96 N.J. Eq. 10 | N.J. Ct. of Ch. | 1924
In this suit complainant, a wife, has filed a bill in equity against defendant, her husband, to recover possession of certain real estate owned by her. The husband has answered *11 and also has filed a counter-claim against his wife in which he seeks specific performance of an antenuptial parol agreement. Complainant has moved to strike out this counter-claim on the ground, among others, that its averments are within the inhibition of our statute of frauds relating to contracts "made upon consideration of marriage."
I am convinced that this motion must be sustained.
The rule in equity that part performance may remove a parol contract from the operation of the statute of frauds does not extend to antenuptial parol agreements made in consideration of marriage. Manning v. Riley,
Fraud, alone, will deny the intervention of the statute Equity at all times will lend its aid to defeat a fraud, notwithstanding the statute of frauds. But the fraud against which equity will relieve in this class of cases, notwithstanding the statute, is not the mere moral wrong of repudiating a contract actually entered into, which, by reason of the statute, a party is not bound to perform for want of its being in writing. Bro. Stat.Fr. § 439; Manning v. Riley, supra. The fraud must be inherent in the transaction, such as a false representation that a contemplated written agreement has been executed pursuant to the parol agreement, or other similar artifices. The authorities do not appear to support the dictum of Mr. Justice Wells, inGlass v. Hulbert,
It is urged in support of the counter-claim that it discloses an antenuptial parol agreement made in contemplation of marriage, as distinguished from an antenuptial agreement made in consideration of marriage.
Adjudications are to be found in which certain antenuptial parol agreements which, though made in expectation or contemplation of marriage, have been enforced on the theory that adequate consideration for their support has been found to exist independently of the contemplated marriage; in such cases the contemplated marriage has been regarded as a mere incident of, and not the consideration of, the agreements. Other adjudications are to be found which specifically repudiate that view.
The several cases adopting the view suggested by counter-claimant appear almost uniformly to arise in agreements of mutual release. Thus, in Remington v. Remington (SupremeCourt of California), 193 Pac. Rep. 550, the parties by parol agreed each to release all claim to the other's property. After marriage the formal agreements of mutual release were executed. The claim was made that since the parol agreement was void no consideration existed for the written agreements. The parol agreement was held to have been in contemplation of marriage but not in consideration of marriage, since neither party was to receive anything by the marriage; it was there said that "contracts in consideration of marriage provide for the moving of some benefit to one of the parties as an inducement for marrying." In Steen v. Kirkpatrick,
In a recent case in Washington the prior decisions of the class above named are reviewed and condemned. Koontz v. Koontz,
Certain English cases are to be found in which parol agreements in consideration of marriage have been enforced under what is known as the "doctrine of representations." In Reed Stat. Fr. it is stated that cases of that nature do not apparently extend to representations made by the husband or wife to the other, but are confined to representations made by others, such as parents or guardians. 1 Reed Stat. Fr. § 177 (at p. 289).
I find nothing in the agreement set forth in the counter-claim, against which this motion is directed, to remove it from the operation of our statute. It was a parole agreement upon the part of defendant, now the wife, that if counter-claimant, her present husband, would marry her at an early date she would, after marriage, apply her income and property to the personal expenses of herself and her husband. It was a parol promise made by her in consideration of marriage; a promise made to induce counter-claimant to marry her. The circumstance that counter-claimant, by the marriage, may have sacrificed his business prospects or suffered other detriments, renders the contract no less one made by defendant in consideration of marriage. Since her promise was made solely in consideration of marriage no element of consideration based upon detriment suffered by him can change that plain fact. It is that fact that renders her promise unenforceable. Nor is the fact that for some *15
years the wife has applied her income to the joint support of herself and her husband to be regarded as a part performance operative on the statute. When part performance can be considered, it is only part performance on the part of the party seeking performance that in any case can be considered as invoking equitable considerations. Russel v. Russel
The counter-claim contains excerpts from letters passing between counter-claimant and defendant before their marriage, leading up to the final agreement; but the agreement as finally made is specifically declared in the counter-claim to have been a parol agreement. That agreement is set forth in paragraph 17 of the counter-claim as follows: "Defendant [counter-claimant] avers the proposed financial arrangement in its final form, while general in its terms as to both income and property, was unlimited both as to time and amount, yet was clear and definite as to its terms. The offer was orally made, and was that complainant [defendant in the counter-claim] was willing to use them for the personal expenses of herself and defendant [counter-claimant], should they marry." Again, in paragraph 27 of the counter-claim, the agreement here sought to be enforced is referred to as a "parol antenuptial agreement between her and defendant."
Specific objections are also made to various paragraphs of the counter-claim. These need not be considered. The objections to the entire counter-claim will be sustained for the reasons herein stated *16