Tuesday, September 25, 2007
Why, you ask? Because in their recent essay, "Dear Sister Antillico . . ." The Story of Kirksey v. Kirksey, 94 Georgetown L. J. 321 (2006), they solve every last mystery that one might derive from the Alabama Supreme Court's laconic opinion in Kirksey. Their solution to the great mystery of Kirksey -- why did Isaac Kirksey invite his sister-in-law to live on his land and then evict her just two years later -- sucks all the romance out of the case. History replaces economics as the dismal science.
In my mind, the key turning point of Kirksey involves a headstrong Antillico (portrayed by Merle Oberon) lured to his lodge on the Heights by a bold, passionate Isaac (portrayed by Laurence Olivier). The climactic scene comes after the protagonists have lived within close proximity for two years:
Isaac: Dear Sister, I can't disguise my feelings for you any longer. I must have you! Will you be mine, all mine?!?
Antillico: Brother, control yourself! Think of your dear departed brother, of my children!
I: But dearest, won't you show me the slightest kindness?
A: I'm sorry. I'll always love you, but as a brother.
I: Then torment me no longer! I shall not share this plot of land with you nor suffer to see your face, your figure. Leave these lands that I may skulk along my properties in my solitary meanderings, contemplating the happiness that might have been but for your rank obedience to the rabble's law of etiquette! Haunt me no more, pale specter of a life that might have been!
Or words to that effect. Not so, say Casto and Ricks. Isaac and Antillico were never lovers or anything of the sort. Her name wasn't even Antillico -- it was Angelico -- and the case was all about land and the changing law of holding over on public lands in the 1840s.
But seriously folks, it's a wonderful essay and here's just some of what you might learn if you read it:
Angelico was the fifth of twenty-eight children born to one John Connolly. She seems to have inherited little other than her father's fecundity (if that's possible), as she bore at least sixteen children herself, eight or nine of whom accompanied her when she accepted Isaac's invitation and moved to Talladega County. In so doing, she abandoned land on which she had "held over" and on which she may have earned a "preference" under a federal pre-emption grant Act of 1840. In other words, if Angelico had not accepted Isaac's invitation, she likely could have purchased the land on which she was squatting for $1.25 per acre. 94 Georgetown L. J. at 343. Those facts support an argument that Angelico offered good consideration in return for Isaac's promise to provide land for her and her family in that she suffered a legal detriment in quitting her land in a neighboring county.
Isaac was a far more successful businessman than his brother. He owned a smith's shop as well as considerable property in Alabama and Texas. He also seems to have had some income from the slave trade, and he himself came to own in excess of fifty slaves. Id. at 332-33. He was, in short a "very economical" man (id. at 334) and hardly the romantic anti-hero I had hoped for. In any case, the authors point out, Isaac had been married to Angelico's sister, and when she died, he re-married, happily for all we can tell, just six months before inviting Angelico onto his land. Id. at 325.
As Casto and Ricks inform us, Isaac's motivation for inviting Angelico to occupy some of his land derived from his own desire to occupy as much land as possible. When he wrote to her that he had "more open land than [he could] tend," he did not mean that he needed Angelico and her children as farm hands. Rather, Isaac was trying to get around federal limitations on the amount of land to which one property owner could claim pre-emption rights. Id. at 346-47. The scheme fell apart when the law changed so as to make it impossible for Isaac to use Angelico as his proxy. Indeed, she would have a claim on the land and he would not. Hence Isaac's proposal to Angelico that she move to a cabin in the woods, which the court described as "not comfortable," by which it meant having no outhouse and no access to water. Id. at 348. He needed her off the land so that he could claim it, and in order to do so Isaac set his son up in residence.
The jury, according to Casto and Ricks, saw through Isaac's schemes and granted Angelico what it regarded as her expectation -- $200, the very amount that would enable her to purchase the 160 acres of land at issue at $1.25 an acre. Id. at 351. Casto and Ricks next take us through the reasoning of the Supreme Court, which they have to tease out of the dissenting justice's one-sentence explanation of the reasoning of his brethren, with the help of the rather fragmentary briefs that have survived. The majority seems to have found that, even if Angelico suffered a detriment sufficient to serve as consideration (id. at 364), the detriment was not bargained for (id. at 368) and thus cannot be regarded as consideration. There was precedent in Alabama for something like the doctrine of promissory estoppel, but Angelico's attorney did not raise it. Id. at 369-70.
While Angelico's great-grandson won a silver medal in the 1920 Olympics and Isaac's great-great-great grandson (pictured at left) had a career in journalism which culminated recently in a mention on the Contracts Profs Blog (id. at 371-72), Angelico and Isaac lapsed into obscurity. As the authors put it (rather chidingly, I think):
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.
Id. at 370. Precisely.