Ferussac v. Thorn

1 Barb. 42 | N.Y. Sup. Ct. | 1847

Edmonds, J.

A final decree having been entered, on the bill taken as confessed in this suit, the case is precisely within the rule laid down in Wells v. Cruger, (5 Paige, 164;) and the answer of the defendants was required to be exhibited in order that I might be satisfied as to the nature of the defence, and the sufficiency of the answer.

The nature of the defence is that the contract sought to be enforced is different from that agreed upon between the parties in the first instance. To make that available, it must also appear that the spurious was substituted for the real contract, through mistake or fraud. There are then two elements necessary to this defence; and if either fails, the defence is unavailing. To make out the latter element, the defendants set up that the contract was written in a foreign language, with which it is true they were familiar, so far as respects its use in common conversation, but not familiar with the technical terms used: that it wag read to them hurriedly, and when on the eve of the marriage, so that their attention was not drawn to the particular language in which it was clothed: and that their signatures were “procured to it by misrepresentation or wilful concealment of the real contents, and it was executed by them under a mistake as to its contents, produced thereby.”

The defendants invoke to their aid a memorandum in writing which they aver was drawn up, as a minute of their agreement for the instruction of the notary, and in which it was said that the annuity should be for the daughter’s separate use and receipt, and the legacy should be invested in her separate or individual name. They also aver that this agreement was varied in these respects; that the annuity should continue only during the lifetime of the father, and not during that of the daughter, and that the defendant, in lieu thereof, should agree by his will to leave to her an equal share of his estate with his other children. And that the proposition to secure the annuity by a mortgage on defendant’s property in the United States, was declined by him, and withdrawn. According, then, to the answer, the agreement was that the legacy should be secured to the daughter’s separate use—that the annuity should be paid to her separate use, and continue only during the lifetime of her father, and not be seemed except by the promise contained in the contract. And yet the contract which was executed, in language remarkably perspicuous and exempt from technicalities, provides quite otherwise. Article 1, of the contract, is entitled “ Community,” and provides that “ the intended married couple adopt as the regulation of their marriage the rules of the community of property as it is established by the civil code, with the modifications hereinafter described.” Art. 2, entitled “Exclusion of the movables present and future,” declares that the movables of the married couple are entirely independent of the community. Art. 4, is entitled “ Contribution of the intended husband.” Art. 5, entitled “ Contribution of the intended wife,” declares that she brings into the marriage, 1st, her movables, &c. valued at 20,000 fr.; 2d, the legacy of £5000, “ of which contribution the husband had notice, and consente.q to be charged therewith, viz.: with the movables, &c., from the fact of the marriage, and with the legacy, “ as soon as he shall have reduced the same into his possession.”' Art. 6, entitled “ Appointment of marriage portion by Mr. and Mrs. Thorn,” declares that they give their daughter, as a marriage portion—which is to be an advance on her inheritance—“ a yearly and perpetual income of 20,000 fr., being the interest, at 7 per cent, of 285,715 fr.” and then provides, “ in order to secure to the intended married couple both the use and the payment, if it should be necessary, of the income of20,000 fr., Mr. and Mrs. T. bind themselves jointly and severally to give a good and sufficient mortgage on the real estate belonging to one of them, situated in the United States, to the amount of the principal sum of 285,715 fr.” &c. The contract then provides for the dissolution of the community—that if the capital out of which the annuity flows shall be paid in, Mr. and Mrs. T., or the daughter’s heirs, may retake it, within a period therein specified—and in case of the daughter’s death, before-the capital is paid in, M. de Ferussae shall receive the annuity of 12,000 fr. for two years after her death. “ Mr. and Mrs. T." and the intended wife make a gift to the future husband, who accepts it, but only in case of his surviving his intended wife, of the said income of 12,000 fr., which Mr. and Mrs. T. bind themselves in that case to pay to the intended husband during the two years which shall follow the decease of the future wife.”

The contract that was executed being thus so essentially different from that set up by the defendants, the nature of the task which they seek to assume in interposing their defence, may be estimated. By what testimony is it to be sustained 1 Not by M. de Ferussae, for this is not an application for leave to file a cross-bill by way of a discovery from him. Not by the notary, for he has already testified, and has given a very different relation of the transaction. By any one of the persons who were present at the execution of the contract 1 Those residing in Paris have already been examined, and do not sustain the defence. On the other hand, they, or some of them, say, that at the time of the execution, the contract was read by the notary, not hastily, but in a loud and distinct tone of voice, that Mr. T. followed the reading, on a copy of it which he held in his hand, and which had been for several days in his possession ; that he made no objection to any of its provisions: that it conformed very closely to the antenuptial contract of his other daughter : that two or three days before the marriage, the notary had waited upon Mr. T. at his house, and had read over to him the draft, the contents of which he was already aware of, and in answer to his questions had stated to him, among other things, “ that at all times the intended husband shall have a right to receive the capital sums which shall be paid to his wife,, and especially the £5000, and to employ it in such manner as he shall think fit, but as soon as he shall have received them he shall become a debtor therefor to his wife,” &c.

Under such circumstances, to get rid of a final decree, the defendants must do something more than merely present a sworn answer. They must show that there is a probability that they will be able to establish their defence: otherwise opening the decree would be merely leading to protracted and unavailing litigation, with no prospect of changing the result.

These considerations have the more force with me from these circumstances: 1. That the defendants in their answer say that “ their signatures to the contract were procured by misrepresentation or wilful concealment.” Do they not yet know which ? Are they not only destitute of proof, to establish that, but even wanting in evidence enough to bring their own minds to a conclusion ? Then indeed would farther litigation be unavailing. 2. Throughout the whole proceedings the defendants have held out the idea that the contract was executed under circumstances of haste and excitement, which precluded a deliberate consideration and consequent knowledge of its contents. Before the answer, which they seek to put in, was sworn to, the deposition of the notary had been received in this country, and its contents had come to their knowledge; yet the answer takes no notice of the facts stated by the notary, that he had had one or two interviews with Mr. T. in regard to the contract, had read the draft to him, and had explained to him that its effect and operation would be precisely such as the defendants now complain of. If those statements are true, there is an end to this defence; and it could hardly be right to admit an answer which maintains a studied silence in regard to them.

Under these circumstances, until such allegations shall be met in some form, and until the court can be satisfied that there is some probability of making out the defence against the strong countervailing evidence before me, I cannot feel warranted in opening the decree.