22 Barb. 97 | N.Y. Sup. Ct. | 1855
As to the first point, it should be borne in mind that the mortgage, being under seal, imports a consideration. (Chitty on Cont. 28, 7th Am. ed. 2 Kent’s Com. 464, 6th Am. ed. 2 Black. Com. 446. Parker v. Parmele, 20 John. 130.) This mortgage, therefore, is founded upon a good and sufficient consideration, implied by the common law from the act of sealing and executing, and a mere failure Or want of consideration was not admissible to impeach a sealed instrument, at common law. (Parker v. Parmele, 20 John. 130, 134, and cases above cited.) Chief Justice Spencer said, in the case of Parker v. Parmele, “It is not for me to question the wisdom of the common law in denying to a party, who has entered into an agreement under his hand and seal, a right to impeach it on the ground of a want of consideration. It is sufficient that the law is so.”
The question arises, then, has the common law been so far altered by our statute as to enable a mortgagor of real estate to apply to a court of equity to cancel the mortgage, upon the ground of a want, or a failure, of consideration. The statute is as follows: “ In every action upon a sealed instrument, and where a set-off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same extent as if such instrument were not sealed.” (2 R. iS. 406, § 77.) The language of this statute would seem to confine the change or modification of the common law to cases where there is an action brought upon the instrument itself, or
The question arises then, does the evidence in this case overcome such presumption 1 I do not think it does. The evidence, in my opinion, is sufficient to justify a decree for separate maintenance, were not most of the acts of ill treatment pardoned by the forgiveness of the wife by her return to live with the plaintiff. But perhaps we should not be justified in finding that these subsequent acts of ill treatment are sufficient to revive the former acts of abuse, were not this view of the case aided by the presumption which is to be drawn from the
I propose to consider, in the second place, whether the mortgage in question is void upon grounds of public policy, for the reason that it interferes injuriously with the conjugal relations. I know that Lord Eldon and some of the most learned of the judges of Westminster Hall have thrown doubt upon the question, whether all agreements based on articles of separation between husband and wife ought not to be held as absolutely void, for the reason above stated. (Lord St. John v. Lady St. John, 11 Ves. 526.) And some of the judges in this state have declared similar sentiments. (Beach v. Beach, 2 Hill, 260, 264. Mercein v. The People, 25 Wend. 64, 77. Carson v. Murray, 3 Paige, 483, 500.) The law, however, has been too long settled, both in the courts of law and equity, in England and in this country, that a valid agreement for immediate separation between a husband and wife, and for a separate allowance for her support, may be made, through the medium of a trustee, to admit of a discussion of the soundness of the doctrine upon which the cases have proceeded. It was said by the learned Serj. Williams, in arguing the case of Lord Radway et al. v. Chambers, (reported in 2 East, 283,) that such covenants have long been established by repeated de
Whatever may be said as to enforcing the agreement of separation, it is well settled, both in England and in this country, that the provision made for the support of the wife by the articles of separation will be enforced. Clancy says that if the 11 husband and wife agree to separate, and do separate accordingly, and if he have agreed to pay to her an allowance during such separation, equity will exact a due performance of the latter part of the contract, namely, the payment of the allowance, so long as the separation continues.” In Baker v. Cooper, (7 Serg. & Rawle, 500,) the husband had obligated himself by bond to a trustee, on a separation from his wife, to pay to the trustee, in trust for his wife, $60 a year by half yearly payments during her life. These parties were subsequently divorced,- and in an action brought for one of the installments, it was contended that the husband was released or discharged from his obligation by the divorce; but the court held otherwise, and gave judgment for the plaintiff. The supreme court of Connecticut, in the case of Nichols v. Palmer, (5 Day, 47,) decided that a provision in articles of separation, by which the husband bound himself to support the wife separately forever thereafter, was valid. The ease was most elaborately considered. The supreme court of Massachusetts, in the case of Page v. Trufant et al. (2 Mass. R. 159,) held that a bond from the husband to the father of the wife for her maintenance, after a voluntary separation, was a valid contract, and sustained an action of debt upon the same. And the validity of these provisions for separate maintenance of the wife, where the separation has actually taken place, was recognized by this court in the case of Baker v. Barney, (8 John. 73; 2 Kent's Com. 161, 2d ed.,) and
I would say, therefore, with Chancellor Walworth in the case of Carson v. Murray, that I do not feel myself at liberty to follow the dissenting dicta of some of the judges of the present day as to the policy of supporting such agreements, in opposition to the law, as settled by our predecessors. The doctrine of stare decisis et non quieta; movere must retain some respect in the courts of this country, or the innovating spirit of the age will render very insecure the rights of persons and property. It is said, however, that admitting this agreement to pay the f 100 a year for the support of the plaintiff’s wife to be valid when entered into and while the parties were separated, it has been terminated by the husband’s - offer to take back his wife and live with her.
The rule is this : if the separation be intended to be only temporary, then if the husband offer to take back his wife and to maintain her, it puts an end to the' agreement, and a court of equity will not enforce the payment of the separate allow
The rule is laid down by Mr. Bell in his recent admirable treatise on the law of property as arising from the relation of husband and wife, page 541, (Law Lib. N. S. vol. 57, p. 341, Phil, ed.) as follows : “ Where there is a deliberate agreement between the husband and wife to live apart forever, it is not in the power of the husband at his pleasure to put an end to this state of circumstances by requiring her to return and live with him, or thereby to suspend or extinguish his covenant to make an allowance for her separate maintenance; for notwithstanding he should do so, an action would lie against him for performance of his covenant.” “ If, however, the separation is by the agreement contemplated to be only temporary, and the provision is limited to the duration of such temporary separation, the rule is otherwise.” Applying this rule to the case under consideration, I do not see how the plaintiff’s case is in any respect aided by his offer to take back his wife and provide for her in his family. The parties did not contemplate a temporary separation in the case under consideration, as is manifest from the provision which the plaintiff has made for the wife’s separate support. The condition of his undertaking in that respect is, that he will pay $> 100- annually so long as the said Martha remains the wife or widow of the plaintiff. Such is the condition of the mortgage which the plaintiff seeks to be relieved from by this suit.
. We have considered this case upon the assumption that, to uphold this mortgage, there must be a valuable consideration appearing for the covenant of the husband to provide the wife with a separate maintenance. It is said, however, by Mr. Bell, in the work above referred to, (Law Lib. N. S. vol. 51, p. 336,) that such consideration is. not required. In speaking
It is obvious, therefore, that when trustees for the wife are parties to an agreement for separation, effect will be given to the covenant for maintenance, although there may not be any consideration flowing from them for the covenant, such as indemnity against the debts of the wife, for she, like any other cestui que trust, has a right to call upon the trustees to perform their trust; and should the trustees arbitrarily destroy the instrument, the court will set it up again ; or if they refuse to enforce the trust against the husband, a suit for that purpose by the wife by her next friend will be sustained.” (Cook v. Niggins, 10 Vesey, 190. Head v. Head, 3 Atk. 547.)
It being extremely doubtful, to say the least, whether, upon authority, any consideration as between husband and wife need be shown to uphold the mortgage in question, and being of opinion that if such consideration were required, a sufficient one is shown in the evidence in this case, and being of opinion that we cannot set this mortgage aside as being against the policy of the. law, without upsetting a long series of unbroken authority both in England and in this country, I do not see how we can do less than dismiss the complaint. There is no force in the objection raised that this mortgage cannot be upheld, for the reason that there were no articles of separation actually entered into between the plaintiff and his wife. This does not alter the .case in the least ; for all the authorities agree that such articles themselves, voluntarily entered into, without the sanction of the court, will not be enforced, either in law or equity. It is said by Mr. Bell, in his commentaries above cited, (51 Law Lib. p. 332, N. S .) that “ while it is unquestionable, upon the authority of the cases that have been cited and of the dicta of eminent judges in other cases, that a covenant between husband and wife to live separate:from each other will not be enforced either at law or in equity, it is equally certain that collateral
Mason, Justice. Affirmed at a general term of this court, in the sixth district, and subsequently by the court of appeals, on appeal by the plaintiff to that court.]