94 Ky. 59 | Ky. Ct. App. | 1893
DELIVERED THE OPINIOH OF THE COURT.
In 1858 Jacob Moore, bachelor, married Adel Green, widow, having one child, though there was no issue of their marriage. And in 1860 D. M. White conveyed
This action was brought in 1891 by A. K. Bohannon and two other grand-children, only heirs at law of Adel Moore, to recover of C. B. and Sallie Travis the parcel of forty-seven acres which they hold possession of and claim under the deed from Jacob Moore, who was also made party defendant, though has since died. As defense, it is stated in the answer that Jacob Moore in fact purchased the one hundred acres from White at the price of six hundred dollars, of which three hundred and fifteen dollars was at the time advanced and paid by Adel Moore, but at her request, and under agreement between them, the deed was made to her for the only purpose of securing repayment of the money she so advanced. That thereafter and until her death the forty-seven acres was treated and recognized by both, and used by him as his own land. It is further stated and shown, by written instruments filed as exhibits, that March 12, 1870, Adel Moore executed a bond by which she covenanted to convey, "by April 1st, to Jacob Moore, half the one hundred acres ; and in 1874 she did attempt to convey directly to him, by deed, executed and acknowledged, forty-seven acres, identified and described as was subsequently done in his deed of 1889 to Travis.
The effect of the deed from White was to invest Adel Moore with legal title to the one hundred acres, .and being her general estate she could not convey it
It is manifest the deed in question was not executed in the manner required by statute ; for he being the grantee, it' was not nor could be a joint conveyance of husband and wife, nor did or could he, by separate instrument, convey. And as a wife can not, independent of the statute, by deed direct to her husband, divest herself of legal title in real property, nor invest him therewith, it results the deed mentioned was not effectual for that purpose, and the title bond was likewise unenforceable.
But although contracts between husband and wife are at law void, they are not always so in equity. In Story’s Equity Jur., section 1372, it is said that notwithstanding there is deemed at common law positive incapacity of husband and wife to contract with each other, courts of equity will, under particular circumstances, give full effect and validity to post-nuptial contracts. And the general doctrine that for many purposes equity treats husband and wife as distinct persons, capable of entering into contracts with each other that will sometimes be enforced even against creditors of the husband, has been frequently recognized and applied by this court; though we think in every case, so far, it has been done at suit and for benefit of the wife. But in Maraman v. Mar
In the case of Moore v. Freeman, Bunb., 205, referred to by Story as an illustration of the doctrine, a wife having á separate estate entered into a contract with her husband to make him a certain allowance out of the income of such estate, for a reasonable consideration, the contract, though void at law, was held obligatory and enforceable in equity. In Hendricks v. Isaacs, 117 N. Y., 411, the husband having advanced to their daughter a certain amount upon, a written agreement by the wife to repay him out of rents and income of an estate devised by his father for support of her and the children, it was held in an action by him against her administrator the contract was reasonable and just, and his claim for reimbursement was sustained.
The case of Haussman v. Burnham, 59 Conn., 117, is very much like this. There the husband being infeeble health and intending to make provision for his wife after his death, conveyed land to an attorney, who, on the same day, conveyed it to her. The consideration for the deeds was a promise by her to re-convey to him when requested. She did subsequently
But a contract between husband and wife will not he enforced in equity in favor of either, unless it is fair and just, founded on a valuable consideration, and reasonably certain as to its stipulations and the circumstances under which it was made.
It is not, in terms, stated in the answer that Adel Moore promised to convey the tract of one hundred .acres, or any part of it, to Jacob Moore, upon repayment to her of the money advanced, though we will ■assume it to. have been substantially alleged; nor is the allegation in the answer in respect to character and terms of the contract consistent with the claim now set up, or with the deed she attempted to execute ; for while it is stated in the answer of Jacob Moore that the land was purchased by him, and deed therefor made' to Adel Moore for the sole purpose of 'securing to her repayment of money advanced by her, he did not thereafter claim nor attempt to convey ’Travis more than what he supposed to be half the tract. Moreover, while it is stated in the answer she paid only three hundred and fifteen dollars of the purchase price, of which, as alleged, he subsequently
The court is thus called on to enforce a parol contract between husband and wife concerning her real estate twenty-eight years after it is alleged to have been made, the character and terms of which are not, with any degree of certainty, shown, and which the evidence conduces to show has never been fully, if at all, performed on his part; and such relief, if afforded, will inure to benefit not of bona fide purchasers, but of persons claiming under a voluntary deed made by the husband after death of his wife.
The statute of limitation pleaded and relied upon in bar of the claim of her heirs at law manifestly can not avail the defendants, vendees of the husband ; for' it is not pretended the wife ever was out of actual possession of the one- hundred acres a day. Equally unavailing is the plea of estoppel; for the void deed can not be treated as such. The essential conditions of a valuable consideration, paid or performed for the alleged parol' contract, and of reasonable certainty as to its character and terms, are lacking. It would, therefore, be neither just or fair for a court of equity to enforce it, especially in view of the long period that has elapsed since it is alleged to have been made, and delay until after her death of any claim to relief.
Wherefore the judgment of the‘lower court is reversed, and cause remanded for proceedings consistent with this bpinion.