4 Day 343 | Conn. | 1810
This is an action to recover the penalty of the statute against fraudulent conveyances; alleging that the defendant was indebted to Giles Pettibone in several notes of hand, and a bond which Pettibone held as trustee to the plaintiff; and that, with a view to cheat and defraud the plaintiff in the collection of those notes and bond, the defendant conveyed to his father all his estate, both real and personal.
It appeared on the trial, that the notes and bond were given on an agreement between William Goodwin and iwife, to live separate. Which sums she accepted in full for her future support, and agreed never to become chargeable to him in any event. A clause is then added, in which she agrees, that, on his furnishing money and testimony, she will pursue the proper means to obtain a divorce as soon as may be; all which shall be under his direction, by himself or attorney. And in default of the compliance of Mary Goodwin with any of her engagements, the whole of the-settlements and obligations were to be void.
The court decided, and gave in charge to the jury, that the plaintiff had a just and lawftil debt against the defendant, and might well support her action, as being an aggrieved person within the meaning of the statute.
To this opinion of the superior court, various objections have been made in the argument. It was insisted, that there is no debt in this case, because the
Again, it was objected that the contract set forth in this case was conditional, and that the plaintiff lost all her right to the benefit of these notes, by a refusal to permit the petition to proceed, until she cotapelled her husband to make new terms with her. But as the contract between husband and wife was void for want of contracting parties, a failure on her part could render it no more than a nullity, and resolve itself into mere want of consideration for the notes ; which, as I have already stated, cannot, in this state, be averred to destroy their validity.
But although mere want of consideration cannot, in this state, be averred to destroy a note of hand, yet it may be averred that a note was given on an illegal contract, and if it appear that the contract in question is an illegal one, and the notes were given in pursuance of it, the circumstance of the wife’s having no contracting power will not purge the contract of its impurity.
Notes given to a trustee for the benefit of a feme covert, on consideration that she commit a crime, stand on no better ground than if given ts any other person, on a similar consideration. What, then, is this contract ? And here we discover a provision made for the support of the wife, on condition that she will bring forward a petition for a divorce, to be at the husband’s expense, and at his absolute control, or that of his attorney, which is the same thing. A petition is then to be brought, charging the husband with a crime; and he appearing in character of a respondent, in which character his confession?
Whatever, apology may be made for this contract, it must, .from its nature, operate a gross frajjd on the court; and if such friendly arrangements are allowed, they must very much interfere with the regular administration of justice.
It is said that here was a good cause for the divorce. Be this as it may, it is perfectly manifest that the fact of this petition being brought forward by. the procurement of the respondent, and at his control, was to be concealed from the court; the discovery of which fact would in itself be good ground for dismissing the petition.
It is also perfectly apparent, that the true cause of the divorce, which was thought disgraceful to the party, was to be concealed from the court, and a false one substituted and imposed on the court in its room. But courts of justice ought not to suffer themselves to be thus imposed on by the fraud of parties; they ought to judge upon the real state of facts.
On this ground, therefore, I think a new trial ought to be granted. And it becomes unnecessary for me to determine the general question, whether contracts between husband and wife to live separate, are illegal or not; or whether the present action was properly brought in the name of Mary Goodwin, as being the aggrieved person or not.
The great question is, whether Mary Goodwin, the plaintiff, had such an interest in the debt attempted to be avoided, as will make her, in the sense of the statute, a party grieved.
It is admitted that the notes to Giles Pettibone were
If the interest of the plaintiff in this case is substantial, either ip law or in equity, and is defeated by the act of the defendant, it appears clear to me that she is a party grieved within the meaning of the statute. But it is contended, that her trustee has no legal claim, and, of course, that she has neither a legal nor an equitable interest ; because the notes originated from an impure contract between husband and wife. I have never considered the case of Dibble v. Hutton, 1 Day, 221. as going so far as to prevent all possible provision, which a husband may be disposed to make for his wife. While such provision rests in contract between husband and wife merely, as that did, I agree it is void; but when made bona fide, and fairly executed by the intervention of a trustee, I know of no decision or principle that will set it aside, if the plaintiff’s claim in the case before us, rested in contract merely, as did the case of Dibble v. Hutton, I am ready to say such contract is void. Here, neither the husband or wife are parties in the arrangement; the note is given by the son of the husband, to a trustee, for the benefit of the wife.
T am aware it is contended, that there is a want of con
It is also contended, that these notes are avoided by a subsequent agreement between the plaintiff and her husband, respecting her alimony. To this I have only to observe, that I cannot conceive how an unexecuted contract between husband and wife, resting in parol, and which all parties agree is in itself void, can by any possibility, make void at law a specialty executed by a third person.
On the whole, I am of opinion, that though a contract between husband and wife, respecting her alimony in case of divorce for his misconduct, cannot be enforced against him while resting in contract; yet if made bona fide, and executed by the procurement of the husband, and secured to a trustee for her benefit, it becomes valid, and may be enforced; and a fraudulent attempt to
I perceive nothing in this case other than a provision made by a husband for the support of his wife, in the event of a divorce taking place betwixt them, which they had in contemplation. Such a provision, I apprehend, can never be deemed illegal or improper, provided there was no corrupt design betwixt the parties to accomplish a divorce by fraud and falsehood. Let it be supposed that the husband had committed adultery, and of this there was no doubt; the wife would most assuredly be justified in obtaining a divorce from her husband. It would be a lawful act, for a legitimate cause for obtaining a divorce existed; and if the husband, conscious of having injured his wife by his infidelity, should make provision for her, as in this case, would it not be binding upon him ? This cannot be controverted. It would be doing what the law supposes proper to be done; for, in such case, it is in the power of the court to assign to the injured wife one third part of his estate to be her own, as a provision for her maintenance. And surely when a man does that which by law he is compellable to do, he must be bound by it. I apprehend that the decision in this case has proceeded upon the supposition that the record shows that there was an agreement, Sec. to procure a divorce by a fraud and imposition on the law or the court. This question is a point of fact. It is, I apprehend, impossible to raise it on this motion. It does not appear that this ground was ever taken at the trial; and it being a mere matter of fact, the party should have made the question to the jury. If it does, I agree that the notes, See. given in pursuance of it are not valid. But where is it apparent that there
There is, it seems, a part of the agreement, which I have not noticed, which is deemed peculiarly offensive and immoral; that is, the agreement to live separate, and dissolve, as much as in them lies, all the obligations of the marriage covenant, and that, for reasons best known to themselves and the Searcher of Hearts. It is apparent the manner in which they meant to dissolve the obligations of the marriage covenant, viz. by obtaining a divorce for adultery, which is a legal act; and if this was not what was meant, it is no part of the consideration on which these notes were given. It may be wished to attempt to dissolve the obligations of the marriage covenant ; but this has not the least connexion with a note or bond that was given to take effect upon the contingency of a divorce. The same observations are applicable to the agreement to live separately.
But admitting that this was a consideration for giving the notes, it must appear to the court that there is no such thing as a husband and wife agreeing to live sepa
I know that it has been contended in this case, that there was no debt, because the agreement was betwixt husband and wife, and, therefore, the notes were void. Admitting that all agreements betwixt husband and wife are void, the admission is for argument’s sake only; for I believe the doctrine to be not only ridiculous in the extreme, but opposed to the laws of the land, and destructive of the welfare of society, of a baneful and immoral tendency; yet it does'not follow that the notes given to a third person for the benefit of his wife, on the happening of a certain contingency, are void. The case, on that hypothesis, is this: there never was any agreement betwixt husband and wife, for by law there could be none, and the husband then voluntarily makes a provision for her by a contract executed to a third person as trustee for her. It can never be averred that there was no debt; for a want of consideration can never, by the rules of law, be shown in such a case. Such transaction is always binding upon the promissor, and never could be avoided by him, however it might by creditors. Unless it can be shown to be immoral for a husband to provide for the maintenance of a wife, in case she should be divorced from him for his adultery,' and that in a way
It has been urged that the debt, if any, was due to Giles Pettibone ; and, of course, he, and not the plaintiff, was the person grieved, to whom the action by law is given. As I do not apprehend that this consideration had much weight in the decision, I shall only observe, that Giles Pettibone had no beneficial interest in the subject whatever, and, therefore, could not be the person grieved; and the plaintiff, who was entitled to the whole beneficial interest, was grieved, and the only person who was; and it is now settled that the violation of an equitable right may be the ground of an action at law.
It has been further urged, that this contract was intended by the parties to operate if no divorce had ever taken place, and that a married woman can hold no separate property given in trust for her, either in law or equity, and that no debt could be raised to her separate use, and her husband, of course, was the cestuy que trust; that the case of Hutton v. Dibble recognises this doctrine. To this I answer, if it does, the opinion was an obiter opinion, and nowise necessary to determine that case. Nothing can be clearer than that such an opinion is opposed to all authority, and never was law, unless that decision has made it so.
But admitting this to be the case, that a wife can have no separate property, and that our books on this subject are to be given to the winds, yet it cannot have the smallest operation on the case ; for surely the husband cannot be the cestuy que trust'; to suppose it would be a violation of all principle. Let the doctrine be, that a wife can hold no separate property. A. conveys property to B. in trust for C., the wife of D., to her sole and separate use, over which property the conveyance declares that D., the husband, shall have no control. Suppose B. is not bound to execute this trust for C,, because C. is
The truth is, such a defence does not lie in the mouth of the promissor. It is nothing to him. The defendant’s argument would be the same, if Giles Pettibone had holden notes against a minor, and he, the defendant, had robbed him of them, or swindled them from him; for, says he, I have done you no harm; you could not have enforced your notes, if I had not swindled you.
New trial to be granted.