193 P. 144 | Cal. Ct. App. | 1920
Plaintiff brought this action against her husband seeking specific performance of an alleged oral antenuptial agreement to convey real and personal property after marriage. A demurrer to the amended complaint was sustained and plaintiff, declining to further amend, judgment was entered for the defendant, from which plaintiff appeals.
It is alleged in the amended complaint that the defendant is seventy-two years of age, and possesses property of the value of more than five million dollars. Between April 30 and December 24, 1918, the defendant importuned plaintiff to marry him, and offered, if she would do so, to convey to her property worth six hundred thousand dollars. To all these proposals the plaintiff turned a deaf ear. While the plaintiff was absent from the state of California, the defendant, pursuant to a design, and intention to compel the plaintiff to marry him, moved himself and his personal belongings into the residence of plaintiff in Los Angeles, and there took up his abode. He caused to be inserted and published in various newspapers statements to the effect that the plaintiff and himself were to be married about Christmas time, and caused copies of a photograph of plaintiff, which he took without her knowledge or consent from her residence, to be published in connection with these notices.
Finally, so it is alleged, the defendant, by pretending he was seriously ill, induced the plaintiff to go to him at *208 Santa Barbara, where he then was. On her arrival there she found that the defendant was not ill, but had so represented himself, in order to cause her to come to him. She then learned for the first time of the stories the defendant had published in the newspapers concerning the approaching nuptials. She discovered that he had also invited guests to be present at a certain time, had provided a wedding dinner, secured a marriage license, and had arranged for a minister to be present to perform the wedding ceremony. Plaintiff still persisted in her refusal to marry defendant. He thereupon stated that he would be ruined politically, that his social standing would be impaired, he would be disgraced and humiliated, and his opportunity to represent the state of California in the United States Senate, which he asserted had been entirely arranged and determined upon between himself and the Governor of the state, would thereby be lost to him. He promised that if plaintiff would marry him he would give her, as her own, a valuable diamond ring, a diamond stickpin, an ermine coat, and an automobile. At the same time defendant orally reiterated his promises that, if plaintiff would marry him, he would immediately after the marriage convey to her the real property formerly agreed to be given to her, and would erect an imposing residence on land owned by plaintiff. He promised, also, to purchase other land for her, and erect thereon an apartment house, at a cost of one hundred thousand dollars. He further agreed to pay off and discharge a sixty thousand dollar mortgage upon property belonging to the plaintiff.
Believing, and being deceived by all of these representations, so plaintiff alleges, she relied upon the oral promises of the defendant to transfer and convey the property to her, and married him upon the day set.
As a part of said oral antenuptial agreement, it is further alleged, defendant promised to execute and deliver to plaintiff his last will and testament, devising and bequeathing certain real and personal property to her. In apparent keeping with this promise defendant did, on the second day of January, 1919, execute and deliver to the plaintiff a will, which is set out in the complaint, whereby he devised and bequeathed to her real and personal property, and wherein he nominated plaintiff sole executrix without bonds. *209 In no other respects have the antenuptial promises been carried out. On the contrary, so it is alleged, the defendant has refused to perform his agreement. Plaintiff seeks a decree requiring the defendant to transfer, convey, and assign to her the real and personal property which she alleges he agreed to give to her, and asks for the appointment of a receiver to carry out its provisions. She further asks that, in case specific performance cannot be decreed as to any of said property, she be awarded damages to the extent of its value. The demurrer was both general and special, but the principal question to be considered on this appeal is the sufficiency of the allegations of the amended complaint, in view of the lower court's determination that it does not contain facts sufficient to state a cause of action. The conclusion we have reached upon that point is determinative of the entire case.
[1] According to the allegations of the amended complaint, the plaintiff and defendant "by and through said oral antenuptial agreement, . . . and pursuant to the defined terms thereof, as stated by said defendant to said plaintiff . . . were to effect a disposition of defendant's properties in plaintiff's favor, so that upon the assumption of the marital relation, said property rights of said plaintiff should become fixed and determined." Plaintiff has thereby pleaded an agreement required by the statute to be in writing. All contracts for marriage settlements must be in writing, and executed and acknowledged, or proved, in like manner as a grant of land is required to be executed and acknowledged or proved. (Civ. Code, sec. 178) It is equally clear that the agreement alleged by the plaintiff to have been made by the defendant, and pleaded as an antenuptial contract, is not only one required to be in writing, but also falls within the inhibition of the statute of frauds, and is, therefore, invalid. Agreements made upon consideration of marriage, other than mutual promises to marry, and agreements to devise or bequeath any property, or make any provision for any person by will, are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or his agent. (Civ. Code, sec.
[3] The subsequent making of defendant's will in favor of the plaintiff, following the marriage, was not such part performance of the oral agreement to make such will as to take the alleged contract out of the statute of frauds. (Gould v.Mansfield,
Conceding that the marriage of the parties was not, of itself, sufficient part performance of the parol contract to convey the property in consideration of the marriage, the appellant yet seeks to avoid the interposition of the bar of the statute, upon the ground of equitable fraud. Her marriage, she contends, was brought about by the actual fraud of the defendant, and she takes the position that the acts, representations, and promises of the defendant induced her to so irretrievably change her condition as to afford her ground for relief in equity. Her allegation is that her marriage with the defendant was procured by artifice and fraud and upon the faith that the settlement of the property rights would be made. Her contention, therefore, is that the defendant should be required to make good his agreement, and not permitted to defeat it by pleading the bar of the statute. Peek v. Peek,
The particular language of the opinion of interest in this discussion is found in the following quotation: "We do not say that the mere fraudulent omission to have an agreement reduced to writing would of itself be ground for specifically enforcing the agreement. But where the fraudulent contrivance induces an irretrievable change of position, equity will enforce the agreement. And the marriage brought about by the fraudulent contrivance is a change of position within the meaning of the rule. In Glass v. Hulbert,
When read in the light of what we believe to be the only reasonable and true rule, as announced by the chancellor, and having in mind the actual facts upon which the decision was based, the case of Peek v. Peek, supra, loses the weight of authority appellant would impart to it. It ceases to have compelling force in the instant case, in which, as we shall presently show, the circumstances relied upon by the appellant did not amount to such fraud as to bring the situation of the parties within the purview of a court of equity. To give that case, disassociated from its facts, the full construction sought by the appellant would have the practical effect of making it an authority for holding that marriage is such part performance of oral antenuptial agreements as to remove them from the operation of the statute of frauds, which is not the law. We think the broad application of the doctrine contended for by appellant is not warranted by the principle or sustained by the authorities.
The other cases, relied upon by the appellant, are either based upon facts, as was the Peek case, bringing the decisions within the application of the doctrine announced by the English chancellor, or they may be otherwise distinguished from the case at bar. In each there has been something more than mere failure, or refusal upon the part of the promisor, to execute an oral antenuptial agreement for a property settlement. InPetty v. Petty, 43 Ky. (4 B. Mon.) 215, [39 Am. Dec. 501], the wife charged that her husband promised that immediately after marriage he would settle on her at his death certain property, on which promise she closed the contract of marriage. A few days after the marriage her husband disclosed to her that he had been induced to and had, by an irrevocable deed of gift executed just before the marriage, made over all of his property to his children by a former marriage. On appeal the court held that it had no power to enforce the marriage settlement, but upon the theory that the transfer was a fraud upon the dower right of the wife, allowed by the laws of that state, it directed the entry of a decree annulling the deed for the lands, so far as the same affected or encumbered the complainant's right to dower thereon. In Offutt v. Offutt,
[4] From our examination of the foregoing, and many other authorities, we are convinced that the distinguishing feature of the case at bar did not amount to such actual fraud as to entitle the plaintiff to any equitable relief. The facts present nothing more than the mere omission to put the contract into writing before the marriage and a failure to perform it thereafter. It does not appear that the defendant in any manner prevented the due execution of a valid marriage settlement in writing, such as would have satisfied the statute. It is not alleged, or contended, that the plaintiff was induced through deceit, false statement, or concealment of the defendant to waive a written agreement and rely upon the promises in parol, before entering into the marriage relation. (2 Pomeroy's Equity Jurisprudence, 4th ed., par. 921.) For aught that appears in the amended complaint, the defendant may have entered into his engagements in the highest good faith, and with every good intention, and with full ability to perform. Granting, for the purpose of the discussion, that the plaintiff may have been led into the marriage by the Lochinvar courtship of the aged swain, the inducement went only to that relation. By no fraud, trick, or device, so far as the record discloses, was she prevented from securing what the law sanctions, a written marriage settlement. Equity, therefore, can afford her no relief.
The judgment is affirmed.
Kinsell, J., pro tem., and Richards, J., concurred. *217