Gentry v. Gentry

| Va. | Mar 5, 1891

Lacy, J.

(after stating the case), delivered the opinion of the court.

We are of opinion that the circuit court of Greene did not ■err in overruling the demurrer of the defendants, B. G. Gentry and Josephine C. Gentry, to the plaintiff’s bill, and that the same was properly overruled.

Lillie A. Gentry was interested in the result of the controversy, and it is a general rule in equity that all parties in interest shall be made parties to a cause, either as plaintiffs or, as defendants.

Upon the merits, the claim of the defendants in the circuit court was that the contract sought to be enforced against them was false and fraudulent in every particular; that no such contract was ever executed by them in any binding form, but that it was merely a confidential arrangement made‘by them with the plaintiff to prevent a creditor of theirs from collecting a debt against them, and in trust of the great fidelity of the plaintiff to their interests in this behalf.

First. They thus allege their own fraud, and seek to have the aid of a court of equity in rendering it effectual, and for this they cannot be entertained in this court.

Secondly. The evidence in the cause distinctly, in addition to the unequivocal writings between the parties, proves the execution of the contract as alleged in the bill. A witness was called in, and witnessed the act of the wife of the plaintiff in writing, at the dictation of the husband, in the presence and by the procurement of the defendants, the several papers, and the counting down of the money necessary to complete the transaction according to its agreed terms. They sold the land upon terms agreed on, received the cash agreed on, and the bonds to Lillie were received as cash, and delivered the contract to a friend to be held for the parties, and agreed to deliver possession of the farm on the 1st of October following, and requested this same friend of theirs to subscribe as a witness on contract and the receipt. And, receiving the cash paid, Mrs. Josephine 0. Gentry said she intended to keep that and buy a home with it. This witness did not see the money paid, but the witness Estes did. He says the contract, having been dictated in the presence of the defendants, was read aloud to them by the plaintiff, and during the absence of the plaintiff’s wife to bring down the money. The defendants, B. 0. Gentry and wife, picked the contract up and looked over it. together. Mrs. W. B. Gentry came down stairs with the pocketbook, and a shot-bag, with some silver in it, in the other hand, and said she did not have quite money enough without taking some old coin they had, and asked the witness if he did not have some money belonging to the plaintiff, and he assented, and went off and got forty-two or three dollars, and brought it down and counted it out to him. That the plaintiff then counted out the money in several piles of notes and some silver, and said to the defendant, B. C. Gentry, “ There is the amount of money; count it,” and the defendant, B. C. Gentry, did count it, and took possession of it, and paid him out of it, then and there, two dollars he owed him, the witness Estes. That the parties then mutually agreed on the above-mentioned friend, who witnessed the contract. The witness Davis, who was sent for, came in, and the defendants then formally acknowledged the contract and their signatures, and delivered the contract to the said Davis to hold for the said parties; by whom it was produced and filed in this suit.

There is no difficulty whatever upon the merits of the case. The proof is complete, and the plaintiff has an undoubted right to have this contract enforced as it is made. But the • defendants raise yet another question in their defence, and this is that Mrs. Josephine 0. Gentry is a married woman, and her contract cannot be enforced against her because she could not make a binding contract, because of the disability of coverture.

But that defence will not avail them. This was the land of the wife, the separate and sole property of this married woman; and she has made a voluntary and binding contract for its sale for a valuable consideration; and, under the existing laws of this State, she is bound by it.

Section 2286 of the Code provides that “a married woman shall have the right and power to hold, control and use her said separate estate as if she were .feme sole, and by her sole act encumber, convey, devise, bequeath, or otherwise dispose of her said separate estate, in the same manner and with the like effect as if she were unmarried.”

And section 2288 of the Code provides as to her: “She may make contracts, as if sole, in respect to such trade, business, labor, services, and her separate estate, or upon the faith and credit thereof; and upon such contracts, and upon all matters connected with, relating to, or affecting such trade, business, labor, services, or separate estate, and upon contracts and liabilities made or incurred’ before her marriage, she may sue and be sued in the same manner, and there shall be the same remedies in respect thereof, for and against her and her said estate, as if she were unmarried.”

Section 2289 of the Code, following,, provides: “In any case in which a married woman may sue or be sued, under the provisions of the preceding section, a personal judgment or decree may be rendered for or against her; and when against her, the same may be enforced against her, and any separate estate she has or may subsequently acquire (but only against such estate), in the same manner as if she were unmarried.”

The court in its decree in this case, mindful of the changed attitude of a married woman, her extended opportunities and ■ enlarged responsibilities, has decreed accordingly, and we think the decrees herein are plainly right. The defences of the defendants appear to be dilatory pretexts, wholly unsubstantial. It is unreasonable to believe, even without the support of the clear proof in the case, that the plaintiff would have assumed the attitude of a bogus purchaser, and paid down money and executed bonds, and bound himself in writing to pay off liens upon a tract of land, and delivered these in the presence of witnesses, and accepted a mere nullity in satisfaction.

The plaintiff was plainly entitled to a decree for specific performance, and the circuit court’s decree to that end is without error, and the same must be affirmed.

Decree affirmed.