| Ill. | Oct 24, 1904
delivered the opinion of the court:
It is undoubtedly the law that a husband, except as to his creditors, if he sees fit, may convey to his wife the whole or any part of his property, and that if the transaction is free from fraud or duress she may hold the same as against the husband or his heirs. If, however, the transfer is procured through the fraud of the wife, equity has the power to set aside the conveyance and to restore the property to the husband.
In Stone v. Wood, 85 Ill. 603" date_filed="1877-09-15" court="Ill." case_name="Stone v. Wood">85 Ill. 603, Wood and his wife lived in Galesburg. He went to Bloomington to obtain work. His wife wrote him, representing to him if he would convey his homestead to her she would sell it for $1800, pay his debts, go where he was and turn over to him the balance remaining from the sale of the property. Wood conveyed the title to her through a third party, whereupon she conveyed the property to Stone, who held it for her benefit. The court, upon bill filed by Wood, decreed that the property be restored to the husband. On page 609 the court said: “There can be no doubt that a man may have relief from such frauds as this, in equity, against his wife. So may the wife against the husband. There is nothing in the marriage relation that can prohibit it. If it were not so, there would be a wrong without a remedy. That courts are seldom called on in such cases does not militate against the rule. It is a fraud that is not sanctified by that relation. When either party becomes untrue to his or her vows and marital duties and by fraud obtains an unjust advantage of the other, equity will as readily afford relief as it will between other persons not occupying that relation.”
In Bayse v. Bayse, 152 Ind. 172" date_filed="1899-02-14" court="Ind." case_name="Basye v. Basye">152 Ind. 172, (52 N. E. Rep. 797,) it was held that a voluntary conveyance by a husband to his wife, fraudulently procured by the wife through shamming affection for him and promising to be a dutiful wife, with the intent of abandoning him after obtaining such conveyance, would be set aside in equity. To the same effect is Brison v. Brison, 75 Cal. 252, Meldrum v. Meldrum, 15 Col. 478, and Turner v. Turner, 44 Mo. 539. In Turner v. Turner, supra, the court said: “A wife in whom her husband reposed the strictest confidence might well be calculated to exert an influence on his mind and obtain the title to property in her own name. If it was done with an honest intent to secure a home for herself and her offspring, the transaction would not only be legal, but praiseworthy; but if the influence was exerted with the design of despoiling the husband and then abandoning him, the law would condemn and stigmatize the transaction.”
The controlling question in this case is, did defendant in error obtain the deed to the Colorado avenue property in good faith, or did she do so by means of false promises and representations made to plaintiff in error, with the design of obtaining title to said property and then- abandoning him ? The plaintiff in error appears to have been greatly infatuated with defendant in error, and ready to make any sacrifice to induce her to marry him and after their marriage to live with him in peace. She, on the contrary, appears to have been actuated only by a desire to possess herself of his property. Before the marriage she obtained from him $50 in cash, a seal skin coat which cost $300, and a diamond ring which cost $100. When the marriage ceremony was about to be performed she expressed dissatisfaction with his offer to convey to her unencumbered real estate worth $2500, and threatened to abandon the marriage unless he would convey to her property worth $8000,—nearly one-half his estate. After conferring with the priest and deliberating upon the matter she took into her possession the deed conveying to her a one-half interest in the farm and the marriage ceremony was performed. She then abandoned the plaintiff in error’s home, returned to Chicago and refused to cohabit with him until he conveyed to her the Colorado avenue property. Relying upon her promises to return to Indiana with him and be a faithful wife, the plaintiff in error conveyed to her the said property. After obtaining title to the Colorado avenue property the defendant in error lived with the plaintiff in error three days as his wife, and then, without any apparent cause, severed their marital relations, but remained upon the farm a part of the time until the following fall, when she returned to the city. The conduct of the plaintiff in error towards the defendant in error appears to have been honorable, while that of the defendant in error towards plaintiff in error was most reprehensible and should receive the most severe condemnation, and must be held, in law, to amount to a fraud upon the rights of plaintiff in error in obtaining title to the Colorado avenue property. In Brison v. Brison, supra, it was said: “The plaintiff was induced to make the deed by the confidence which he had in his wife, and the belief thereby engendered that she would perform her promise. But - for that he would not have made it. The betrayal of such confidence is strictly fraudulent and giveé rise to a constructive trust. This is independent of any element 'of actual fraud.” As was well said by the Supreme Court of Indiana in Bayse v. Bayse, supra: “Married women have been emancipated by the statutes of this State. They must respond for frauds practiced upon their husbands, as well as for those upon others.” To permit the defendant in error to hold the title to said property, as against the plaintiff in error, under the circumstances of this case as disclosed by this record, would be to shock the sense of justice of a court of conscience.
The decree of the circuit court will be reversed and the cause remanded to that court, with directions to enter a decree setting aside and annulling the deed from plaintiff in error to defendant in error for the Colorado avenue prop-61 ^
Reversed and remanded, with directions.
Mr. Justice Wiricin, dissenting.