186 Pa. 263 | Pa. | 1898
Opinion by
The substantial question which must control this case is
This question has been the subject of much discussion and difference of opinion in the English cases. It is agreed that before the statute of frauds such parol agreements were valid and binding, and therefore settlements made in pursuance of them after marriage were good even against existing creditors. And in some of the earlier chancery cases there was an inclination to regard the recital of the prior parol agreement in the deed of settlement as a memorandum in writing such as required by the statute of frauds, and therefore to make the validity of the settlement turn on the presence or absence of such recital in the deed. But in Warden v. Jones, 2 DeG. & J. 76, Lord Cranavorth said: “It cannot be enough merely to say in writing that there was a previous parol agreement. It must be proved that there was such an agreement, and to let in such proof is precisely what the statute meant to forbid.” And in Trowell v. Shenton, L. R. 8 Chan. Div. 318, Jessel, M. R., quoting the foregoing language, said: “ In that short passage the Lord Chancellor disposed of all the other authorities.” He accordingly held that, as the parol antenuptial agreement could not haAre been enforced against the husband, his subsequent deed in pursuance of it was voluntary within the statutes of Elizabeth as to fraudulent conveyances, and its validity must be judged by the circumstances at its date. This has been accepted as the settled result of the English authorities: May on Fraudulent Conveyances, * 382.
In 1818, before either of the decisions cited, and Avhile the discussion was still open in England, the question came before Chancellor Kent in the leading case of Reade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520. After a learned review and consideration of all the authorities and the principles on which they rested, the chancellor reached the same conclusion subsequently arrived at in England, that the parol agreement being invalid, and unenforceable by reason of the statute of frauds, could not support the subsequent settlement. The later New York cases have somewhat modified the chancellor’s view that a deed of settlement is fraudulent in law as against existing
The results of the decisions thus stated with such unanimity by the text writers are sufficient to settle the general question in the absence of any express adjudication by this Court. Sackett v. Spencer, 65 Pa. 89, relied on by appellant, does not touch the point, for, although the syllabus in the report states the proposition broadly that “ where one sells land by parol and afterwards conveys, no one can gainsay this, although he was
The English decisions above cited and Reade v. Livingston, supra, arose on that portion of the fourth section of the statute 29 Car. 2, which requires agreements upon consideration of marriage to be in writing, whether relating to real or personal property. This section is not in force in Pennsylvania, but that fact does not affect the present question. The objection here is not to the consideration of marriage, but to the conveyance of land by parol. Contracts of which marriage is the consideration stand in this state upon the same basis as all other contracts and, like all others, when they are to affect the title to land they are required to be in writing, because the subject-matter is within the statute of frauds, and there is nothing in the statute to permit a distinction between one kind of consideration and another. What the statute deals with is not the consideration but the mode of proof.
Nor can settlements in pursuance of such parol contracts be sustained as performance of a moral obligation, or on the ground that the marriage itself is such part performance as equity will consider sufficient to take the case out of the statute. The latter argument, if it were an open question, is not without considerable force, but the controlling view against it was tersely expressed by Lord Chancellor Cottenham in Lassence v. Tierney, 1 Mac. & Gord. 551, “ there would be an end of the statute .... if marriage be part performance every parol contract followed by marriage would be binding.” The rule is now universally recognized by the American as well as the English authorities. “ Consummation of the marriage is not such part performance as will take the case out of the statute: ” 8 Am. & Eng. Ency. of Law, 685, tit. Frauds, Stat. of II. 3 citing the decisions. “ When a parol contract is entered into in consideration of marriage the solemnization of the marriage is not such a part performance as will take the case out of the stat
Judgment affirmed.