Lippy v. Masonheimer

| Md. | Dec 15, 1856

Eccleston, J.,

delivered the opinion of this court.

The motion to dismiss must be overruled upon the authority of Oliver vs. Palmer & Hamilton, 11 Gill & Johns., 137. There appeals had been taken from the original decree, and from the order of the court dismissing the petition which asked to have the enrollment of the decree opened. And motions were made to dismiss both appeals. On page 141, it will be seen, the counsel for the appellees there insist: “That inasmuch as the appellants were in default, in failing to appear and answer, and the said decree was obtained in virtue of the provisions of the act of 1820, chapter 161, the defendants have no right to seek a reversal thereof, by appeal in the mode now attempted.” The court however overruled both motions.

In the case before us the motion to dismiss takes the ground that the defendant has no right of appeal, “because he did not file an answer in the court below, and an interlocutory decree was passed under the act of 1820, ch. 161, in pursuance of which the cause was conducted to final decree.”

If it was proper to overrule both motions in the case referred to, it is difficult to perceive why the present motion should not share the same fate.

On the 1st of September 183T, in consequence of various unhappy differences between George Lippy and his wife, Barbara, they entered into a written agreement under seal, in which they agreed to live separately and apart from each other during the remainder of their lives : the husband agreeing to allow the wife “for her maintenance and support, and for her property, in as full and ample a manner as if she were a feme sole, forever,” certain real estate which had been devised to her by her father, and also four hundred dollars worth of certain kinds of personal property; and the wife agreeing to relinquish all right, title and interest in the estate of the husband whether she survived him or not. This instrument was not acknowledged hy either party nor was it recorded. It is therefore merely an agreement between husband and wife for a separation, there being no trustees, no indemnity to the husband against the debts of the wife by any third person, and no consideration passing to the husband, through the instrumentality of any separate property of the wife.

Whether such a contract has any validity, even in a court of equity, is a question which has been much discussed, as will appear from the conflicting views of distinguished men, to be found in the authorities referred to in argument. But for the purposes of this case we need not decide which is the correct view of the subject.

The question for consideration is not, whether, under this agreement a court of equity should compel the husband to pay to the wife what he agreed to pay her for separate maintenance ; for it is conceded, that shortly after the execution of the contract, the property which the wife was to have under it, she became possessed of, and that the husband has never since interrupted her in the enjoyment of it. But the application is to perfect a title in the appellee, Masonheimer, to the real estate which the wife was to have for her separate maintenance; and which she has agreed to sell and has attempted to convey to him. The deed executed by her for that purpose cannot, under the circumstances, transfer a valid title, as is conceded on both sides. And the question to be decided, is, whether a court of equity will consummate the title.

To permit the sacred, important and peculiar relation created by marriage, to be virtually destroyed, by an agreement b,e.tween the parties themselves, which is to operate as a private divorce, has very properly been considered by very able jurists, to be contrary to the spirit and policy of the law. And such being the true character of the principal object and design of agreements for separation, when called upon to enforce any stipulation in regard to property, merely auxiliary to the separation, we are not disposed to go further than we are bound to go by the authority of adjudged cases.

We have seen that the instrument before us makes no provision to indemnify the husband against the debts of the wife. He, therefore, has a deep interest in preventing the real estate from being converted into money, thereby enabling the wife to dispose of it at her will and pleasure. By the arrangement, no regular deed or settlement has been executed, which confers authority upon any one to make an effectual conveyance of the estate, without the consent and participation of the husband in such conveyance, and as he refuses to give his consent, this court will not compel him to unite in perfecting the title sought to be obtained by the appellee under a sale from the wife.

The decree will therefore be reversed, and the bill dismissed with costs to the appellant in this court; for which purpose a decree will be signed.

Decree reversed and bill dismissed.