59 Conn. 117 | Conn. | 1890
Lead Opinion
The facts material to the issue in this case are these:—
[The facts being fully stated, (ante p. 120,) the statement of them by the judge is omitted.]
The plaintiff claimed in his complaint—1st, pecuniary damages; 2d, a reformation of the deed from Mrs. Haussman to the attorney, so as to join Mr. Haussman as grantor with his wife; 3d, the removal of the cloud on the plaintiff’s title by commanding the defendants to convey to Mr. Haussman any title or interest in the premises which they may have; and 4th, such other and further relief as to equity may appertain. The question is, whether by this action there is a remedy for those who by the aforesaid mistake have been deprived of an estate which was by both parties intended for them, and which but for such mistake they would have received.
It is scarcely possible that the case could be made which would present clearer or stronger equities, and it would seem that the consequences of such a mistake should be relieved against unless there are insurmountable obstacles in the way, and a court of equity should be astute and diligent in its efforts to prevent such manifest injustice.
The underlying question in the case is, whether the promise by Mrs. Haussman to reconvey the property was valid. That the legal and equitable title, subject to the reserved life estate in Mr. Haussman, was vested in her, is conceded. Indeed the defendants claim and derive whatever title or interest they possess in the property, through the deed from Mr. Haussman to his wife, which was made pursuant to the agreement between them, a part of which was the promise of Mrs. Haussman to reconvey.
That husband and wife may during coverture make contracts for the -conveyance of property between themselves which will be good in equity, has long been settled both in Great Britain and here. The court will examine them with
The consideration for the promise of Mrs. Haussman was the conveyance to her, and the provision for her support secured by it. That it was valuable and adequate cannot be questioned, nor that it was made for the benefit of herself and her estate. It was reasonable and certain in its terms, and would not if executed interfere with the rights of creditors, and she might well have made the reconveyance in pursuance of it. If it was void at law, its validity in equity cannot now be doubted. Donovan’s Appeal from Probate, 41 Conn., 551 ; Hitchcock v. Kiely, id., 611.
It is said the property was not her sole and separate estate, and therefore her promise to reconvey was invalid. This objection has been practically disposed of in what is said respecting the validity of the promise. As the promise by which she obtained the conveyance was for the benefit of herself and her estate, it is unimportant whether the property to which it related was her sole and separate estate. The contract of a married woman for the benefit of herself or her estate is binding in equity, and the estate affected by it need not be held by her to her sole and separate use. See authorities last above cited.
The statute of frauds is also interposed as a defence. If this was a contract relating to the sale of land, and therefore originally within the statute, it was part of an agreement which had been fully performed by the other contracting party to it, and therefore taken from its operation. It is not objectionable for the reason that the promise was not to be performed within a year. No time for performance was stipulated, and it might have been made at any time. That statute has no application to this case. Hayden v. Denslow, 27 Conn., 341 ; 1 Rev. Swift’s Dig., 255, and cases cited.
The analogy between that case and this is very striking, and the principle which the court there applied seems directly applicable to the facts here.
It is said that the complaint alleges no request to reconvey—that such a request was a condition precedent to the plaintiff’s right to a reconveyance—that it should have been alleged, and because it was not, no evidence to prove it was admissible—and that to the admission of such evidence objection was duly made.
Ordinarily such an allegation would be necessary, but it appears that Mrs. Haussman was willing and attempted to make, and supposed she had made, a proper conveyance. If no request was made, there was such an attempted performance by her, by acts which in their order were subsequent to a request, that she must be held to have waived it, and the waiver will have the same operation and effect against those who stand in her place as against herself. The defendants are claiming the property by inheritance from her,
That a request to reeonvey was in fact made by Mr. Haussman is found by the court, but under the circumstances we consider it entirely immaterial.
It is further said that the husband did not offer to join with his wife in a reconveyance. This is true, and in his non-joinder consists the mistake sought to be relieved against. He was willing to join and would have done so but for the erroneous legal advice by his attorney, in whom he confided and on whose judgment he was justified in relying. If the non-joinder and the mistake which occasioned it can be remedied, we think the omission of the offer to join too technical and unimportant to be allowed to prevent the court from doing equity when it is clearly demanded and should be done unless there are substantial reasons to the contrary.
It is also urged that the agreement between the parties contradicts, or is inconsistent with, the deed from Mr. Haussman, because it is alleged in the complaint that the consideration was the promise of Mrs. Haussman to reconvey, whereas in the deed it was stated to be of a pecuniary character.
It has been often decided by this court, and is as well settled by its repeated adjudications as any question can be, that when the real consideration for a conveyance is different from that expressed in the deed it may be shown by parol, and the variance does not impair the validity or change the effect of the conveyance.
The contract which was the consideration for the deed was not intended to be reduced to writing or incorporated in the deed, and the deed was only given in pursuance and partexe
It is said also that the agreement to reconvey is inconsistent with the life estate reserved in the deed. The promise of Mrs. Haussman to reconvey the estate was simply an agreement to reeonvey what had been previously conveyed to her. She could have done nothing more, and it is obvious that nothing else was contemplated, or promised, or understood by the parties to be promised.
It is also said that it is inconsistent with the use and be-hoof, and the covenant of non-claim, contained in the deed. These are objections of a similar character with the last, and like that rest on no substantial foundation. The use and behoof of the grantee, and the non-claim by the grantor, relate only to the quantity and character of the estate conveyed, and have no connection with or reference to any interest in the premises which was reserved.
The further claim is made that the deed from Mrs. Haussman was a voluntary conveyance, and for that reason a court of equity will not relieve. There was a good and valuable consideration for the deed in the title to and use of the property she received from Mr. Haussman under the agreement. She does not appear to have been indebted, no creditors were defrauded or prejudiced, and the claim that it was voluntary is wholly unsupported.
It is also insisted that no judgment can be rendered against the defendant Erwin Larens, because he is a non-resident of the state, and no service of the complaint was made on him.
He appeared by counsel, and, without interposing any objection to the jurisdiction of the court, pleaded to the merits of the case. He waived service by voluntarily submitting to the jurisdiction, and as the property involved in this issue is situated in this state, and within the jurisdiction of its courts,
It is claimed further that the deed by Mrs. Haussman was void, and that a court of equity has no power to give it vitality and force. This may be so, but the court may look through the deed to the contract back of it, and enforce that, provided it is valid. Goodman v. Randall, 44 Conn., 321.
Some remarks in the opinion of the court in the case of Dickinson v. Glenney, 27 Conn., 104, on which the defendants rely, at first sight appear to be at variance with that doctrine. The court was dealing in that case with a deed which was purely voluntary, and wholly without consideration, and which failed of having been properly executed by the mere ignorance of the parties with respect to the necessary legal formalities, and which had no valid contract behind it which could have been enforced. The parties had not the excuse of having been misled by the mistaken judgment of a legal adviser in whom they properly trusted, and the accident or mistake consisted wholly in their ignorance of the law, which they took no pains to prevent.
Toward the close of the opinion the court, by Storrs, C. J., say, on p. 112 :—“ It sometimes happens that where equity is compelled to yield to the absolute requirements of law restraining its efficacy in reforming agreements, some other agreement behind the defective contract may exist of which equity can lay hold, and thus indirectly, though in strict conformity with established principles, afford a remedy for the deficiency. A defective deed is sometimes treated practically as an executory contract for the sale of lands and its execution is decreed. We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but rather belongs to the branch of equity jurisprudence which relates to the specific performance of contracts— to the performance of contracts of -which the defective instrument is the evidence or memorandum. In the present case the principle will not avail the petitioners. If they resort to an agreement lying back of the deed, they will bring
That case was decided prior to the statute of 1872 giving a remedy at law against married women upon contracts made by them for the benefit of themselves or their estates, and before the many judicial decisions and statutory provisions which have since greatly enlarged the capacity of married women with respect to their property and rights, and extended their remedies and liabilities upon their contracts. This has necessarily carried with it a corresponding enlargement of the jurisdiction of courts, both of law and equity, with respect to them and. their estates. The reasoning of the opinion was well adapted to the facts of that case and the law as it then existed. But we think we may now well hold, without modifying that opinion except so far' as the difference in the facts and the changes in the law necessarily produce that effect, that the defendants are not equitably entitled to retain the estate, and that such relief should be granted as it is competent for a court of equity to give.
In the view we have taken of the case it seems entirely unimportant whether the deed from Mr. Haussman raised a trust of any kind for the benefit of himself or his heirs; and we discover nothing in the conduct of Mrs. Haussman, or in the relations of the parties, which we think tends to establish actual or constructive fraud. We think the arm of equity is long enough to reach the injustice we are endeavoring to prevent, and that it can be done without violence to established principles.
As the complaint is framed however, and as the record now stands, we think there are serious difficulties in the way of advising the Superior Court to render a judgment for the plaintiff. We do not see how, since the decease of Mr. Haussman, we can properly advise that the deed from Mrs. Haussman to the attorney be reformed so as to join
The heirs at law of Mr. Haussman are now the only parties properly entitled to relief. They have n ot since his death been made parties to the action, and are not regularly before the court or legally asking for relief. It is true that the death of Mr. Haussman has been suggested on the record and that his administrator has entered to prosecute the action. We do not see how he is entitled in his representative character to relief, or to a judgment for the benefit of the heirs. If it was an action at law to recover the possession of the estate under Gen. Statutes, § 1012, there might be no difficulty; but the statute is in express terms limited to an action of disseisin, and we do not feel justified in extending it by analogy, though the object sought to be obtained in this case is similar to that provided for in the statute.
We think the case should be remanded to the Superior Court, where the plaintiff can ask liberty to file a supplemental complaint showing the interest of the heirs of Mr. Haussman in the subject matter, and making them parties, and by such additional averments as may be pertinent and proper, demand for them appropriate relief.
In this opinion Loomis, Torrance and Thayer, Js., concurred.
Dissenting Opinion
(dissenting.) This ease is reserved for the advice of this court. The facts are these. Jacob Haussman and Mary Haussman were married about the year 1867. Each had been married before and each had children by such former marriage. On the 11th dajr of December, 1885, Jacob, being then in feeble health and not expecting to outlive his wife, and intending to make a provision for her after his death, conveyed by a quit-claim deed the premises described in the complaint to an attorney-at-law
The Superior Court, upon evidence to which objection was made, but which was received notwithstanding, in order that all the questions might be reserved, found that the real consideration for the deed from Jacob to the attorney and from the attorney to Mary was a parol promise made by Mary to Jacob, prior to the making of those deeds, and unknown at the time to any other person, that she would re-eonvey the land to Jacob, through some third person, whenever he, Jacob, should request her to do so. It is found that sometime in July, 1888, Jacob did request her to re-convey the land to him, and that on the 26 th day of that month she undertook to comply with that request and made a release deed of the land to an attorney, which she herself signed and acknowledged and which was properly witnessed; but this deed was never executed jointly by her and her husband and was never executed or acknowledged by her husband at all. On the next day the attorney made a release deed of the same land to the husband, Jacob. Mary died soon thereafter. Neither Mary nor her husband knew at any time during her life that it was necessary to have the deed to the attorney executed jointly by herself and her husband. They were advised and believed that the deed she had made was a good and valid one to convey all her interest in the land to her husband.
The defendants in the case are the children of Mary Haussman by her former marriage. Since this suit was brought Jacob Haussman has died intestate. An administrator on his estate has been appointed, who has entered and is now prosecuting this action for the benefit of his children of a former marriage. So that as the case now stands the parties in interest are the heirs of Jacob Hauss
The claim for a judgment in damages is not pressed.
The plaintiff’s first claim for relief is, that the deed from Mary Haussman to the attorney may be reformed so as to join Jacob Haussman as a grantor with the said Mary Haussman, and that said Jacob be permitted and directed to execute the deed as a grantor. Jacob being now dead it is impossible to grant this prayer. But treating the case in this respect as though Jacob was still alive, we are met by the rule that where a deed or other written contract is defective in some particular required by statute, it cannot be reformed. In Story’s Eq. Jur., sect. 177, it is said:—“And there are other cases of the defective execution of powers where equity will not interfere; as for instance, in regard to powers which are in their nature statutable, where equity must follow the law be the consideration ever so meritorious. Thus the power of a tenant in tail to make leases under a statute, if not executed in the requisite form prescribed by the statute, will not be made available in equity, however meritorious the consideration may be. And indeed it maybe stated as generally, although not universally true, that the remedial power of-courts of equity does not extend to the supplying of any circumstance for the want of which the legislature has declared the instrument void; for otherwise equity would in effect defeat the very policy of the legislative enactments.” Bright v. Boyd, 1 Story, 478 ; Hibbert v. Rolleston, 8 Brown Ch., 571. This doctrine has been recognized and acted upon to its full extent by this court in Dickinson v. Glenney, 27 Conn., 104. In that case Maria S. Dickinson, the wife of Isaac Dickinson, united with her husband in the execution of an instrument intended as a conveyance of her land to a third party, who at the same time executed to the said Isaac a conveyance of the same, the object being to transfer the title from her to her husband. The deed executed by herself and her husband was defective in not being acknowledged by him, being in all respects her deed except in the mere signing of the same
That case is conclusive of the present one in respect to the first claim for relief. The reformation of any written contract implies that the agreement between the parties is executed. It is the correction of an executed agreement and not the performance of an executory one. But if we regard the promise of Mrs. Haussman as an executory one on her part to convey her land, the difficulty is only increased, for the executory contract of a married woman to convey land is wholly void. No court can give effect to such an agreement- by decreeing its fulfillment. Gore v. Carl, 47 Conn., 291 ; Annan v. Merritt, 13 id., 478; Dickinson v. Glenney, 27 Conn., supra ; Martin v. Dwelly, 6 Wend., 9 ; Purcell v. Goshorn, 17 Ohio, 105 ; Carr v. Williams, 10 Ohio, 305.
The plaintiff also claims to recover on the ground of a trust. All possible trusts, whether of real or personal estate, may be divided into two general classes, express trusts and implied ones. Pomeroy’s Equity Jurisprudence, section 152. Those created by the intentional acts of the parties are express. Those created by operation of law, where the acts of the parties may have had no intentional reference to any trust, are implied. At section 155 the latter class is subdivided into resulting and constructive trusts. If it be granted that Mrs. Haussman was under no disability by reason of her coverture to make contracts concerning land, it must be conceded that the conveyance of the premises to her by Mr. Haussman on her promise to re-convey upon request and her promise to do so, apparently created an express trust in the
Pomeroy’s Equity Jurisprudence, section 155, says:— “All instances of constructive trusts may be referred to what equity denominates fraud, actual or constructive, including acts or omissions in violation of fiduciary obligation.” In another part of the same section it says that constructive trusts are sometimes called trusts ex maleficio.
The plaintiff’s brief states his claim in this part of the ease as follows :—“ The facts show constructive fraud from which equity raises a constructive trust, owing to the confidential relation of husband and wife ; ” and gives as authority for this proposition, Brison v. Brison, 75 California, 525. The civil code of California provides that “ actual fraud consists * * * in any of the following acts; * * * —a promise mfide without any intention of performing it.” Another section of that code says that “ either husband or wife may enter into any engagement or transaction with the other or
I look in vaiu through this case for any indication of fraud or want of good faith on the part of Mrs. Haussman. On the contrary the facts show that she made the promise to re-convey honestly and with the full intention to perform it. She did perform it so far as performance depended on her. It is well settled that the failure to perform a promise honestly made is not fraud. Feeney v. Howard, 79 Cal., 525 ; Perry v. McHenry, 18 Ill., 227 ; Wheeler v. Reynolds, 66 N.
I think the Superior Court should be advised to dismiss the complaint.
