111 Mass. 17 | Mass. | 1872
We are not required to determine how far an executory contract made by a wife with her husband for the disposition of her interest in real estate may bind her in equity, because we are of opinion that, independently of the objection to their capacity to contract with each other, no agreement is proved which can be held to affect the plaintiff’s rights.
As to the memorandum of February 23, 1869, the evidence is full and conclusive that it was signed by the husband with the understanding that it would not be legally binding, or anything more than a moral or honorary obligation, upon either party; and by the wife, after being informed that such was the husband’s understanding of its effect, and after being advised by her counsel that it would not legally bind her. In short, both parties signed it with the understanding that they were not bound thereby, except so far as they might feel themselves morally obliged to carry out the intention therein expressed. Evidence of this character, though not competent to control the interpretation of the contract, is clearly admissible to show that the contract should be set aside, or treated as of no effect, in equity. Townshend
The deed of trust, which the memorandum itself provided should be prepared in proper form to carry out the understanding and intention therein summarily expressed, was never executed, by reason of a difference arising between the parties as to its details.
In accordance with the terms of the memorandum, the estate was indeed advertised for sale, and sold with the assent of the husband and wife, and deeds thereof signed by both; but those deeds contained no provision as to the disposition of the purchase money, and were not delivered until after the agreement of April 17,1869, had been signed by the authorized attorneys of the husband and the wife; and that agreement expressly provided that the legal and equitable rights of the parties should in no way be prejudiced or affected by the sale, and that the question whether the husband and wife were bound to deliver the deeds was left open.
It follows that the wife has done nothing to affect her rights in the land devised to her by her father, or to confer any rights therein upon her husband or children; and that the proceeds of the sale of the land, in the hands of the trustees, belong to her as fully as the land did before the sale. The husband, having been divorced from her, was rightly made a party to the bill. He had released all his interest in the estate to her before the bill was filed. And the children having no interest in the estate or its proceeds, there must be a Decree for the plaintiff.
