57 N.J. Eq. 645 | N.J. | 1899
The opinion of the court was delivered by
The bill prays the enforcemont of an agreement between the parties, of which the following is a copy :
*650 “This indenture made this thirty-first day of January, A. D. eighteen hun., dred and ninety-four, between Christian Buttlar, of the town of West Hoboken in the county of Hudson and State of New Jersey, party of the first part, ancf Mina Buttlar of the same place, party of the second part.
“ Whereas divers disputes and unhappy differences have arisen between 010 said party of the first part and his said wife, for which reason they have con-^ sented and agreed and hereby do consent and agree to live separate and apart from each other during their natural life therefore this indenture witnesseth r that the said party of the first part, in consideration of the premises, and in' pursuance thereof, hereby covenants, promises and agrees to and with his said wife, that it shall and may be lawful for her, his said wife, at all times here-after to live separate and apart from him, and that he shall and will allow' and permit her to reside and be in such place or places and such family or' families, and with such relations, friends and other persons, and to follow and carry on such trade or business as she may from time to time choose or think fit; and that he shall not nor will at any time sue or suffer her to be sued for living separate and apart from him, or compel her to live with him; nor sue,molest, disturb or trouble any other person whomsoever, for receiving, entertaining or harboring her; nor shall or will at any time hereafter claim or demand any of her money, jewelry, plate, clothing, household goods, furniture' (excepting one-half carpet, one bed and bedding complete, one sofa, four chairs and one clock which are to remain the sole property of Christian Buttlar) or stock in trade which she now has in her power, custody or possession, or which she shall or may at any time hereafter have, buy or procure or which shall be devised or given to her, or that she may otherwise acquire,- and that she shall and may enjoy an absolute disposition of the same as if she were a feme sole and unmarried, except the real estate hereinafter mentioned which is owned by them jointly.
“And further that the said party of the first part shall and will, well and truly, pay or cause to be paid for and towards the better support and maintenance of his said wife the sum of seventy-five dollars ($75) per month, commencing on the first day of February next, and payable on the fifteenth day of each and every month, and which the said party of the second part does hereby agree and take in full satisfaction of her support and maintenance and all alimony whatever, and the said Mina Buttlar in consideration of the said premises and also for and in consideration of the sum of one dollar to her in’ hand paid, does hereby agree to and with her said husband, the party of the-first part, that he shall be entitled to receive during the term of his natural! life all the rent, income and profits of the property now owned by them in their joint names, known as Nos. 600, 602, 604, 606 and 608 Malone street, No. 339 West street, in the town of West Hoboken, and 654 and 656 First street, Hoboken, the said Christian Buttlar, however, to pay all taxes that -may hereafter be levied or assessed against said real estate, interest that may hereafter become due on mortgages now held against said property, and also' all repairs that may hereafter be required, excepting the painting of the outside of the buildings, to be done the coming spring, the expense of which the*651 parties hereto are to bear jointly, each to pay one-half of the cost thereof, and the said Mina Buttlar further agrees to and with her said husband that she will pay the taxes against said premises for the year eighteen hundred and ninety-three, and also all water rents up to February first, eighteen hundred and ninety-four, and said Christian Buttlar furthermore agrees that his said wife may occupy the first floor in the house known as No. 600 Malone street in the. town of West Hoboken in the county and state aforesaid, until March first, eighteen hundred and ninety-four, she to pay therefor the sum of seventeen dollars (517) when she is to vacate the same, it being, however, understood that should Mina Buttlar not vacate the said premises on or before the' first day of March, then and in that case she is to pay the monthly rent of seventeen dollars (517) therefor, payable on the first day of each and every month in advance.
“And the said Mina Buttlar further covenants and agrees to and with her said husband to indemnify and bear him harmless of and from all her debts contracted or that may hereafter be contracted by her on her account, any and all money or monies which the said Christian Buttlar may be compelled to pay on violation of this last-mentioned covenant shall be deducted from the monthly payments to be made to her for her maintenance and support. And the said Christian Buttlar further agrees to pay all assessments now in arreará against the said premises, to which the said Mina Buttlar agrees to contribute sixty-two and fifty one-hundredth dollars (562.50) to be paid by her to Christian Buttlar on or before May first next.”
The complainant is the wife of the defendant, and because of her disability, by reason of her coverture, to sue in a court of law, seeks in a court of equity a decree compelling her husband to pay, under his covenants in the above-recited agreement, certain sums of money admittedly due to her and unpaid, and certain taxes assessed against her property. Her bill was dismissed by the decree below and her appeal brings it before us for review.
While separation between husband and wife, in pursuance of mutual articles of agreement, will not be enforced by the decree of a court of equity, such separation being against the policy of our laws (Miller v. Miller, Sax. 391; Aspinwall v. Aspinwall, 4 Dick. Ch. Rep. 302), yet the court will not suffer a husband, who has become possessed of the property of his wife by virtue of such agreement, to avail himself of his own wrong in order to free himself from the duty to maintain her. Even without any such consideration, stipulations in such agreement to pay
“will well and truly pay or cause to be paid for and towards the better support and maintenance of his wife the sum of seventy-five dollars (§75) per month, commencing on the first day of February next and payable on the fifteenth day of each and every month, and which the said party of the second part [wife] does hereby agree and take in full satisfaction of her support and maintenance and all alimony whatsoever, and the said Mina Buttlar in consideration of the said premises and also for and in consideration of the sum of one dollar to her in hand paid, does hereby agree to and with her said husband, that he shall be entitled to receive during the term of his natural life, all the rent, income and profits of the property now owned by them in their joint names, known as Nos. 600, 602, 604, 606 and 608 Malone street, No, 339 West street, in the town of West Hoboken, and 654 and 656 First- street, Hoboken,' the said Christian Buttlar, however, to pay all taxes that may hereafter be levied,” &c.
In pursuance of this writing it is undisputed that the defendant took exclusive possession of the premises referred to, which he has ever since retained, made leases with tenants in his own name, collected all the rents and has treated the premises in all respects as the sole owner thereof. It is also admitted by the defendant’s answer and shown in the evidence that since and inclusive of November, 1895, he had failed to make the stipulated monthly payments to his wife, as well as to pay certain of the taxes against the property, his excuse, as alleged in his answer, being that “ he did not have sufficient means to do so.” It is clear that evidence offered in support of'such a defence, if set up in any court of law in any action founded on this agreement, would have been overruled, and the question to be now determined is whether it should have been entertained in the court below. The reason which enables a married woman to assert a legal right in a court of equity is that to deny her such right is to deny her all remedy and redress for a wrong done her, such a denial being contrary to every system of jurisprudence because at the foundation of the existence of all courts lies the ancient maxim of universal application, “ ubi jus ibi remedium.” Black-
If, however, this case is to be decided solely by the rules of evidence and practice as administered by a court of equity no different result would be reached. Such an agreement, founded
•“ where the contract is in writing, is certain in its terms, is for a valuable con•sideration, is fair and just in all its provisions and is capable of being enforced without hardship to either party, it is as much a matter of course for a court .of equity to decree its specific performance as for a court of law to award a judgment of damages for its breach,”
.and, as approved and applied by the courts of this state both before and since the case of Plummer v. Keppler, 11 C. E. Gr. 482, the late Vice-Chancellor Van Fleet there stated the rule briefly as follows : “ While the remedy by specific performance is discretionary, yet when the contract has been fairly procured and its enforcement will work no injustice or hardship, it is enforced almost as a matter of course.” Adopting these statements of the rule as a guide, was this contract fairly procured? That it was fairly procured is not denied by this defendant either in his answer or in his proofs. It was drawn at his own request, by his confidential lawyer and adviser, who was then and has ever since remained, not only in the court of chancery but also in this court, his chosen counsel. Nor has this defendant claimed that this paper was procured through any fraud, accident or .duress, nor has he at any time offered to rescind, revoke or cancel it, nor to re-assign to the complainant her share of the leasehold estates, or her reversionary interest in the rented premises, or to place her back in the situation she originally occupied with respect to her properties, with the right to collect in her own name the portion of the rents to which she was entitled. >On the contrary, while still holding fast to all the benefits
Will the enforcement of this agreement work any injustice or hardship to the defendant? Its language is devoid of all ambiguity. There is nothing in it to suggest that his payments under it to his wife were to be limited to or conditioned upon the amount of his net receipts of rents from the joint property, and no reason is perceived why he should not contribute from his private income to the fulfillment of his marital obligations, in accordance with this agreement, if that be necessary in order to make up a deficiency of rents. There is no evidence to show that the expressed sum of $75 a month was excessive for the wife’s proper maintenance. What the defendant’s private income from his regular business amounted to must be, under the evidence, the subject of mere conjecture, for the whole account was in his keeping. He produced no cash-book or ledger to show the amount of his business dealings, and when pressed by cross-examining counsel as to whether his net income from his own business (feed-store business) was not more than $700 a year, he answered, “I doubt it.” In' his unverified answer to the bill of com plain ant he states that the income from his business was “ hardly sufficient to keep him,” but he fails to state the amount of his receipts therefrom and his disbursements thereout, nor what sum he regarded as insufficient, so that the court could judge what sum should be regarded as sufficient. If his wife be correct in her testimony his habits of life may have exhausted quite a considerable sum in order to maintain him in his peculiar style of living. It is not important to quote the testimony on this point. It is sufficient to say that it shows the separation arose not from any fault charged upon the complainant but from that of the defendant.
The adjudications in this state and elsewhere hold it to be firmly-settled law that the husband is bound to support his wife
The defendant does not pretend that the complainant’s allowance was exorbitant or excessive in amount. After accepting from her her means of support, and limiting her to a fixed monthly sum, and expressly providing that he should not be liable for any of her debts, he should not be heard to complain of the amount so fixed, especially in the absence of a fair and full statement to the court of his faculties. Even without such a provision in the contract, the defendant was protected against any liability for his wife’s debts. Aspinwall v. Aspinwall, supra. In 1 Bish. Mar. & D. ¶ 580 it is declared to, be the law that if the wife
"engages to accept a small sum, which is paid her, though the sum be wholly inadequate, still so long as the separation continues on this footing she cannot pledge his credit for anything, however much she may stand in need of the credit.”
The defendant has not met the burden of proof which his defence has assumed on this branch of the case, and has utterly failed to show that his income from his business was not sufficient to enable him to supply therefrom any deficiency of the rents needed to satisfy his covenanted payments.
Again, under the circumstances of the transfer of this property to the defendant and his assumption of the exclusive possession of the joint properties, he was bound to use at least
“Q. What was the cause of that [the non-filling of the houses] ?
“A. Mr. Buttlar would not repair the houses, inside or out; no carpets on the stairs; there was old oilcloth on the halls; and he would not do any repairing to them, and of course I could not.
“Q. Were there tenants willing to go in providing that was done ?
“A. Yes, sir; and some would have staid in if Mr. Buttlar done some repairs to them.
“Q. (By the court). That is, were willing to go in if he would fix them up ?
“A. Yes, sir.
“Q. But refused to go in in their present condition?
“A. Yes, sir.
“Q. (By Mr. Weller). And did you tell Mr. Buttlar ?
“A. Yes, sir; two or three times.
“Q. What did he say?
“A. That he would not do anything until they were rented, and not before.”
No one having the slighest experience in the renting of houses would expect parties either to become or remain tenants under appearances so forbidding unless definite promises of improvements were made by the owners to intending tenants previous to their occupation under the contract of renting. Such promises the housekeeper swears, without contradiction, he vainly endeavored to obtain from the defendant, and resulted in the refusal of tenants to occupy. Without extending this opinion unduly into further details of the evidence it is sufficient to add that the defence of hardship interposed to the enforcement of the payment by the defendant of the sums of money provided for in the writing, is not sustained.
The decree appealed from should be reversed and a decree rendered in favor of the complainant for the amount due according to the terms of the contract.