, at 76. He bought his land in January 1834, a few weeks after the Federal
Land Office opened. BAREFIELD, supra note 29, at v, 9.
62. JAMES SELLERS, SLAVERY IN ALABAMA 40 n.52 (1950); accord Joseph Menn, The Large Slaveholders of the Deep South, 1860, at v (1964) (unpublished doctoral dissertation, University of Texas Austin).
63. J. Mu.LS THORNTON, POLmcs AND POWER IN ASLAVE SOCIETY: ALABAMA 1800-1860, at 63 (1978).
64. U.S. Censns 1840, Talladega County, Ala.; U.S. Censns 1850, Talladega County, Ala.
65. See infra text accompanying notes 104-28.
r
1
I
I
I
I
I
I
I
[Vol. 94:321
ransactions. He also
en slaves. 53
tablished in Madison
eryone called Nancy)
I two girls. 55 He was
apacity for the rest of
res for the use of the
[n the 1820s much of
g32 the Creeks ceded
f this cession became
.n Alabama was built,
:rop59 Isaac saw the
sold his property in
,boga in the northern
m. He called his new
Locust Grove was a
.ves. In Alabama and
was a large planter,62
tation method.,,63 By
laves, and in 1850 he
~ was not one large,
Itation of that period
2006]
tl
file at the Ala. Dep't of
15-1828, at 30-32 (rev. ed.
2, 1833), in 124 ALABAMA
'avid Moore (Aug. 6, 1836),
~4 id. at 68.
few weeks after the Federal
lIenn, The Large Slavehold
tion, University of Texas w
1800-1860, at 63 (1978).
,ga Couuty, Ala.
IA
333
was limited to the distance a man could walk in one hour from the slave
quarters. Large planters often owned several, noncontiguous plantations, with
lhe satellite plantations being supervised by sons or overseers. 66 In addition to
growing cotton, Isaac had many olher commercial irons in the fire. In 1835 he
bought 4000 acres of land in the Mexican state of Texas. 67 He "was a man of
means, was very economical; [and] was in the habit of loaning money."68 Isaac
also "established a big merchant mill, tannery, wagon factory, and factories for
the manufacture of harnesses, shoes, and other lealher goods."69
In lhe early 1850s, Frederick Law Olmstead toured Alabama an(i subsequently wrote a colorful description of Alabama planters like Isaac Kirksey.
Olmstead reported that they "were usually well dressed, but were a rough,
com:se style of people, drinking a great deal, and most of lhe time under a little
alcoholic excitement.',7o They were "[n]ot sociable, except when lhe topics of
cotton, land, and negroes were started; interested, however, in talk about lhe
lheaters and the turf; very profane.'m Moreover, they often showed "lhe
handles of concealed weapons about lheir persons, but [lhey were] not quarrelsome, avoiding disputes and altercations, and respectful to one anolher in forms
of words." n
Olmstead's portrait of a typical Alabama planter rings true in the case of Isaac
Kirksey (certainly Isaac is well-dressed in lhe only known photograph of
him73 ), but Olmstead clearly does not paint a complete portrait of the man.
There are indications lhat within his family he was very generous. He apparently was "an indulgent father,"7' and he believed in the value of education. 7s
At lhe same time, there is evidence of a darker side to Isaac's character. He was
66.
supra note 50,
hat Isaac bought a slave in
lRDS, supra note 50, at 88
MA RECORDS,
THE STORY OF KIRKSEY V. KIRKSEY
ROGERS-ET -AL.pyupra-llote 33,at-9_~97..
67. DARRON, supra note 19, at 77-78. This land was in what was to become Anderson County, Texas.
In 1860 Isaac bought an additional 1000 acres in NavalTO County, Texas. [d.
68. Kirksey v. Kirksey, 41 Ala. 626, 632 (1868) (testimony of John C. Walker). For charges of usury,
see Jones v. Kirksey, 10 Ala. 579 (1846); Kirksey v. Jones, 7 Ala. 622 (1845).
69. DARRON, supra note 19, at 97 (quoting an 1895 Dallas Moming News article about Isaac's son);
see also Kirksey v. Fike, 27 Ala. 393 (1855) (litigation over tannery); Probate Court Minutes, vol. I, at
199 ("Kirksey's Mill"), Talladega County, Ala. (1867-69).
70. 1 FREDERICK LAW OLMSTEAD, THE COTTON KINGDOM 276 (1861). An earlier Alabama visitor from
the North recorded that "the people [are] devilish. Duelling and fighting the chief diversions, [g]ambling and drinldng pastimes, and an uninterrupted, conunon intercourse with the negroes the virtue of
all the men." Luaus BIERCE, TRAVELS IN THE SOUTIILAND 1822-1823, at 1, 99-100 (G. Knepper ed.,
1966). The context of Bierce's statement makes it clear that by "intercourse" with the "negroes," he
meant sexual intercourse. See id.
71. 1 OLMSTEAD, supra note 70, at 276-77.
72. Id. at 277.
73. See supra photograph at text accompanying note 50.
74. DARRON, supra note 19, at 77.
75. In addition to serving on the board of directors of the Eastaboga Academy, see JEMISON, supra
note 58, at 277, Isaac insisted that all of his sons and daughters go to school. At least the 1850 Census
states that his school age children were attending school. U.S. Census 1850, Talladega County, Ala. He
sent one of his sons to an "eastern university." DARRON, supra note 19, at 88. It must be said, however,
that the 1865 inventory of Isaac's estate lists only "1 Lot Books" valued at ten dollars. Talladega
County \VilIs & Inventories, vol. C, at 95, Talladega County, Ala.
334
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
a "velY economical,,76 man, and outside the family his constant striving for
wealth may have taken him down immoral paths. There is some evidence that
his "habit of lending money"n involved USury.78 Isaac was also well known to
the Alabama judiciary. He appeared as a plaintiff as early as 182879 and never
seems to have slaked his thirst for litigation. From 1845 to 1856, the Alabama
Supreme Court published eight opinions in cases involving Isaac. 8o
Finally, Isaac Kirksey owned slaves. Some might say that he was just a man
of his times, and that in choosing to become a slaveholder, he was simply doing
what everyone else was doing. Perhaps-but the moral dimensions of slavery
had been fully elaborated in nineteenth-century America. Many rejected the
institution as immoral, and many embraced it. Isaac Kirksey was a "very
economical" man who embraced slavery and made a fortune from it.
Even if the general moral problem of slavely is set to one side, there is
evidence that Isaac was more abusive than other slaveholders. In the eal"ly
l830s, a woman that he claimed to own sued him for her and her children's
freedom. Edy Hinton alleged that she was in fact a "free woman of color [and]
daughter of a free mulatto woman.,,8! She and her eight children were kidnapped in Tennessee and sold as slaves to Isaac in Alabama. If these claims
were Due,82 Isaac should have released her and her farnily,but a "very economi~
cal" man like Isaac Kirksey might have been unwilliug to lose the value of his
bargain. Isaac's "economical" ways apparently influenced the way he treated his
slaves. In 1861 his oldest son, Albert O. Kirksey, offered to buy one of Isaac's
slaves "who was then a lUuaway.,,83 Isaac responded tllat "he would not sell the
negro, as the balance of his negroes would run away if he did, just to be sold.,,84
In Isaac's eyes, his slaves would have preferred to be owned and controlled by
someone other than himself.
Isaac's economic welfare steadily improvedtlrroughout the l830s, but the
end of the decade brought a double tragedy. On October 13, 1839, his wife
76. See supra note 68 and accompanying text
77. See supra note 68 and accompanying text.
78. See supra note 68.
79. Kirksey v. Weaver (Ala. eh. 1828), in 97 ALABAMA RECORDS, supra note 50.
80. Kirksey v. Jones, 7 Ala. 622 (1845); Kirksey v. Kirksey, 8 Ala. 131 (1845); Kirksey v. Mitchell,
8 Ala. 402 (1845); Jones v. Kirksey, 10 Ala. 579 (1846); Jones v. Kirksey, 10 Ala. 839 (1846);
Montgomery's Ex'r v. Kirksey, 26 Ala. 172 (1855); Kirksey v. Fike, 27 Ala. 383 (1855); Kirksey v.
Fike, 29 Ala. 206 (1856). Other litigation never reached that level. See, e.g., supra notes 81-82 and
accompanying text (discussing the Hinton case); Notice, Isaac Kiksey [sic] v. Wm. Montgomery &
Hugh Montgomery, TALLADEGA (Ala.) WATCHTOWER, Aug. 16, 1843. Given Isaac's litigiousness, it is
fitting that his heirs took the settlement of his estate to the Alabama Supreme Court. Kirksey v. Kirksey,
41 Ala. 626 (1868).
81. Hinton v. Kirksey (Ala. Ch. 1833), in 138 ALABAMA REcORDS, supra note 50, at 88.
82. The suit was not resolved on the merits. All we have is a cryptic statement in the judicial
records: "Came the parties by counsel and state they will not further prosecute." [d.
83. Kirksey v. Kirksey, 41 Ala. 626, 632 (1868) (eyewitness testimony of John C. Walker).
84. rd.
~.
I
I
I
I
\
[Vol. 94:321
constant striving for
is some evidence that
IS also well known to
, as 182879 and never
to 1856, the Alabama
; Isaac. so
!at he was just a man
he was simply doing
limensions of slavery
I. Many rejected the
illksey was a "very
te from it.
to one side, there is
holders. In the eal"ly
er and her children's
~oman of color [and]
It children were kid,ama. If these claims
but a "very economilose the value of his
he way he treated his
to buy one of Isaac's
he would not sell the
lid, just to be sold.,,84
led and controlled by
t the 1830s, but the
r 13, 1839, his wife
r
2006]
Nancy died from "a lingering illness.,,85 Isaac was not long in mourning. Five
months later he remarried-this time to Sarah Edwards. 86 Sarah was twentyseven years old, and she and Isaac subsequently had five children. 87 Shortly
after Isaac's remarriage, he learned of his brother Henry's death in Marshall
County. Isaac inunediately resolved to invite his sister-in-law and her children
to move down to Talladega County and live near him.
B. THE CONTROVERSY: WHY INVITE AND WHY EVICT?
On October 10, 1840, eight months after his remarriage, Isaac wrote Angelico
the following letter. Most of it was later recited by the Alabama Supreme Court
in Kirksey v. Kirksey. We have italicized the omitted portion.
Dear Sister Antillico [sic] - Much to my mortification, I heard that brother
Henry was dead, and oue of his children. I know that your situation is one of
grief and difficulty. You had a bad chance before, but a great deal worse now.
I should like to come and see you, but cannot with convenience at present. I
am Itot well at prese1tt, my family has beelt gelterally well, all but myself altd
my youltgest SOIt. We have Itot bee1t very sick. The health of the COUltty is
tolerably good at preseltt. I should like to kltow your situation. I do not know
whether you have a preference on the place you live on or not. If you had, I
would advise you to obtain your preference, and sell the land and quit the
country, as I understand it is very unhealthy, and I know society is very bad. If
yon will come down and see me, I will let you have a place to raise your
family, and I have more open land than I can tend; and on account of your
situation, and that of your family, I feel like I want yon and the children to do
welL 88
Withiri"a month or two" after recelVlng this letter, Angelico brought her
family-herself and as many as nine children89-down to Talladega. 9o Isaac
85.
fte 50.
1845); Kirksey v. Mitchell,
"ey, 10 Ala. 839 (1846);
la. 383 (1855); Kirksey v.
g., supra notes 81-82 and
cJ v. Wm. Montgomery &
Isaac's litigiousness, it is
Court. Kirksey v. Kirksey,
)te 50, at 88.
~ statement in the judicial
e." Id.
fohn C. Walker).
335
THE STORY OF KIRKSEY V. KIRKSEY
CAROLYN
LANE LUTIRELL, EARLy TOMBSTONE REcORDS
OF TALLADEGA
COUNTY, ALABAMA 32 (1973)
(quoting the inscription on Nancy's tombstone: "She had been an exemplary member of the Methodist
Church for more than ten years. She bore up under a lingering illness for many months but was never
heard to murmur but often heard to say, not my will but thine be done, Oh Lord").
86, Letter to Mrs. DJ. (Christine Kirksey) Rndder (Sept. 11, 1970) (taken from St. Clond Co.• Ala.,
Marriage Book 1, p. 138) (on file in the Kirksey File, Clayton Library, Houston, Tex.).
87. DARRON, supra note 19, at 106.
88. Bill of Exceptions, in Kirksey Appellate Record, supra note 21; see also Kirksey v. Kirksey, 8
Ala. 131, 131-32 (1845).
89, She likely brought to Locust Grove at least eight children, including the following: Louisa, age
16; Mary Jane, age 10; Edwin, age 9; Eliza, age 7; Andrew, age 6; and Granville, age 2. Compare U,S.
Census 1830, Madison County, Ala" U.S. Census 1840, Marshall County, Ala., at 36, ami U.S. Census
1850, Madison County, Ala., at 395, with DARRON, supra note 19, at 69-73. Besides these six, Angelico
had with her in 1840 at least five other children, two of whom likely were young and dependent. The
1840 Census lists six others still living with Henry and Angelico when the census was taken: two males
age 20-30, one male age 15-20, two males age 10-15, and one more male age 3-5. One of these died
when Henry died: Isaac's letter refers to the death of one of Henry's children, See Kirksey, 8 Ala, at
132. TIlis was likely after the census, which itself lists Henry. U.S. Census 1840, Marshall County, Ala.
336
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
gave her houses to live in and land to tend9' which she and her family cultivated
for their own support. 92
In all likelihood, Isaac's motives in writing this letter were mixed. He was
extending a helping hand to the wife and children of his recently deceased
brother and the sister of his recently deceased wife. He gave his deceased
brother's name to the first child of his second marriage. 93 At the same time,
however, Isaac was an "economical" man, and he appears to have had economic
reasons for Angelico's presence on his "open land." Understanding Isaac's
motives requires some understanding of land acquisition in antebellum Alabama, however: how Isaac acquired his land, and on what land he placed
Angelico and her family.
Isaac Kirksey was one of the first white men to own land in Talladega
County. The County itself was formed in December 1832, just nine mQnths after
the Creek cession,94 before any settler held title to land there. 9s Though the
1832 treaty reserved some land for the Creeks, much of the cession passed into
U.S. Government hands free of native claims. After taking a census of the
Creeks, conducting a quick land survey, and allowing time for Creek natives to
choose specific parcels pursuant to the treaty, the federal government began
selling the remaining Talladega land to settlers in January 1834.96 Under the Act
of April 24, 1820, a minimum price of $1.25 per acre was established for all
federallands. 97 Over ninety percent of land sold by the federal government in
antebellum Alabama went for not more than $1.25 per acre. 9S Of course, land
was not always available at that price. In 1837, just prior to the Panic,
Thus, five were left. But two of the three younger sons, and perhaps three if one of the older sons died
with Henry, may well have accompanied her to Locust Grove. That would indicate that Angelico
brought eight or nine children.
90. See Kirksey, 8 Ala. at 132.
91. Id.
92. The appellate record states that Isaac "gave her good open land to cultivate." Bill of Exceptions,
in Kirksey Appellate Record, supra note 21 (counsel for both parties stipulated to the statement of facts
in the Bill of Exceptions). The Bill of Exceptions also notes that there was some dispute whether Isaac,
had Angelico moved to the house in the woods, as Isaac later asked her to do, "still proposed to allow
[Angelico] to cultivate the same cleared land," id., indicating that she did indeed cultivate it. Angelico's
Declaration states that Isaac provided land "for the purpose of cultivation to support herself & family."
Declaration, in Kirksey Trial Record, supra note 21.
93. DARRON, supra note 19, at 107.
94. JEMISON, supra note 58, a1 79 (noting that the act creating the counties was approved by the
legislature iIi January 1833). The bill in the Alabama legislature was drawn up by Green T. McAfee. [d.
95. [d. at 65-70, 83 ("[T]here were no public lands offered for sale in 1833."); :MARy ELIZABETH
YOUNG, REnSKINS, RUFFLESHIRTs, AND REDNECKS, maps 13 & 14 (1961).
96. JEMISON, supra note 58, at 71; YOUNG, supra note 95, at 74, 179.
97. Act of Apr. 24, 1820, ch. 51, § 3, 3 Stal. 566, 566. This price was a change from the two dollar
per acre price established by the Act of May 18, 1796, and retained by subsequent statutes until 1820.
See, e.g., Act of May 10, 1800, ch. 55, § 5, 2 Stat. 73, 75.
98. YOUNG, supra note 95, at 1'15-76.
[Vol. 94:321
her family cultivated
vere mixed. He was
s recent!y deceased
gave his deceased
3 At the same time,
) have had economic
1derstanding Isaac's
in antebellum Ala'hat land he placed
1 land in Talladega
1st nine months after
there. 9S Though the
, cession passed into
ng a census of the
for Creek natives to
. government began
l34. 96 Under the Act
s established for all
ieral government in
e. 98 Of course, land
prior to the Panic,
one of the older sons died
ld indicate that Angelico
ivate." Bill of Exceptions,
d to the statement of facts
me dispute whether Isaac,
::l, "still proposed to allow
led cultivate it. Angelico's
mpport herself & family."
ties was approved by the
) by Green T. McAfee. [d.
1833."); MARy EUZABETIl
lange from the two dollar
:quent statutes until 1820.
2006]
THE STORY OF KIRKSEY V. KIRKSEY
337
speculators sold land for as much as $39 per acre,99 and federal prices would
have risen with the market. The federal government initially offered land at
auction, but if no sale occurred, the land could be classified as "offered" and
later sold in a "private sale" for not less than $1.25 per acre. 100 Whereas
pre-1820 law allowed sales on credit (including land in Alabama around
Huntsville when Henry and Angelico arrived there),'01 the Act of 1820 forbade
credit sales. 102
Congress established land offices in the territories. 103 Land in Talladega
County was sold through the Mardisville Land Office, located in th~ County
itself. There, on January 18, 1834, Isaac Kirksey purchased 160 acres from the
federal govemment. 104 Eighty of these he soon sold to someone else. lOS On
January 29, Isaac bought another eighty acres from the federal government. '06
At about the same time, he purchased an additional 240 acres from others,
including land speculator Elijah Moore Driver, who had arrived shortly before
Isaac. 107 Patents were later issued to Isaac for the 400 acres that he retained. 108
All of this land was contiguous, or a short walk away, in trne plantation style.
99. JEMISON, supra note 58, at 106. In the recession following 1837, when cotton prices spiraled,
land prices followed. Id. at 106-09. But to those with preemption rights, as discussed later in this
section, land was always available for the minimum price.
100. Act of Apr. 24, IS20, ch. 51. § 3.3 Stat. 566, 566 (as to the price); Land Ordinance of 1785
(reprinted in 28 J. CONTINENTAL CONGo 375 (Jon Fitzpatrick ed, 1933)); PAUL W. GATES & ROBERT W.
SWENSON, HISTORY OF PUBLIC LAND LAW DEVEWPMENT 127 (1968).
101. E.g., Act of May 18,1796, ch. 29. § 7, 1 Stat. 464, 467-68 (allowing sales on credil); see also
GATES & SWENsoN,;.$upxanote,lOO"at-121d3. Henry and Angelico, in fact, purchased land on credit in
1819. Henry paid the last installment in 1826. Ironically, after making the last payment, he assigned his
rights in the land to Isaac, to whom a patent was eventually issued. Patent Records, Huntsville No.
2342, Isaac Kirksey, assignee of Henry Kirksey (May 20, 1828) (on file at the National Archives,
Washington, D.C.).
102. Act of Apr. 24, 1820, ch. 51, § 2, 3 Stat. 566, 566 (forbidding sales on credit).
103. See, e.g.• Act of Mar. 3, 1803, ch. 27, § 4. 2 Stat. 229, 230 (establishing land offices for sale of
lands in the "Mississippi Territory," which included what would later become Alabama, and directing
that sales be accomplished in the same manner as in other land offices elsewhere); Act of May 10, 1800,
ch. 55, §1, 2 Stat. 73, 73 (establishing offices in what would later become Ohio).
104. Tract Book of the Mardisville Land Office, Township 17, Range 6 E., at 109 (cert. #496), 112
(cert. #503).
105. Patent issued to Daniel Huff Norwood, assignee of Isaac Kirksey, Mardisville, cert. #503, Ser.
#AL0960_.495 (Oct. 20, 1835), available at http://www.glorecords.blm.gov (Bureau of Land Management's General Land Office Records).
106. Tract Book of ille Mardisville Land Office, Township 17. Range 6 E., at 109 (cert. #663).
107. Tract Book of ti,e Mardisville Land Office, Township 17, Range 6 E., at 109 (cert. #497, #498),
112 (cert. #388).
108. Patent issned to Isaac Kirksey, Mardisville, cert. #388, Ser. #AL0960_.380 (Oct. 20, 1835);
Patent issued to Isaac Kirksey, Mardisville, cert. #496, Ser. #AL0960_.488 (Oct. 20, 1835); Patent
issued to Isaac Kirksey, Mardisville, cert. #497, Ser. #AL0960_.489 (Oct. 20, 1835); Patent issued to
Isaac Kirksey, Mardisville, cerl. #498, Ser. #AL0960_.490 (Oct. 20, 1835); Patent issued to Isaac
Kirksey, Mardisville, celt. #663, Ser. #AL0970_.156 (Aug. 1, 1837). These patents are also available
at the Bureau of Land Management's General Land Office Records website, supra note 105.
~
...
,-338
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Isaac may in fact have added to this acreage,109 but not all deeds from this
period were recorded.!10 Later maps show Isaac's 400 acres at the core of a
larger plantation. 11 ! In any event, Isaac began life in Talladega as a fairly large
landholder. He owned some of the better land in the county.11Z And he was
hungry for more. As previously noted, in 1835, he purchased thousands of acres
in Texas.
Isaac Kirksey, however, did not always buy land in order to cultivate it. He
bought and sold land profitably around Huntsville, and when he first came to
Talladega, he saw land speculators such as Elijah Moore Driver and Charles
White Peters in action. 113 In fact, he bought eighty acres from Driver to
compose his original plantation. 114 Isaac, too, began to buy and sell land. In
March of 1835, he purchased 320 acres five miles to the west of his Talladega
plantation. 115 He sold this land in 1836. 116 Surviving records indicate that
although he maintained and enlarged his central plantation, he sold unconnected
property that he obtained in Talladega for profit, at least until 1843.
In 1837, Isaac lent money to a neighbor, Robert Lane. ll7 In exchange, Isaac
109. In 1838, Isaac added to this plantation about thirty acres on the north bank of the Chbcolocho
Creek. Indenture from Robert McLane to Isaac Kirksey (May 4, 1838), Talladega County Property
Records, bk. C, at 262 (recorded Dec. 10, 1839).
110. For instance, Isaac transferred 320 acres in 1836 to Uriah Hussaby or Hussady in a deed that
was not recorded. Indenture from Isaac Kirksey to Green T. McAfee, Talladega County Property
Records, bk. D, at 596-98 (recorded Nov. 9, 1843).
111. Map of Talladega County, Ala. (Birmingham: Bethel W. Whitson, c.1930), bttp://alabamamaps-
.ua.edulhistoricalmaps/cQunties/talladega.html (last visited July 19. 2005). This map refers to the
plantation as Indian Hill Plantation, and lists its size as 1,052.22 acres. [d. Kirksey family genealogists
believe that Indian Hill is a later name for Locust Grove. Notes of Verolean Kirksey on DARRON, supra
note .19,.at 76 (copy on. Jile"_with. authors). "The plantation remains mostly fannland today, but the
Talladega· Municipal Airport sits on its northwestern comer, and the NASCAR Talladega Super
Speedway was built just off of what property records show was its western border.
112. Land at the time was selling for between $1.25 and $2.00 per acre, but Isaac paid $3.17 per acre
for one eighty-acre parcel and $6.60 per acre for another. Tract Book of the Mardisville Land Office,
Township 17, Range 6 E., at 109 (cert. #498 ($3.i7) & #496 ($6.60)).
113. Tract Book of the Mardisville Land Office, Township 17, Range 6 E., at 109, 112 (recording
numerous sales to Driver and Peters on January 18 and 29, 1834, the same days that Isaac purchased);
Tract Book of the Mardisville Land Office, Township 16, Range 6 E., at 18-20 (same). Driver was very
successful in Talladega, as he had been in Huntsville. YOUNG, supra note 95, at 165 (reporting that
Driver purchased 96,269 acres in Madison County, Alabama, and Yalobusha County, Mississippi, in the
period 1836-54); Mark Jordan, For Sale?, THE MEMPHIS FLYER, http://www.memphisflyer.comlbackissues/
issue577/cvr577.htm (last visited Nov. 17, 2005) (reporting that Dliver owned Memphis's 8700 sq. ft.
Hunt-Phelan mansion from 1845 to 1851).
114. Patent Issued to Isaac Kirksey, Mardisville, cert. #388, Ser. #AL0960_.380 (Oct. 20, 1835)
(listing Isaac as assignee of Eli Moore Driver), available at the Bureau of Land Management's General
Land Office Records website, see supra note 105; Tract Book of the Mardisville Land Office, Township
17, Range 6 E., p. 112 (listing Isaac as patentee on land purchased by Driver).
115. Indenture, Reese Howell to Isaac Kirksey (Mar. 17, 1835), Talladega County Property Records,
bk. C, at 336-37 (recorded Nov. 18, 1842).
116. Indenture, Isaac Kirksey to Green T. McAfee, Talladega County Property Records, bk. D, at
596-98 (recorded Nov. 9, 1843).
117. Indenture, William J. Vann to Isaac Kirksey (June 24, 1839), Talladega County Property
Records, bk. C, at 305-07 (recorded Jan.. l3, 1840).
I..,
I
[Vol. 94:321
all deeds from this
res at the core of a
ega as a fairly large
nty.1I2 And he was
i thousands of acres
rI
i
I
I
,r to cultivate it. He
Len he first came to
Driver and Charles
:es from Driver to
ly and sell land. In
est of his Talladega
,cords indicate that
Ie sold unconnected
11843.
In exchange, Isaac
bank of the Chocolocho
llladega County Property
I
IT Hussady in a deed that
lladega County Property
130), http://alabamamapsThis map refers to the
rksey family genealogists
jrksey on DARRON, supra
farmland today, but the
\..SCAR Talladega Super
der.
Isaac paid $3.17 per acre
Mardisville Land Office,
i., at 109, 112 (recording
lYS that Isaac purchased);
) (same). Driver was very
5, at 165 (reporting that
'ouuty, Mississippi, in the
lphisflyer.com/backissuesl
d Memphis's 8700 sq. ft.
,0_.380 (Oct. 20, 1835)
d Management's General
[e Land Office, Township
~ounty
Property Records,
,pelt)' Records, bk. D, at
ladega County Property
I
I
I
I
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
339
took a deed of trust on Lane's 440 acres, which lay about one-and-a-half to two
miles to the northeast of Locust Grove. lIS Lane defaulted on this loan in 1839,
and the trustees sold the land at auction in June of that year to Isaac. 1I9 Isaac
may not have been the first lienholder on the Lane property, however. A second
indenture dated June IS, 1840, reports that most of this same property was sold
at auction again in February 1840 to satisfy a separate judgment against
Lane. '2o Isaac purchased at this auction, too, though records show him buying
only the south half of the Lane property. Just how much of the Lane land Isaac
obtained is uncertain,121 but part of the Lane land is now known, as Old
_ Eastaboga, and Isaac is considered one of the village's founding fathers. l22 The
deed from this second auction was recorded in July 1840. '23
When Isaac sent his letter to Angelico in October, 1840, the Lane matter had
been settled a few months before, and Isaac had just gained additional land
separate from that which his slaves had been cultivating since 1834. Between
1835 and 1843, this is the only land that surviving records show Isaac obtained
in Talladega County separate from Locust Grove, which was itself still of
manageable size,l24 This is the land on which-or near which-Isaac placed
Angelico and her family. Locating the exact spot on which Angelico lived is
difficult, because Isaac sold the south half of the Lane propelty in February,
1841, just after Angelico arrived. '2s Surviving documents do not show conclusively that he owned the north half of the Lane property (he purchased it at the
sale in 1839, but not at the second sale in 1840), so exactly where Angelico
settled is something of a puzzle.
!l8. Id.
!l9. Id.
120. Indenture, Hugh P. Watson, Register and Master in Chancery, to Isaac Kirksey, Talladega
County Property Records, bk. C, at 396--97 (recorded July 13, 1840).
121. A chancery litigation report in the local paper, the Talladega Watchtower, on August 16, 1843,
recites that in February 1841 Isaac h~ld fee simple to a large portion of the Lane property that he
purchased in June of 1839, see supra note 119, but which we have no record of him purchasing again in
February of 1840 at the second auction, see supra note 120. Failure to record deeds of the time
probably accounts for this discrepancy.
122. DARRON, supra note 19, at 96-97 (citing an 1895 Dallas Morning News article about Isaac's
son). Isaac also reported in 1844 that he owned 560 acres in Benton County, where the northern half of
the Lane property was located. Tax Assessment Record for Benton County 1844, at 28 (on file at the
Anniston, Ala., Public Library).
123. Indenture, Hugh P. Watson, Register and Master in Chancery, to Isaac Kirksey, Talladega City
Property Records, bk. C, at 396-97 (recorded July 13, 1840).
124. The records we have searched contain several inconclusive leads that Isaac may well have
owned other property, but if so, it was purchased much earlier. For example, Calhoun County, Alabama,
Tract Book, at 100, repOlts eighty acres owned by Isaac several miles to the north in 1837, but Isaac
had no patent for tIus land (perhaps indicating he sold tile land before the patent issued), and a deed to it
is not in the surviving county records.
125. Notice, Isaac Kiksey [sic] v. Wm. Montgomery & Hugh Montgomery, TALLADEGA (Ala.)
WATCHTOWER, Aug. 16, 1843 (reporting Isaac's sale of the south half of tile Lane property to William
Montgomery on February 6, 1841). Montgomery failed to pay and sold the land to Hugh Montgomery.
Isaac sued to regain possession of the land and posted notice in the paper because Hugh Montgomery
was not to be found in Alabama. Id.
340
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
The puzzle is resolved, however, when certain details set forth in the surviving appellate court records are pieced together. After Angelico lived for two
years on land Isaac designated, in a comfortable house, Isaac asked her to leave.
He offered her, in the words of the Alabama Supreme Court, another "house,
not comfortable, in the woods.,,126 In fact, the appellate record shows, the house
in the woods lacked outhouses. !27 It was also far from the land she had been
farming. 128 Angelico refused to go. The Supreme Court opinion says that Isaac
then "required her to leave.,,!29 In fact, the record shows, Isaac gave notice that,
if Angelico did not go, Isaac would sue to evict her. '3D Then she left. However,
the printed Supreme Court opinion omits one more important detail that provides a key to understanding where Angelico lived and Isaac's motives in
inviting her in the first place, and then evicting her. Before Isaac threatened to
evict Angelico, Isaac placed his son in the house with her, and the two
"occupied it jointly."!31 From this somewhat puzzling act and several related
details, we conclude that Isaac in fact invited Angelico down as part of a
scheme to grab lights to more land, and he invited her off of the property in
fUltherance of that scheme. This motive becomes evident when these facts are
viewed against the background of existing federal land preemption laws and the
land acquisition practices tllat arose under them.
Merely selling federal lands was insufficient as a land distribntion policy in
early America. Americans pushed the frontier forward by settling on federal
lands before the lands were put up for sale. As early as 1783, a concerned
Congress issued a proclamation forbidding settlement in Ohio!32 and sent
federal troops to remove settlers there. The troops drove off the squatters,
burned their cabins, rooted up their potatoes and other crops, and destroyed
their fences. J 33 When the troops left, the settlers returned.
Later, OmgressionalA<:ts forbade any settlement in the territories,!34 but
enforcement was politically unpopular and futile. From 1800 to 1841, Congress
bowed to political pressme and cUlTied settlers' voting favor by passing a series
of acts designed to legalize the possession of squatters and protect the value of
in1provements these squatters had placed illegally on federal land. Most of these
126. Kirksey v. Kirksey, S Ala. 131, 132 (1845).
127. Bill of Exceptions, in Kirksey Appellate Record, supra note 21.
128. The land was "a half mile or mile off," says the record. [d.
129. Kirksey, 8 Ala. at 132.
130. Bill of Exceptions, in Kirksey Appellate Record, supra note 21 ("[D]efendant had notified
plaintiff that if she did not leave his premises he would remove her by legal process.").
131. Id.
132. See GATES & SWENSON, supra note 100, at 67.
133. Id.
134. E.g. Act of March 26, 1804,2 Stat. 289 (forbidding settlement in the Louisiana territory on fine
of $1,000 and twelve months' imprisonment, and authorizing the President to employ military force to
remove any who attempt to settle); Act of March 3, 1807, 2 Stat. 445 (forbidding settlement in any
federal lands other than Louisiana and authorizing the President to use military force to remove
squatters).
[Vol. 94:321
;et forth in the survivngelico lived for two
lac asked her to leave.
~ourt, another "house,
cord shows, the house
he land she had been
piuion says that Isaac
[saac gave notice that,
len she left. However,
brtant detail that prold Isaac's motives in
re Isaac threatened to
th her, and the two
~t and several related
J down as part of a
)ff of the property in
. when these facts are
,emption laws and the
distlibution policy in
'y settling on federal
LS 1783, a concerned
in Ohio 132 and sent
ve off the squatters,
crops, and destroyed
the temtories,l34 but
00 to 1841, Congress
or by passing a selies
j protect the value of
alland. Most of these
("[D]efendant had notified
.Jrocess. ").
~ Louisiana tenitory on fine
to employ military force to
,rbidding settlement in any
military force to remove
2006]
THE STORY OF KlRKSEY V.
KlRKSEY
341
acts took the form of grants to squatters of a "preference,,135 or "preemption"136
right, which was a "a light to become the purchaser at the minimum price ... ,
in preference to all others,,137 of the land each had settled and cultivated.
Through 1816, Congress passed twenty-four special acts granting a one-time
preemption light to squatters in specific areas: I38 to builders of grist and
sawmills nOlth of the Ohio in 1800;139 to squatters in the Mississippi temtory in
1803;140 and to squatters in Illinois before land in the temtory was officially
offered for sale in 1813. 141 Later acts granted preferences to squatters in the
Florida temtory that would become part of Alabama in 1826;142 to .those in
Alabama and elsewhere who bought on credit before 1820, forfeited for nonpayment, but remained in possession in 1830;143 and to others. I44
Congress finally passed a general, one-time preemption grant act on May 29,
1830, giving all squatters then in possession of federal land that they had
cultivated in the year 1829 a right of preemption for 160 acres including
improvements made. I45 The act had a time limit of one year, but similar
preemption privileges for later squatters were enacted in 1832,146 1833,'47
135. See Bell v. Payne, 2 Stew. 414 (Ala. 1830) (discussing ''preferences to one person over another,
in entering the public lands"); see also, e.g., Kennedy v. Wiggins, 24 Tenn. (5 Hum.) 125 (1844)
("Before the passage of the act to dispose of these lands, all persons residing on them were trespassers
on the public domain; but the State chose to confer a benefit upon those who wen~ thu.s r.~siding and in
possession by giving them a preference of entry.").
136. Craig v. Tappin, 2 Sand. Ch. 78 (N.Y. Ch. 1844) ("A settler on lands of the United States,
entitled to pre~emption, has ... simply a right to become the purchaser at the minimum price of the
public lands, in preference to all others ...."). The statutes generally referred to the right as
"pre~emption."
137. Id;at-78=79~-~ --- ------ --138. See GATES & SWENSON, supra note 100, at 222.
139. Act of May 10, 1800, ch. 55, § 16, 2 Stat. 73, 78 ("right of pre-emption").
]40. Act of Mar. 3, 1803, ch. 27, § 3, 2 Stat. 229, 229-30 ("a preference in becoming the purchaser
from the United States"); Act of Apr. 21,1806, ch. 46, 2 Stat. 400: Act of Mar. 3, 1807, ch. 47, 2 Stat.
446; Act of Dec. 12, 1811, ch. 6, 2 Stat. 668. Each of these acts extended the time for these squatters to
buy the land they had illegally settled.
141. Act of Feb. 5, 1813, ch. 20, 2 Stat. 797 ("a preference"): Act of Apr. 16, 1814, ch. 61, 3 Stat.
125: Act of Feb. 27, 1815, cb. 63, 3 Stat. 218: Act of Apr. 27, 1816, ch. 101, 3 Stat. 307: Act of Apr. 29,
1816, ch. 162, 3 Stat 330; Act of May 11, 1820, ch. 86, 3 Stat 573. Each of these acts extended the
preemption rights and also the time within which squatters could assert them.
142. Act of Apr. 22,1826, ch. 28, 4 Stat. 154.
143. Act of Mar. 31, 1830, ch. 48, 4 Stat. 390.
144. See GATES & SWENSON, supra note 100, at 222-23. A list of preemption statutes can be found at
4 Stat. 420 n.(a). By 1816, the pattern of exculpating squatters by granting them preemption rights had
undermined much of the original prohibitions on squatting. Congress responded by declaring that
squatters' possession of up to 320 acres of federal lands was legal for one year so long as the squatters
registered with the local land office as tenants at will with no claim to the land. Act of Mar. 25, 1816,
ch. 35, 3 Stat. 260. The declaration was extended twice, for two additional years. Act of Mar. 3,1817,
ch. 105, 3 Stat. 393 (extending for one year); Aet of Apr. 20, 1818, eh. 90, 3 Stat. 450 (extending for an
additional year).
145. Act of May 29, 1830, ch. 208, 4 Stat. 420.
146. Act of July 14, 1832, ch. 246, 4 Stat. 603.
147. Act of Mar. 2, 1833, ch. 92, 4 Stat. 663.
342
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
1834,148 1838,149 and 1840. 150 These later Acts would have aided settlers in
Talladega County, many of whom moved onto land before it was available for
sale. 151 Occasionally, when no preemption act was forthcoming, squatters resorted to self-help to reach the same results. 152
Finally, in September 1841 Congress passed a standing preemption law. 153
Under this law, any head of a family, widow, or single man over the age of
twenty-one years who settled on surveyed public lands, improving and building
or nsing a honse on them, was given a preemption light to 160 acres including
the dwelling. 154 Anyone already owning 320 acres within the United States was
ineligible. 155 Anyone abandoning a residence on his or her own land to reside
on public land was ineligible. 156 The statute only granted one preemption light
per person. 157 If two persons settled on the same surveyed 160 acres, the first
settler would win the preemption right. 158
Isaac Kirksey was legally astute and well-acquainted with these laws and
informal practices. Squatting had been common practice in Talladega for at least
seven years. Isaac himself had purchased land from the federal government in
Madison CountyI59 and in the Creek cession lands, both hotbeds of federal land
sale manipulation. 160 Congress had passed numerous preemption statutes over
tlle years, reaching the high point in the l830s and l840s. On the frontier,
preemption mattered a great deal, and by 1840 preemption acts and preemption
practices had become frequent enough that settlers counted on them. This
expectation in part led to passage of the 1841 Act.
148. Act of June 19, 1834, ch. 54, 4 Stat. 678.
149. Act ofJune 22, 1838, ch. 119,5 Stat. 251.
150. ActofJune 1, 1840, ch. 32, 5 Stat. 382.
151. JEMISON, supra_Dote 58,aL63ooc64,_72-13 (many came seeking to buy from Creek tribe members
before the Creeks even selected allotment lands), 83, 93 (recording several Caucasian marriages in
1833),97.
152. With Congress moving only either specifically or temporarily to protect the interests of
squatters, the squatters therriSelves arranged extralegal methods of achieving the same results. The most
popular method, widely used in Alabama, was for squatters to form settlers' associations with which
squatters would register their lands. GATES & SWENSON, supra note lOa, at lSD-57. When the lands
were put up for public auction, the other settlers by agreement would stand aside while the squatter on
the land purchased. ld. Settlers who attempted to upset the association's allocations were intimidated
into compliance. ld. This method allowed the effect of preemption even when no preemption right was
available.
153. Preemption Act of Sept. 4, 1841, ch. 16,5 Stat. 453 (repealed 1891).
154. ld. § 10,5 Stat. at 455.
155. ld. § 10,5 Stat. at 456.
156. ld.
157. ld.
158. ld. § 11,5 Stat. at 456.
159. Isaac was issued a certificate for a patent in 1828 on 79.15 acres in Madison County. Isaac's
brother Henry, Angelico's husband, had originally purchased the land in 1819 and made payments for
seven years, the last installment being on December 31, 1826. Henry assigned his rights in the land to
Isaac in July of 1827, however. Patent Records, Hunstville No. 2342, Isaac Kirksey, assignee of Henry
Kirksey (May 20, 1828) (on file at the National Archives, Washington, D.C.).
160. GATES & SWENSON, supra note 100, at 150-51 (Madison County); YOUNG, supra note 95, at
73-98 (other Creek session lands); accord JEMISON, supra note 58, at 71-73 (Talladega County).
T
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ave aided settlers in
: it was available for
oming, squatters re~ preemption law. !53
nan over the age of
Jroving and building
160 acres including
ie United States was
r own land to reside
me preemption right
i 160 acres, the first
with these laws and
Talladega for at least
deral government in
tbeds of federal land
mption statutes over
·Os. On the frontier,
acts and preemption
nted on them. This
from Creek tribe members
11 Caucasian maniages in
) protect the interests of
the same results_ The most
:;' associations with which
: 150-57. When the lands
lside while the squatter on
.ocations were intimidated
n no preemption right was
l
Madison County. Isaac's
19 and made payments for
;:d his rights in the land to
Grksey, assignee of Henry
YOUNG, supra note 95, at
talladega County).
2006]
THE STORY OF KIRKSEY V. KIRKSEY
343
Isaac and Angelico's awareness of these laws!6! becomes obvious if the facts
we know about them are read against this background. In October 1840,
Angelico was living on public land under a "contract of lease," not with the
United States, but "with another."!62 This last plu'ase in fact denotes that she
was leasing from the holder of a preference.!63 But Angelico had "held over,"!64
meaning that her term as a tenant had ended. If she was possessing adversely to
her lessor, she may well have been the legal equivalent of a squatter against the
United States. The Kirksey Court stated that had Isaac not offered her a place,
Angelico "would have attempted to secure [the title to] the land she lived
on.,,!65 What was obvious to the COUlt-tOO obvious to mention, but not at all
obvious to readers now-was that Angelico as a squatter may have already
earned a preference in the property, perhaps under the Act of June 1, 1840, !66 in
which case the land might have been hers for the minimum price of $1.25 per
acre. Alternately, her continued possession may have given her a preference
under a later act had she remained. Isaac's letter stressed the importance of
preference rights: "I do not know whether you have a preference on the place
161. Several items of evidence show Angelico's understanding of the preference laws. First,
Angelico reported a variety of pertinent facts about her landholding in Marshall County. The Kirksey
opinion, for instance, states that, prior to coming to Talladega, Angelico was living on public land under
a contract of lease with another. Kirksey v. Kirksey, 8 Ala. 131, 132 (1845). Had she not moved, the
Kirksey court stated, she "would have attempted to secure the title to the land on which she live.d,"
Kirksey Appellate Record, supra note 21. Of all those involved in the litigation, only Angelico knew
these facts, which she described to her lawyer as he drafted the complaint. She thus knew what it meant
to be living on public land, kn.ew she had moved there under a lease, knew the lease had expired, and
felt she could have "secure[d] title to the land on which she lived." She could have done that only by
purchasing from the government Second, Isaac assumed in his letter that she knew what a preference
was. He assumed,-too,that~he'knew-what-he-meantby"open-land;'"
Isaac had known Angelico for at
least twenty-five years and was married to Angelico's sister for eighteen years. Isaac is the best witness
we could have of Angelico's sophistication regarding preference laws. Third, federal landholding policy
was vital state and national news. It was the way the state of Alabama was settled, and knowledge of
these practices generally was Ubiquitous. The manipulation of those laws in the Huntsville land
market-Madison and Marshall Counties, where Angelico lived-in 1820 was a national scandal.
Fourth, Henry and Angelico themselves had considerable experience with these laws. They purchased
land on credit from the federal government in 1819. See supra notes 30, 101 & 159, An Act of
Congress allowed Henry and Angelico to lengthen the time necessary to pay the debt on the land they
purchased in Madison County on credit in 1819. See id,
162. Bill of Exceptions, in Kirksey Appellate Record, supra note 21; see also Kirksey, 8 Ala. at 132
(omitting the phrase "with another").
163. Public land sales on credit were forbidden after 1820. Act of Apr. 24, 1820, ch. 51, § 2, 3 Stat.
566, 566. The only way another individual could have leased public land was to have a prior preference
in the land, which gave the prior squatter a de facto possessory right.
164. Bill of Exceptions, in Kirksey Appellate Record, supra note 21; Kirksey, 8 Ala at 132.
165. Bill of Exceptions, in Kirksey Appellate Record, supra note 21; Kirksey, 8 Ala. at 132.
166. See Act of June 1, 1840, ch, 32, § 2, 5 Stat. 382, 382. Section 2 sets up rather clear conditions
under which lessors can lease land in which they have a preference and, at the same time, preserve the
preference. Implied is that, if these conditions fail, the tenant then may have the preference. In 1832,
Congress declared preemption rights saleable. Act of Jan, 23, 1832, ch. 9, 4 Stat. 496. The 1832 Act
reversed the position of the 1830 Act, which provided that "all assignments and transfers of the right of
pre-emption given by this act, prior to the issuance of patents, shall be null and void." Act of May 29,
1830, § 3, eh. 208, 4 Stat. 420, 421.
344
THE GEORGETOWN LAW JOURNAL
[Vo!. 94:321
you live on, or not. If you had, I would advise you to obtain your preference,
and sell the land and quit the country."'67 The preference was not to pass up, he
implies. Isaac's advice assumed Angelico was relatively sophisticated about
preference rights. The immediate exercise of a preference right that Isaac
suggested makes sense economically only if the going price for land was greater
than the federal minimum price of $1.25 per acre. If it was, then Angelico could
make a quick profit by purchasing for $1.25 and immediately reselling. Isaac's
recommendation assumed that Angelico knew what a preference right was and
also that the going price for land exceeded the federal minimum. Their conversation thus revealed that both Isaac and Angelico were familiar with land acquisition laws of the time, and that Isaac was thinking about preferences when he
wrote the letter.
Given that background, Isaac actually suggests his motive for inviting Angelico down to Talladega in the next sentence of the letter: "If you will come
down and see me, I will let you have a place to raise your family, and I have
more open land than I can tend . ...,,'68 The last phrase is puzzling without the
legal background. "Open land" can mean a number of things. It might mean
"not fenced." Probably Isaac did not mean that. The lack of a fence in this
context is irrelevant. In fact, land not under cultivation in heavily-wooded north
Talladega County remains, or quickly becomes, forested. One would want to
keep cattle in, not out. "Open land" could mean "cleared of trees." Isaac had
just come into the Lane property and may not have had the means to cultivate
all of it immediately. He may have wanted Angelico to farm the land so that the
forest would not encroach, so that the land remained cleared. However, in the
appellate record, the parties refer to the land Angelico cultivated in one passage
as "open land" and in another as "cleared land,,,'69 as if the two phrases had
different meilfiings.-Also, -givenIsaac's"economical" disposition, that he would
let good land that he owned lie unused seems unlikely. The land could have
been leased out for the 1841 season (still months away), or it could have lain
fallow for a year until Isaac obtained the means to work it. That he would
promise it to Angelico semi-pelmanentIy, while she raised her family, seems
even less likely. Further, this interpretation offers no explanation for Isaac's
insisting on his son's possession of the property at or near the end of two years.
Finally, Isaac seemed to need the open land to be tended. This professed reason
appears in the letter even before he indicates a desire to benefit Angelico's
family. The desire to benefit is expressed afterward, in the next sentence, in
which he justifies it as "on account of [Angelico's] situation."l70
But Isaac's most probable meaning becomes clear once we understand tImt
the phrase "open land" also meant land open to the public for settlement. "Open
167.
168.
169.
170.
8 Ala. at 132.
[d. (emphasis added).
Bill of Exceptions, in Kirksey Appellate Record, supra note 21.
[d.
[Vol. 94:321
btain yonr preference,
was not to pass np, he
y sophisticated about
ence right that Isaac
;e for land was greater
s, then Angelico could
ately reselling. Isaac's
:ference right was and
imum. Their conversailiar with land acquisit preferences when he
otive for iuviting Anter: "If you will come
)Or family, and I have
s puzzling without the
things. It might mean
lck of a fence in this
heavily-wooded north
1. One would want to
:d of trees." Isaac had
the means to cultivate
rm the land so that the
:ared. However, in the
ltivated in oue passage
f the two phrases had
Josition, that he would
The land could have
, or it could have lain
Jrk it. That he would
sed her family, seems
,xplanation for Isaac's
r the end of two years.
This professed reason
to benefit Angelico's
the next sentence, in
:m.,,170
ce we understand that
: for settlement. "Open
2006]
THE STORY OF KIRKSEY V. KIRKSEY
345
land" commonly meant just that in the l830s and l840s.'?' In the context of
Isaac's discussion of preferences, his reference to "open land" probably suggested that meaning to Angelico. "There you are on open land," Isaac seems to
say, "but society is bad there. Come here instead. I will put you on open land as
well, that I possess, and you will be no worse off economically and bettered
health-wise and socially. You settle for me on open land that I possess, wherever
that is, until the government grants me a preference, and you will always have a
place to live."
This interpretation is bolstered by the records in the trial and appellate courts,
which studiously avoid saying who owned the land Isaac allowed Angelico to
possess. Rather, the records assert that Isaac would "provide her with a place to
raise her family upon,,,172 and agreed that Angelico "should live upon, and raise
her family upon a part of the land then unoccupied ' ?3 by [Isaac], to be held by
her for the purpose of cultivation to support herself and family."'?4 Angelico
later "took possession of the same.,,175 After she left the property, she complained that Isaac "still does keep her from and out of the possession of the
same,,,176 almost as if she had a right to specific land.
Several other facts also suggest that, by "open land," Isaac meant land open
for settlement. Isaac's old plantation, pnrchased in 1834, lay in the centerbf
activity in northern Talladega County. It was surrounded by other plantations on
all sides, all pnrchased by private citizens in 1834. The Lane property Isaac
obtained in 1840, however, lay on the edge of private land in northern Talladega
County. In 1840, to the east and to the southeast, and also to the north, of the
171. See Commonwealth v. Baldwin, 1 Watts 54 (Pa. 1832) ("The public lands have been open to
entry for the purpose of settlement; and the possession of the seller indicating his assent to become
purchaser of the title on the terms held OIit, has been under, instead of being adverse to, the
commonwealth."); Miller v. Shaw, 7 Sergo & Rawle 129 (Pa. 1821) (Duncan, J.) ("The lands which
were open to settlement, were vacant, unappropriated lands"); Overton's Lessee v. Campbell, 6 Tenn.
(5. Hayw.) 165 (1818) (discussing statutes "containing the gelleralland law as it is called, laying open
to the citizens of the State generally the vacant and disposable public lands thereof for sale"); see also,
e.g., Graves & White v. Otis, 2 Hill 466 (N.Y. Sup. Ct. 1842) (syllabus); Pfoutz v. Steel, 2 Watts 409
(Pa. 1834) (headnote) ("the land was open for settlement or purchase by another").
172. Declaration, in Kirksey Appellate Record, supra note 21 (also, "let her (the said plaintiff) have
a place to raise her family on").
173. The Declaration transcribed into the Kirksey Appellate Record has the word "occupied"
preceded by a superscript "un," over an insertion mark, as if the superscription were a correction, which
is how we take it. See Kirksey Appellate Record, supra note 21. The Declaration as transcribed in the
Kirksey Trial Record actually has "occupied" rather than "unoccupied." See Kirksey Trial Record, supra
note 21. We suppose that the lawyers edited the record that was sent on appeal and probably did not edit
the transcription in the circuit court records. Both tenns, however, accurately describe Isaac's possession of or informal claim on federal land, which mayor may not have been occupied by Isaac but was
unoccupied by others.
174. Declaration, in Kirksey Appellate Record, supra note 21.
175. [d.; see also Bill of Exceptions at 4, in Kirksey Appellate Record, supra note 21 ("Defendant
put her in comfortable houses, and gave her good open land to cultivate for two years.").
176. Declaration, in Kirksey Appellate Record, supra note 21.
346
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[Vol. 94:321
Lane land lay several hundred acres of unsettled federal land, 177 some contiguous with the Lane property and some not, but much of it arable. Most of this
land must have been forest, but some of it may have been cleared by Lane (or
perhaps Isaac) in anticipation of a preference. We propose that at least part of
the land Isaac meant Angelico to possess was federal "open land." The house
itself may well have been on the Lane property Isaac now owned (perhaps the
Lane home), or it, too, may have been on the nearby contiguous federal land.
Under this interpretation, Isaac's motives become clear. He wished Angelico
to settle on and cultivate public land for him until Congress granted another
preference. '78 Notwithstanding Isaac's large holdings, prior preference statutes
would have given him a right to prefer more. 179 Another general preemption act
was expected in 1842. '80 Moreover, leasing public land to another who functioned as placeholder had become common. Angelico leased under such an
arrangement in Marshall County, before she moved to Talladega. Congress's
Act of June 1, 1840 specifically approved such placeholding by a lessee,
preserving the preference right to the lessor under certain conditions. J8J If a
preference-holder could lease land and keep the preference, surely Isaac could
grant Angelico a license to preferred land and retain his rights, or so he thought.
This interpretation of Isaac's letter also assists in understanding Angelico's
motives. If she was leasing from a preference holder in Marshall County before
she moved, she was no worse off holding likewise for Isaac in Talladega.
This interpretation of Isaac's letter further explains why Isaac placed his son
in possession jointly with Angelico and later removed her. In September 1841,
after Angelico had possessed under Isaac for roughly one year, Congress passed
the standing preemption law.'82 Whereas earlier statutes allowed any head of
household a preference on cultivated federal land, the 1841 Act restricted
preemption t6 thosl:nmralreatly owning320acres. '83 Isaac instantly became
ineligible. That presented a problem for Isaac's scheme. Though Isaac was
ineligible, Angelico was not In the words of the statute, she was "[a] widow ...
177. Tract Book of the Mardisville Land Office, Township 17, Range 6 E.. at 108-12; Tract Book of
the Mardisville Land Office, Township 16, Range 6 E., at 18-20.
178. It is also possible that Isaac wanted to set his priority to certain plots with the local settlers'
association. The locals may have honored Isaac's settling and cultivating certain parcels by refraining
from bidding on them when they did come up for sale. "First to settle and cultivate" would have been
the trigger for rights in a settlement association, just as it was under the preemption statutes. Having
Angelico settle the land for him, as part of his household, would have been an attempt to gain priority.
If Angelico was settled on federal land with Isaac's permission, as a member of his household, Isaac
probably would have retained any preemption right arising from that possession.
179. See Act of June 1, 1840. ch. 32, 5 Stat 382; Act of June 22, 1838. ch. 119,5 Stat 251; Act of
May 29, 1830, ch. 208, 4 Stat. 420-21 (granting preemption to "every settler or occupant of the public
lands, prior to the passage of this act, who is now in possession, and cultivated any part thereof in the
[prior] year").
180. The 1840 Act would have expired on June 22, 1842. See Act of June 1, 1840, ch. 32, § 5, 5 Stat.
382,382.
181. See id.
182. Preemption Act of Sept. 4,1841. ch. 16.5 Stat. 453 (repealed 1891).
183. [d. § 10,5 Stat. at 456.
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l1d,I77 some contiguarable. Most of this
cleared by Lane (or
that at least part of
en land." The house
owned (perhaps the
IOUS federal land.
He wished Angelico
ress granted another
r preference statutes
neral preemption act
) another who funcased under such an
111adega. Congress's
olding by a lessee,
1 conditions. '81 If a
:, surely Isaac could
118, or so he thought.
'standing Angelico's
rshall County before
in Talladega.
Isaac placed his son
In September 1841,
~ar, Congress passed
l!lowed any head of
1841 Act restricted
ac instantly became
Though Isaac was
: was "[a] widow ...
, at 108-12; Tract Book of
018 with the local settlers'
rtain parcels by refraining
ultivate" would have been
'eemption statutes. Having
ill attempt to gain priority.
,er of his household, Isaac
on.
h. 119, 5 Stat. 251; Act of
r or occupant of the public
ted any part thereof in the
1, 1840. ch. 32. § 5, 5 Stat.
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
347
over the age of twenty-one years, ... a citizen of the United States, ... who
since the first day of June [1840], has made ... a settlement in person on the
public lands ... and who has or shall erect a dwelling thereon ... .',184 The Act
therefore gave Angelico the ability to gain a preference for 160 acres. Whether
her possession until September 1841 counted in her favor is debatable, but her
possession after that date arguably began to give her rights. Had Isaac not taken
some action, Angelico would have taken the land instead of him. She had to
leave the property.
There was a delay in time. The Act was passed in September 1841, yet
Angelico stayed in the house for at least another year. Why the delay? Various
explanations are possible. Obviously, news of the 1841 Act took some time to
reach Isaac's ears, and for him to realize its effects. Perhaps he thought his
rights were still protected under the earlier Act of June 1840. Perhaps Isaac did
not concern himself with the matter until 1842, when another preemption act
was due from Congress. Or perhaps Angelico learned of the law only in 1842
and only then indicated she wanted the land for herself and would not give Isaac
the benefit of her preference.
Isaac may also have been splliTed to action by activity nearby. In December
1841 James Montgomery claimed 160 acres offederallandjnst to the southeast
of the Lane property, immediately south of the federal land contiguous with the
Lane land. '8s Perhaps activity on the Montgomery land in 1842 persuaded Isaac
that he needed to protect himself. Isaac and Montgomery were not on friendly
teffi1S for some yea!'s during Isaac's later life,'86 and the Lane property appears
to have been prot of their rivalry. 187
But additional facts from the appellate record indicate the delay stemmed
from otheueasons. The recordreportslsaac's hesitancy to evict:
At the end of two years, defendant desired, and notified her to leave the
houses she occupied and remove to another cabin in the woods, a half mile or
mile off, but without out houses.
The proof conduced to show that the house would not have been comfortable for herself and family. There was some uncertainty in the proof whether
defendant still proposed to allow plff. to cultivate the sarne cleared land, and
whether he proposed to have the new residence made comfortable. The
question was submitted to the jury, & they found against it. The proof further
showed that deft put his son in possession of said house with plff. that for
some time they occupied it jointly, and then the plff left the premises under
the notification and request of defendant, and it was ruther shown that
184. [d.
185. Tract Book of the Mardisville Land Office, Township 17, Range 6 E., at 108 (cert. #5505).
186. See Kirksey v. Kirksey, 41 Ala. 626, 630 (1868) (testimony of James Montgomery).
187. TALLADEGA (Ala.) WATCHTOWER, Aug. 1843 (describing a suit by Isaac over a controversy in
which James Montgomery may have played a part in trying to divest Isaac of creditor's rights in some
of the Lane property Isaac had sold to other Montgomerys).
348
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
defendant had notified plaintiff that if she did not leave his premises he would
remove her by legal process. ISS
So, first, Isaac took time to build the cabin. Then he asked Angelico not to
leave, but to move. The cabin in the woods was "a half mile or mile off' from
where Angelico had been living. 189 In 1842, a half-mile or a mile to the east
would still have been federal land. Probably Isaac had a cabin built there. He
would have seen this gesture as keeping his promise. By putting Angelico in a
house off in the woods, Isaac was still placing Angelico on "open lands," but on
lands he wanted less than those on which she had before been living ("you are
welcome to a preference there," he might have said). (In fact, Isaac later
purchased from the United States forested land about a half-mile to a mile east
of the Lane property and the Lane property's contiguous federalland.)19o The
cabin would have been farther from a water source, however, and, as stated,
lacked outhouses. Building the cabin would have taken some time and perhaps
accounts for some of the delay.
The most compelling reason for delay, though, is the puzzling fact that Isaac
put his son in joint possession with Angelico. Isaac was waiting for his eldest
son to be old enough to take Angelico's place. At some point in 1842, late or
early-and the record does not say when-Isaac placed his son on the property,
in "joint possession" of the house. But Isaac's oldest son, Albert Oscar Kirksey,
turned 21 and became eligible for preemption rights only on February 22,
1843,'91 a little over two years after Angelico moved into the house. Albert's
possession in late 1841 would have counted toward his preemption right under
the 1841 Act,'92 but Isaac did not remove Angelico from the property until
Albert turned twenly,on"c.aIlcl ccouldgllin a preemption himself, two years after
she took possession.1 93
Isaac perhaps planned to claim that Angelico first possessed with his permission, and later with Albert's. That argument is more plausible if Albert was on
194
the property early in 1842. Albert was unmarried before 1847
and perhaps
economically dependent on Isaac. He would have been more compliant than
Angelico. But the joint possession did not last long. Perhaps Albert grew tired
of joint possession, but more likely Isaac knew from the start that Angelico had
to leave the property (else why build the cabin?). Section 11 of the 1841 Act
188. Bill of Exceptions at 4, in Kirksey Appellate Record, supra note 21.
189. [d.
190. Patent issued to Isaac Kirksey, Centre, cert. #19,707, Ser. # AL3320_.450 (Jan. 1, 1859). The
Land Office records show that Isaac purchased the property on February 15, 1856. Tract Book of the
Mardisville Land Office, Township 16, Range 6 E., § 34, at 20 (cert. #19,707). This land remains
forested today. It is higher in elevation and its soil differs from that of Isaac's plantation. Water sources
must have been more scarce.
191. DARRON, supra note 19, at 79.
192. Preemption Aet of Sept 4, 1841, ell. 16, § 10,5 Stat. 453, 455-56 (repealed 1891).
193. [d.
194. See DARRON, supra note 19, at 79.
~
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THE
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STORY OF KIRKSEY V. KIRKSEY
349
premises he would
I
I
Isked Angelico not to
nile or mile off' from
or a mile to the east
. cabin built there. He
putting Angelico in a
n "open lands," but on
been living ("you are
(In fact, Isaac later
alf-mile to a mile east
; federal land.) 190 The
wever, and, as stated,
orne time and perhaps
uzzling fact that Isaac
waiting for his eldest
point in 1842, late or
is son on the property,
Albert Oscar Kirksey,
Jnly on February 22,
Ito the house. Albert's
Ireemption right under
om the property until
lmself, two years after
tI
;
i !~~_.,.'.~_' __ ":""~)_"
~
~_.~.
.,.,.,
essed with his permislsible if Albert was on
: 1847 194 and perhaps
more compliant than
laps Albert grew tired
,tart that Angelico had
m 11 of the 1841 Act
20_.450 (Jan. 1. 1859). The
15. 1856. Tract Book of the
#19,707). This land remains
Ie's plantation. Water sources
,".-,,~
..'."'.'."
.. ,._....c"...;.
Albert Oscar Kirksey (by permission, Robert R. Darron)
provided that, when two settlers claimed the same quarter section, the first
settler to conform to the Act took. 19S If Isaac was ineligible, Angelico was first
in possession. And perhaps Isaac feared that Albert's possession was insufficient
before February 1843 to accrue rights, because he was underage. Either way,
only interruption of Angelico's possession after Albert turned twenty-one would
give Albert a clear claim. So Angelico had to go, and that is why Isaac in the
end had to evict her. Eviction was delayed for several months in part because
only then was a better placeholder eligible.
Could Isaac evict, legally? If Angelico lived on the Lane property and farmed
the federal land (or vice versa), Isaac had a clear right to evict her from the
house itself (or the farm, but one or the other). Altematively, and perhaps more
likely, Angelico lived entirely on and cultivated federal land, and Isaac merely
(repealed 1891).
195. Preemption Act of Sept. 4,1841, ch. 16, § 11,5 Stat. 453, 456 (repealed 1891).
350
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
claimed that he could have her evicted. He was literate and knew the local law
enforcement officials. He was a Justice of the Peace and a candidate for the
Alabama State Legislature in 1841, just after Angelico arrived. l96 She knew he
was litigious. Isaac was in fact held liable (and punitive damages were assessed)
for committing abuse of process against one of his debtors in February 1844.197
Angelico, on the other hand, was an illiterate, single woman, busy with her
children, and relatively new to the area. She may not have known her rights
under the then-recent Act, or may have been unable to press her claim. Whether
he had a right to evict may be academic.
This explanation also sheds light on the dispute at trial regarding whether
Isaac, assuming Angelico had moved to the woods, still intended to allow her to
cultivate the same land. Isaac claimed he would have done so. By the time of
trial, nearly two years after the fact, Isaac had little incentive to claim otherwise.
But the jury, twelve men from Talladega County to whom this scheme must
have been transparent, knew that Isaac-through Albert---could not claim rights
in the land if Angelico was living on, cultivating, and improving the land first
and Albert had moved in later or was only possessing and cultivating part of the
land. So the jury found against Isaac on that issue-he did not intend to let her
continue to farm the same land. 198
That Isaac involved Angelico in his preference-grabbing scheme also explains the amount of the jury verdict. Isaac's breach of promise deprived
Angelico of land to which she could have obtained a preference. Under the
1841 Act, a preference could be obtained on a maximum of 160 acres. 199 When
the preference holder finally purchased the land, she had to pay the "minimum
price." Since 1820, tlle minimum price for all U.S. land sales had been $1.25
200
per acre. Thejury'sverdict of $200 (1(50 ilcres x $1.25 per acre) thus reflects
a way to measure Angelico's expectations. The $200 would in fact have allowed
her to buy the exact land at issue. She had, after all, settled on it. No one else
could claim it before her. If Isaac paid the judgment, Angelico could march
from the courthOUSe down to the land office and buy the property. Perhaps hope
that she could obtain the property itself is what led her to remain in Talladega
until 1845, after the Supreme Court's decision. 201 Alternatively, the $200 is
exactly the amount Angelico needed to settle somewhere else on 160 acres of
196.
TALLADEGA
(Ala.)
WATCHTOWER,
May 12, 184l.
197. See Appellate Record, Jones v. Kirksey (on file at the Alabama Archives) [hereinafter Jones v.
Kirksey Appellate Record], for the decision later published at 7 Ala. 622 (Jan. Tenn 1845). The jury in
this Case awarded $800 in damages, $100 of which were expenses for a wrongful attachment. Id. The
other $700 appear to have been punitive damages. Compare id. with Kirksey v. Jones, 7 Ala. 622,
626-27 (1845) (Goldthwaite, J.) (reversing the judgment against Isaac but referring to damages for
abuse of process in excess of costs incurred as punitive).
198. Bill of Exceptions at 4, in Kirksey Appellate Record, supra note 21.
199. Preemption Act of Sept. 4, 1841, ch. 16, § 10,5 Stat. 453, 455.
200. Act of Apr. 24, 1820, ch. 51, § 3, 3 Stat. 566, 566.
201. Satisfaction of Bill of Costs, in.Kirksey Appellate Record, supra note 21 (recording contact
between the Talladega County Sheriff William Easley and Angelico in late May 1845).
'I
[Vol. 94:321
l knew the local law
a candidate for the
ved. 196 She knew he
lages were assessed)
in February 1844. 197
man, busy with her
re known her rights
: her claim. Whether
I regarding whether
nded to allow her to
, so. By the time of
, to claim otherwise.
a this scheme must
mId not claim rights
:oving the land first
l1tivating part of the
aot intend to let her
19 scheme also expromise deprived
:ference. Under the
160 acres. 199 When
pay the "minimum
Jes had been $1.25
:1' acre) thus reflects
n fact have allowed
I on it. No one else
selico could march
perty. Perhaps hope
emain in Talladega
tively, the $200 is
'se on 160 acres of
T
ies) [hereinafter Jones v.
Tenn 1845). The jury in
.gflll attachment. Id. The
'y v. Jones, 7 Ala. 622,
'eferring to damages for
2006]
THE STORY OF KIRKSEY V. KIRKSEY
351
federalland.
Of course, it is possible that the jury measured Angelico's reliance, but only if
one counts lost opportunity. She left public land in Marshall County. Perhaps
she left 160 acres on which she would have obtained a preference, and the
amount would be the same. The Kirksey opinion and the parties' stipulated facts
note that she was "comfortably settled,,,202 a term of art under then-current
preemption law. But the same opinion and stipulation immediately follow that
she "would have attempted to secure the land she lived on.,,203 The stipulation's
use of the word attempt indicates that not even Angelico's counsel thougllt the
jury bad evidence that Isaac's promise had caused Angelico to forego the
opportunity to buy the land she was on in Marshall County. The verdict is thus
better rationalized as an award of expectation, explained as the jury seeing
through Isaac's scheme.
Finally, records of later sales of the federal land next to the Lane property
strongly suggest that Isaac continued to playa role in its disposition. Aside from
the Montgomery tract, the federal land south and east of the Lane property
began to sell in the l850s. Isaac did not buy it, but, then, he did not need to if
Albert had managed to maintain a preference on it. Preemption rights were
themselves saleable?04 If preemption rights allowed a settler to buy land at the
minimum price, then a purchaser of land on which another settler held preemption rights would have to pay the excess of market value above minimum price
first to the settler, then later the minimum price to the United States. Albert and
Isaac made a profit from the sale of the preemption rights themselves. In the
l850s, when the federal land next to the Lane property began to sell, no
purchaser paid more than the minimum price. 205 That fact is consistent ~ith the
theory that Albert :mdJsa1!C CQ!1trolled its sale. But there is more. The land
directly to the east of and contiguous with the southern end of the Lane property
that was sold during Isaac's lifetime206 went entirely to one person, Daniel H.
Jackson. Mr. Jackson made his first purchase in 1851, but his last purchase of
that land occurred on February 15, 1856. 207 On that same day, at the same time,
Isaac Kirksey also purchased from the United States forty acres of federal land
that would have once been contiguous with the Lane property but were now cut
202. Kirksey v. Kirksey, 8 Ala, 131, 132 (1845); see also Bill of Exceptions, in Kirksey Appellate
Record, supra note 21, at 3 ("comfortably situated").
203. 8 Ala. at 132 (emphasis added); Bill of Exceptions, in Kirksey Appellate Record, supra note 21,
at 3 (emphasis added). The agreed statement of facts submitted to the Alabama Supreme Court in fact
says Angelico would have attempted to "secure the title" to this land. [d.
204. Act of Jan. 23, 1832, ch. 9, 4 Stat. 496.
te 21 (recording contact
1845).
205. Tract Book of the Mardisville Land Office, Township 17, Range 6 E., at 108; Tract Book of the
Mardisville Land Office, Township 16, Range 6 E., at 20,
206. A small portion of the land was requisitioned by the state in June of 1856, Tract Book of the
Mardisville Land Office, Township 17, Range 6 E., at 108.
207. Id. (cert. #19,706).
,
I
352
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
off by Mr. Jackson's land. 208 Jackson and Isaac may well have gone to the land
office together. Perhaps Isaac paid for the forty acres with money just obtained
from Mr. Jackson for the preference rights on the land Jackson was buying from
the United States. (Perhaps also there was a cabin on the forty acres, surrounded
by trees-not comfortable, but quiet, and fine enough for a rest from acqUiring
wealth.)
A question remains: Why did Angelico's counsel not present this theory to
the court? If she came as a placeholder, couldn't she argue that her doing so was
detriment suffered in exchange for Isaac's promise? Perhaps, but arguing that to
the court may not have served her ultimate goal if she wanted the land itself. If
she did want to claim a preference on the property, claiming that she had come
to Talladega as a placeholder for Isaac would have been a fatal move. Section
13 of the 1841 Act required
[t]hat before any person claiming the benefit of this act shall be allowed to
enter such lands . . . she shall make oath before the ... register of the land
district ... that ... she settled upon and improved said land ... in good faith
to appropriate it to ... her own exclusive use and benefit; and that ... she has
not, directly or indirectly, made any agreement or contract, in any way or
manner, with any person or persons whatsoever, by which the title which ...
she might acquire from the ... United States, should enure in whole or in
part, to the benefit of any person except ... herself ... .209
Swearing a false oatil meant forfeiture of any money paid for the land, and was
perjury.210 Angelico could not swear tlJis oath truthfully with regard to her
actions before September 4, 1841, when the 1841 Act was passed. But she could
so swear after tIlard:1te. Now suppose witnesses at her breach of contract trial
swore that before September 1841 she was merely a placeholder for Isaac.
Particularly if her placeholding was introduced as consideration for Isaac's
promise, it would have been an integral part of the case, but Angelico would
have lost her ultimate goal, which was to own the property itself. When she
went before the land register to swear the settler's oath, Isaac would have been
there with her witnesses and perhaps the court's judgment proving that she was
merely a placeholder. She may have been estopped to claim otherwise. Only if
she left the placeholding out of her lawsuit could she later swear to the land
office register without contest that she held independently of Isaac.
Both Angelico and Isaac may also have thought that presenting the placeholder plan before the jury would look as if both were trying to manipulate the
preemption laws. Because the arrangement was clearly not a lease, which would
have been legitimate, the scheme is only a hair's breadth removed from
208. Tract Book oftlle Mardisville Land Office, Township 16, Range 6 E., at 20 (cert. #19,707). The
two entries are made in the same hand. Note that the certificate numbers themselves are sequential.
209. Preemptioo Act of Sept. 4, 1841, ch. 16, § 13,5 Stat. 453, 456.
210. [d.
[Vol. 94:321
have gone to the land
money just obtained
eson was buying from
Jrty acres, surrounded
a rest from acquiring
l
present this theory to
that her doing so was
ps, but arguing that to
nted the land itself. If
.ng that she had come
a fatal move. Section
2006]
THE STORY OF KIRKSEY V. KIRKSEY
353
Angelico agreeing to take title herself and transfer it to Isaac. Perhaps neither
wished the jury to think of them as manipulative, as trying to take unfair
advantage of the law. So the complaint is crafted so as to omit any reference as
to who owned the land. Rather than say that Isaac placed Angelico on federal
land, the agreed statement of facts says that he placed her "on a part of the land
then unoccupied."zl1 No lease is alleged, nor any license to use the land. Only
breach of promise was put at issue. Rather than allege as a consideration that
Isaac wanted Angelico to preserve a possible preemption right in the land he
allowed her to possess-a consideration a judge might in fact find meretricious,
given the settler's oath-Angelico's lawyer alleged only the consideration of
her inconvenience in moving her family. That became the ultimate issue in the
case.
III. THE LlTIGATION
:hall he allowed to
egister of the land
d ... in good faith
md that ... she has
let, in any way or
the title which ...
ure in whole or in
for the land, and was
y with regard to her
passed. But she could
reach of contract trial
llaceholder for Isaac.
sideration for Isaac's
, but Angelico would
>erty itself. When she
mac would have been
: proving that she was
im otherwise. Only if
lter swear to the land
of Isaac.
presenting the placering to manipulate the
t a lease, which would
'eadth removed from
E., at 20 (cer!. #19,707). The
:mselves are sequentiaL
Following her removal, Angelico chose to sue. Why? Her complaint seeks
damages but in the clearly overstated amount of $5,000,>12 We have seen no
justification for that amount and think her lawyer was merely avoiding a
potential argument that he had aimed too low, or exaggerating to encourage
settlement. We believe, as noted, that Angelico may have been seeking the land
itself. Suing Isaac for breach of promise may have been a way to quickly obtain
the money necessary to complete the purchase, and a way to avoid paying more
than the minimum price. Certainly the jury's verdict gave her just enough to buy
160 acres. If she could have established her preference in the land, she could
have avoided paying a market price and also having to pay Isaac himself for the
property. Note that she did not sue for specific performance. He did not in fact
promise a specific-parcel·of property, but specific performance would also have
been inappropriate because he did not own the property he promised to allow
her to use.
The jury seemed to have caught all of this. It awarded Angelico the exact
amount she needed to purchase the property, or at least replace it with some
other plot of ground. It found that Isaac did not intend to allow Angelico to
continue farming the property after he moved her to the house in the woods.
That Angelico was willing to defend the jury's verdict on appeal indicates that it
met her litigation goals. The jurors were close to the action; they were Isaac's
peers from Talladega County. The Alabama Supreme Court, on the other hand,
either missed the factual point or thought Angelico truly undeserving notwithstanding. We discuss the litigation in part because its details are interesting in
themselves and also to dispel two misconceptions we have heard voiced about
the case. First, we have heard that the lawyers were incompetent. They were
not. Angelico's lawyer William Chilton and Isaac's appellate lawyer Samuel
211. Declaration, in Kir~sey Appellate Record, supra note 21.
212. See Declaration, in Kirksey Trial Record, supra note 21.
~
. ....
~. '.
354
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Rice were in fact some of the most respected lawyers in the state, and for good
reason (though Chilton perhaps missed a few citations that would have been
helpful to Angelico's case). Second, some have said that the law had not
developed sufficiently toward promissory estoppel to allow Angelico to win on
the facts her lawyer submitted to the Supreme Court. This is also false.
Considerable precedent supported her position, even in Alabama.
A. THE LAWYERS
Angelico chose as her attorneys the partnership of WP. Chilton & Bowdon.
Chilton appears to have handled Angelico's case. 2!3 She made a strategic
choice. William Parish Chilton was a leader of the Talladega bar,214 having
practiced there since 1834 when the county was first settled.>15 By 1839, he was
"among the most prominent lawyers in the state.'o2l6 Chilton was elected to tlle
Alabama legislature in that year. 2!? His reputation continued to rise throughout
the 1840s. In 1848 the state legislature elected Chilton to the Alabama Supreme
Court,2!8 where he succeeded Justice OrnlOnd, the author of the Supreme Court
opinion in Kirksey.2!9 In December 1852 Chilton was elected Chief Justice. 220
Perhaps more importantly for Angelico, Chilton had been senior law partner and
somewhat of a mentor to the Talladega Circuit JUdge, George Washington
Stone,22! who would preside at the Kirksey trial.222
Isaac Kirksey hired Green T. McAfee to defend him. This may also have been
a strategic choice. Green Taliaferro McAfee moved to Talladega County in 1832
or 1833, at age twenty-five or twenty-six, and soon thereafter was elected
county judge, the county's chief administrative position. 223 He continued in that
position for ten years,224 and was judge again for a time afterwards. 225 McAfee
213. Chilton handled the appeal alone. See Bill of Exceptions, in Kirksey Appellate Record, supra
note 21 (signed by "W.P. Chilton, Atto. for pIrr'). The trial pleadings also were signed "W.P. Chilton &
Bowdon." See Kirksey Trial Record, supra note 21; Talladega County Minute Book, Circuit Court
1840-1844, at 629.
214. WILLIAM I-I. BRANTLEY, CHIEF JUSTICE STONE OF ALABA.IM 53 (1945).
215. Biography of William Parish Chilton, Alabama Judicial System Website, http://www.judicial.
state.al.us/galleryjudge.cfm'?Member=69 (last visited July 19, 2005). Chilton was in the process of
moving to Tuskegee, however, around the time of the litigation. Id.
216. TIMOTHY S. HUEBNER, 'THE SOUTHERN JUDrCIAL 'l'RADrrrON: STATE JUDGES AND SECTIONAL DISTINCTIVENESS, 1790-1890, at 162 (1999).
217. Id.; BRANTLEY, supra note 214, at 53.
218. Biography of William Parish Clinton, supra note 215.
219. J. Ed Livingston et aI., A History of the Alabama Judicial System 2 (unpublished pampWet,
camp. 1955, updated 1991), available at http://www.judicial.state.aI.us/documents/judhist2.pdf.
220. Ed.
221. BRANTLEY, supra note 214, at 53.
222. Preamble, in Kirksey Appellate Record, supra note 21.
223. Wellington Vandiver, Pioneer Talladega, Its Minutes and Memories, 16 ALA. HrST. Q. 9, 72-73,
110 (1954).
224. Ed.
225. Id. at 69 (reporting an adqress given July 19, 1845, in the "County Court," to the citizens ofthe
county and Judge McAfee, presiding).
.
.'
.'
[Vol. 94:321
state, and for good
Lt would have been
Lt the law had not
Angelico to win on
This is also false.
mla.
T
I
I
I
I
I
:hilton & Bowdon.
~ made a' strategic
iega bar,214 having
>15 By 1839, he was
1 was elected to the
j to lise throughout
~ Alabama Snpreme
,the Supreme Court
ed Chief Justice. 220
lior law partner and
3eorge Washington
may also have been
lega County in 1832
reafter was elected
:Ie continued in that
erwards. 225 McAfee
, Appellate Record, supra
:e signed "W.P. Chilton &
D.ute Book, Circuit Court
bsite, http://www.judicial.
was in the process of
:00
IS AND SECTIONAL DrsTINc-
2 (unpublished pamphlet,
lents/judhist2.pdf.
16 ALA. HIST. Q. 9, 72-73,
mrt," to the citizens of the
I
I
2006]
THE STORY OF KIRKSEY V. KIRKSEY
355
was also a lawyer, but his administrative duties meant that "his practice was
never large."226 Isaac may have thought to benefit from McAfee's reputation.
In retrospect, Isaac did not have good success with McAfee, either in the
Kirksey trial or in the other litigation McAfee handled for Isaac at this time.
Both Kirksey v. Kirksey and the other case, Jones v. Kirksey, came to trial in late
November or early December 1844; McAfee lost both. 22? Isaac almost immediately fired his lawyer. 228
B. THE JUDGE
The judge in the Kirksey mal, George Washington Stone, moved to Talladega
County in late 1833 or early 1834, just twenty-two years 01d. 229 The son of a
Tennessee cotton planter himself,230 Stone had read law in Fayetteville, Tennessee. 23 ! Courtship and settling in Alabama kept him from practicing much until
the beginning of 1835, when he brought his new wife to Alabama to live?32
And only in early 1836 did Stone obtain permission from the Talladega court to
practice there. Evidence of Stone's respect for William Chilton appears a few
226. [d. at lIO.
22? The appellate records for both cases state that the tdals took place during the circuit court tenn
that began in late November 1844. See Kirksey Appellate Record, supra note 21; Complaint, in Jones v.
Kirksey Appellate Record, supra note 197. McAfee was heavily involved in Jones v. Kirksey. Isaac
loaned $1300 to Willis H. Jones in 1838 or 1839, taking in return Jones's note to repay. Jones v.
Kirksey, 10 Ala. 579, 579 (1846). This note was renewed four or five times, until a final renewal was
executed April 11, 1843. [d. Finally, Isaac hired McAfee to collect. McAfee filed suit for Isaac against
Jones on February 6, 1844. See Jones v. Kirksey Appellate Record, supra note 197. Three weeks later,
on March 1, McAfee swore an oath before his replacement on the county bench, Hezekiah W.W. Rice,
that Jones was"a~outt? disp,o~_~ of hi~ property fraudulently with intent to avoid the payment" of his
debt to Isaac. [d. On the -stren.§.;th""of thaf oath, Judge Rice ordered Willis's goods attached. The sheriff
levied the attachment on March 4, taking eight of Jones's slaves. [d. Jones had to post bond (and find a
guarantor for the bond) in order to get his slaves back. He also had to pay the costs of the attachment
and suffered reputatiollal harm. [d.
Isaac eventually collected the debt from Jones in the July term of the county court, 1844. Jones v.
Kirksey, 10 Ala. 579, 579 (1846). But Jones, citing harm from the attachment, sued Isaac in state circuit
court for wrongful attachment soon after Jones's slaves were returned. [d. (indicating that the suit was
filed in "Spring Tenn 1844"). Jones's action against Isaac for wrongful attachment came to trial late in
the fall of 1844, at the same time McAfee was defending Isaac in Angelico's suit. The Jones trial was a
disaster for Isaac: Notwithstanding proof that Isaac had been unaware that McAfee had sought the
attachment, the jury held for Jones and assessed damages at $800. Jones v. Kirksey Appellate Record,
supra note 197. This amount probably included $100 for Jones's attachment-related expenses. Complaint, in Jones v. Kirksey Appellate Record, supra note 197. The other $700 may have been punitive
damages. That at least part of the damages were punitive appears to be the view of Justice Goldthwaite
of the Alabama Supreme Court, who discussed the issue in Kirksey v. Jones, 7 Ala. 622, 626-27 (1845).
228. TIle Jones v. Kirksey Appellate Record, supra note 197, is dated December 14, 1844, and was
filed by Samuel F. Rice, Isaac's new attorney. The Kirksey v. Kirksey appeal was filed December 18,
1844, also by Rice, and the Writ of Error in Kirksey v. Kirksey is dated December 7, 1844. Kirksey
Appellate Record, supra note 2I.
229. Biography of George Washington Stone, Alabama Judicial System Website, http://www.judicial.state.al.us/gallery...judge.cfm?Member=76 (last visited July 19,2005).
230. HUEBNER, supra note 216, at 161.
231. [d.
232. BRANTLEY, supra note 214, at 21-23, 30-31.
356
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
years later. When Stone and his relative, Isaac Stone, were defendants in a
lawsuit in 1839, the Stones chose Chilton as their lawyer?33 Chilton, in tum,
had too much work and had gained enough respect for Stone to invite him to
become his partner: Chilton and Stone?34 The partnership lasted only two
years, but Chilton "taught Stone how to handle clients as well as law books."235
Chilton also helped Stone into politics. While the two were together, Stone first
ran for Circuit Judge in Talladega County.236
Stone lost the election, but the judge who won, Eli Shortridge, died on July
20, 1843.237 Alabama's Governor appointed Stone to replace Shortridge. Stone
became a respected judge. Though he resigned from the trial bench in 1849,238
Stone was elected associate justice of the Alabama Supreme Court in 1856, a
position to which he was re-elected once and in which he served until 1865.239
Stone regained a seat on the Supreme Court in 1876. 240 In 1884, Alabama's
Governor O'Neal appointed Stone Chief Justice, and Stone was re-elected to
that position in 1886 and died in office. 241
C. THE TRIAL
In drafting Angelico's declaration, Chilton followed common law pleading_
rules. (Alabama did not abolish the forms of action until 1973.242) Angelico
declared an assumpsit, in three counts. 243 Count I recited Isaac's breach of
promise and $5,000 damages. But the Count then alleges that, when Angelico
confronted Isaac about the breach, he promised to pay her damages but had not.
Count I is for breach of this second promise. The jury found against Angelico
on this Count. We have found no other historical evidence of Isaac's alleged
second promise or any indication of why the jury rejected the Count.
CountsII and III. !'JeJaptuallvnorefamiliar. Count II pleads assumpsit based
on contract (Isaac's promise in the letter) and breach and, following Alabama
r
\
I
I
I
I
I
i
I
I
I
I
I
I
I
I
233. See Stone v. Gover, 1 Ala. 287 (1840).
234. BRANTLEY, supra note 214, at 53 & 0.3. Advertisements for this partnership appear in the
TALLADEGA DEMOCRATIC WATCHTOWER (Ala.), Apr. 3, 1840; TALLADEGA DEMOCRATIC WATCHTOWER (Ala.),
May 12, 1841.
235. BRANTI...EY, supra note 214, at 53. Chilton's partnership with Stone ended in July, 1842, when
Chilton formed a new partnership with Franklin W. Bowdon. TALLADEGA DEMOCRATIC WATClITOWER
(Ala.), August 16, 1843; TALLADEGA DEMOCRATIC WATCHTOWER (Ala.), May 22,1844.
236. BRANTLEY, supra note 214, at 54-56.
237. !d. at 57 & n.1.
238. HUEBNER, supra note 216, at 163.
239. Biography of George Washington Stone, supra note 229; BRANTLEY, supra note 214, at 93-95,
180-82.
240. HUEBNER, supra note 216, at 160.
241. Biography of George Washington Stone, supra note 229; BRANTLEY, supra note 214, at 258-59,
286.
242. ALA. R. Cry. P. 2 (first adopted in 1973) ("There shall be one form of action to be known as
'civil action."'). Significant movement away from the traditional rigidity of the forms occurred during
the twentieth century before the forms were abolished. See Comment, The Unification of Pleading
Under the Alabama Rules of Civil Procedure, 25 ALA. L. REv. 787 (1973).
243. Kirksey Trial Record, supra note 21.
[Vol. 94:321
ere defendants in a
233 Chilton, in tnm,
one to invite him to
lip lasted only two
ell as law books.,,235
together, Stone first
rtridge, died on July
ce Shortridge. Stone
.al bench in 1849,238
ne Court in 1856, a
,erved until 1865.239
In 1884, Alabama's
Cle was re-elected to
mmon law pleading
l 1973. 242 ) Angelico
,d Isaac's breach of
that, when Angelico
lamages but had not.
md against Angelico
:e of Isaac's alleged
le Count.
~ads assumpsit based
, following Alabama
partnership appear in the
:RATIC WATCHTOWER
(Ala.),
ended in July, 1842, when
DEMOCRATIC WATCHTOWER
2, 1844.
, supra note 214, at 93-95,
supra note 214, at 258-59,
1
of action to be known as
.the forms occurred during
1e Unification of Pleading
2006]
THE
STORY OF KIRKSEY V. KIRKSEY
357
precedent for written contracts, does not plead consideration. 244 Count III
pleads consideration, Isaac's promise of a place to raise a family, and breach,
and also that Angelico performed the alleged consideration "at the special
instance and request" of Isaac. 245 The Alabama Supreme Court also called this
kind of pleading merely "assumpsit.,,246 Probably Chilton was not sure whether
a letter signed only by Isaac would be considered a written contract, and so
pleaded two counts of assumpsit, one for a written and one for an oral promise.
Process was issued to the sheriff in September 1843. Isaac was served on
November 9. In Isaac's defense, McAfee pleaded "non assumpsit.,,24? The plea
of nonassumpsit was the equivalent of a general denial,248 and the parties do not
explain it further. In fact, Isaac's plea is given "in short by consent with leave to
give all special matters of defense that might be specially pleaded."249 Chilton
for Angelico "in short by consent replie[d] with like scope and leave.,,25o
Pleading in short by consent was common practice in Alabama at the time. 251
Pleading in short amounted to the pmties waiving the requirement of greater
particularity.252 It meant that the defensive pleading and reply to it were cryptic,
usually a word or two, merely enough to give notice sufficient to preserve later
arguments. The result for us is that the pleadings shed no further light on the
case.
Trial was delayed for one year, until November 18-23, 1844. The cause of
the delay is uncertain. The newly appointed Judge Stone had only six months
left in his telm when he was appointed in August of 1843, so in late fall he
244. Allen v. Dickson, Minor 119. 120 (Ala. 1823) (exempting declaration on written contracts from
the general requirement that consideration must be pleaded, because an early Alabama statute abolished
the difference between -seale-d anci" unsealed writings); see also Kelly v. Owen, Minor 252, 252 (Ala.
1824) (holding the words super se assumpsit unnecessary if "contract and breach" are alleged).
245. Declaration, in Kirksey Trial Record, supra note 2l.
246. Hays v. Goree, 4 Stew. & P. 170 (Ala. 1833); Jones v. Pitcher, 3 Stew. & P. 135 (Ala. 1833):
Meredith v. Naish, 3 Stew. 207 (Ala. 1830): see also M'Coll v. 011ver, 1 Stew. 510 (Ala. 1828) (tacitly
accepting Shortridge & Ellis'~ argument for the plaintiff in error: "In declaring in assumpsit, except on
legal liabilities, it is always necessary to set out the consideration of the contract."). Isaac's lawyer,
Green T. McAfee, in response to Count III, pleaded "nonassumpsit." Kirksey Trial Record, supra note
21. The Alabama Supreme Court's published recitation of the Kirksey facts also styles the case, which
is an appeal from a judgment on both Counts II and II, as "ASSUMPSIT." Kirksey v. Kirksey, 8 Ala. 131,
132 (1845).
247. Declaration, in Kirksey Trial Record, supra note 21.
248. [T]he plea of non assumpsit is only a denial of the facts alleged in the declaration, and throws
upon the plaintiffs the burthen of proving the truth of so many of the counts as he recovers on.
The plea of non assumpsit puts the plaintiff to the proof of his whole case, and in answer the
defendants may in general adduce any evidence which disproves the case set up by the plaintiffs, and
shows that at the time when the action was brought, the plaintiffs had no cause of action, or at least no
right to maintain the action of assumpsit.
Minge & Rnssell v. Cnrry & Co., 5 Ala. 168 (1843) (citations omItted).
249. Plea of Defendant, in Kirksey Appellate Record, supra note 21 .
250. Reply of Plaintiff, in Kirksey Appellate Record, supra note 21.
251. E.g., Lacy, Terrell & Co. v. Rockett, 11 Ala. 1002 (1847).
252. See, e.g., Pollard v. Stanton, 5 Ala. 451 (1843). In Pollard, the parties had alleged in short, by
Consent: "Partnership betw~en plaintiff and defendants." Id. at 451.
I
,,
r
,
I
~
358
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
returned to Tuskaloosa to campaign in the state legislature for his new office.
Stone's election occurred on December 22 and 23, 1843, and this may have
delayed the case past the trial court's Fall term?53 Angelico obtained a hearing
on May 20, 1844. Isaac was absent, however. Chilton moved for default, which
was granted, but this was later set aside on Isaac's motion. 254 After the Spring
1844 Term, Judge Stone took his wife on a trip to New York?55 The case at any
rate was delayed until November 1844.
When it finally occurred, trial was by jury.256 Chilton put before the jUlY
Isaac's October 1840 letter to Angelico promising a place to live,25? and that at
the time she was leasing from another on public land in Marshall County258 and
259
Some
would have attempted to secure title to this land had she stayed.
evidence focused on the inadequacy of the house in the woods. 26o The parties
disputed whether Isaac intended to make the house comfortable and allow
Angelico to continue to cultivate the same ground,26l but the jury found against
Isaac on these grounds,262 as noted above. Chilton also showed that Isaac
placed his son in joint possession with Angelico and in the end threatened to
force her out?63 "There was some proof of the loss plaintiff sustained by
removing,,,264 the appellate record states. The jury apparently believed that
Angelico was harmed, but, as noted, the jury's award is more consistent with
expectation than with reliance. 265 The appellate record then states with finality,
"This was all the proof.,,266
Soon after the jury's verdict, McAfee moved "in arrest of judgment, and for a
253. See BRANTLEY, supra noie2T4;-ai57~58.
254. Kirksey v. Kirksey, Talladega County Minute Book, Circuit Court 1840-1844, at 54; Trial
Docket Book, Circuit Court Talladega County, 1844-1849, at 14, 28 (plaintiff continuing the case from
the Spring 1844 Term).
255. BRAl\'TLEY, supra note 214, at 59.
256. See Judgment, in Kirksey Appellate Record, supra note 21 ("ajury of good and lawful men").
257. See Bill of Exceptions, in Kirksey Appellate Record, supra note 21.
258. We explain what interest Angelico probably had under this arrangement supra text accompanying notes 162-67.
259. Kirksey v. Kirksey, 8 Ala. 131 (1845); Bill of Exceptions, in Kirksey Appellate Record, supra
note 21.
260. Bill of Exceptions, in Kirksey Appellate Record, supra note 21 ("The proof conduced to show
that the house would not have been comfortable for herself and family.").
261. [d. ("There was some uncertainty in the proof whether defendant still proposed to allow plff. to
cultivate the same cleared land, and whether he proposed to have the new residence made comfortable.").
262. Id. ("The question was submitted to the jury, & they found against it.").
263. [d.
264. [d.
265. See supra text accompanying notes 199-203; see also Kirksey v. Kirksey, 8 Ala. 131 (1845);
Judgment, in Kirksey Appellate Record, supra note 21 ("Upon their oathe do say 'We the the [sic] jury
do find for the plaintiff upon the 2nd. & 300 counts in the declaration and assess her damages to two
hundred dollars."').
266. Bill of Exceptions, in Kirksey Appellate Record, supra note 21.
[Vol. 94:321
re for his new office.
\, and this may have
~o obtained a hearing
red for default, which
rr. 254 After the Spring
rk?55 The case at any
put before the jury
to live,257 and that at
arshall County25' and
she stayed. 259 Some
/,Toods?60 The parties
mfortable and allow
he jury found against
o showed that Isaac
the end threatened to
,laintiff sustained by
arently believed that
more consistent with
m states with finality,
I
,f judgment, and for a
rt 1840-1844, at 54; Trial
iff continuing the case from
.f good and lawful men").
aent supra text accompanyey Appellate Record, supra
he proof conduced to show
II proposed to allow plff. to
residence made comfort-
¥
.").
Grksey, 8 Ala. 131 (1845);
o say 'We the the [sic] jury
assess her damages to two
2006]
THE STORY OF KlRKSEY V.
KlRKSEY
359
repleader by defendant.,,267 A motion in arrest of judgment was roughly the
equivalent of a demurrer after trial; it was meant to remedy errors of law that
appeared of record in the proceedings prior to judgment.268 McAfee was not
asking for a final judgment on the merits, however. If a motion in arrest had
been granted, Angelico could have brought another action, pleaded differently,
on the same facts?69 A repleader was an allowance to plead anew, essentially to
amend Isaac's pleading?70 By asking for arrest of judgment and a repleader,
Isaac was, we believe, asking essentially for leave to demur to Angelico's
counts. The appellate record reports tllat Judge Stone would have granted
McAfee's motion in arrest and for repleader "... upon the ground that the 2 nd &
3rd counts do not contain a legal cause of action.,,27!
Angelico's response to McAfee's motion indicates that Angelico had nothing
further to plead, however. It may also indicate her hesitancy to go into the facts
of the land acquisition scheme. Rather than argue against McAfee's motion and
risk refiling, Angelico instead stipulated to an agreed statement of facts that
avoided the land scheme and would become the sole basis for an appeal as to
whether Angelico's second and third counts stated a cause of action. That
Angelico was willing to fight for the $200 verdict indicates that award would
have met her goals for tl,e litigation. The facts in the stipulation have all been
discussed above, but we include a complete statement of the agreed facts in the
Appendix at the end. 272 Angelico and Isaac finished the statement of facts with
their agreement "that if the ... facts [set forth] entitle the plaintiff to maintain
an action at law then the judgement is to be affirmed, if not, then it is to be
267. [d. LQc_~_P!"~9t~~e:_)'J1!e_s_1J~QyiQ~4 for ()ne day's notice for opposing counsel for a motion in
arrest of judgment. Hallett v. O'Brien, 1 Ala. 585, 587 (1840). So the motion was argued sometime
between November 19 and the early part of December. The Writ of Error was dated December 7, and
the appeal was filed December 18, 1844. Kirksey Appellate Record, supra note 21.
268. See Covy v. State, 4 Port. 186, 189 (Ala. 1836) ("It is well settled, that that which is not good
on demurrer, is not good in arrest of judgment. Whatever is fatal to the demurrer is, therefore, fatal to
the motion in arrest of judgment."); Davis v. Dickson, 2 Stew. 370, 370 (Ala. 1830) (holding that
pleading over rather than demurring waived the later motion to arrest judgment); Williamson v. Branch
Bank, 3 Ala. 504, 506 (1842) ("A motion in arrest of judgment must be for matter appearing of record.
A judgment is never reversed for extrinsic matter not appearing on the record itself."); Rhodes v. Sneed,
Minor 403, 404 (Ala. 1826) (holding that a County Court ruling could be reviewed on a motion in
arrest in the Circuit Court as to matters of record).
269. See Wilkerson v. Goldthwaite, 1 Stew. & P. 159, 167 (Ala. 1831) (Taylor, J.); cf Torbert v.
Wilson, 1 Stew. & P. 200, 205 (Ala. 1831) (dicta).
270. A repleader might be granted when a demurrer was improperly overruled, allowing a replication which set an issue for trial that actually was immaterial to the substance of the case, Shippey v.
Eastwood, 9 Ala. 198, 200 (1846), or if for other reasons the jury was charged to consider an item that
would not resolve the case on the merits. Watson v. Brazeal, 7 Ala. 451 (1845) (stating that a repleader
is proper when the parties establish as an is§ue for trial a question that is actually immaterial); Davidson
v. Shipman, 6 Ala. 27 (1844); State v. Ligon, 7 Port. 167 (Ala. 1838). The point of commOn law
pleading was to settle on the one issue, factual or legal, that would resolve the case. If the parties settled
on an issue that was legally insufficient to resolve the case, as in Shippey and Ligon, for instance, a
repleader was in order.
271. Bill of Exception~, in Kirksey Appellate Record, supra note 21.
272. See Appendix II.
360
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
reversed.'>273 In accordance with the parties' agreement, the court declined to
grant McAfee's motion, and Isaac filed an appeal.
D. ISAAC'S NEW LAWYER FOR THE APPEAL
Isaac's appeal was filed in short order, in the first weeks of December
1844,274 by Samuel Farrow Rice. Rice was, as McAfee had been, a strategic
choice. Rice graduated in 1833 from Columbia College in South Carolina, at
approximately age seventeen. He read law with future U.S. Senator William C.
Preston, was adntitted to the bar in South Carolina in 1837, and moved to
Talladega County the next year. 275 In 1838 he and Chilton joined The Talladega
Literary Society to discuss "Law, Theology, Morals, Medicine, Mechanics and
What Not.'>276 Rice also bought a local newspaper, the Southern Register, in
1838.277 He sold it a year later and founded, with McAfee and three other men,
a competing paper called the Democratic Watchtower or Talladega Watchtower?78 Rice, as editor of the papers while he owned them, used these
platforms to campaign informally for the state legislature, to which he was
elected in 1840 and again in 1841 (when he appears to have defeated Isaac
Kirksey for the position)?79 By 1845, Rice had extensive experience before the
Alabama Supreme Court 280 And Rice served Isaac well, winning appeals in
both Kirksey v. Kirksel 81 and Kirksey v. Jones?82 Later that year, 1845, Rice
was nontinated and ran for Congress as a Democrat, but was defeated. Rice
would later run for Congress again, unsuccessfully,283 serve additional years in
the state legislature,2S4 and serve as associate justice of the Alabama Supreme
'J73,. J3iJJ.Qf J;;~c:~ptJQ~~,it? __KjrkseYAppel1ate R~cord, supra note 21.
274. Kirksey Appellate Record, supra note 21 (containing a writ dated December 7, 1844 to the
Clerk of the Circuit Court of Talladega County ordering a transcript of the record; the transcript bears a
filing date of December 18, 1844).
275. WILLIAM GARRETT, REMJN1SCENCES OF PUBLIC MEN IN ALABAMA, FOR THIRTY YEARS 194 (1872);
NORTHERN ALABAMA HISTORICAL AND BIOGRAPHICAL 595 (Smith & DeLand 1888).
276. JEMISON, supra note 58, at 107.
277. [d. at 115.
278. [d. at 116.
279. GARRETT, supra note 275, at 194. Rice's advocacy for the position appears in the July 29, 1840
issue of the Watchtower. TAlLADEGA DEMOCRATIC WATCHTOWER (Ala.), July 29, 1840. Isaac's announcement of his c~didacy appears in the Watchtower issue of May 12, 1841, along with Rice's. TALLADEGA
DEMOCRATIC WATCHTOWER (Ala.), May 12, 1841.
280. A Westlaw search reveals that twenty~one cases identify "S.F. Rice" as attorney before the
Alabama Supreme Court in 1843 and 1844. Eighteen cases identify "Rice" arguing against "Chilton"
before the Alabama Supreme Court from June 1842 through 1844.
281. 8 Ala. 131 (1845).
282. 7 Ala. 622 (1845). Rice also won for Isaac a later equity case Jones filed against Isaac to have
Jones's debt to Isaac declared usurious. Jones v. Kirksey, 10 Ala. 579 (1846); see supra note 227
(desclibing the Jones v. Kirksey litigation).
283. Rice's last unsuccessful attempt for Congress was in 1851. GARRETT, supra note 275, at 194;
NORTHERN ALABAMA HrsTORlCAL & BrOGRAPIDCAL, supra note 275, at 595.
284. GARRETT, supra note275, at 194 (Rice was elected to the house from Montgomery County in
1859 and to the senate for a fOllr~year term in 1861); NORTIIERN ALABAMA HrSTORlCAL & BrOGRAPIDCAL,
supra note 275, at 596 (state Constitutional Convention in 1875 and state legislature in 1876-1877).
[Vol. 94:321
the Court declined to
THE STORY OF KIRKSEY V.
2006]
KIRKSEY
361
Court from 1855-56 and as Chief Justice from 1856-59.085 Both Angelico and
Isaac were, in the appeal, represented by Alabama's up and coming legal elite.
.L
E. THE SUPREME COURT
weeks of December
had been, a strategic
in South Carolina, at
S. Senator William C.
1837, and moved to
I joined The Talladega
[icine, Mechanics and
Southern Register, in
~ and three other men,
or Talladega Watched them, used these
rre, to which he was
) have defeated Isaac
experience before the
~ winning appeals in
that year, 1845, Rice
It was defeated. Rice
ve additional years in
he Alabama Supreme
d December 7, 1844 to the
record; the transcript bears a
R TmRTY YEARS
On the Alabama Supreme Court bench in the Court's January 1845 Term
were three justices: Chief Justice Henry Watkins Collier and Justices Henry
Goldthwaite and John J. Ormond.o86
Collier was born in Virginia, grew up in South Carolina, and was admitted to
the Alabama Bar in 1822.287 In 1827, Collier was elected to represent Tuscaloosa County in the state legislature, which elected him circuit judge in 1828. 288
As circuit judge, Collier sat as an associate on the Alabama Supreme Court until
1832, when the Alabama Supreme Court was created as a separate court. Collier
then remained a circuit judge until 1836, when the governor appointed him
associate justice of the Supreme Court. He was chosen chief justice in 1837 and
remained on the bench until 1849, when he was elected governor of Alabama.
He won a second race for governor in 1851. 289
Goldthwaite's early years are somewhat in dispute,290 but he was elected
state representative from Montgomery in 1829, shortly thereafter moved to
Mobile, and in 1836 was elected to the Supreme Court291 He served there until
1843, when he resigned to run for Congress. On losing the election, he was
immediately re-elected to the bench, where he remained until 1847, when he
died in office of yellow fever. 292 Judge Goldthwaite was reportedly a large man
who wore glasses for nearsightedness. 293
Ormond, the author of Kirksey, was a Whig-elected state representative from
Lawrence County in the early 1830s,294 but he was elected to the Alabama
Supreme Court by.a,DemocraticJegisJarnre in 1837.095 Ormond served until the
end of 1847.296 Incidentally, all three-Collier, Goldthwaite, and Ormondattended the same Methodist Episcopal Church in Tuscaloosa 297
194 (1S72);
'88).
285. Biography of Samuel Farrow Rice, Alabama Judicial System Website, http://www.judicial.state.
al.us/gallery.judge.cfm?Member=71 (last visited July 19, 2005).
286. Livingston et al., supra note 219, at 2.
appears in the JUly 29, 1840
29, 1840. Isaac's announceang with Rice's. TALLADEGA
287. Biography of Henry Watkins Collier, Alabama Judicial System Website, http://www.judicial.state.aLusigalleryjudge.cfm?Member=67 (last visited July 19,2005).
288. Id.
2S9. [d.
.ice" as attorney before the
:" arguing against "Chilton"
:s filed against Isaac to have
:1846); see supra note 227
~TT,
supra note 275, at 194;
'om Montgomery County in
HISTORICAL & BIOGRAPHICAL,
gislature in 1876-1877).
290.
TO
WILLIS BREWER, ALABAMA: HER HISTORY, REsOURCES, WAR RECORD, AND PUBLIC
MEN FROM 1540
1872 399 (Willa Pub. Co. 1964) (1872), reports that Goldthwaite baled from New Hampshire,
received a limited education, and on reaching Montgomery worked in his brother's store before reading
law. GARRETT, supra note 275, at 475, has Goldthwaite as a native of Boston, "liberally educated," and
editing a newspaper in Montgomery.
291. BREWER, supra note 290, at 399; GARRETI, supra note 275, at 475.
292. GARRETT, supra note 275, at 476; Livingston et aI., supra note 219, at 2.
293. GARRETT, supra note 275, at 476.
294. BREWER, supra note 290, at 557; GARRETT, supra note 275, at 267.
295. GARRETT, supra note 275, at 267.
296. [d. at 277.
297. [d. at 476.
I',
I·!
362
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
The Collier, Goldthwaite, Ormond court made a name for itself in Alabama at
the time. One judge later referred to them as "that illustrious triumvirate of
jurists" and said that this court "occupies a page in the Alabama law reports that
will pass down to future times, and be cited as authority in the adjudication of
human rights as long as the cornmon law maintains a footing among civilized
nations."298 And velily it is true, but the irony is striking. Kirksey is only nine
plinted lines long, the shortest opinion in the court's January 1845 Term?99 It
falls last among cases plinted that term, the last of four Ormond opinions
published in a row, as if he were the last to hand opinions to the printer and
were anxious to finish the Term's work. 3DD And Ormond devoted fewer than
twenty-five words to explicating the majolity's decision. Yet Kirksey, which
continues to be read by law students studying the adjudication of human rights,
is clearly the triumvirate's best-known precedent. Even more ironically, the
triumvirate disagreed in Kirksey, and the dissent's position is considered the
better autholity.
F. THE BRIEFS
The Kirksey bliefs, inasmuch as they still exist in the court's records, are
indeed brief. Samuel Rice signed a list of cases marked "Authorities for plff in
error" which is found on the back of the last page of the trial record transclipt
sent to the Alabama Supreme Court from the Talladega County Clerk.'D! The
court records contain no other blief. The printed version of Kirksey, where one
would expect to see a recitation of the appellant's arguments,3D2 lists only the
cites wlitten out on the back of the transcript. This very brief blief appears now
to have been Rice's only written submission.
. .Ricecited. only five case$_.303 Ofthese, only two were relevant. In: Dexter v.
Hazen & Amold,3D4 Dexter promised that Hazen and Arnold might drive teams
across Dexter's lands, but then Dexter ploughed the land and fenced it. The jury
found for Hazen and Arnold, but the Court of Appeals reversed, holding that
"the promise declared on was without consideration. It was a mere license
gratuitously given, revocable at pleasure, it being still executory.',3D5
298. BREWER, supra note 290, at 557 (quoting the Hon. Newton L Whitfield).
299. See 8 Ala. t:'134 (1845).
300. See 8 Ala. 119-34 (1845). The actual order in which the opinions were written is unknown.
301. Kirksey Appellate Record, supra note 21.
302. Clapp v. Mock, 8 Ala. 122 (1845), which falls right before Kirksey in the Alabama Reports,
contains extensive arguments from counsel. Rice's sometimes extensive arguments were later printed as
Garner v. Green & Elliott, 8 Ala. 96 (1845), and Huffaker v. Boring, 8 Ala, 87 (1845), the other cases
Rice argued in the court's Janumy 1845 tenn.
303. Kirksey Appellate Record, supra note 21. The cases are, in order cited, Burnet v. Bisco, 4 Johns.
235 (N.Y. Sup. Ct 1809), M'Donald v. Neilson, 2 Cow. 139 (N.Y. 1823), Weaver v. Bentley, 1 Cai. 47
(N.Y. Sup. Ct. 1803), Dexter v. Hazen & Arnold, 10 Johns. 246 (N.Y. Sup. Ct. 1813), and M'Endre v.
Piles, 16 Ky. (1 Litt. Sol. Cas.) 101 (1809).
304. 10 Johns. 246 (N.Y. Sup. Ct.)813).
305. [d. at 246.
T
I
I
[Vol. 94:321
lr itself in Alabama at
;trious triumvirate of
bama law reports that
in the adjudication of
lting among civilized
. Kirksey is only nine
lary 1845 Term. 299 It
ur Ormond opinions
Ins to the printer and
I devoted fewer than
. Yet Kirksey, which
ltion of human rights,
more ironically, the
lon is considered the
2006]
THE STORY OF KIRKSEY V. KIRKSEY
363
In Burnet v. BiSCO,'06 the defendant "agreed to give" the plaintiff a right of
first refusal on defendant's farm. The defendant breached, and in response to
plaintiff's assumpsit action, demuned on various grounds other than lack of
consideration.'O? The plaintiff joined the demuner, which was submitted to the
court without argument. 308 The court, seemingly sua sponte, declared:
A defect in substance in this declaration is, that there is no consideration
stated. The defendant agreed to give the refusal of the farm to the plaintiff: but
he did not agree to take it, and there was no promise on his part as a
consideration for the promise of the defendant, nor any money paid, or other
valuable consideration given. The agreement was a mere nudum pactum. A
consideration is as necessary to an agreement reduced to writing, as if it
remained in parol. There must be judgment for the defendant. 309
One other case, M'Donald v. Neilson,3w finds that consideration was present. 3ll
And the other two cases Rice cites 3!2 do not deal with consideration at all, or
any other topic legally relevant to Kirksey.3l3 Dexter and Bernet appear to have
~
court's records, are
Authorities for plff in
trial record transcript
County Clerk.30! The
)f Kirksey, where one
ents,302 lists only the
:ief brief appears now
relevant. Iri Dexter v.
)Id might drive teams
nd fenced it. The jury
'eversed, holding that
was a mere license
:utory.,,305
ield).
ere written is unknown.
ey in the Alabama Reports,
;uments were later printed as
1.
87 (1845), the other cases
:ed, Burnet v. Bisco, 4 Johns.
Weaver v. Bentley, 1 eai. 47
I. Ct. 1813), and M'En.dre v.
306. 4 Johns. 235 (N.V: Sup. Ct. 1809).
307. Id. at 235.
308. Id. at 236.
309. Id.
310. 2 Cowen 139 (N.Y. 1823).
311. See id. at 139.
312. Weaver v. Bentley, 1 Cai. 47 (N.Y. Sup. Ct. 1803); M'Endre v. Piles, 16 Ky. (Litt. Sel. cas.)
101 (1809).
313. In Weaver v. Bentley, Bentley promised in a sealed instrument to procure for Weaver a lease of
a certain lot of real estate, The instrument contained the following: "The condition of this obligation is
such, that if I do not deliver the said lease, the two sixty pound notes ... which I have against James
Weaver, shall be of none [sic] effect." 1 Cai. at 47. Weaver also paid Bentley some money and farm
animals for this promise, which Bentley failed to perfonn. ld at 48.
The question on appeal was whether assumpsit would lie for the return of the "consideration" paid by
Weaver, or whether his assumpsit action would be rejected and he would have to sue on the covenant
and therefore be limited to the remedy of the cancellation of the notes. The court felt that to sue in
assumpsit would be to disaffirm the contract, and so the plaintiff must have brought assumpsit for
money had and received. Justice Kent held that Weaver "had his election either to proceed on the
covenant and recover damages for the breach, or to disaffirm the contract and bring asswnpsit to
recover what he had paid on a consideration which had failed." ld. Justice Livingston dissented and
would have held Weaver to the covenant and its remedy. ld. at 48-49.
In M'Endre v. Piles, M'Endre bought 500 acres of land for £450 fTOm Lewis and wife, thrOUgh their
agent Vawter. Vawter and M'Endre stipulated that no conveyance should occur until M'Endre had paid
the whole purchase price. M'Endre executed bonds for the whole purchase price, and Vawter executed
a bond for the conveyance of the land. 16 Ky. (1 Litt. Sel. Cas.) at 101.
Then M'Endre sold 150 of the 500 acres to Rollins for £210. Rollins, with Piles as guarantor,
executed two bonds for the payment of the £210. M'Endre made no bond in favor of Rollins to convey
the land, but instead M'Endre assigned Vawter's bond to Piles in order to indemnify Piles for becoming
Rollins's security. M'Endre and Piles agreed that when M'Endre paid the whole purchase price, Piles
would obtain the conveyance from Vawter and then re~convey to M'Endre after deducting Rollins's 150
acres.Id.
But then M'Endre never paid, so Piles and Vawter rescinded, and Piles gave Vawter his bond in
exchange for M'Endre's bonds for the purchase price. M'Endre then sued Rollins (and Piles) on
364
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
been sufficient for the Court, however. Those case reports reflect what reasoning
we can discern from the Alabama Supreme Court's Kirksey opinion. 3l4
In response to Rice's citations, Chilton cited treatises (three) and cases
(eight).'15 The treatises assert that detriment will serve as a consideration.
Chitty, for example, wrote: "It is sufficient ... even if the plaintiff sustain the
least injury, inconvenience, or detriment; or subject himself to any obligation,
without benefiting [sic] the defendant, or any other person.'o3I6 Story on Contracts reported that "the essence of every consideration, is, that it should create
some ... inconvenience to the [promisee] .... [I]t matters not ... how slight
the inconvenience or damage ... .',317 And Kinne: "some trouble or prejudice,"
or "any damage ... or forebearance of a right."318 Many of the cases Chilton
cites contain similar language3I9 and are apparently cited primarily or only for
that language. Some of Chilton's cases also involve unusual circumstances in
which the court finds a detriment not at first obvious on the facts. 32o All of
Chilton's cited cases appear to involve a traditional bargained-for exchange,
Rollins's bond (and with Piles as guarantor). Rollins and Piles then countersued in Chancery to have
M'Endre's suit enjoined. The Chancellor enjoined M'Endre's suit, and M'Endre appealed. [d.
The court held that Rollins had "a clear and incontestable equity" to resist payment of the money for
the 150 acres, because "he has not received a conveyance." [d. The court affirmed the injunction against
M'Endre's suit against Piles, too. The court thought Piles had no right to rescind the agreement with
Vawter, but the court also said that M'Endre should not recover from Piles because M'Endre did not
show that he had paid or was ready to pay Vawter. Thus, the unauthorized rescission of the contract did
not entitle M'Endre to damages. [d. at 102.
314. See infra text accompanying notes 321-24.
315. See Kirksey Appellate Record, supra note 21.
316. JOSEPH CHITTY, A PRACTICAL TREATISE ON THE LAW OF CONTRACTS, NOT UNDER SEAL; AND UPON
THE USUAL DEFENSES TO ACTIONS 'THEREON 7 (3d Am. ed. 1834). Of Chilton's eight case citations in the
Kirkseyopinion,-~evenare to-cases-cited in support-of this statement in the 1834 edition of Chitty.
317. WILLIAM W. STORY, A TREATISE ON THE LAW OF CONTRACTS NOT UNDER SEAL § 115 (1972)
(1844).
318. ASA KINNE, QUESTIONS AND ANSWERS ON LAW: ALPHABETICAllY ARRANGED, WITH REFERENCES TO
THE MOST APPROVED AUTHORITIES 218 (2d ed. 1840).
319. See Townsley v. Sumrall, 27 U.S. (2 Pet.) 170, 182 (1829) ("Damage to dIe promisee,
constitutes as good a consideration as benefit to the promisor."); Violett v. Patton, 9 U.S. (5 Cranch)
142, 150 (1809) ("To constitute a consideration it is not absolutely necessary that a benefit should
accrue to the person making the promise. It is sufficient that something valuable flows from the person
to whom it is made; and that the promise is the inducement to the transaction."); Stapp v. Anderson, 8
Ky. (1 A.K. Marsh.) 535, 538 (1819) ("A consideration to sllstain an action on a promise, must be either
a benefit to the party malting the promise, or some trouble or prejudice to the party to whom it is
made."): Sumner v. Williams, 8 Mass. (7 T'yng) 162 (1811) ("[A] covenant ... where the party, in
whose favor the contract is made, foregoes some advantage, or incurs an expense, or suffers some loss
in consequence of placing his confidence in another's undertaking-no case of this description can be
viewed as a contract merely voluntary, or estimated as a covenant without consideration."); Forster v.
Fuller, 6 Mass. (5 Tyng) 58, 59 (1809) ("A damage to the promisee, as well as benefit to the promisor, is
a sufficient consideration to support a promise.").
320. In Brooks v. Ball, 18 Jolms. 337 (N.Y. Sup. Ct. 1820), the court held that the plaintiff's
swearing out an affidavit that the defendant owed him money was conSideration. Brooks follows a long
line of common law precedent holding more or less the same thing. See Amy v. Andrews, 1 Freeman
133, 89 Eng. Rep. 97, 1 Mod. 166 (C.P. 1673); Layworthy v. Chichester, 1 Freeman 53, 89 Eng. Rep.
41,42 (1672); Brerton v. PrettimaJI, Raym. Sir. T. 153, 83 Eng. Rep. 82, 2 Keb. 26, 44 (1666); Knight v.
Rushworth, era. Eliz. 470, 78 Eng: Rep. 707 (C.P. 1596). Brooks innovatively holds that agreeing to
[Vol. 94:321
~f1ect what
reasoning
opinion. 314
,s (three) and cases
as a consideration.
, plaintiff sustain the
:If to any obligation,
1.,,316 Story on Con.
that it should create
's not . . . how slight
rouble or prejudice,"
of the cases Chilton
Jrimarily or only for
rral circumstances in
, the facts .'20 All of
~ained-for exchange,
rsued in Chancery to have
ire appealed. Id.
payment of the money for
TIled the injunction against
escind the agreement with
because M'Endre did not
scission of the contract did
JT UNDER SEAL; AND UPON
eight case citations in the
:34 edition of Chitty.
JNDER SEAL § 115 (1972)
2006]
TIlE STORY OF KIRKSEY V. KIRKSEY
365
however, in which the promise induced the dettiment, and vice versa.
G. THE OPINIONS
The COUlt's opinion seems to follow the cases cited. The langnage of the
opinion reflects the language of the authorities cited by counsel for the parties,
as if Ormond read the cited cases before sitting down to write the brief opinion,
or perhaps had the books open in front of him. Ormond wrote for Collier and
Goldthwaite: "My brothers ... think, that the promise on the part of the
defendant, was a mere gratuity, and that an action will not lie for its breach. The
. judgment of the Court below must therefore be reversed, pursuant to the
agreement of the parties.'>321
The possible analogy to the cases Rice cited is immediately apparent. Isaac's
promise to Angelico was like Dexter's promise to Hazen & Arnold: "gratuitously given, revocable at pleasure, it still being executory.',322 At most, Collier
and Goldthwaite thought that in retum for Isaac's promise, in the words of
Burnet v. Bisco, "there was no promise on [Angelico's] part as a consideration
for the promise of the defendant, nor any money paid, or other valuable
consideration given. The agreement was a mere nudum pactum.,,323 The two
justices may have considered Isaac's promise a "mere licence,,324 to live on and
farm Isaac's property. This analogy suggested by the language in the opinion
may not be a perfect fit, but an imperfect argument might be expected given that
the dissenter wrote for the majority.
The dissenter Ormond wrote for himself:
The inclination of my mind, is, that the loss and inconvenience, which the
plaintiff sustained in breaking up, and moving to the defendant's, a distance of
sixty mile" is· a' sufficient consideration to support the promise, to furnish her
with a house, and land to cultivate, until she could raise her family325
NGED, WITH REFERENCES TO
·1
)amage to the promisee,
Patton, 9 U.S. (5 Cranch)
sary that a benefit should
Ible flows from the person
n."); Stapp v. Anderson, 8
1a
promise, must be either
the party to whom it is
1t ... where the party, in
lense, or suffers some loss
of this description can be
J
:onsideration."); Forster v.
; benefit to the promisor, is
t held tilat the plaintiff's
ion. Brooks follows a long
1Y v. Andrews, 1 Freeman
Preeman 53, 89 Eng. Rep.
b. 26, 44 (1666); Knight v.
-ely holds that agreeing to
pay in exchange for swearing that a debt is owed waives all other proof. 18 Johns. at 341. The promise,
the court said, refers "a disputed fact to the conscience of the" plaintiff. [d. at 340.
In Violett v. Patton, the court held that a creditor's trusting the credit of a debtor was consideration
for a guarantor's promise. 9 u.s. (5 Cranch) at 142. The case is unusual in that the guarantee was given
as an endorsement of the debtor's note. Chief Justice Marshall's ruling for the plaintiff rests in part on
the strength of his conviction that guarantees were typically written this way in Virginia. [d. at 150-51.
In Forster v. Fuller, releasing a debtor from debtor's prison was held sufficient consideration for the
guarantor's promise to pay the debt. 6 Mass. (5 Tyng) at 58 (reasoning that the plaintiff had foregone
any remedies on his judgment against the debtor in consideration for the guarantor's note).
Settlement of an estate controversy could also be a detriment to a potential legatee. Price v. Winston,
18 Va. (4 Munf.) 63 (1813).
A loss incurred by an agent on his principal's behalf is consideration for the principal's promise to
indemnify the agent. Stocking v. Sage, 1 Conn. 519 (1816).
321. Kirksey v. Kirksey, 8 Ala. 131, 133 (1845).
322. Dexterv. Hazen, 10 Johns. 246, 246 (N.Y. Sup. Ct. 1813).
323. Burnet v. Bisco, 4 Johns. 235, 236 (N.Y. Sup. Ct. 1809).
324. Dexter, 10 Jol11.1s. at 246.
325. 8 Ala. at 133.
366
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Chilton's authorities are apparent here. "Loss" comes from Sumner v. Williams;26 which Chilton cited apparently only for that language.'27 "Inconvenience" appears in both Chitty328 and Story.329 Ormond's analysis contains
something more than Chilton's case law sources, though, all of which involve a
bargain. Ormond's terse opinion doesn't reveal that something more. But we
naturally suspect that Ormond did not believe that Isaac was bargaining for
Angelico to suffer an inconvenience that would do Isaac no good. Absent a
bargain, the only tie between Isaac's promise and Angelico's inconvenience is
her reliance, and a decision resting factually on reliance alone is the element
missing from Chilton's sources.
Professors discussing Kirksey in class have often teased students with the
oddity that Justice Ormond, a dissenter, wrote the majority opinion. Why did
he? Kirksey in this aspect is not so unusual. Alabama case law of the time
reveals at least seven opinions written by a Justice not in the majority.330 The
repOits themselves do not state why this occurred, nor have we found other
dil"ect evidence, but we believe it was because the cases were assigned to
individual judges randomly, perhaps before argument, and not reassigned depending on which judges were in the majority. FIOlida followed this practice into the
1990s, with like results,33] under "long-standing court custom.',332
For its time, neither the majority nor the dissent in Kirksey was legally
innovative. The majority likely knew that "gratuity" was a popular name for the
opposite of consideration in Alabama333 and elsewhere. 334 And the courts
326. 8 Mass. (7 Tyng) at 200.
327. Chilton cited only to Sunmer at page 200, not even to the title page of the case. 8 Ala. at 133.
Moreover, Sumner involves a relatively straightforward and uninteresting holding that payment of £305
constituted·consideration-for~-eovenants~contained-ina-warranty-deed. -See 8 Mass. (7 Tyng) at 204
(Sewall, 1.), 207 (Parker, 1).
328. See supra note 316 and accompanying text.
329. See supra note 317 and accompanying text.
330. In addition to Kirksey, see Woods Adm'rs v. Brown, 8 Ala. 742 (1845) (Goldthwaite, J.,
dissenting); Lucas v. Governor, 6 Ala. 826 (1844) (Goldthwaite, J., probably dissenting); Steele v. Dart,
6 Ala. 798 (1844) (Onnond, J., dissenting); Taylor v. Pope, 3 Ala. 190 (1841) (Goldthwaite, J.,
dissenting); Foumier v. Curry, 4 Ala. 321 (1842) (Ormond, J., dissenting). In other cases, the writer of
the majority opinion concurred. See Branch Bank at Montgomery v. Wilkins, 7 Ala. 589 (1845)
(Goldthwaite, J., concurring) (this case was decided the same term as Kirksey); Smith v. Nelson, 6 Ala.
320 (1844) (Collier, J., concurring); Gibson v. Carson's Adm'r, 3 Ala. 421 (1842) (Onnond, J.,
concurring). In a third class of cases from this court, one judge wrote a purportedly binding opinion
because the other judges were disqualified. See Beall v. Dearing, 7 Ala. 124 (1844) (opinion of
Ormond, 1., affinning, Collier, J., and Goldthwaite, 1., both being "incompetent to set"); Doe v. Hunt, 4
Ala. 129 (1842) (opinion of Collier, 1., sitting alone and affirming; Goldthwaite, J., and Ormond, J.,
being "interested in the decision," "did not participate.").
331. See Gerald Kogan & Robert Craig Waters, The Operation and Jurisdiction of the Florida
Supreme Court, 18 NOVA L. REv. 1151, 1161-68 (1994) (reporting that cases are assigned by the court
clerk as "soon as briefing is completed," and that a dissenting judge may write an unsigned, per curiam
majority opinion from which he may dissent; if the majority does not agree with the per curiam, the
chief justice may reassign).
332. [d. at 1165.
333. See, e.g., Dearman v. Radcliffe, 5 Ala. 192, 195 (1843); Gayle v. Martin, 3 Ala. 593, 596
(1842); Pyke v. Searcy, 4 Port. 52, 6-1 (Ala. 1836); Monison v. Orr, 3 Stew. & P. 49, 52 (Ala. 1832)
[Vol. 94:321
rom Sumner v. Wil19uage?27 Hlnconve-
I's analysis contains
11 of which involve a
~thing more. But we
, was bargaining for
; no good. Absent a
:o's inconvenience is
alone is the element
~d
students with the
ty opinion. Why did
ase law of the time
the majority.330 The
lave we found other
es were assigned to
ot reassigned dependthis practice into the
>m.,,332
Kirksey was legally
popular name for the
334 And the courts
of the case. 8 Ala. at 133.
tding that payment of £305
8 Mass. (7 Tyng) at 204
! (1845) (Goldthwaite, J.,
dissenting); Steele v. Dart,
I (1841) (Goldthwaite, J.,
n other cases, the writer of
ilIans, 7 Ala. 589 (1845)
y); SmitIl V. Nelson, 6 Ala.
421 (1842) (Ormond, J.,
lrportedly binding opinion
c. 124 (1844) (opiniou of
~ntto set"); Doe v. Hunt, 4
waite, J., and Ormond, 1.,
urisdiction of the Florida
s are assigned by the court
te an unsigned, per curiam
e with the per curiam, tile
. Martin, 3 Ala. 593, 596
v. & P. 49, 52 (Ala. 1832)
2006]
THE STORY OF KIRKSEY V.
widely agreed that love
assumpsit action.'35 This
Alabama) held that the
converse was also true:
KIRKSEY
367
and affection were not consideration to support an
was also true in Alabama. 336 Courts nationally (and in
consideration must induce the promise,337 but the
the promise must induce the consideration. 338 As a
(describing a gratuitous agency as without consideration); Smith v. Miller, 3 Stew. 280, 281 (Ala. 1831)
(counsel describing an agreement settling a judgment as "wholly gratuitous" because the defendant paid
by the agreement less than the amount of the judgment); Dale v. State, 3 Stew. 387, 408 (Ala. 1831)
(Lipscomb, J.) (opining that a contract with the state which was a "mere gratuity" was without
consideration and therefore could be revoked); Teague v. Russell, 2 Stew. 420, 422 (Ala. 1830) (holding
that because no consideration was alleged a release was "gratuitously made").
334. See, e.g., Robertson v. March, 4 Ill. (3 Scam.) 198, 199 (1841); Ives v. Sterling, 47 Mass. (6
Met.) 310, 315 (1843); In re Peny, 16 N.H. 44, 46 (1844); Kellogg & Kellogg v. Lawrence, Hill & Den.
332,336 (N.Y. Sup. Ct. 1844); Walters v. Swallow, 6 Wbart. 446, 451 (pa. 1841); Nesbitt v. Louisville,
C. & C.R. Co., 29 S.C.L. (2 Speers) 697 (1844).
335. See, e.g., Fink v. Cox, 18 Jobus. 145 (N.Y. Sup. Ct. 1820); Priester v. Priester, 9 S.C. Eq. (Rich.
Cas.) 26 (S.c. Ct. App. 1831); Holley v. Adams, 16 VI. 206 (1844).
336. Doe ex demo Davis v.McKinney, 5 Ala. 719 (1843) ("At most, it was only a promise for which
there was no other consideration than natural love and affection, and required something further to be
done ....").
337. See, e.g., Hutz v. Karthause, 12 F. Cas. 1I01, 1103 (C.C.E.D. Pa. 1820) (No. 6,963) ("There
was ... a total failure of the consideration which induced the promise ... ~");. Stanmird v. McCartY,
Morris 124 (Iowa Terr. 1841) (Hall arguing for plaintiffs in error: "What was the consideration or
inducement for this promise?"); Bank of Troy v. Trapping & Holme, 13 Wend. 557, 565 (N.Y. Sup. Ct.
1835) ("[T]here is no consideration or inducement for the promise"); Johnson v. Bridge, 6 Cow. 693,
694 (N.Y. Sup. Ct. 1827) ("The promise, in this case, to pay, was without consideration, as the plaintiff
had previously purchased the note; and the defendant did nothing to induce the plaintiff to purchase.");
Ten Eyck v. Vanderpoel, 8 Johns. 120, 121 (N.Y. Sup. Ct. 1811) ("The note states that the value
received was by third persons, and there is no consideration or inducement for the promise."); Schenk
v. Mingle, 13 Serge & Rawle 29, 35 cPa. 1825) ("If any part was virtuous, however small, it was in law,
a sufficient consideration moving from her to induce the promise ...."); Rice V. Sims & Worthy, 42
S.C.L. (8 Rich.) 416~(SoC.-"Ct. App.1832) (rejecting the argument that the agreement was a nudwn
pactum by stating: "To the fitst ground it is sufficient to answer, that the plaintiff's and the defendants'
contracts were simultaneous; each was the inducement of the other. Promise for promise is sufficient
consideration." (emphasis added)).
Alabama cases so holding include: Bates v. Terrell, 7 Ala. 129, 134 (1844) ("A promissory note does
not state the terms of the contract of purchase, nor is it a memorandum from which it may be inferred.
It is nothing more than a promise to pay money, for which the law implies a valuable consideration. But
this implication is not conclusive, and it is permissible for the maker to show that it was given without,
or for a consideration that has failed, or under such circumstances that the law· will not coerce its
payment. Tbis may be done by showing that the undertaking of the payee which induced the maker's
promise, is void and cannot be enforced."); Sewall v. Franklin, 2 Port. 493, 497 (Ala. 1835) (Saffold,
C.J.) (equating consideration with adequate inducement for entering a bond).
This requirement that the consideration induce the promise flowed directIy from the assumpsit
pleading form inherited from English common law, which required that the plaintiff allege that the
defendant, "in consideration of X, undertook Y." See Val D. Ricks, The Sophisticated Doctrine of
Consideration, 9 GEO. MASON L. REv. 99, 105--06 (2000).
338. See, e.g., Clay v. McClanahan, 44 Ky. (5 B. Mon.) 241, 242 (1844) ("a consideration for such a
promise, constituting either in a benefit to himself or a loss to the other party, induced by bis promise");
Denson v. Sledge, 13 N.C. (2 Dev.) 136 (1829) (stating that "[t]he consideration was an omission, by a
public officer, to pelform tile duties of his office; the promise of the Defendant was to induce him to
omit the performance of tIlat duty," and holding the consideration illegal); Kershaw's Ex'rs V. Whitaker,
3 S.C.L. (1 Brev.) 9 (S.C. Canst. Ct. App. 1794) ("Wherever a man is induced, by another's promise, to
release a remedy, or forbear the exercise of a right which he has, the consideration is good to support
the promise ...."). The requirement that the promise induce the consideration could have been
368
THE
GEORGETOWN LAW JOURNAL
[Vol. 94:321
South Carolina court said in 1832, "each was the inducement of the other.,,339
The claims of Grant Gilmore notwithstanding,340 consideration has been called
a reciprocal or mutual cause, the promise and consideration causing or inducing
each other-put another way, consideration has meant "bargain"-since the
l560s. 341 The holding of Collier and Goldthwaite in Kirksey fell squarely within
this tradition: Isaac's promise, they found, was not induced by the prospect of
Angelico's marching through central Alabama with her children. Absent other
evidence of consideration-and the two justices had none before them-Isaac
acted gratuitously: out of love and affection, or to give something for free, or
without sufficient reason. Any of these conclusions are consistent with the
court's language, and they were not enough to make the promise enforceable.
Ormond's opinion was likewise squarely within the common law tradition.
Though the assumpsit pleading fonn seemed to require that the consideration
induce the promise,342 courts occasionally spoke as if only the promise need
induce the consideration, and not vice versa. As Chief Justice Marshall stated in
1809, and Chilton paraphrased to the Kirksey court: "It is sufficient consideration that something valuable flows from the person to whom it is made; and
that the promise is the inducement to the transaction.,,343 Cases grounded on the
promise inducing the consideration were those that later, when Williston in the
Restatement of Contracts fonnulated a bargain-based-only consideration doctrine, generated a need for an additional section on the doctrine of promissory
estoppel. 344 They included not only charitable subscription cases,345 but also a
smattering of other reliance-based cases. 346
extrapolated from the English common law rule that a past consideration was insufficient in assumpsit
(established 1568) .and--that.-.an·act peIformed pursuant to a prior legal duty was also insufficient
(established by 1590). See Ricks, supra note 337, at 106.
339. Rice v. Sims & Worthy, 42 S.c.L. (8 Rich.) 416 (S.c. Ct. App. 1832).
340. GRANT GILMORE, THE DEATH OF CONTRAcr 20-21 (1974). Gilmore claimed that the "bargain"
theory of consideration was a "revolutionary doctrine" first proposed by Oliver Wendell Holmes in
OLIVER WENDELL HoLMES, THE COMMON LAW 230-31 (Mark DeWolfe Howe ed., 1963) (1881).
341. See Ricks, supra note 337, at 105--06.
342. See id.
343. Violett v. Patton, 9 U.S. (5 Cranch) 142, 150 (1809), cited by William Chilton in Kirksey
Appellate Record, supra note 21 (discussed supra note 319 and accompanying text); see also Herbert v.
Alexander, 6 Va. (2 Call) 498 (1800) ("This answers the objection for want of consideration; since,
although the promise might not import gain to the promisor, yet if the other was induced by it, to waive
any advantage he might have had, it is a good consideration.").
344. See Ricks, supra note 337, at 118; FIRST RESTATEMEl\'T OF CO}''TRACTS § 90 (1932); infra text
accompanying notes 387-90.
345. See, e.g., Somers v. Miner, 9 Conn. 458 (1833) (upholding a $500 subscription to an ecclesiastical society on the ground that others were «induced" to subscribe by that subscription); Trs. of Amherst
Acad. v. Cowls, 23 Mass. (6 Pick.) 427 (1828); Univ. ofVt. v. Buell, 2 Vt. 48 (1829).
346. See, e.g., Avery v. Halsey, 31 Mass. (14 Pick.) 174 (1833) (holding that if the defendant, in
order to induce plaintiff to assist him, promised to indemnify the plaintiff, "and the plaintiff acted upon
the faith of it, the danger to be incurred by the plaintiff was a good consideration, and the promise was a
valid one in point of law, and upon which the plaintiff might maintain an action"); Hoffman v. Lee, 3
Watts 352, 355 (Pa. 1834) (stating that "now any injury to another, any labour on him, any hardship
induced to him, is a good consideration to support an agreement and make a promise binding on him
[Vol. 94:321
nent of the other. ,,339
:ation has been called
n causing or inducing
"bargain"-since the
'y fell squarely within
ed by the prospect of
hildren. Absent other
e before them-Isaac
omething for free, or
: consistent with the
Jmise enforceable.
>mmon law tradition.
hat the consideration
lly the promise need
ice Marshall stated in
s sufficient considerIhom it is made; and
:ases grounded on the
Nhen Williston in the
y consideration docJctrine of promissory
n cases,345 but also a
as insufficient in assumpsit
duty was also insufficient
).
claimed that the ''bargain''
Oliver Wendell Holmes in
'd., 1963) (1881).
Villiam Chilton in Kirksey
ag text); see also Herbert v.
mt of consideration; since,
was induced by it, to waive
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
369
Alabama precedent existed for Ormond's position, had Chilton found it, in
Brown v. Adams. 34? Adams, in order to induce Brown to enter into a bond as
security for the perfOlmance of county sheriff John M'Whorter, promised to
indemnify Brown should Brown have to pay on the bond. Brown entered into
the bond and later was forced to pay $300 as a result. Brown then sued Adams
for indemnity in two counts of assumpsit, alleging that he had entered into the
bond "confiding in the honesty of' Adams. 348 The trial court sustained a
demulTer to the assumpsit counts, and Brown appealed 349
On appeal, Peck, counsel for Adams, argued in what many now consider
twentieth-century terms that Adams's promise lacked consideration:
The promise as set out in the declaration, was without consideration, a mere
nudum pactum, and void; the rule both of the civil and common law; with
respect to the consideration necessary to support a contract, is the same. "In
all contracts, either expressed or implied, there must be something given in
exchange, something that is mutual or reciprocal." Here, nothing was given to
Adams in exchange for his promise: he could not in any possible event
receive any advantage from Brown's signing the bond as security for
M'Whorter. 350
Adams's argument has bite: Nothing in the declaration shows what induced
Adams's promise. Consistent with the declaration, M'Whorter may have been
Adams's son-in-law and Adams may have promised out oflove and affection.
'The court found consideration, however, but not because Brown's actions had
induced Adams's promise:
In Com'in on Contr~cts, it is said that if .the plaintiff be prejudiced by reason
of a pr~;cl~~;'~~d;;-rtiling p~ssin.g fr~m the defendant to him, this is a
sufficient consideration to support the promise, and that it is not material
whether the defendant is to be benefitted or not, if in consequence of his
promise, the plaintiff was induced to do an act by which he has been
damnified .... The case at bar comes clearly within these principles. The
declaration alleges that the defendant promised the plaintiff, if he would
become security to the sheriff, he would answer for any damages he might
sustain by reason of such securityship, and that confiding in this promise, the
plaintiff did become security; by reason of which, he hath sustained damage
to a certain amount. The Court are therefore of opinion that the first and
,rs § 90 (1932); infra text
bscription to an ecclesiastilscription); Trs. of Amherst
: (1829).
Lg that if the defendant, in
md the plaintiff acted upon
Lion, and the promise was a
etlan"); Hoffman v. Lee, 3
banI' on him, any hardship
a promise binding all him
who made it"); see also Kevin M. Teeven, 43 DUQ. L. REV. 11, 24-59 (2004) (listing many cases,
including many commercial cases, decided prior to 1925, and some prior to 1845, in which reliance
rather than bargain prOVided the ground for enforcement of a promise).
347. 1 Stew. 51 (Ala. 1827).
348. Id. at 51.
349. Id.
350. Id. at 51-52.
· ·"
T
,
370
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
second counts of the declaration are sufficient, and that the judgement of the
Circuit Court must be reversed. 351
Exchange or no exchange, prejudice incurred by "confiding in" the promise is
consideration. Angelico's prejudice and inconvenience likewise would be consideration. One wishes that Chilton had cited Brown v. Adams to the court, and
forced them to distinguish it, but the opportunity was missed. Perhaps if Collier
and Goldthwaite had seen Brown v. Adams (and maybe the concurrence in an
1831 Virginia case, Reed's Heirs v. Vannorsdale 352), they might have enforced
brother Isaac's promise ... or not-after all, no exchange was apparent on the
stipulated facts. At any rate, the somewhat contradictory common law precedent
of 1845 supports both opinions in Kirksey.
IV.
AFTERWARDS
The Kirksey case easily could have lapsed into obscurity. Its facts are
poignant as written, but its rationale and the underlying controversy are as
obscure as the court that decided it. Likewise Isaac and Angelico are, in a word,
obscure. They have a certain Everyman quality to them and might serve as
archetypes for stock American characters. She is a single mother who perhaps
led Thoreau's life of quiet desperation. He appears to be an amoral entrepreneur
who built a petty empire with callous-even knowing-disregard for his fellow
human beings. But Angelico's and Isaac's lives remain obscure. There are no
diaries, no treasure trove of letters, no cache of plantation records. Any attempt
to use them as archetypes would have to be based on wishful, even fanciful,
thinking rather than the surviving historical record.
351. [d. at 54-55.
352. 29 Va. (2 Leigh) 569 (1831). James Reed was wealthy and childless. His brother Charles was
poor and had a large family. Charles detennined to move west in hopes of finding a better life. But
James, to keep Charles nearby, purchased a tract of land near his own and promised Charles that, if he
would move to this land and settle on it, James would bear all the expenses of the move and convey the
land to Charles in fee simple. "Induced by this promise," Charles "abandoned his design of moving"
west and instead moved to James' newly purchased tract. Id. at 569. James bore all the expenses pf
moving. Charles and his family lived on this tract until James died, then learned that James had willed
the tract to his wife Anne, who since had married Vannorsdale. Charles (and when Charles died, his
children) then sued Vannorsdale and Anne for specific perfonnance. The chancellor dismissed the suit.
Id.
The Vrrginia Supreme Court affinned, holding there was no consideration for James' promise. The
court stressed that the "mere natural obligation" of the brotherly relation was insufficient. Id at 571.
Justice Cabell, however (one of three Justices on the panel), wrote relevant dicta in a concurring
opinion:
I am of opinion to affinn ... on the ground of defect of consideration; the consideration ...
in this case, being neither valuable nor meritOllouS. But I take occasion to say, that if it had
appeared, that Charles Reed had incurred necessary expense or loss in executing his part of
the agreement, I should be of opinion that specific execution of it, on the part of James Reed
and his heirs, ought to be enforced.
[d. Had Charles paid for the move as Angelico did, Cabell would have enforced brother James'
promise.
I
,
[Vo!. 94:321
judgement of the
g in" the promise is
ise would be considns to the court, and
d. Perhaps if Collier
e concurrence in an
night have enforced
was apparent on the
nmon law precedent
:urity. Its facts are
controversy are as
elico are, in a word,
and might serve as
nother who perhaps
illloral entrepreneur
egard for his fellow
,cure. There are no
~cords. Any attempt
hful, even fanciful,
His brother Charles was
finding a better life. But
mnsed Charles that, if he
the move and convey the
d his design of moving"
bore all the expenses. of
ed that James had willed
I when Charles died, his
cellor dismissed the suit.
for James' promise. The
:; insufficient. [d. at 571.
1t dicta in a concurring
he consideration ...
to say, that if it had
xecuting his part of
part of James Reed
mforced brother James'
T
I
,
2006]
THE STORY OF KIRKSEY V. KIRKSEY
371
Harry Jones once asked, "Did you wonder what in God's name ever happened to the widow, Sister Antillico, and her small children ... 1"353 Apparently
she retumed to Madison County, where she appears on the 1850 Census as the
head of a household and the owner of land worth $300. Six of her children, aged
twelve to twenty-six, were living Witll her, and she owned tlrree young girls as
slaves. 354 By 1860, Angelico had moved to St. Francis County, Arkansas, where
at the age of sixty-eight she was living with her son Edwin.'55 She does not
appear in the 1870 census and presumably died in the 1860s.356 That is all we
know.
AS for Isaac, he continued to prosper. By 1850 he was a large slaveholder
with fifty slaves, and in the late 1840s and 1850s, he gave land and slaves to his
children as they married.'57 In addition, in 1855 he sent his son, James Isaac
("Jim") Kirksey, Jr., and twenty slaves to Texas to work on his westem
holdings. Jim established a successful cotton plantation in Anderson County,
Texas. 358 On the eve of the Civil War, Isaac's slave holdings in Alabama had
diminished to about forty slaves. 359 He died in May 1865, at the end of the Civil
War, without even an obituary in the local newspapers. 360 His landholdings are
now divided. Aside from the Kirksey opinion, little in Talladega County now
reminds us of either Angelico or Isaac. Both, however, have descendants who
gained fame. Angelico's great-grandson Morris Kirksey ran the 100 meters in
10.8 seconds to win a silver medal in the 1920 Olympics.'6l And Isaac's
daughter Eliza married Daniel Rather in March 1840; their great-great-grandson
353. Jones, supra note 2, at 1027-28. Jones was concerned for Angelico and her family-may God
help her if the courts will not-as the full text of his comment makes clear:
[W]hat in God's name ever happened to the widow, Sister Antillico, and her small children
after the coUrtdeclsion carne-down that h~rbrotlier-iri-i<iw;s promise to "let you have a place
to raise your family" was legally worthless? That should have been your first reaction if you
think of law not as a game but as a means to social ends.
Id.
354. U.S. Census 1850, Madison County, Ala.; id., Slave Schedule. Angelico's twenty-six-year-old
daughter, Louisa, had married William Poor in 1848, 64 ALABAMA RECORD, supra note 50, at 19, and the
couple were living with Angelico.
355. U.S. Census 1860, St. Francis County, Ark.
356. Accord DARRON, supra note 19, at 69 ("She died [in] 1870 in Arkansas.").
357. Id. at 77.
358. [d. at 94; see also id. at 77-78 (describing acquisition of Texas holdings). Family tradition says
that one year, when Jim returned [Tom seIling the annual cotton crop, he had "about $20,000 of gold in
his money belt." [d. at 94. In 1865, Jim "had about $42,000 worth of negro slaves emancipated." [d. at
97 (quoting a Dallas Moming News report from 1895).
359. U.S. Census 1860, Talladega County, Ala., Slave Schedule.
360. A tombstone in the Kirksey Cemetery in Talladega County bears Isaac's name and a death date.
A nearby marker is inscribed "Mary B. Kirksey Consort of Isaac Kirksey." LUTIRELL, supra note 85, at
32.
361. DARRON, supra note 19, at 71; Summer Olympics Through The Years-i920 Olympics, INFORMA·
TION PLEASE DATABASE, http://www.infoplease.com/ipsalAOll4445.html (2005). Morris was also on the
gold-medal-winning mgby and relay-race teams. Biography of Morris Kirksey, HickokSports.com,
http://www.hickoksports~comlbiograph/kirkseymorris.shtml
(last updated July 3, 2004). Isaac is Morris
Kirksey's great-great uncl~.
I"
.l
'"
"i
! ....
372
THE GEORGETOWN LAW JOURNAL
[Vo!. 94:321
is Dan Rather, fonnerly of CBS News.'62
A. THE KIRKSEY OPINION IN THE NINETEENTH CENTURY
Like Angelico and Isaac, the court's opinion in Kirksey quickly lapsed into
obscurity. Two years after it was decided, a similar case reached the Alabama
Supreme Court. In Forward v. Annstead,363 a father in Alabama wrote his son
in North Carolina that if the son would move to Alabama, the father would give
him a plantation. The son sold his place in North Carolina, apparently at "a low
price,"364 and moved to Alabama where his father put him in possession of the
promised plantation. In subsequent litigation, the court held that, notwithstanding the son's considerable reliance on his father's promise, there was no
contract. Justice Goldthwaite, who had been in the majority in Kirksey, relied on
Kirksey and explained that "the expense incurred in a removal,,365 cannot fonn
the basis of a contract because it was simply a necessary prerequisite to the son
receiving the promised gift. The COUIt did not consider whether the father might
have been bargaining for his son to be near him366 and instead assumed that the
promise was "given from motives of benevolence, kindness, or natural affection.,,367
Forward immediately became the leading Alabama case on the distinction in
Kirksey between the promise of a gift and the offer of a contract. Seven years
later the issue came once more to the Alabama Supreme Court, in Erwin &
Williams v. Erwin. 368 Ironically, here the Kirksey lawyers found themselves on
opposite sides of the Kirksey precedent. Samuel Rice, fonnerly Isaac's attorney,
argued that the Kirksey opinion came from a divided court and was "not
law.,,369 However, William Chilton, fonnerly Angelico's attorney and now
Chief Justice of the Supreme Court itself, cleaved to Kirksey.37o In 1858 the
Alabama COUlt again relied upon Forward and Kirksey but pointed to Forward
as the "colTect statement of the plinciple.,,37I Although Kirksey was mentioned
by Alabama courts six more times in the nineteenth century, the cases are of
little or no interest.372
362.
DARRON,
supra note 19, at 87-88; Ancestry of Dan Rather, RootsWeb, http://freepages.genealo-
gy.rootsweb.comJ~celebrities/rather.html
(last visited July 19, 2005). Do you see a resemblance
between Mr. Rather and Isaac? Angelico is Mr. Rather's great-great-great-great aunt.
363. 12Ala. 124 (1847).
364. /d. at 126.
365. [d. at 127.
366. Cf E. ALLAN FARNSWORTH ET AL., CONTRACTS 52 (6th ed. 2001) (A hypothetical father estranged
from his daughter writes his daughter, "If you will meet me at Tiffany's ... I will buy the emerald
rings.").
367. [d. The problem of allocating power between judge and jury did not arise in Forward because it
was a suit in equity.
368. 25 Ala. 236 (1854).
369. [d. at 242.
370. [d.
371. Morris v. Lewis' Executor, 33 Ala. 53, 56 (1858).
372. See supra note 3 and accompanying text.
[Vol. 94:321
2006]
THE STORY OF KlRKSEY V.
KlRKSEY
373
B. KlRKSEY IN THE TWENTIETH AND TWENTY-FIRST CENTURIES
ITURY
quickly lapsed into
:ached the Alabama
bama wrote his son
Ie father would give
apparently at "a low
in possession of the
[ that, notwithstandnise, there was no
in Kirksey, relied on
val,,365 cannot form
erequisite to the son
her the father might
,ad assumed that the
5S, or natural affecon the distinction in
mtract. Seven years
Court, in Erwin &
:lUnd themselves on
:rly Isaac's attomey,
ouct and was "not
attomey and now
;sey.370 In 1858 the
pointed to Forward
tsey was mentioned
ry, the cases are of
, http://freepages.genealoyou see a resemblance
taunt.
lothetical father estranged
. I will buy the emerald
ise in Forward because it
By the end of the nineteenth century, Kirksey's fate was virtually sealed. No
court outside Alabama had ever cited it, and no Alabama court ever again cited
it. Others, however, took note of the obscure decision. In particular, Samuel
Williston included Kirksey in tile 1903 edition of his Contracts casebook.'73 At
this time, Williston apparently did not view promissory estoppel as a potential
general principle of contract law. A capable student's class notes from 1901
indicate that Williston presented Kirksey as a straight gift versus consideration
case;374 apparently Williston treated promissory estoppel as a principle unique
to charitable subscription cases.'75 Williston himself noted in his personal copy
of the first edition of his book that Isaac's letter was "not intended as an offer.
So no contr.,,376 Till·ee years later he included a thumbnail sketch of Kirksey in
his 1906 edition of Pollock's Principles of Contract. 377 Others quickly picked
up on Kirksey's pedagogical potential. Arthur Corbin used the opinion in his
1921 casebook;378 Lon Fnller later followed suit. 379 By then, of course, the land
acquisition practices of antebellum Alabama had been forgotten. The Homestead Act of 1862380 displaced the 1841 Act as the vehicle for distributing
federal land. By the time Williston discovered Kirksey, a generation of adults
had retired thinking that land acquisition from the federal government meant
homestead rather than preemption.
When Williston published his multivolume Law of Contracts in 1920, he
cited and discussed Kirksey as a leading case in which it is clear that the
promisor's detriment was merely a condition to receiving a promised gift and
373. 1 SAMUELJ.. WILLISTON, A-SELECTION-OF GASES. ON THE LAW OF CONTRACTS 190 (1903), discussed
in E. Allan Farnsworth, Contracts Scholarship in the Age of the Alzthology, 85 MICH. L. REv. 1406,
1457-58 (1987); see also id. at 1460-61. We are indebted to Professor Farnsworth for his wonderful
essay on nineteenth- and twentieth-century contract anthologies.
374. Warren A. Seavey, Classnotes: Contracts (1901) (on file at the Harvard Law School Library).
Seavey wrote, "8 Alabama 131: no contract ... there seems to be merely a gift. To determine whether a
thing is a gift or a contract, benefit to promisor may be taken into account--.-as if there is such benefit
there is more likelihood that there is a contract." ld. at 55-56.
375. ld. at 53-54 (discussing Presbyterian Church v. Cooper, 112 N.Y. 517 (1889)).
376. I WILLISTON, supra note 373, at 190 (Williston's marginalia) (copy on file with Harvard Law
School Library).
377. FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY 215-16 n. 245 (S. Williston
& G. Wald, 3d ed. 1906), discussed in Farnsworth, supra note 373, at 1454. For other early citations of
Kirksey, see I WILLIAM ELLIOT, COMMENTARIES ON THE LAW OF CONTRACTS 431-32 (1913) ("no
consideration for a contract between collateral relatives ... of ... affinity"); JOHN LAWSON, THE
PRINCIPLES OF THE AMERICAN LAW OF CONTRACTS 15 (1893) (stating that "mere statements of intention,
though acted upon by the party to whom they are made" are not sufficient to render a promise
enforceable).
378. A. CORBIN, CASES ON TIll LAW OF CONTRACTS (1921), discussed in Farnsworth, supra note 373,
at 1459.
379. Fuller's first published teacher's manual does not mention Kirksey, however. See LON L.
FULLER, ThACHER'S NOTES TO BASIC CONTRACT LAW 27 (lst ed. 1948) (thanks to Professor Clark Byse for
this reference).
380. Homestead Act of May 20, 1862, ch. 75, 12 Stat. 392.
THE GEORGETOWN LAW JOURNAL
374
[Vol. 94:321
that the promisor clearly was not bargaining for the detriment. 38 ! Although
Williston's early writings display at best an ambivalence for the result in
Kirksey,382 his view changed in the 1920s. In 1924, young Henry Friendly's
notes from Williston's class initially analyze Kirksey as a straight gift versus
consideration case. 383 At that time the possibility of a general principle of
promissory estoppel was emerging. Instead of seeing promissory estoppel as
unique to charitable subscription cases,384 Williston conjectured that the charitable subscription cases may be evidence of a general doctrine. Young Friendly
records:
Situation [regarding charitable subscriptions] is like K. v. K. A promise is
made. Promisee acts in reliance upon the promise, as he was intended to. Here
there might be what is called promissory estoppel
Is promissory estoppel
a substitute for consideration? Some courts say so
This hasn't generally
been accepted but the law seems to be developing in this direction.'85
Friendly concluded that promissory estoppel "has an element of fairness in it,
which makes it appealing. Look out for this doctrine.,,386
At the same time, Williston was working on the first Restatement of Contracts and urging the American Law Institute to adopt a generally applicable
principle of promissory estoppel. 387 In a memorandum prepared for the May
1926 meeting in Washington, D.C., he argued that "the iujustice of the result [in
Kirksey] is manifest.,,388 At the meeting in the Mayflower Hotel two months
later, Professor Ira P. Hildebrand from Texas was dismayed that Williston's
understanding of the case had evolved. Hildebrand insisted that without bargained-for consideration, a plaintiff may not recover. "This is what I was taught
by ProfesSQr-W:illistontw"ntydiv~ years ago. Professor Williston seems to have
changed his mind. I merely wish to say that I still agree with Kirksey v.
Kirksey."389 In any event, however, williston prevailed, and the Institute adopted
381. 1 SAMUEL J. WILLISTON, THE LAW OF CONmACTS 234 n.5! (1920).
382. See Farnsworth, supra note 373, at 1454-62.
383. The student wrote:
In ... Kirksey v. Kirksey there is no question that plaintiff suffered a detriment; but was his
[sic] act given in exchange at all. An offer is a proposal to swap. If performance by the
promisee or happening of the condition will benefit promisor, you can usually be sure that
there is an offer. But if it simply gives promisor a chance to help as in Kirksey v. Kirksey, this
is less likely to be the case.
Henry J. Friendly, Contracts Classnotes 167-69 (1924) (on file at the Harvard Law School Library).
384. See supra note 375 and accompanying text.
385. Friendly, supra note 383, at 174 (emphasis added).
386. Id.
387. See SAMUEL J. WILLISTON, COMMENTARIES ON CONTRACTS: RESTATEMENT No.2, at 14-20 (1926)
(discussing proposed Section 88 that later became Section 90).
388. Id. at 18.
389. 4 ALI PROCEEDINGS, app. 104 (1926).
r
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[Vol. 94:321
riment. 38 ! Although
e for the result in
19 Henry Friendly's
straight gift versus
~eneral principle of
nissory estoppel as
tured that the chariine. Young Friendly
2006]
375
THE STORY OF KIRKSEY V. KIRKSEY
the doctrine of promissory estoppel.'90
Kirksey is as famous today as it was a half century ago. Vittually all contracts
casebooks carry the opinion,'91 and students routinely engage in a vigorous
classroom discussion of the case. In the last ten years, writers have variously
described it as "the classic 'Sister Antillico' case,"'92 the "most famous case
dealing with [conditional gifts],"'9' and "a venerable case known to generations
oflaw students.',394
C. THE SECRET OF KIRKSEY'S SUCCESS
K. A promise is
intended to. Here
missory estoppel
hasn't generally
;tion.3 85
mt of fairness in it,
'estatement of Con~enerally applicable
~pared for the May
tice of the result [in
. Hotel two months
red that Williston'S
d that without barIS what I was taught
iston seems to have
ee with Kirksey v.
he Institute adopted
Although the Kirksey opinion itself provides precious little insight into the
principles of contract doctrine, it neve1theless is a great teaching case. In three
short paragraphs, Judge Ormond relates the drama of Isaac's promise, Angelico's trip to Talladega, and her eventual ouster. This is Thoreau's life of quiet
desperation in a nutshell. First-semester law students readily grasp the essential
facts of the case, and classroom discussions quickly transition into a consideration of how legal doctrine might be used to resolve the dispute between Isaac
and Angelico.
By and large, discussions are unembarrassed by any need to pay heed to the
court's legal analysis, because there is no significant legal analysis.'95 Judge
Ormond writes that "the loss and inconvenience" in moving to Talladega is
"sufficient consideration." The majority, however, thought that Isaac's promise
was "a mere gratuity." The opinion's sheer brevity opens the door for the
teacher to suggest particular legal principles and ask the class how the principles might be relevant to the case.
There are many legal puzzles lurking in Kirksey's six short paragraphs. The
simplest involves the bargained-far-exchange theory of contract formation.
390. FIRST REsTATEMENT OF CONTRACTS § 90 (1932).
391. See
JOHN CALAMARI BT AL., CASES AND PROBLEMS ON CONTRACTS
JOHN DAWSON ET AL., CONTRACTS CASES AND COMMENT 244-45
but was his
pe:tfonnance· by the
usually be sure that
rksey v. Kirksey, this
~triment;
Law School Library).
T
No.2, at 14--20 (1926)
(8th
191-92, 320 (4th ed. 2004);
ed. 2003); FARNSWORTH BT AL.,
supra
note 366, at 50-51, 64, 86, 89; LON FULLER & MELVIN ARON EISENBERG, BASIC CONfRACT LAW 24-26
(7th ed., 2001); AMY Hn.sMAN KASTELY ET AL., CONTRACTING LAW, 29-30 (2d ed. 2000); CHARLES L.
KNAPP ET AL., PROBLEMS IN CONTRACT LAW 74-75 (5th ed. 2003); STEWART MACAULEY BT AL., CONTRACTS:
LAW IN ACTION 239--40 (2d ed. 2003); ROBERT E. SCOTI' & JaDY S. KRAus, CONTRACT LAW AND THEORY
132-34 (3d ed. 2002); RICHARD SPEIDEL & IAN AYRES, STUDIES IN CONTRACT LAW 39-40 (6th ed. 2003);
ROBERT SUMMERS & ROBERT HilLMAN, CONTRACT AND RELATED OBLIGATION 82, 92 (4th ed. 2001); see
also GERALD E. BERENDT ET AL., CONTRACT LAW AND PRACTICE 208-09 (1998) (note case) BRIAN BLUM ET
AL., CONTRACTS 157 (1992) (note case). Kirksey is not used in Burton's casebook, STEVEN J. BURTON,
PRINCIPLES OF CONTRACT LAW (2d ed. 200l).
392. Charles Knapp, Rescuing Reliance: The Perils oj Promissory Estoppel, 49 HASTINGS L.J. 1191,
1280 (1998); see also BRIAN BLUM & AMY BUSHAW, 'TEACHER'S MAh'UAL: CONTRACTS (2003).
393. Matthew J. Gries, Judicious Enforcement ofAgreements To Share 'Winning Lottery Tickets, 44
DUKE 1.,.1. 1000, 1007 (1995); see also James Gordley, Enforcing Promises, 83 CAL. L. REv. 547,
579-82 (1995).
394. T. Whitley Chandler, Prosecution History Estoppel, the Doctrine of Equivalents, and the Scope
of Patents, 13 HARV. J.L. & lECH. 465, 504 (2000).
395. See Carol Weisbrod, An Uncertain Trumpet: A Gloss on Kirksey v. Kirksey, 32 CONN. L. REV.
1699, 1700 (2000) (discussing the omission of legal analysis).
I ,....,
rr"
~;;:
i;'.r::
376
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Isaac explicitly promised his sister-in-law, "If you will come down and see me,
I will let you have a place to raise your family." These bare words seem to be an
offer that Angelico accepted by complying with the terms of the offer. Why is
this not a bargained-for exchange? Many students come to law school with a
naIve, unexamined assumption that words have a set meaning that can be
understood without regard to the context in which the words are uttered.
Perhaps Isaac was actually bargaining for her to incur a detriment, but the
majority believed that he was not. Perhaps he was simply making a promise of a
gift that as a practical matter could only be realized if the donee carne to
Talladega. The case can be seen as an avatar-perhaps the avatar-for Williston's hypothetical of the benevolent man, the tramp, and the overcoat. 396
If the case is viewed as a version of Williston's hypothetical, the court's
decision is quite plausible. Why would Isaac bargain for Angelico to incur a
detriment that would not benefit him? In practice, promisors seldom, if ever,
bargain for schadenfreude. The majority's apparent analysis quickly falls apart,
however, once a credible argument is made that Isaac actually was bargaining
for a positive benefit to himself. And so the class usually turns to possible
benefits that Isaac might have been seeldng.
One time-honored approach to teaching the case-an approach that inspired
this Article-is simply to hypothesize additional facts. Suppose Isaac had
written, "If you will come and manage the homeland here ..." or "I need
company"?397 What if the letter had said, "And besides, I'm lonely here,,?398 Or
suppose Isaac "is Jewish and it is a mitzvah for him to marry the widow of his
brother? Might he be willing to pay for her to come?,,399
Students or teachers frequently suggest that Isaac and Angelico had a sexual
relationship. "It seems likely," writes one professor, "that the defendant had a
396. Williston famously hypothesized, "'If a benevolent man says to a tramp,e- 'if you go around the
corner to the clothing shop there, you may purchase an overcoat on my credit,' no reasonable person
would understand that the short walk. was requested as the consideration for the promise." WILLISTON,
supra note 373, at 232. Countless professors have asked countless students to consider whether
Angelico's trip to Talladega County is comparable to the tr~p's walk to the clothing store. See Jorm P.
DAWSON ET AL., CONTRACTS ThACHER'S MANUAL 67-68 (8th ed. 2003); KNAPP ET AL., supra note 391, at
75; SCOIT & KRAus, supra note 391, at 133-34; ROBERT SUMMERS & ROBERT Hn.LMAN, ThACHER'S
MANUAL 14 (4th ed. 2001); see also Professor C's email (noting that bargaining for sex would
"distinguish [Kirksey] from Williston's tramp"). Williston himself viewed Kirksey in this light, see 1
WILUSTON, supra note 373, at 234, and he used the hypothetical and its variations in his classroom
discussions. See, e.g., Friendly, supra note 383, at 167-69; James McCauley Landis, Notes to
Williston's Cases on Contracts 147 (1928) (on file at the Harvard Law School Library) ("Suppose a
tramp comes around to the front door and asks for something to eat ...."). In 1926 Professor Ira
Hildebrand from Texas related, "One illustration that I give is, 'Suppose I say to a newsboy, "If you will
come to my house Christmas I will give you $5.00.'" ... This is what I was taught by Professor
Williston twenty-five years ago." 4 ALI PROCEEDINGS, supra note 389, app. at 104.
397. JOHN D. CALAMARI ET AL., CONTRACTS ThACHER'S MANuAL 191-92 (4th ed. 2004); SUMMERS &
HILLMAN, supra note 396, at 14.
398. DAWSON ET AL., supra note 396, at 68; Clark Byse, Teaching Notes on Kirksey v. Kirksey (copy
on file with authors); cf supra note 366 (the father and the estranged daughter).
399. RICHARD SPEIDEL & IAN AYRES, CONmACTS ThACHER'S MANUAL 8 (6th ed. 2003).
-r ·
< ..
[Vol. 94:321
e down and see me,
Nords seem to be an
~f the offer. Why is
) law school with a
earring that can be
words are uttered.
detrimeut, but the
lking a promise of a
the donee came to
avatar-for Willisovercoat.396
thetical, the court's
"'ngelico to incur a
)rs seldom, if ever,
. quickly falls apart,
ally was bargaining
y turns to possible
)roach that iuspired
Suppose Isaac had
:re ..." or "I need
lonely here,,?398 Or
ry the widow of his
cgelico had a sexual
he defeudant had a
p,.,..,...- 'if you go around the
lit,' no reasonable person
the promise." Wn.USTON,
:nt8 to consider whether
:lothing store. See JOHN P.
ET AL., supra note 391, at
-
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THE STORY OF KIRKSEY V.
KIRKSEY
377
sexual interest in his sister-in-law and wanted her to move to his farm to keep
him warm on long winter nights.,,40o If Isaac was seeking sexual favors, there
clearly was a bargained-for exchange."O! Others suggest "the possibility of a
faded liaisou between the parties.,,402 Another variant is the possibility that "the
two former in-laws at some point formed a 'relationship,' that the relationship
broke down, and that the defendant then took steps to elimiuate all ties.,,403
We can never know whether Isaac and Angelico had a sexual relationship or
whether Isaac was bargaining for one. Proof of a negative proposition is always
problematic. Nevertheless the possibility is unlikely. Given the underlying facts
not mentioned in the court's opinion--especially Isaac's recent remarriage404_
the sexual favors hypothetical is implausible. And why would Isaac place his
oldest son in joint possession with Angelico if he had just ended an affair with
her? This theory also fails to explain either the jury's findings and award or
Isaac's later involvement with the federal land east of the Lane property.
Others suggest Isaac was bargaining for labor, an argument we have already
discussed. As one professor says, 'Just to have land kept in cultivation may be
of benefit to a landowner (perhaps even more so in an age before tractors and
mechanical farm machinery)." There is also the possibility that "Angelico's
boys were (or grew to be) strapping youths whose services as farmhands were
valuable.,,405 The "need for labor" hypothetical highlights an apparent problem
with the Kirksey opinion that has bedeviled professors (but seldom studeuts) for
generations. Isaac's bare statement that he "has more open land than I can tend"
can be read as evidence that he was in fact bargaining for Angelico's services
either for tilling the land or perhaps overseeing a satellite plantation. If so, there
clearly was an enforceable contract under a bargained-for-exchange theory. On
the other hand, if he was not bargaining for services and merely wished to
reassure Angeli~1J4:hanreMd thellrofl'liSect land readily available, the majority
was right in concluding that his promise was "a mere gratuity."
These two plausible understandings of Isaac's letter have convinced some
that the Alabama Supreme Court may have usurped the jury's factfinding
authority. If Isaac bargained for labor, and the jury held in Angelico's favor,
then the Court was wrong to find a lack of consideration. In 1928 young James
IERT HILLMAN, 'TEACHER'S
rrgaining for sex would
irksey in this light, see 1
nations in his classroom
:auley Landis, Notes to
Dol Library) ("Suppose a
'). In 1926 Professor Ira
a newsboy, "If you will
was taught by Professor
04.
h ed. 2004); SUMMERS &
:0
Kirksey v. Kirksey (copy
l. 2003).
400. Professor D's email; see also MACAULEY ET AL., supra note 391, at 243-44; Professor C's email
("Some smdents usually suggest illicit aim."); Professor P's email; Professor U's email; Professor H's
email ("How jaded we have become."); Professor 1's email; Professor K's email; Professor M's email;
Professor S's first email; Professor T's email; Professor X's email.
401, Of course such a contract might well be void as against public policy. See Professor D's email.
402. Professor 1's email; see also Professor M's email.
403. MARVIN CHIRELSTEIN, CONCEPTS AND CASE ANALYSIS IN THE LAW OF CONTRACTS 17 n.2 (4th ed.
2001); see also Weisbrod, supra note 395, at 1701,
404. But see Professor T's email ("Oh really? What better reason for the new wife not to like her?");
Professor U's email ("You can't be that naIve."). Absent additional facts the most reasonable assumption is that a recently married man is not seeking a sexual relationship with every other woman that he
knows.
405. Professor 1's second email; see also Professor P's email; Professor Q's email.
378
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[Vol. 94:321
McCauley Landis worried,
It is pretty hard to determine from the face of this report whether the question
raised before the appellate court was whether the verdict of the jury could be
sustained upon these facts or whether they would find a verdict for the jury
upon them. The former, however, seems to be the case, and if so the case is a
very strong one. 406
There are several heuristic tactics for dealing with this troubling issue. Perhaps
the problem never occurred to the court or perhaps the court had no qualms
about consciously overriding the jury's determination. Or maybe this is an
example of the dreaded "mixed question of law and fact." Insofar as class
discussions are concemed, discretion may be the better proi of valor. After all,
the course is Contracts, not Civil Procedure. The best pedagogical solution to
the problem of judge and jury is simply to ignore it.
Williston apparently resolved the judge/jury issue on the basis that both
parties agreed to ignore the jury's verdict on appeal,.o7 and the trial and
appellate records confirm his approach. The plaintiff and defendant's agreement
to set aside the jury verdict and submit the case to the appellate court on an
agreed statement of facts 408 waived any possible objection to ignoring the jury's
determination of the facts. To repeat, sometimes discretion is the better part of
valor. Given that the judge and jury issue tums out to be a non-issue, the best
teaching approach to the problem is simply not to raise it.
On the other hand, we now know that Angelico did not make the labor
argument. There was no such argument at trial, nor in the statement submitted to
the Supreme Calli, which recited "all the proof.,,409 Given what else we now
know, the labor-argumentseems unlikely. Isaac, with many slaves, did not need
farmhands. He did in fact provide Angelico land to cultivate for her own, not
his, support, on a tract that was "unoccupied."41O He wanted Angelico and her
family "to do well,"411 not work as slaves. Angelico was in fact busy with as
many as nine children she brought to Locust Grove: l2 She also had grown
sons, at least one of which, John William, was mIDTied in 1840:13 They are
406. Landis, supra note 396, at 148.
407. SAMUEL J.. WILLISTON, A SELECTION OF CASES ON THE LAW OF CONTRACTS 195 (4th ed. 1937)
(Williston's marginalia: "Lower court found for the plaintiff. Parties agreed in facts. Reversed.") (copy
on file at the Harvard Law School Library).
408. See Bill of Exceptions, in Kirksey Appellate Record, supra note 21.
409. [d.
410. Declaration, in Kirksey Appellate Record, supra note 21.
411. Kirksey v. Kirksey, 8 Ala. 131, 132 (1845).
412. See supra note 89.
413. DARRON, supra note 19, at 69. In fact, Angelico may have had two other sons living separately
from her. The 1830 Census lists one additional son who would have been between the ages fifteen and
twenty in 1840 and another additional son who would have been between twenty and thirty in 1840.
The historical records we have found do not account for the whereabouts of these two sons in 1840.
They do not appear in the 1840 Census with Angelico, suggesting that they had either died or were
f'
,
I
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[Vol. 94:321
ether the question
the jury could be
"diet for the jury
if so the case is a
r
I
I
I
I
tbling issue. Perhaps
:ourt had no qualms
Ir maybe this is an
:t." Insofar as class
rt of valor. After all,
lagogical solution to
the basis that both
and the trial and
{endant's agreement
ppellate court on an
o ignoring the jury's
is the better part of
i non-issue, the best
7
not make the labor
itement submitted to
n what else we now
slaves, did not need
ate for her own, not
ed Angelico and her
in fact busy with as
~he also had grown
n 1840.413 They are
RACTS 195 (4tll ed. 1937)
facts. Reversed.") (copy
.0
ther sons living separately
:tween the ages fifteen and
twenty and thirty in 1840.
)f these two sons in 1840.
.y had either died or were
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
379
more likely candidates as overseers, but Isaac made no mention of them in his
letter. Also, Angelico's chief complaint about the house in the woods was the
lack of an outhouse. If Angelico had slaves at her disposal, or her children were
laborers, one would think the relatively simple project of building outhouses
would not have been so daunting. (Of course, it is possible that the complaint
about outhouses was a makeweight, and that actually Angelico wanted the land
and house she had been given earlier and saw the breach of contract suit as a
way to get them or at least compensation for them.) Most conclusively, had
Isaac intended to exchange a residence for labor, Angelico's lawyer William
Chilton would have argued that to the court. By 1844, the Alabama Supreme
Court had decided several cases in which laborers414 and overseers415 sought
wages. In these published cases, the promised payment was sometimes something other than money.416 Chilton, a rising legal star, would have argued the
exchange had it occurred. That he did not suggests it did not.
From these facts, we know that the problem with the Supreme Court's
supposed usurpation of the jury's function had nothing to do with the labor
argument. The trial court itself, which heard what the jury heard, was prepared
to rule against Angelico on Isaac's motion in arrest of judgment. Instead, what
seems like a judicial usurpation of the jury's role arises because the trial court
and the Supreme Court either failed to see, through the facts presented to them,
the land acquisition scheme that the jury saw, or else the Court refused to see
the injustice in Angelico's being frozen out of that scheme. In neither case is the
Court to be faulted. The parties' submission of an agreed statement of facts
effectively waived these objections. With the additional background in place,
the judge versus jury issue evaporates.
Some afour students always suggest that Isaac was just being kind. They
chide us for-aUf-cynicism and imply that Angelico turned out to be no angel
after all, and that is why he forced her out. This, too, is unlikely. Isaac knew
Angelico well. He was married to her sister for eighteen years. She was married
to his brother for twenty-five. The brothers themselves were not strangers. Isaac
knew who was coming to Talladega. Moreover, Isaac did not try to evict
living independently of her at the time. Of course, independence occurred earlier then than now. The
1850 Census lists two of Angelico's children, Edwin, then age nineteen, and Andrew, then age sixteen,
as "Farmers." U.S. Census 1850, Madison County, Ala.
414. See Davis v. Preston, 6 Ala. 83 (1844) (suit by a mill superintendent to recover promised wages
of $300 for first six months of the year 1839): Wright v. Throer, 1 Stew. 29 (Ala. 1827) (suit by
employee for wages $30 for 1:hree months' service).
415. See Givhan v. Dailey's Adm'x, 4 Ala. 336 (1842) (suit by deceased overseer's estate in
indebitatus assumpsit for the $600 the overseer was promised for his work for 1838); Pettigrew v.
Bishop, 3 Ala. 440 (1842) (suit by overseer in assumpsit for the $275 and 20 bushels of corn that the
owner promised for the year 1839); Martin v. Chapman, 1 Ala. 278 (1840) (suit by overseer for
promised wages for the year 1834, which an arbitrator held would equal $216). Suits by overseers for
wages continued to be common in Alabama. See, e.g., Hunter v. Waldron, 7 Ala. 753 (1845) (suit by
overseer for $500 promised for 1842).
416. See, e.g., Pettigrew, 3 Ala. at 440 (twenty bushels of com); Martin, I Ala. at 278 (corn, cotton,
and fodder).
.
380
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Angelico at first, but only place her on otber (apparently unoccupied) land. Did
he not dislike her enough to evict but only wish to displace her? He may have
felt a twinge of guilt when asking her to leave. Angelico's declaration alleges
that, when confronted with his breach of promise, Isaac actually promised to
pay Angelico's damages. 417 And why did Isaac temporarily put Albert in joint
possession of tbe house? Why did Angelico have to leave, in tbe end? These
actions are too subtle to reflect simple emotional swings. The best explanation
remains tbat he invited her to Talladega to occupy land he possessed but did not
own, in hopes of gaining a preference through her continued possession and
cultivation.
Kirksey is also routinely used today to explore tbe doctrine of promissory
estoppel. It is "an illustration of the kind of injustice tbat Corbin and Williston
(tbe drafters of tbe first restatement) intended promissory estoppel to correct.,,4!8 When detrimental reliance is considered, casebooks routinely refer tbe
students back to Kirksey and ask whether promissory estoppel would "support a
recovery by the plaintiff promisee in Kirksey above?,,4!9 Williston, himself,
used this teaching point as early as 1924.420 This simple question opens a broad
range of topics tbat are particularly suitable for first-semester students.
Kirksey can provide a simple platform for introducing students to strategies
for understanding or harmonizing apparently conflicting judicial opinions. Some
have commandeered tbe opinion's stark simplicity as a tabula rasa for receiving
tbe imprint of preconceived ideas. One scholar has suggested tbat tbe decision is
based upon Angelico's gender and has contrasted her fate to tbat of the male
plaintiff in Langer v. Superior Steel COrp.42! Under this analysis, tbe difference
in tbe cases may "rest on a gendered notion of value and desire reducible to tbe
idea tbat Kirksey should not have expected to hold her brotber-in-law to his
worer; whlieLanger~sIi.oiijdIiave expected to hold the company[.]"422
There is no doubt tbat tbe legal system may be used and is in fact used to
prefer tbe interests of the powerful over those who are less powerful. Nevertheless, the dramatic, gendered explanation of Kirksey is farfetched. The Alabama
judges who decided tbe case by a bare 2-1 majority would certainly have
rejected tbis suggestion. Just two years later, tbey reached precisely tbe same
417. Declaration, in Kirksey Appellate Record, supra note 21. Angelico lost this count, however.
Judgment, in id.
418. Professor A's email; accordWn.usTON,supranote 387,at 17-18; see also BLUM & BUSHAW,
supra note 392, at 248-49; FARNSWORTH ET AL., supra note 366, at 86; FULLER & EISENBERG, supra note
391, at 25-26; SUMMERS & HILLMAN, supra note 391, at 90-91.
419. CALAMARI ET AL., supra note 391, at 320; FARNSWORTH ET AL., supra note 391, at 89; MACAULEY
ET AL., supra note 391, at 240; RICHARD SPEIDEL & IAN AyRES, supra note 399, at 8; SUMMERS &
HILLMAN, supra note 391, at 92.
420. See supra text accompanying notes 383-86.
421. 161 A. 571 (Pa. Super. 1932), rev'd, 178 A. 490 (Pa. 1935), discussed in Amy H. Kaslely, Cogs
and Cyborgs?: Blasphemy and Irony in Contract Theories, 90 Nw. L. REv. 132, 162-65 (1995); see also
KNAPP'ET AL., supra note 391, at 75; CHARLES L. KNAPP ET AL., CONTRACTS ThACHER'S MANUAL 9 (2003).
422. Kastely, supra note 421, at j 65.
[Vol. 94:321
loccupied) land. Did
e her? He may have
s declaration alleges
ictually prontised to
y put Albert in joint
:, in the end? These
fhe best explanation
lOssessed but did not
med possession and
~trine of prontissory
::orbin and Williston
'ry estoppel to cores routinely refer the
pel would "support a
, Williston, himself,
estion opens a broad
:r students.
;tudents to strategies
licial opinions. Some
iZa rasa for receiving
:d that the decision is
: to that of the male
alysis, the difference
3sire reducible to the
)fother-in-Iaw to his
my[.]"422
nd is in fact used to
powerful. Neverthe,tched. The Alabama
'auld certainly have
i precisely the SaIne
) lost this count, however.
'Jee also BLUM & BUSHAW,
;R & EISENBERG, supra note
note 391, at 89; MACAULEY
Ite 399, at 8; SUMMERS &
d in Amy H. Kastely, Cogs
12,162-65 (1995); see also
'CHER'S MANUAL 9 (2003).
THE STORY OF KIRKSEY V.
2006]
KIRKSEY
381
result in a similar case of a man whose reliance was greater than Angelico's!23
In any event, like Angelico, the man in Langer actually lost. 424
After covering the first promissory estoppel case in the casebooks-perhaps
Ricketts v. Scothorn 425 or another case426-the class might consider why the
court failed to rule in Angelico's favor on the basis of promissory estoppel. The
ensuing discussion offers an opportunity to round up the usual suspects in
hmIDonizing apparently conflicting judicial opinions. Either the facts are significantly different or the applicable legal principles are different. Perhaps the law
of Nebraska in Ricketts is simply different from the law of AlabaIna in Kirksey.
Of course, the more plausible explanation is that the cases illustrate the evolution of legal doctrine over time!27 Promissory estoppel as a concept did not
begin to emerge until many decades after Kirksey was decided. In 1845, courts
had not rationalized contract law to the point that consideration was thought to
be only a bargained-for exchange. Two separate strands of consideration precedent, one bargain-centered and the other reliance-centered, clashed on Kirksey's
facts!28
Kirksey also presents an excellent opportunity to explore the relationship
between facts and rules. In particular the stark simplicity of Kirksey's facts
provide an opportunity for training students to avoid conclusory answers: 429
,.
i:
.:
Doctor: Should Isaac have reasonably expected Angelico to rely upon his
promise?
Student: Yes.
423. See supra notes 363-67 and accompanying text.
424. Langer involved a man who was promised a pension "by his corporate employer when he
retired. The trial court initially held that the promise lacked consideration, but the decision was reversed
on appeal. The appellate court pointed to a letter from the corporation's President, which stated that the
pension was given to "preserve your present attitude of loyalty to the Company [and would terminate if
you become] employed in any competitive occupation." 161 A. at 581. In other words, the pension was
apparently in exchange for a kind of covenant not to compete. In the alternative, the appellate court
held that promissory estoppel could be used to make the promise enforceable. On remand, the trial
court enforced the promise, and on a second appeal, the Pennsylvania Supreme Court reversed, holding
that the President lacked authority to bargain for the quasi-covenant~not-to-compete. 178 A. at 492. As
in Kirksey, the Supreme COQ-rt made no mention of promissory estoppel. In other words, the man in
Langer was treated just like Angelico. He lost his case on a legal technicality. Today, courts would tend
to say that the issue of a president's apparent authority in this situation should be left to ajury. See, e.g.,
Lee v. Jenkins Bros., 268 F.ld 357 (2d Cir. 1959) (president's apparent authority to grant a pension).
425. 77 N.W. 365 (Neb. 1898), in FARNSWORTH ET AL., supra note 366, at 86-88; accord DAWSON ET
AL., supra note 391, at 244-45; MACAULEY ET AL., supra note 391, at 239-44; see also BLUM & BUSHAW,
supra note 392, at 248-49; FULLER & EISENBERG, supra note 391, at 24-25.
426. See, e.g., CALAMARI ET AL., supra note 391, at 320; SPEIDEL & AYRES, supra note 399, at 464.
427. Accord Professor E's email;DAwSONETAL..SUpranote396.at 67.
428. See supra notes 333-52 and accompanying text.
429. See, e.g., Chandler, supra note 394, at 504-05 (a capable student presents a nonconclusory
argument about the proper resolution of Kirksey under the doctrine of promissory estoppel).
rl
-5:
~~I
382
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Doctor: What do you mean yes? What are the specific facts that support
your conclusion?
And so on.
Kirksey's facts also higWight a significant difference between promissory
estoppel in the first and second Restatements. The first Restatement presents
estoppel as almost a formal legal concept that is simply a substitute for
consideration. If the elements of promissory estoppel are present, the promise is
fully enforceable. Williston himself explained that under section 90, "Either the
promise is binding or it is not. If the promise is binding it has to be enforced as
it is made.,,430 In conlTast, the second Restatement added significant flexibility
to the doctrine by providing that the "remedy granted for breach may be limited
as justice requires."43! Isaac's promise probably would be fully enforceable
under the first Restatement, but the additional language in the second Restatement provides a powerful basis for deuying enforcement. After all, Isaac did
fulfill his promise for two years. Perhaps there is a rough equivalence between
the detriment that Angelico incurred in her move sixty miles south to Talladega
County and the value of a place to live for two years. If so, the remedy granted
might be drastically limited!32
V.
CONCLUSION
In the end, the story of Kirksey v. Kirksey is two stories. One is obscure,
about a widow with many children, subsistence farming, just wanting a plot of
earth, and her brother-in-law, whose intentions appear in print entirely honorable but who actually sought to use his sister-in-law to gain more land for
himself. Isaac:s scheme was a subtle one, so much so that, of all the hypotheticals sophisticated-yet-unknowing contract law professors foist on their students,
the true facts match none of them. On the other hand, would a professor in the
know bother to explain Isaac's complex scheme? Federal land sales policy,
migration to the frontier, illegal squatting ignored on federal land, preemptions,
native American cessions, manipulation of federal land laws-much has changed
since 1845. To tell the true story might not be worth the effort.
Fortunately, Angelico, Isaac, and their attorneys omitted Isaac's complex
scheme from the record. Had Ormond's opinion included the full tale, Kirksey
would not have become a valuable pedagogical tool. The omission made
Kirksey's other story possible, a story of legal education-not legal doctrinenot even legal history. There are no great ideas, no famous parties, lawyers, or
judges in what is left of the case. Kirksey is famous because law professors
made it so. Williston added Kirksey to the repeltoire as the contracts casebook
geme was barely budding. Since that time virtually all contracts books include
430. 4 ALI PROCEEDINGS, supra note 389, app. at 103-04.
431. RESTATEMENT (SECOND) OF CONfRACTS § 90 (1981).
432. See DAWSON BT AL., supra note 396, at 68-69.
r
I
[Vol. 94:321
facts that support
r
I
I
I
between promissory
Restatement presents
Iply a substitute for
resent, the promise is
ection 90, "Either the
has to be enforced as
significant flexibility
,reach may be limited
be fully enforceable
1 the second Restate•. After all, Isaac did
equivalence between
es south to Talladega
" the remedy granted
ries. One is obscure,
ust wanting a plot of
print entirely honor, gain more land for
, of all the hypothetioist on their students,
~ld a professor in the
'al land sales policy,
'alland, preemptions,
;-much has changed
ort.
tted Isaac's complex
the full tale, Kirksey
The omission made
-not legal doctrineIS parties, lawyers, or
cause law professors
le contracts casebook
ntracts books include
I
I
I
I
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2006]
THE STORY OF KIRKSEY V. KIRKSEY
383
Kirksey. Casebook authors notoriously borrow from each other, but Kirksey's
predominance is more than a simple matter of following the crowd.
Some cases predominate in casebooks because they authoritatively address
inherently important issues. Can Constitutional Law be taught without Marbury
v. Madison? Other cases predominate because they present an exposition of a
particular issue that is inherently persuasive. Justice Jackson's concurring opinion in the Steel Seizure Case 433 comes to mind. In sharp contrast, Kirksey is an
empty vessel-or a tabula rasa. Kirksey's primary purpose in legal education is,
at first glance, to teach the distinction between a conditional gift and a bargainedfor exchange, but teaching this distinction cannot explain Kirksey's predominance. Who really cares about the distinction? It is hardly important. How often
do transactions or disputes actually turn upon this obscure issue? The inherently
insignificant concept of conditional gifts has educational value because it is so
simple. First semester law students easily grasp the concept, are able to manipulate it, and easily learn to apply it to shifting hypothetical fact patterns.
Kirksey is like the simple tunes, Chopsticks and Twinkle, Twinkle, Little Star,
that beginning piano students learn. The tunes are delightfully simple and even
fun to play. Beginning students learn to control their fingers and can readily see
the relationship between notes on the music score and the movements of their
fingers. After learning to read and play Twinkle, Twinkle, Little Star, the students
are ready for more complex pieces. So it is with Kirksey. The case's value lies
in teaching students to grasp a legal principle and to manipulate the pertinent
facts at a quite rudimentary level. After mastering Kirksey, the students are
ready for more complex pieces.
433. Youngstown Sheei & Tuhe Co. v. Sawyer, 343 U.S. 579, 592 (1952) (Jackson, J., concnrring).
F
.~
384
THE GEORGETOWN LAW JOURNAL
ApPENDIX
[Vol. 94:321
I: KIRKSEY 'DuAL RECORDS
The following transcript is taken from the original record of Kirksey v.
Kirksey in the Talladega Circuit Court. The record is handwritten. An attempt
has been made in formatting the print on the pages of this Appendix to
approximate the placement of the words as they appear on the pages of the
original record. Original spellings and abbreviations have been retained. The
original records are located at the Circuit Court in Talladega, Alabama.
Photocopies of the documents transcribed in Appendix LA, and an author's
handwritten copies of the documents transcribed in Appendix I.B and C, can be
obtained from the authors.
A.
TALLADEGA CIRCUIT COURT RECORDS
1844-1846
[page 32]
Circuit Court Fall Tenn 1844
Writ Antilico Kirksey
vs
Isaac Kirksey
The State of Alabama
Talladega County
To any Sheriff of the State of Alabama
-Greetings- You are hereby commanded to take Isaac Kirksey if to be
found in your County and him safely keep so that you have his body before
the Honorable the Judge of our next Circuit at a Court to be holden for
Talladega County at the Court House thereof in the town of Talladega on the
Ninth Monday after the third Monday in September 1843 then and there to
answer Antilico Kirksey of a plea of trespass on the case &c to her damage
five thousand dollars
Herein fair noCanil have you then and there this Writ with your indorsement thereon
Witness Jacob D Shelley Clerk of said Court at office this 15th day of
September in the year of our Lord one thousand eight-hundred and forty 3and of American Independence the sixty 8tl1 year
Test
JDShelley Clerk
Issued 15 th day of September 1843
Cause of Action
This action is brought by the plaintiff to recover of the defendant damages
for the breach of certain promises for this that on the day of 1840 and on
divers other days he (the defendant) promised the plaintiff that if she (the
plaintiff would come down (that is from Marshall County Ala) and see him
(the defendant) he (defendant-then living in Talladega County Ala) would
let plaintiff have a place [illegible] raise her family on as he (defendant) had
more open land than he could tend. Declaration will contain several counts
Wm P. Chilton & Bowdon
No Bail Required
[Vol. 94:321
ord of Kirksey v.
vritten. An attempt
this Appendix to
I the pages of the
Jeen retained. The
!ladega, Alabama.
, and an author's
: I.B and C, can be
[846
State of Alabama
Talladega County
, State of Alabama
3
lC
Kirksey if to be
ve his body before
to be holden for
)f Talladega on the
, then and there to
&c to her damage
with your indorsee this 15 th day of
dred and forty 3-
Clerk
lefendant damages
ly of 1840 and on
iff that if she (the
, Ala) and see him
:ounty Ala) would
lIe (defendant) had
1 several counts
,wdon
2006]
THE STORY OF KIRKSEY V. KIRKSEY
385
Attoy for Plff
ShffReturn
Received 18 th Sept. 1843 & Executed Nov. 9th 1843
Sol Spence Sheriff
By R. Stirnrnett Dept
Declaration
The State of Alabama
Circuit Court
Talladega County
Fall Tenn 1843
Antilico Kirksey plaintiff in this suit by attorney complains of Isaac
Kirksey defendant &c in custody N. in a plea of trespass on the case N.
For this that said defendant heretofore viz on the day of A.D. 1840
at-viz-in the county aforesaid in
[page 33]
consideration that said plff would remove from her then residence in the
County of Marshall in this State and settle in the County of Talladega he the
said defendant then and there promised and agreed to with the said plaintiff
that he would provide her with a place to raise her family upon and the said
plaintiff avers that she did then & there remove to the County of Talladega
from the County of Marshall aforesaid at great inconvenience trouble and
expense and then and there after such removal demanded a place of the said
Isaac Kirksey upon which to raise her family which the said Isaac did then &
there fail and refuse to provide for the said plaintiff as he had undertaken and
agreed to do- By means whereof the said defendant became liable to pay to
the said plaintiff the damage which she sustained by his failure & refusal to
comply with his said contract & undertaking to wit, the sum of five thousand
dollars and heingsp liable.he the said defendant afterward to wit on the day
and year aforesaid undertook and faithfully promised said plaintiff to pay her
said damages whenever he should be thereunto afterwards requested- And
also for this that said defendant heretofore to wit on the day and year
aforesaid at viz in the County aforesaid contracted and agreed to & with the
said plaintiff in substance and legal effect, as follows to wit,-That if the said
plaintiff (who was and is a widow and the relict of the brother of said
defendant and who then resided with her family in the County of Marshall in
the State of Alabama) would come down and see the said defendant who then
resided in the County of Talladega in said State he the said defendant would
let her (the said plaintiff) have a place to raise her family on as he the said
defendant had more open land than he could tend, and the said plaintiff avers
that she did afterwards to wit on the day and year aforesaid come down and
see the defendant at great expense inconvenience and trouble to wit to the
value of five thousand dollars- Yet the said plaintiff in fact avers that
afterwards to wit- on the day and year aforesaid she demanded of said Isaac
a compliance with his said undertaking and notified him then and there of the
said expense trouble and inconvenience yet the said Isaac not regarding his
promise & undertaking would not promise or let said plaintiff have a place on
386
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
r
i
which to raise her family but wholly neglected and refused and still does
neglect & refuse
And also for this that said defendant on the day and year aforesaid at viz in
the County aforesaid in condition that said plaintiff would come down from
Marshall County and see him the said defendant at his residence in the
County of Talladega he the said defendant would let her have a place to raise
her family on as he the deft had more land than he could tend and the plaintiff
avers that she did then and there at great trouble and expense visit said
defendant and the said defendant agreed that the said plaintiff should live
upon
[page 34]
and raise her family upon a part of the land then occupied by said defendant
to be had by her for the purpose of cultivation to support herself & family and
plaintiff further avers that at the special instance and request of said defendant she removed herself and family to said place and took possession of the
same-But the said defendant contriving how to injure said plaintiff in that
behalf did not nor would comply with his said contract but refused to let said
plaintiff occupy said place and then and there turned her out of the possession
of the same and from thence hitherto has & still does keep from & out of the
possession of the same in violation of his said agreement- By means of
which said several failures of said defendant to comply with his said contract
set out in the three several counts above stated the said plaintiff has been and
is greatly injured and has sustained damage to the sum of five thousand
dollars- Hence he sues
w.P. Chilton & Bowdon
Atto for Plff
Defendant pleads nonassumpsit in short by consent with leave to give all
special matters of defendant that might be specially pleaded.
McAfee for Deft
And the plaintiff in short by consent replies with like scope and leave
w.P. Chilton & Bowdon attys
for the plaintiff
Judgt
Angelico Kirksey
vs
Isaac Kirksey
This day came the parties by their attornies and tllereupon came a Jury of
good and lawful men, to wit, John Wood and eleven others who being elected
tried and sworn well and truly to assess the issue Joined upon their oaths do say
We of tlle Jury find for the plaintiff upon the 2 & 3 counts in the declaration and
assess her damages to two hundred dollars
It is therefore considered by the Court that said plaintiff do recover of the
said defendant the said sum of two hundred dollars the damages aforesaid by
the Jury aforesaid assessed for which execution may issue- And it is agreed
I
[Vol. 94:321
lsed and still does
: aforesaid at viz in
i come down from
s residence in the
ave a place to raise
nd and the plaintiff
expense visit said
laintiff should live
l by said defendant
~rse1f & family and
uest of said defenk possession of the
aid plaintiff in that
t refused to let said
rt of the possession
) from & out of the
nt- By means of
th his said contract
lintiff has been and
1 of five thousand
owdon
f
th leave to give all
d.
)pe and leave
,n attys
r
I
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
that execution shall not issue until after decision on the writ of error provided
the same is prosecuted to the January Term 1845 of the Supreme Court
B. TALLADEGA COUNTY MINUTE BOOK CIRCUIT COURT 1840-1844
[p.540]
A. Kirksey
Spring term May 20th 1844
vs
Isaac Kirksey
This day came the plaintiffs by atto'y and the defendant being called came
not but made default. It is therefore considered by the court that the plaintiff
dollars damages in the plaintiffs
recover of the defendant the sum of
declaration mentioned together with the cost of suit for which execution issue
&c
au motion this judgmeut is set aside.
[p.629]
Angelico Kirksey
vs
Isaac Kirksey
This day ... Nov. 23d 1844 ... came the parties by their attornies and
thereupon came a jury of good and lawful men, to wit, John Wood and eleven
others who being tested tried & sworn well & truly to try the issue joined upon
their oaths do say "We of the jury do find for the plaintiff [upon the 2 & 3
counts in the declaration] and assess her damages to two hundred dollars.
It is therefore considered by the Court that the said plaintiff do recover of the
said defendarif!lie~saia-suiriofi:Wo hundred dollars the damages aforesaid by
the Jury aforesaid assessed for which execution may issue. And it is agreed that
execution shall not issue until after decision on the writ of error provided the
same is presented to the January Term 1845 of the Supreme Court.
Cct Ct for 9th Judicial Circuit, Geo. W. Stone judge
-commenced 18 Nov. 1844
C. CIRCUIT COURT TALLADEGA COUNTY, TRIAL DOCKET BOOK 1844--1849
Trial Docket for Fall Term AD 1844
,on came a Jury of
who being elected
n their oaths do say
the declaration and
f do recover of the
nages aforesaid by
- And it is agreed
387
[p.28]
Chilton & Bowden
A Kirksey
38
873
G.T. McAfee
Isaac Kirksey
Continued by plff Spdng term 44
Deffilfl'fer 18 2 3 4 5 J31eas Seflanitely
THE GEORGETOWN LAW JOURNAL
388
6
629
[Vol. 94:321
Jury & verdict for pltff on 2nd and
3rd Counts. damages $200
[po 14]
Spring term 1844
Chilton & Bowden
107
873
G.T.McAfee
A Kirksey
vs
Isaac Kirksey
ApPENDIX IT: KIRKSEY ApPELLATE RECORD
The following transcript is taken from the original record of Kirksey v.
Kirksey in the Alabama Supreme Court. Except for certain parts of the bill of
costs and the request for record from the trial court, the record is handwritten.
An attempt has been made in fonnatting the print on the pages of this Appendix
to approximate the placement of the words as they appear on the pages of the
original record. Original spellings and abbreviations have been retained. The
original records are located at the Alabama Archives of the Alabama Department of Archives and History in Montgomery, Alabama. Photocopies of these
documents can be obtained from the authors.
[The appellate record was four-folded. The front cover part of the fonr-fold
shows the following:]
2598
16787
Antilico Kirksey
ads
Isaac Kirksey
Transcript
Fees $4. 5°/100
Filed 18 Dec. 1844
Reversed
18 March 1845
Book R.J. 331
This is an agreed case
J by consent of parties, tbe
question for decision is presented within,
without any fonnal assignment of errorsSam. F. Rice for plff in Error
[The following is written sideways on the four-fold front cover:]
I certify that this record is recorded in Book
[Vo!. 94:321
2006]
THE STORY OF KIRKSEY V. KIRKSEY
389
A.P.380J.B. Wallace CIkk
By Jbetts
[On another of the four folds (if unfolded, at the bottom of the page) is the
following:]
D
'cord of Kirksey v.
, parts of the bill of
~ord is handwritten.
ges of this Appendix
on the pages of the
been retained. The
,e Alabama Depart'hotocopies of these
art of the four-fold
Notice of the writ of Error sued out in
this case, is waived. Dec. 14th 1844.
WPChiiton
Atto for Deft
In Error
[On another of the four folds (if unfolded, at the top of the page) is the
following:]
Authorities for plff in ErrorBurnet v. Biseo, 4 Wms. R. 235 - 2 Cowen 139 - 1 Caines R. 47.
Dexter v. Hazen 10 Johns R. 246.
McEndree v. Piles. 6 Litt. 101
Sam. F. Rice
[Now moving on to individual pages of the appellate record:]
The State of Alabama.
To the Clerk of the Circuit Court of Talladega County.
Because in the record and proceedings, and also in giving judgment in a suit
in our Circuit of Talladega County, at the Fall term thereof A.D. 1844, between
Angelico kfrIfse)/ Phuri.tiff, arid Isaac KIrksey Defeudant, as it is said, manifest
error hath intervened to the great damage of the said Isaac Kirksey as by his
complaint we are informed. We are willing that the error, if any there be, should
in due manner be corrected, and full and speedy justice be done to the parties
aforesaid; and, therefore, in this behalf do command you, that if judgment be
thereupon given, that you send to us fully and distinctly, under your seal, the
record and proceedings with all things concerning the same, with this writ-so
that we may have them at the next term of our Supreme Court, to be holden in
and for said State, at Tuscaloosa, on the first Monday in January next, that the
record and proceedings aforesaid being inspected, we may cause further to be
done thereupon for correctieg that error, what of right, according to the laws of
the State, ought to be done.
cover:]
WITNESS, Jacob D. Shelley Clerk of the Circuit Court of Talladega County,
this seventh day of December A.D. one thousand eight hundred and forty-fonr
and 69th year of American Independence.
lD.shelley Clerk.
ISSUED 7th DAY OF December 1844
390
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
T
I
[Then comes the court's record, page 1:]
Be it remembered that at a Circuit Court begun and held for Talladega
County on the 9th Monday after the third Monday in September A.D. 1844
present, presiding the Hon. George W. Stone Judge of the 9th Judicial Circuit,
the following pleas were had and determined, to wit,
Writ
The State of Alabama
Talladega County
To any Sherriff of the State of Alabama-Greeting
You are hereby commanded to take Isaac Kirksey if to be found in your
County and him safely keep, so that you have his body before the
Honorable the Judge of our next Circuit Court, at a Court to be holden for
Talladega County at the Court House thereof, in the Town of Talladega on
the Ninth Monday after the third Monday in September 1843 then and
there to answer Antilico Kirksey of a plea of trespass on the case & to her
damage five thousand dollars. Herein fail not, and have you then and there
this writ, with your endorsement thereon. Witness Jacob D. Shelley, Clerk
of said Court, at office, this 15 th day of September in the year of our Lord
one thousand eight hundred and forty 3 - and of American Independence
the sixty 8th year.
Test
JDShelley Clerk
Issued 15 th day of September 1843
Cause of Action
This action is brought by the plaintiff to recover of the defendant damages for
1840 & on
the breach of certain promises, for this, that on the day of
divers other days he (the defendant) promised the plaintiff that if
[page 1 back]
she (the plaintiff) would come down (that is from Marshall County, Ala.) and
see him (the defendant) he (defendant then living in Talladega Connty, Ala.)
would let plaintiff have a place to raise her family on as he (defendant) had
more open land than he could tend Declaration will contain several counts.
Wm. P. Childon & Bowdon
No Bail Required
Attos. for Pltff
Shffs
Return
Rec'd office 18d) Sept. 1843
Executed Nov. 9th 1843
Sol Spence Shff by R. Hinnett Depty
Declaration
The State of Alabama
Circuit Court Fall Term 1843
[Vol. 94:321
2006]
THE STORY OF KIRKSEY V. KIRKSEY
391
Talladega County
eld for Talladega
ember A.D. 1844
th Judicial Circuit,
eting
, be found in your
body before tile
t to be holden for
n of Talladega on
er 1843 then and
the case & to her
'ou then and there
D. Shelley, Clerk
, year of our Lord
;an Independence
ndant damages for
of
1840 & on
hat if
. County, Ala.) and
iega County, Ala.)
le (defendant) had
several counts.
as. for Pltff
Antilico Kirksey, plff in this suit, by attorney complains of Isaac Kirksey,
defendant, & in custody in a plea of trespass on the case etc. For this, that
said defendant, heretofore viz on the - day of - A.D. 1840 at-viz-in the
County of af'd in consideration that said plff. would remove from her then
residence in the County of Marshall in this State and settle in tlle County of
Talledega, he the said defendant then & there promised and agreed to or with
said plaintiff that he would provide her with a place to raise her family upon,
and the s'd plaintiff averS that she did then and there remove to the County of
Talladega from the County of Marshall af'd at great inconvenience trouble
and expense, and then and tllere after such removal demanded a place of the
said Isaac Kirksey, upon which to raise her family, which the said Isaac did
then and there fail and refuse to provide for the said plaintiff as he had
undertaken and agreed to do. By means whereof the s'd defendant became
liable
[page 2 front]
to pay to the said plaintiff the damage which she sustained by his failure and refusal
to comply with his said contract and undertaking, to wit-the suna of five thousand
dollars, and being so liable he the said defendant afterward, to wit, on the day and
year aforesaid, undertook and faithfully promised said plaintiff to pay her said
damages whenever he shonld be thereunto afterwards required
And also for this that s'd defendant heretofore, to wit, on the day and year
aforesaid, at viz, in the County aforesaid, contracted and agreed to with the said
plaintiff in substance and legal effect, as follows, to wit, that if the said plaintiff
(who was, and is a widow, and the relic of the brother of s'd defendant and who
then resided willi her fanlilyinthe County of Marshall in the State of Alabama)
wonld come down and see the said defendant, who there resided in the County of
Talladega in said State, he the said defendant wonld let her (the said plaintiff) have
a place to raise her fanlily on, as he the said defendant had more open than he conld
tend, and the said plaintiff avers that she did afterwards to wit, on the day and year
aforesaid, come down and see the said defendant, at great expense, inconvenience
and trouble, to wit, to the value of five thousand dollars. Yet the said plaintiff in fact
avers that afterwards, to wit, on the day and year aforesaid, she demanded of said
Isaac a compliance witll his said undertaking, and notified hinl then and there of the
said expense, trouble, and inconvenience, yet the said Isaac not regarding his said
promise and undertaking, wonld not provide Or let said plaintiff
[page 2 back]
have a place on which to raise her family, but wholy neglected and refused,
and still does neglect and refuse.
And also for this, that said defendant on the day and year aforesaid at, viz,
in the County aforesaid, in consideration that said plaintiff would come down
from Marshall County and see him the said defendant at his residence in the
County of Talladega, he the said defendant would let her have a place to raise
her family on, as he, the defendant had more land than he could tend, and the
392
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
plaintiff avers that she did then and there at great tronble and expense visit
said defendant, and the said defendant agreed that the said plaintiff should
live upon, and raise her family upon a part of the land then un-occupied by
said defendant, to be held by her for the purpose of cultivation to support
herself and family, and plaintiff further avers, that at the special instance and
request of said defendant she removed herself and family to said place and
took possession of the same. But the said defendant contriving how to injure
said plaintiff in that behalf, did not, nor wonld comply with his said contract,
but refused to let said plaintiff occupy said place, and then and there turned
her out of the possession of the same, and from thence hitherto has and still
does keep her from and out of the possession of the same in violation of his
said agreement. By means of which said several failures of said defendant with his said contract set out in the three several counts above stated.
[page 3 front]
The said plaintiff has been, and is greatly injured and has sustained damage
to the snm of five thousand dollars- Hence she sues W.P.Chiiton & Bowdon
Attos. for Plff
Plea
Deft. pleads non assumpsit. in short by consent
with leave to give all special matters of defense
that might be specially pleaded
McAfee for Deft
Replication
And theplffim;hort byconsent-replies with
like scope and leave
W.P.Chilton & Bowdon
Attos. for plff
Bill of Exceptions
Angelico Kirksey
In Talladega Circuit
vs.
Court Fall tenn 1844
Isaac Kirksey
This case came on for trial at this term of the COUlt, and was submitted to
the jury on the issues which appear in the record
The jury found in favour of the plff on the second and third counts, and
assessed the damages as stated in the judgement entry. There was a motion in
alTest of judgement, and for a repleader by defendant
The motion would have been granted by the presiding judge upon the
ground that the 2nd & 3'd counts do not contain a legal cause of action.
But upon the following agreement being entered into by and between
plaintiff and defendant,
[Vo!. 94:321
and expense visit
said plaintiff should
then un-occupied by
~ltivation to support
special instance and
ly to said place and
triving how to injure
'ith his said contract,
len and there turned
Ilitherto has and still
le in violation of his
of said defendant Jove stated.
III"
1S
sustained damage
[n Talladega Circuit
:000 Fall term 1844
ld was submitted to
ld third counts, and
ere was a motion in
ing judge upon the
se of action,
to by and between
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
393
the motion is not granted.
It is thereupon agreed by and between
[page 3 back]
the parties, that if the following facts entitle the plaintiff to maintain an action
at law then the judgement is to be affirmed, if not, then it is to be reversed.
The plaintiff had been the wife of defendants brother, but had for some time
been a widow. She has several children. In 1840 plaintiff resided on public
land under contract of lease with another.
She had held over, and was comfortably situated there with her children,
and would have attempted to secure the title to the land she lived on. The
defendant resided in Talladega County sixty or seventy miles from plaintiff.
On the 10th October 1840 defendant wrote to plaintiff as follows
"Dear Sister Antilico
"Much to my mortification
"1 heard that brother Henry is dead and one
"of his children. 1 did not hear which one. I
"know that your situation is one of grief and
"difficulty. You had a bad chance before, but
"a great deal worse now. I should like to
"come and see you, but carmot with convenience
"at present. 1 am not well at present, my
"family has been generally well, all but myself
"and my youngest son. We have not been very
"sick. The health of the County is tolerably good
"at present. 1 should like to know your situation
"I do notJ:no.w whetller yOn have apreferenc!"
"on the place you live on or not. If you have,
"I would advise you to obtain your preference
"and sell the land, and quit the County as I
"understand it is very unhealthy, and I know
[page 4 front]
"society is very bad. If you will come down
"and see me I willl!"t you have a place to
"raise your family on. I have more open land
"than. I can tend, and on the account of your
"situation and your family, I feel like
"I want you and the children to do well.
It was further proven that within a month or two after the receipt of this
letter the plaintiff abandoned the possession of her improvement without
disposing of it, and removed with her family to the residence of defendant.
Defendant put her in comfortable houses, and gave her good open land to
cultivate for two years. At th!" end of two years, defendant desired, and
notified her to leave the houses she occupied and remove to another cabin in
the woods, a half lhile or mile off, but without out houses.
394
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
The proof conduced to show that the house would not have been comfortable for herself and family. There was some uncertainty in the proof whether
defendant still proposed to allow plff. to cultivate the same cleared land, and
whether he proposed to have the new residence made comfortable. The
question was submitted to the jury, & they found against it. The proof further
showed that deft put his son in possession of said house with plff. that for
some time they occupied it jointly, and then the plff left the premises under
the notification and request of defendant, and it was further shown that
defendant had notified plaintiff that if she did not leave his premises he would
remove her by legal process.
[page 4 back]
There was some proof of the loss plaintiff sustained by removing. This was
all the proof. The question is, will the promise contained in the letter, with the
breach as shown in the proof, sustain an action at law.
Agreement
We Counsel of record, agree that the foregoing contains a full and correct
account of the facts of this case, and further agree to submit the case to the
Supreme Court upon the question stated within
W.P.Chilton
Atto. for plff
G.T.McAfee
for the defendant
Judgement
AngeliQa I(irksey.
vs
Isaac Kirksey
This day came the parties by their attomies and thereupon came a jury of
good and lawful men to wit John Wood and eleven others who being elected
tried and sworn, well and truly to try the issue joined. Upon their oathe do say
"We the the [sic] jury do find for the plaintiff upon the 2nd & 3rd counts in the
declaration and assess her damages to two hundred dollars.
It is therefore considered by the Court that the said plaintiff do recover of
the said defendant the said sum of two hundred dollars, the damages aforesaid
by the jury aforesaid assessed for which execution
[page 5 front]
may issue. And it is agreed that execution shall not issue until after decision
on the writ of error, provided the same is prosecuted to the January Term
1845 ofthe Supreme Court.
Clerks Certificate
The State of Alabama
Talladega County
. I Jacob D. Shelley Clerk of the Circuit Court of
[Vol. 94:321
have been comfortcn the proof whether
ne cleared land, and
.e comfortable. The
it. The proof further
:e with plff. that for
: the premises under
further shown that
s premises he would
r
I
I
I
THESToRYoFKmK~yv.KmK~Y
2006]
395
said County do hereby certify that the foregoing pages contain a full and
perfect transcript of the case of Antilico Kirksey against Isaac Kirksey as
agreed upon by the attornies.
[seal]
Given under my hand and
private seal, having no seal
of office, at office in
Talladega December the 4th A.D. 1844
lD.Shelley Clk
[The court awarded costs to Isaac, and on 18 March 1845 a bill of costs
and execution order was issued against Angelica for $25.36 for costs.]
removing. This was
cn the letter, with the
a full and correct
bmit the case to the
lS
~pon came a jury of
:s who being elected
)n their oathe do say
d & 3rd counts in the
s.
aintiff do recover of
e damages aforesaid
~
until after decision
:0 the January Term
the Circuit Court of
The State of Alabama
to any Sheriff of the State of Alabama-Greeting
YOU are hereby Commanded, That of the Goods and Chattels, Lands and
Tenements of
Angelica Kirksey in your County, yon cause to be made the sum of Twenty
five Dollars and 36 Cents, which, by judgment in the Supreme Court,
rendered on the 18 day of March 1845 Isaac Kirksey recovered against her
for costs accruing in said Supreme Court, on a certain Writ of Error, wherein
said Isaac was Plff & said Angelica
1320
264
Defendant as appears to us of record, and that you have the sum aforesaid,
together with this Writ, and your return thereon, before said Supreme Court,
on the first Monday in June next.
Witness-James B. Wallace, Clerk of our said Court, this 20 day of March
A.D. 1845
James B. Wallace Clerk
[Costs were tallied on the right hand side of this mostly printed form. Costs
came to $25.36, though just what Angelico was charged for is uncertain, as
items in the long printed list are not individually marked.]
[On the back of the Writ of Costs is written as follows:]
2598
Talladega
Isaac Kirksey
v
Angelica Kirksey
25.36
24 March 1845
Rec'd in office the 31 st
of March, 1845
Wm. Easley shff
396
THE GEORGETOWN LAW JOURNAL
[Vol. 94:321
Rec'd satisfaction
in full on this
case May 20th 1845
Wm. Easley shff
Entered
Rice
ApPENDIX
r
I
III: KIRKSEY IN VERSE
Untitled*
by Michael Gibson
All the first-years in Whoville liked Kirksey a lot.
But the Grinch, who taught Contracts in Whoville, did NOT.
The Grinch hated Kirksey, and all her reliance,
For that traveling mother could never comply with
His notions of bargain, inducement, exchange:
She merely abandoned her home on the range.
But I think the real reason poor Kirksey's plight grated,
Was the Grinch's small heart had not yet been Restated.
Kirksey v. Kirksey**
by Anonymous
There once was a widow from 'Bama
Who longed for a new panOrama
So she heeded a call
Which-broughther.downfa1l
With reliance and notable drama
Kirksey v. Kirksey***
by Dean L. Foote, 1951
(Contributed by Clark Byse)
Gather 'round me my friends and listen to me
While I spin you the tale of a poor promisee.
All you lawyers take heed and you legal immatures
So that this never happens to a client of yours.
The tale I tell is a tale of woe.
About Dear Sister Antillico.
* Copy in possession of this article's authors',
** Anonymous, Kirksey v. Kirksey, Raintree County Memorial
Library Occasional Paper No.1,
reprinted in Douglass Boshkoff, Selected Poems on the Law of Contracts, 66 N.Y.U. L. REv. 1533,
1537 (1991).
*** Copy in possession of this article's authors.
[Vol. 94:321
2006]
THE STORY OF KIRKSEY V.
KIRKSEY
397
She lived in the country, her husband had died.
The brother-in-law wrote, "Come, be by my side."
He said that he knew society there was bad,
The land unhealthy, and that she was sad.
He promised her a home and some land to tend,
And gave her to believe all sadness would end.
So she packed up her bags and made the long trip,
Her heart filled with thanks and a blessing on her lips.
t.
le, did NOT.
th
grated,
~stated.
'es
rs.
'casional Paper No.1,
N.Y.D. L. REv. 1533,
For two wonderful years she lived in his house,
And cultivated the soil without benefit of spouse.
At the end of that time the brother-in-law said, "Go,"
So she came to the courts with her tale of woe.
The arguments lasted for many a day,
And the Judge finally gave his decision this way...
"You have suffered a lot, my dear," said he.
"But the promise was a mere gratuity.
No contract arises in such a case
'Cause no consideration appears on its face.
Legal detriment there was and this to be sure,
But unless it was bargained-for I cannot concur
That a contract there was between you and the other,
Dear Sister Antillico and your in-law brother."
I;