3 Md. Ch. 119 | New York Court of Chancery | 1852
Putting aside the ante-nuptial agreement set up by the answer, it is perfectly clear that the securities which form the
These securities consist of certain sealed notes which were given to and held by Mary Crane, then Mary Gough, prior to her intermarriage with George Crane, the testator of the defendants ; and though by the marriage they devolved upon him jure mariti, and he might have reduced them to possession during their joint lives or after her death, he surviving her, and thus made them bis property, yet, having failed to do so, or to recover judgment upon them, or to alter the security, they, according to our Act of Assembly, upon his death, devolved upon her representative. Act of 1798, ch. 101, sub. ch. 5, sec. 8. The Act of Assembly of this State changing in this respect the rule founded upon the English statute of distributions, which gives to the representatives of the husband who survived his wife, her dioses in action not reduced to possession to the exclusion of the representatives of the wife. 2 Kent’s Com., 136. If, to be sure, the husband in his lifetime had reduced these dioses in action to possession, or had obtained judgment upon them at law, or in equity, either in his own favor or in favor of himself and his wife, and he had survived her, his representatives, ho subsequently dying, would have been entitled; but as he did neither, and the securities remained unchanged, and as they were originally her property, her representatives are entitled to them. Leadenham, vs. Nicholson, 1 H. & G., 267.
All this is quite plain and undisputed, but the answer in this case takes the ground, and counsel have urged in argument that the ante-nuptial contract, which it is insisted was made between Mr. and Mrs. Crane, has entirely changed the relative rights of the parties. And that in virtue of that agreement, these securities, it is said, now belong to, and should be recovered and enjoyed by the representatives of the husband.
The answer, after admitting the facts stated in the bill, alleges, “ that prior to the marriage between the parties, the said bonds were in consideration of the marriage which was about to bo solemnized between them, and which did take place on the 3d of September, 1846, given by the said Mary Gough
The defence, therefore, assuming that the objection to the jurisdiction of the Court is not well taken, is put upon the ground of an ante-nuptial agreement, by which it is alleged that these choses in action became upon the marriage the absolute property of the husband, and now should pass to his representatives.
The agreement relied upon in the answer not being in writing, cannot be set up as an objection to the title of the plaintiff unless there is something in the circumstances of the case which will relieve it from the operation of the statute of frauds, which declares that no action shall be brought whereby to charge to any person upon any agreement made in consideration of marriage, unless the agreement, or some memorandum or note thereof, shall be in writing and signed by the party, &c.
The circumstances relied upon here to save this case from the operation of the statute is part performance, and this part performance is the marriage itself and delivery of the bonds to the husband, those being the acts of performance set up in the answer. But it is clear and incontestable that the marriage itself standing alone is no part performance within this clause of the statute for reasons which are strongly stated in the case of Moutacute vs. Maxwell, 1 Peere Wms., 618. In that case it will be found that the circumstances supporting the promise which was made by the intended husband to the wife to allow
Supposing, therefore, that there was a parol contract between Mr. and Mrs. Crane prior to the marriage that these moneyed securities should in consideration of marriage become the property of the husband, and that the only act of performance is the marriage itself, it is clear upon authority, that if the agreement remains unexecuted, this Court has no power to decree its specific performance, in opposition to the statute of frauds. It is true, this is not a bill by the representatives of the husband asking the Court to decree an execution of this contract against the representatives of the wife, and resisted by them as an invasion of the statute of frauds, but to the bill of the representatives of the wife, praying to have these securities restored to them by the representatives of the husband the latter set up the parol agreement, which has been referred to, and seek protection under it; and the plaintiff, by exception, objects to this defence, and the testimony in support of it, upon the ground that it tends to establish an unexecuted parol agreement; and this, as it appears to me, presents the question wdiether the contract relied upon can bo proved by parol in opposition to the statute of frauds. It is undeniable, as has been already said, that upon our statute, and upon the
It is urged, however, that not only did the marriage take place pursuant to the contract, but the intended husband was put in possession of the securities, and. held them until the period of his death, in 1849; and the case of Duvall et al. vs. Gittings et al., 3 Gill, 138, is relied upon as showing that these circumstances are sufficient to take the case out of the statute. That case undoubtedly does prove that an agreement by parol made by a father with his daughter in consideration of her marriage, and as a marriage endowment, is founded on a valuable consideration, and that upon the consummation of the marriage, and the delivery of the possession of the property to the daughter, the case is taken out of the operation of the statute, and will be enforced in equity. In the case of Cannel vs. Buckle, 2 Peere Wms., 243, it was held by Lord Macclesfield, that a bond given by a woman to her intended husband, that in case of their marriage she would convey her land to him, would, after the marriage, be enforced in equity, though the bond is void at law, and this case is cited with approbation by Mr. Justice Story. 2 Story's Eq., sec. 739. The case of Acton vs. Peirce, 2 Vernon, 480, is to the same effect, and proves that a bond given to the wife by the husband before marriage, to leave her one thousand pounds, though extinguished at law by the marriage, will be enforced in equity, and numerous cases cited in the notes confirm this position.
Considering, therefore, the agreement as resting upon a valuable consideration, and that if in writing it would be enforced in a Court of Equity, and though unlike in some essential features, the case of Dugan vs. Gittings, it might be extricated from the operation of the statute of frauds if attended with some other circumstances which existed in that case, it remains to be seen whether the circumstances are the same in substance, because if substantially the same, a difference in detail or particulars cannot vary the principle applicable to them.
Conceding, however, that the circumstances are sufficiently strong to infer a mutual promise to marry, it is very clear that there is no evidence to hind the husband to the terms of the agreement, as stated by the wife to the witnesses. These terms were, that there was an agreement between her and Colonel Crane. “ That he, Colonel Crane, was to have all her bonds and notes; and that he was going to allow her the interest of them for pin money.” This is the proof of one witness. The other witness proves that Mrs. Gough said, “that she and Colonel Crane had made a bargain. Witness asked her what the bargain was; and she replied, that she had given all her notes for her money to Colonel Crane; and he promised to give her the interest of them as long as she lived.” Now, with regard to this part of the contract, which is unquestionably very material, because it essentially impaired, if it existed, the marital rights of the husband, there is no proof whatever other than the declarations of the woman made in the absence and out of the hearing of the husband. And it cannot therefore he pretended that, if the positions of these parties were changed, and she was asking the Court to enforce the contract,
The proof in this case, therefore, falls far short of the evidence in that of Dugan vs. Gittings, and I entertain a strong conviction that if the husband or the husband’s representatives were here as plaintiffs, asking this Court specifically to enforce the agreement, the application would be unsuccessful.
It has been repeatedly decided by this Court, and the principle is believed to be too firmly settled to be shaken or drawn
It is quite true that in this case the representatives of the husband did not come into the Court asking it to interfere actively to compel the specific performance of the contract set up in their answer. They are here as defendants, and seek to defend themselves against the claim asserted in the bill, upon the ground of an agreement, by which they insist that the property in dispute belongs to their testator; and it is urged, that upon a principle recognised by this Court, they will not under such circumstances be required to exhibit as strong a case as would bo required of them if they, as plaintiffs, were invoking the active interposition of the Court in their behalf. 2 Story’s Eq., secs. 769, 770, 771. If the plaintiff in this case was seeking to enforce the specific performance of a written contract against them, grounds of defence would be open in opposition to such application, which would not avail them if they as plaintiffs were asking the aid of the Court, because chancery when called upon to exert its extraordinary power to coerce the specific performance of contracts, acts with less restraint than when exercising its ordinary jurisdiction, and will not interfere, unless satisfied that the application is just and reasonable in all respects. Waters vs. Howard, 1 Maryland
But in this case the plaintiff is not asking the Court to enforce the specific execution of a contract made by the original parties, nor are the defendants attempting to defend themselves against any such claim by proof that the granting of the application would be contrary to the principles of justice. No application is made to the Court for the execution of its extraordinary jurisdiction, when it may or may not interfere, in the exercise of a sound but not unlicensed discretion, and when, freeing itself from those strict rules which usually prevail in the administration of justice, it may look at circumstances which otherwise it would not be at liberty to consider, and ascertain whether the demand made upon it is fair and reasonable in all respects, and act or refuse to act accordingly.
The plaintiff is not here asking the Court to enforce a contract between these parties. He comes before the Court upon a clear and acknowdedged title, not founded upon convention, but upon admitted law, and asks the Court to restore to him rights which by the law he is unquestionably entitled to. The defendants meet this demand by setting up a parol contract, which being by parol is void under the statute of frauds, and ask that they may be allowed to take shelter under it, because it has been in part performed. Now, it appears to me that under such circumstances, the defendants should be held to the same clear, definite, and unequivocal proof of the contract set up in the answer as would be required of them, if they, as plaintiffs, were asking for its specific performance. There surely is, in this case, no reason why the rule which requires that the identical contract laid in the bill shall be proved, when the operation of the ■ statute of frauds is sought to be avoided upon the ground of part performance, because, being presented in the answer, the plaintiff is deprived of the opportunity which
It is said, however, that the proof makes out a clear case of intention, and that this Court has the power and will cure the defect, and execute the contract according to the intention of the partios. There can be no doubt in this state, that chancery will receive parol proof to reform a written contract so as to make it correspond with the real intention of the parties, and then decree its specific execution as rectified. Moale vs. Buchanan., 11 G. & J., 314. Thus repudiating the doctrine that parol evidence of mistake could only be offered by the defendant to rehut an equity. But this is not a case in which parol evidence is offered to rectify a written contract upon the ground of fraud, surprise, or mistake. The contract here is by parol, and void; and if tho intention of the parties was over so clearly expressed, it would be no better. It would still be void for want of writing, and no reformation of it by this Court can make it otherwise. It follows, therefore, that in my opinion the defence cannot be maintained, and that the plaintiff must have relief if this Court has jurisdiction to give it to him.
The objection to the jurisdiction is for the first time taken at the hearing, and after the argument had commenced, and though I do not doom myself at liberty to disregard it on that ground, it certainly furnishes a reason for looking with some degree of disfavor upon it. Prior to the passage of the Act of 1841, ch. 163, an objection to tho jurisdiction of this Court might be taken in the Court of Appeals, though the defendant had wholly omitted to place his defence upon that ground in the Chancery Court, so that it frequently happened that parties who had meritorious claims if prosecuted in the proper forum, lost them by having an exception to the jurisdiction sprung for the first time in the Appellate Court, when, if tho objection should ho sustained, limitations or loss of evidence would be fatal to a recovery upon being compelled to sue at law. The Act referred to was to cure this evil; and though it does not apply to this Court, or require the defendant to object to its jurisdiction at any particular stage of the cause,
The action of trover would only enable him to recover damages for the demand and refusal, and the plaintiff had no authority to make the demand until after he took out letters of administration in December, 1849, which would fall far short of his recovery under this bill if he succeeds in getting a decree. Fishwick vs. Sewell, 4 H. & J., 394. Besides, in the action of trover, he recovers only damages against the defendants, giving him a personal demand against them, which it must be obvious may be a much inferior security, to a decree which shall direct a specific delivery of the bonds and notes to the complainant. If replevin is brought, the complainant must give bond with surety for a large sum of money, which in many cases may be extremely inconvenient, and in some impossible; besides, that it would be requiring of an administrator to assume a personal responsibility, which should not be lightly demanded of him. This circumstance, it will be seen, had some weight attached to it in the case of Hughes vs. Jones, already referred to. Besides, even if replevin were brought, and the notes under it delivered to the complainant, the defendant upon
In White’s Equity Cases, 65, Law Lib., 545, many cases are collected establishing the principle that a Court of Equity will decree a specific delivery up of deeds or writings to the persons legally entitled to them; and in Jackson vs. Butler, 2 Atk., 306, where mortgage deeds delivered to a person for the purpose of receiving the principal arid interest due on them had been pawned by him, were decreed to be délivered up by the pawnee, Lord Hardwicke observing, that the plaintiff might have had an action of trover, but then he could only have had damages for the detaining, but not the deeds themselves, and therefore he was right in bringing a bill in equity for the recovery of his deeds.
Under all the circumstances of the case, therefore, I shall decree the specific delivery of these notes. It appears to me at least doubtful whether the plaintiff has that plain, adequate, and complete remedy at law which will preclude the interposition in his favor of this Court; and seeing that the objection was not made until after the argument of the cause had commenced, which, though not of itself a sufficient reason for refusing altogether to listen to it, is a reason why the Court should lean against it, and I am not disposed now to yield to it. But though the decree will bo for the plaintiff, the costs will not be thrown upon the defendants, who in resisting the claim made upon them, acted in the proper discharge of their duty.
[An appeal was taken in this ease, which is still pending.]