27 Conn. 104 | Conn. | 1858
The instrument which the superior court is solicited to correct, was a deed of a married woman, purporting in the body of it to be her deed only, and acknowledged by herself alone, but executed by her and her husband, conveying her real estate to a third person who immediately deeded it to her husband; neither transfer resting upon any actual consideration. The petitioner is a devisee of her husband; the respondents are heirs of the wife ; so that each is a mere representative of one or the other, and has no better
Under these circumstances it is objected on the part of the respondents, that the functions of a court of equity will not be set in motion as between parties thus situated. It is a familiar doctrine that chancery will not enforce voluntary contracts inter vivos; and that, at all events, where a gift is imperfect from one living person to another, equity will leave the donee where it finds him. Such a party having acquired his imperfect title without the payment of any actual consideration, or under such circumstances as raise no equitable obligation against the giver, has in reality no equity. This general principle has been specifically applied in the case of petitions for the correction of defective voluntary agreements, (1 Story Eq. Jur., § 176,) and such an application seems to be an inevitable consequence of the general rule. Equally irresistible is the inference that the aid of chancery will not be extended to a mere volunteer because the respondent is a volunteer also. The latter is, in such a case, a mere representative of the giver, but as such stands in as good a position as the party whom he represents. Or, as- the reason is sometimes less accurately stated, the equities of the volunteers are equal, and as between equal equities chancery remains indifferent and stationary.
The expenditure by the husband on the real estate, after the pretended conveyance to him, cannot vary the case. It could not be maintained that, as between husband and wife, such a circumstance would entitle the former to a conveyance from the latter.
In general an agreement of a married woman relative to her real estate, although concurred in by her husband, is absolutely void; invalid for reasons of policy, quite as cogent, to say the least, as those which justify the avoidance of contracts under the statute of frauds. By express legislation, however, an exception is made in this state in favor of deeds executed by married women jointly with their husbands, under the hands and seals of both, and by both acknowledged, and duly recorded. Such deeds are validated.
But, at the threshold of this inquiry, we are met with the established doctrine that equity will not contravene the positive enactments or requirements of law and defeat its policy, by supplying, under the guise of amending defective instruments, those deficient elements of form without which the agreement is absolutely void, even as between the parties to it; that it will not fabricate for contracting parties those essential ingredients of a contract, without which in the eye of the law there subsists no valid contract whatever. In such cases the intent of parties to conform to the enactments or rules of law will not avail them, and, having fallen short of its requirements, they have consummated no agreement at all.
The leading case on this subject is that of Hibbert v. Rolliston, (2 Brown’s Ch. R., 571,) in which the court refused to validate, on the score of making an instrument conform to the intent of the parties, a mortgage of a ship, which did not contain a recital of its registry. An English statute, with a view to sustain its system of partiality to vessels belonging to British owners, made all bills of sales of vessels not containing a recital of their registry-certificate, “ utterly null and void.” It was contended in the case cited, that the intention of a mortgagor to give a valid security raised an equity in favor of the mortgagee. The answer to the bill admitted the intent and the mistake. But, as an act of Parliament
We have no doubt that the rule, which, by creating an arbitrary disability, protects married women from the alienation of their real estate through the acts or coercion of their husbands, is so far founded on policy as to disqualify courts of equity to validate instruments made in contravention of the rule. In fact, in Bolton v. Williams, (2 Ves. Jr., 156,) the court declined to make good against a married woman an agreement bad at law. But it sometimes happens that where equity is thus compelled to yield to the absolute requirements of law, restraining its efficacy in reforming agreements, some other agreement behind the defective contract may subsist, of which equity can lay hold, and thus indirectly, though in strict conformity with established principles, afford a remedy for the deficiency. A defective deed is sometimes treated practically as an executory contract for the sale of land and its execution is decreed. We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but belongs rather to the branch of equity jurisprudence which relates to the specific performance of contracts ; to the performance of contracts of which the defective instrument is the evidence or memorandum.
In the present case this principle will not avail the petitioners. If they resort to an agreement lying back of the
We advise therefore that the bill be dismissed.
In this opinion the other judges concurred.
Bill dismissed.