75 N.W. 797 | N.D. | 1898
Plaintiff is seeking a decree adjudging void as to her a certain deed of real property executed by Ole O. Arnegaard to his son Knudt O. Arnegaard without any other consideration than the natural love of a father for his own offspring. The validity of the deed is assailed on two grounds: Plaintiff claims that it was never delivered, and that it was in fraud of her rights as the propective wife of the grantor. At the time this conveyance was executed, the grantor, who was a widower with a large fámily of children, was engaged to the plaintiff, and their marriage took place a couple of months later. The grantee in the deed is one of the grantor’s children by his former wife. Assuming, for the purpose of discussing the question of fraud, that there was in fact a delivery of the deed, we are confronted with the inquiry whether there is anything in the circumstances of ■this case which takes it out of the general rule that the owner of property can make an honest disposition thereof to whomsoever he pleases. As before stated, it is urged by counsel for the plaintiff that the transfer of the land to the son was a fraud upon her rights, and that the deed is void in his hands because he is not a purchaser for value, but merely the object of his father’s bounty. The basis of this claim is that upon marrying the grantor she would have secured a homestead right in this land, had it not befen conveyed to the son before her marriage with the grantor, and that this conveyance made after her engagement to the grantor (the fact of such conveyance being concealed from her) must consequently be deemed to have been made for the purpose of defeating her rights, and therefore, in law,- a fraudulent conveyance, with respect to her homestead right.
It must be admitted that there has grown up a peculiar doctrine with reference to transfers of property by husband or wife after engagement. In its original form, this doctrine was not
How the doctrine which in the beginning related exclusively to transfers by the wife came to be extended in all its breadth to cases of transfer by the husband, it is difficult to determine, if principle is to be our guide. It is a significant fact that in England, where the doctrine had its origin, the wife’s right of dower has never been successfully asserted as against an antenuptial conveyance by her husband. The question does not appear to have been directly decided in that country. In Chandler v. Hollingsworth, 3 Del. Ch. 99, the chancellor says, at pages 114 to 116: ‘‘It was argued by the defendant’s counsel that in England dower is not protected, as a marital right, against a conveyance by the husband before the marriage, even though made on the eve of marriage, and expressly to exclude the wife; that under the English decisions the husband and wife, in this respect, stand on a different footing. There is no decision upon the precise question, but the weight of opinion is in favor of the position taken. Prior to the statute of uses, estates were largely held in trust; and it was, from the beginning, considered that dower did not attach to a use, even when it was one reserved to the husband under a conveyance made by himself. Whether a conveyance with a use
Whatever may be the law in the mother country, the decisions are practically unanimous on this side of the water that the mere fact that a secret transfer was made after engagement is, with an exception to be hereafter referred to, conclusive on the question of fraud, so far as the light of dower is concerned. It is true that in some of the cases the element of actual fraud was shown to have existed, and some of the rulings are placed upon that ground. Kelley v. McGrath, 70 Ala. 75; Jones v. Jones, 64 Wis. 301, 25 N. W. Rep. 218; Brown v. Bronson, 35 Mich. 415; Smith v. Smith, 6 N. J. Eq. 515; Green v. Green, 34 Kan. 740, 10 Pac. Rep. 156; Petty v. Petty, 4 B. Mon. 215; Jenny v. Jenny, 24 Vt. 324. But in the great majority of the cases the broad rule is enunciated that a man owes to the woman to whom he is betrothed the utmost good faith, and that he cannot, consistently with that sacred obligation, secretly devest himself of property in which she would by the’marriage secure rights which would thereafter be beyond his control. On the proposition that a secret transfer of his real property is, except under special circumstances, fraudulent as a matter of law, as to her dower right, we cite the following cases: Davis v. Davis, 5 Mo. 183; Swaine v. Perine, Johns. Ch. 482; Chandler v. Hollingsworth, 3 Del. Ch. 995; Youngs
While the extension of the earlier rule to cases involving dower grew, in a measure, out of the peculiar regard which the common law paid to that right, yet the foundation of these decisions is the violation of the husbands duty to act with the utmost good faith towards his prospective bride, in dealing with his property after the marriage engagement. It therefore follows that the fact that dower has been abolished in this state is not in itself decisive against the right of this plaintiff to assail as fraudulent the conveyance of the homestead to the defendant Knudt O.'Arnegaard. The inquiry still remains whether she, upon becoming the wife of the grantor, would have secured such an interest in the land, on which he lived, and on which he continued to reside up to the time of his death, as should be protected against a secret transfer after engagement, and before marriage. If the statute did not give a surviving widow a homestead right in the land of her deceased husband which formed their homestead at the time of his death, we could not on sound principle, hold that the secret transfer of this land would in any manner constitute a fraud upon the plaintiff. In this state dower and curtesy are abolished. Neither husband nor wife has any interest in the property of the other. Each has the absolute power of disposition, whether by transfer during life, or by will at death, subject only to the homestead right of the survivor. Were it not for such homestead right, the plaintiff would have no ground for complaint. Surely it would not be fraudulent for the husband to do secretly before marriage that which he could do either openly or secretly after marriage. Could he by deed or will devest himself of all his property after marriage without the consent of his
We think that the fact the husband has a qualified right to defeat the wife’s homestead intex-est does not take the case out of the categoxy of xdghts which a court of equity will protect, as against a secret transfer before marriage to defeat the same. The husband may know in advance that it is his purpose to reside on that particular parcel of land for the remainder of his days. If this is his determination, it is obvious that he must know that after marriage he cannot defeat his wife's homestead right. With this thought, in mind, and conscious of the fact that therefox-e he must make an antenuptial transfer if he would pi-event the homestead interest of his prospective wife from attaching beyond his power to control it, he secretly deeds away the land without valuable consideration. How can such an act be characterized, except as a fraud? What purpose could he have had, except the wrongful one to defeat his wife’s just expectations by a secx-et device? From the standpoint occupied by him, the case is in no manner different from what it would have been had he possessed no power, even by change of residence, to defeat the wife’s homestead xdghts. That it was in the mind of the grantor at the time he made this transfer that his home would remain upon this land until his death, is evidenced by the fact that, as an inducement to the plaintiff to mai'ry him, he promised to erect thereon a substantial dwelling, in place of the old building in which he was living. This structure was in fact built, and he continued to reside therein with plaintiff up to the day of his death. Not only had he decided to make that his home, but the plaintiff was fully justified in the belief, which she doubtless entei'tained, that
We now come to another branch of the question under consideration. It is urged that the transfer is valid because it is no more than a reasonable provision in favor of the husband’s own child by a former marriage, and that at the time it was made the husband retained the title to 320 acres of land, and was the owner of personal property of the value of about $40,000. At the time of his death this personal estate was inventoried at something over $48,000. As he left no will, the widow will receive one-third of this property after paying expenses of administration. But we are not to judge of the legality of this transaction by the sequel. If originally fraudulent, it cannot be validated by the fact that her husband has failed to bequeath away from her, or give away in his lifetime, his personal property. He might have done so, and, in determining whether the deed in question was valid, we must take this fact into consideration. The only ground, therefox-e, on which counsel for defendants can sustain the conveyance, is that it was a reasonable provision for his son, the gi'antee, and that a secret transfer can be made, even when it seriously affects the wife, provided the object of the husband’s bounty is a child, and the gift is not extravagant, considering his estate. The husband had living, at the time he conveyed the land in question to the defendant, nine childi'en by his former wife. Some of these were of age, and some were not. He deeded four fai'ms of land, aggregating 550 acres, to those of his children who had attained their majoxdty; one of these conveyances being
But these decisions are not opposed to our ruling in this case. They all recognize the principle that the effect of the transaction must not be utterly to keep from the wife all the interest in his property which would after marriage be beyond her husband’s absolute control. To give his children a portion of his real property, leaving other real estate still standing in his name, is widely different from the transfer of all his lands to them thus preclud ing the possibility of any dower right vesting in the wife. In the
The question of acceptance remains. Acceptance by the grantee is an essential part of a delivery. But it is well settled that the grantee may, in case of delivery to a stranger, on subsequently learning of such delivery accept the conveyance, and such acceptance relates back to the time of such delivery. “If a deed be delivered absolutely, and beyond the grantor’s control and right of dominion, for the grantee’s use, to a person not at the time authorized by him to receive it, and the grantee after-wards accepts it, or authorizes the custodian to accept it, the deed is effectual from the time it was placed in the hands of such person.” 2 Jones, Real Prop. section 1241. Our statute embodies this rule. Rev. Codes, section 3520. The acceptance by the grantee has been shown. But it was not necessary to prove such acceptance, the grant being beneficial to the grantee; i. e. an unconditional gift to him. The law presumes an acceptance. “The fact that a conveyance is beneficial to the grantee, and imposes no burdens on him is in numerous cases the ground for asserting the general proposition that an acceptance of such a deed may always be inferred. The rule is stated to be that, if a deed is delivered to a third person for the grantee, neither the presence of the grantee, nor his previous authority, nor his subsequent express assent, is necessary to make the delivery valid.
The case of Hibbard v. Smith, (Cal.) 4 Pac. Rep. 473, is not in point; for here no rights of third persons intervened between the delivery and acceptance, as in that case. The court there expressly recognized the principle of relation as between the parties, saying: “As between grantor and grantee, or those claiming under them, when the right of a third person is not involved, it may be rightly held that an acceptance or assent by the grantee to a deed delivered to a stranger for the use of the grantee, made after such tradition to a stranger, constitutes a full and complete delivery. It may be so held under the doctrine of relation. The subsequent assent or acceptance relates back to the time of such delivery to the stranger, and makes such acts contemporaneous; i. e. makes such tradition to a stranger, and the subsequent assent, contemporaneous.” From a careful examination of the record, we are thoroughly satisfied that there was a delivery of the deed by the grantor; and such deed must therefore stand, except in so far as it affects plaintiff’s homestead right. Had the purposes of the grantor been to leave these deeds with Hyde, to take effect only on his death, the grantor reserving to himself control thereover, they would have been testamentary in character, and therefore void as deeds, for want of delivery during the grantor’s life. Every fact in the case indicates that this was not his purpose. Pie delivered them without reserving any control thereover. He expressly refused
We have hitherto refrained from referring to a point made by counsel for defendants. In view of the disposition made of the case, we might perhaps, ignore it; but we have decided to pass upon it, as it goes to our right to investigate at all the question of delivery. Counsel for defendants contends that all the questions here raised were settled adversely to the widow by the order of the county court of Traill County, which on appeal to the District Court was affirmed. Such prior adjudication is set up in the answer, and there is evidence in the case supporting such alleged defense. It appears that in a proceeding instituted by the widow in the county court having jurisdiction of the estate of Ole O. Arnegaard, to compel the administrator to place upon the inventory the real estate here involved, the judgment of such court was that the land did not belong to the estate of Ole O. Arnegaard; and on appeal to the District Court this judgment was affirmed. But we are clear that such adjudication can have no effect upon the question of title of one claiming in hostility to the estate. The county court has no power to try the question of title, as between the representative and - persons claiming adversely -to the estate. If the decedent has in fact conveyed his land before his death, that court cannot, by any order or judgment it may make, settle one way or the other the question whether the decedent owned the land at the time of his death. The fact that the grantee in such a conveyance may happen to