9 W. Va. 79 | W. Va. | 1876
Mary Marling and Elizabeth Marling, brought a suit, in chancery, in the. circuit court of Ohio-county, in 1873, against their father, Elijah Marling, to compel him to convey to them a certain farm, in that county. It appears that in 1845, Elijah Marling bought this farm of Hardesty, and it was conveyed to him; that, shortly there
“I sine all my interest and claim unto Mary Marling and Elizabeth Marling, the farm they now live on, coled the Harsty farm, as witness my hand and sel.
Elijah Mauling.”
The circuit court of Ohio county ordered Elijah Marling to execute, with special warranty of title, a deed of said farm to them. From this decree, Elijah Marling has appealed to this Court.
The question presented to this Court, for the first time is, whether a court of equity should furnish its aid in making effective a gift, of land, by a father to his child where the gift is evidenced by an unsealed instrument, executed by the father, and, formally, delivered to the child.
Where there is no consideration of any kind, the courts have decided that where a trust is, actually, created, and the relation of trustee and cestui que trust established, a court of equity will, in favor of a volunteer, enforce the execution of the trust; although it will not create a trust, or establish the relation of trustee and ces-tui que trust, by giving effect to an imperfect conveyance in favor of a volunteer, Ellison v. Ellison, 6 Ves. Jr. 656, 1 Ld. Cas. in Eq. 199. It has also been held that a declaration, by a party, that property shall be held, in trust, for the objects of his bounty, though unaccompanied by any deed or other act divesting himself of the legal estate, is an executive trust, and will be enforced ; and it the property is personal, such declaration may be by parol, without any writing. Pye, ex parte & Dubost, 18 Ves. Jr. 140; McFadden v. Jenkyns, 1 Hare 458; S. C. 1 Ph. 153. A court of equity, in such cases, not being governed by the analogy of uses, for a use could not arise by parol agreement, without a deed, except where the consideration is valuable—Jones v. Morley, 12 Mod. 161. When
In Watts v. Bullas, 1 P. Wms. 60, (a case found fault with by Lord Hardwick in Goring v. Nash, 3 Atk. 189) a voluntary conveyance to a brother of the half blood, defective, in law, Avas made good in equity. The Lord Keeper’s opinion .was that as a eestni que use, before the statute, in such case, could have compelled an execution
“I stated on a former occasion that, before the statute, the courts compelled the specific performance of agreements, for valuable or meritorious considerations; and they viewed meritorious considerations in a very favorable light, holding them to- include, not merely a wife or a child, but some collaterals, as a .brother, nephew or cousin. A covenant to stand seized was a mere contract or agreement by a person to settle or hold his estate for the benefit of his family; and a meritorious consideration alone, without a 'valuable consideration, was sufficient to support such a contract. Afterwards came the statute for transferring uses into possessions. That statute made no other change than that of transferring or turning the use into a possession, which carries the legaj right. ISTow in that view, the statute operated on the original - consideration. In the case of bargains and sales, the use is still raised, by reason of the ’ old doctrines ; money or rent was sufficient to raise such a use upon a bargain and sale, which was originally a contract for sale, in a lease executory. Equity, before the stat-
As rog-ir 1 í c ivemints to stand seized, they remain, as before! th" • atute, mere agreements to hold the estate-for th.; bn :'i r tin settlor’s family. In Watts v. Bullas, 1 P. Wms. 60., the Lord Keeper who had then, recently, co n- cu of a court of law, seemed inclined to ini part the opinions then formed into equity, and he enforced a ■ mvevanco in favor of a brother, of the half blood. ■' L >’’d PI irdwick found fault with that, and it, cer-lainly-wa • cirricd too far, butthe principle is correct, and there is no rea ion why equity should-not now Execute an agreement in the same manner, as, -before the statute, it would -have compelled an execution of the use, provided it be, within the proper limits: .for .instance, a provision for 'a wife or .child-, defective execution of powers are
“I have before me a contract, which I am bound to enforce, if there is a sufficient consideration. The consideration is such, as would enable the court to remedy even a defective settlement, where there is no contract. I think it, a fortiori, sufficient to sustain an actual contract, and I shall, therefore, decree a specific performance of the agreement.”
The authority of this case was, however, weakened, by
In the case of Thompson v. Thompson, 3 Miss., the court of appeals cancelled an instrument of writing, whereby a father gave to his children thirteen negroes? after his death, the negroes to remain in his possession. The instrument of writing was not under seal, and, though delivered, it was alleged, though not proven, that it was an imperfect paper to be held, during the pleasure of the donor. The court say that their decision would have been the same, had the instrument been a deed. In Taylor v. Taylor, 2 Humph. 597, the court set aside, as a deed, a sealed instrument, by .which he gave to his son certain slaves. It was witnessed and deposited in his trunk, with the declaration, made to several parties, that it should take effect at his death, but not before. The court declared that the instrument was inoperative, as a deed, but retained the case, with leave to the son, if
In Martin’s Admr. v. Rumsey, 5 Humph. 349, a deed of gift was found amongst the papers of a dead man, executed by him to his daughter, and witnessed: there was no evidence, from his conduct or declarations, that he considered the act complete when he ' acknowledged the deed; the court, therefore, held the property to belong to the administrator of the father. But in the case of Graham & Co. v. Lambert, 5 Humph. 595, a father executed to his daughter an absolute conveyance of all his negroes and other personal property, retaining a life estate to himself; at the same time, he took from her a bond, to lier brothers and sisters, agreeing to divide this property, equally, among them, herself included, at her father’s death. He, subsequently, surrendered this bond to her, she retaining the deed : Held that the bond and deed, together, constituted a conveyance and settlement of his. negroes and other property, on all his children, which is supported by the consideration of love and affection ; and the bond could not be surrendered without the consent of those for whose use it ivas made.
In re Campbell’s estate, 7 Barr 101, an uncle directed a promissory note to him of a nephew, to be given up or destroyed, but it was never done: held, that the nephew was not, thereby, released from the payment of the debt, to the uncle’s administrator And in Henderson’s Admr. v. Henderson, 21 Mo. 379, the same was held, when a father had directed his son’s note to be surrendered, but ivhich had notbeen done. In Kennedy’s Exor. v. Ware, 1 Barr 445, Chief Justice Gibon, in delivering the opinion of the court, held that an equitable assignment of a chose in acr tion, in consideration of natural love and affection, is void; but the same Judge in Dennison v. Goehring, 7 Barr. 179, says, “But even if we were to take the deed to be not a conveyance of the legal estate in trust, but an executory agreement to' create a trust, it is far from clear, that the result would be different. Natural affection)
In Pennington’s Admr. v. Gitting’s Exor., 2 Gill. and Johns. 208, it was held that a certificate of bank stock, endorsed by' a father and delivered to a son, Would not sustain a bill in equity for'the transfer of the stock. The court says, “The' consideration of natural love and affection is sufficient in a deed but a mere executory contract, that requires á consideration, cannot be supported on the consideration of blood or natural love and affection ; there must be something more ; a valuable'consideration, or it is not good and cannot be enforced at law, but may be broken at the will of the party. And being void, at law, chancery cannot sustain and enforce it.” But in the case of Haines v. Haines, 4 Md. Chy. Decissons 133, Johnson Chancellor seemed to consider, that a court of equity should deal favorably with an agreement to- convey land by a parent with a child, and it would be supported by a slight consideration, and, on'am appeal from his decision 6 Md. 435, the court of appeals of Maryland held that, where a father executed a written contract, under seal, whereby he agreed, in consideration of $5 received, to convey to his daughter a tract of one hundred and seventy acres of land, of which- he had put her in possession, a court of equity would, on her appli
In North Carolina, it is held that a deed, from a husband to a wife for slaves, cannot have the effect of vesting the title in her, yet it amounts to a declaration of trust in her favor, Huntly v. Huntly, 8 Ired. Eq. 250; Gainer v. Gainer, Busb. Eq. 1 The court, in the last case, quotes from Adam’s Equity, approvingly, “Although a promise made without a valuable consideration is void, yet if an intended gift, on meritorious consideration, be imperfectly executed, and if the intention remains unaltered, at the death of the donor there is an equity to.enforce it in favor of-his intention against persons claim-: ing by operation of law, without an equally meritorious elaim.”
In the case of Hayes v. Henshaw, 1 Sandf. Ch. 258, the Assistant "Vice Chancellor says, “covenants ’ and agreements, founded on a good consideration,, or oftentimes expressed on a meritorious consideration,, are however upheld and enforced, specifically, in this court. And it has been a. mooted question whether collateral consanguinity, as that of a brother, nephew; niece, &c., was not a meritorious considj-ration. I think it is now set-tied, upon authority, it \t not. In the case before us, (which was a voluntary, executory agreement, to convey to a niece) there was no- moral obligation, to provide fora wife, or children, or' a parent: and there was, therefore,.no’ such good or meritorious consideration as will induce this court to decree the performance of the covenant, in the sealed instrument, in questionbut he, with much difficulty, held this instrument and another executed at the same time, taken together, might be construed to constitute an executed trust, and, as such, he enforced them. And in Bunn v. Winthrop, 1 Johns. Ch. 329, the Chancellor says, “The grantor, a man of very large fortune, was bound, in reason and justice, to provide for his mistress, and child by her. The innocent offspring of criminal indulgence has a claim, for protection and support,.
In Kentucky, by a series of decisions, it is well settled, that a voluntary agreement, by a father with a child, to convey land will be specifically, executed. McIntire v. Hughes, 4 Bibb. 186; Mahan v. Mahan. 7 B. Mon. 579; Bright v. Bright, 8 B. Mon. 194. But in Buford’s Heirs v. McKee, 1 Dana 107, it was decided, that such a voluntary agreement in favor of a niece would not be specifically enforced. In McIntire v. Hughes, the court uses this language: “It is true a court of equity will not enforce the specific execution of a contract which is merely voluntary; but the obligation by Mclntire to his son is, evidently, not of that description. The relation between them, of father and son, is not only alleged in the bill, but is apparent, on the face of the obligation, and that relation, though not a valuable consideration, is deemed, in law, a good consideration.
Under the statute of uses, the proximity of blood, between the father and son, is sufficient to support a covenant by the former to stand seized for the use of the latter; and if so, prior to the statute, it must have been a sufficient consideration, to have created the use; for-the statute could only operate to transfer the possession to the .use, where there is an use- created. Now a use, prior to the statute, was similar to what is denominated a trust since. It gave to the cestui que use no right to the thing, but it gave him a right, in equity, to demand the thing. And prior to the statute, it was the common practice to resort to a court of chancery to enforce the execution of a use, as it still is to enforce the execution of a trust. The inference is, therefore, clear, that proximity of blood has-always been a sufficient consideration to warrant the interposition of a court of equity, where there was no other circumstance in the case which forbid such interposition.
In Darlington v. McCoole, 1 Leigh. 42, the contract, sought to be enforced, was a mere verbal one ; the court says, “There is, in this case, neither a valuable, nor a meritorious, consideration ; without one of which, a court of equity will not aid a defective conveyance, much less enforce a bare agreement, even were it in writing;” though this is an obiter dictum, it would seem from it that the court thought that, if there was a meritorious consideration, the court would enforce a contract in writing, though not under seal. In Jones and Wife v. Obenchain, 10 Gratt. 250, it was held that a deed from a husband to his wife, conveying to her all his property, real and personal, under circumstances showing a strong meritorious consideration, should be set up, in equity, against a nephew, the heir at law, of the grantor.
The case of Shepard v. Shepard, 7 Johns. Ch. 63, is referred to by the court as a similar case, and we have seen there are two similar cases, which have been decided, in like manner; in North Carolina. In the case of Caldwell v. Williams, Bailey Eq. 175, Chancellor Harper says, “Borne agreements which are termed voluntary are executed in this court, when made in favor of a wife or children; but they are always agreements, by deed or covenants ; agreements under seal, which imports a consideration, and renders them valid, at law. There is no instance of an agreement being enforced, which is not only voluntarily, in the equity sense of the word, but is also nudum pactum.” But this was a mere obiter dictum, as the case before the court was a mere verbal contract.
It would, obviously, be impossible to reconcile these American cases. But we may, safely, say that the prin
The question whether a voluntary executory agreement, based on a meritorious consideration, must, necessarily, be under seal before it will be enforced, specifically, by a court of equity, seems to be undecided. W& propose now to consider this question. The argument,, which makes the aid furnished by a court of equity, in such cases, to depend upon whether the instrument is-sealed or unsealed, is thus presented by Lewin in his Treatise on Trusts, 95, “In regard to covenants to. stand seized to-uses, it is evident that mere meritorious consideration was not sufficient ground to attract the jurisdiction of the court; for no use would have arisen .in favor of a wife or child, unless there had been a covenant. Lord Chief Justice Holt said (12 Mod. 161). if a use.were without transmutation of possession, the use then does not arise by virtue of any declaration or appointment, but there must be some precedent obligation, to oblige the party declaring the use, which must be founded on some consideration ; for a use having its foundation on grounds of equity, could not be relieved in chancery without transmutation of possession, or an agreement founded on a consideration — and therefore, if bargain and sale was made of a man’s land, on payment of the money, the use-would have arisen, without deed, by parol; but if the use was in consideration of blood, then it would not arise by parol agreement without a deed; because that agreement was not an obligatory agreement — it wanted a consideration, and therefore, to make it an obliging agreement, there was necessity of a deed. Thus if equity be governed by a strict analogy of uses, the court cannot act upon meritorious consideration, when the contract is by parol, though when the contract is under seal the analogy applies.” This reasoning is unsatisfactory ; for a court of equity, has, in many instances, as we have seen, not been governed by a strict analogy of uses. For we have seen that a mere declaration in writing, and in
The case of Ellis v. Nimmo, supra, is an example of a voluntary contract, based on a meritorious consideration, not under seal, and, therefore, a nudum pactum, or void at law, being specifically executed in equity: And Lord Sugden, in delivering his well considered opinion makes no allusion to the instrument, on which he was acting, being unsealed. He seemed to regard it as immaterial, whether it was sealed or unsealed. The two cases cited from the North Carolina reports of Huntly v. Huntly, and Garner v. Garner, supra; also Shepard v. Shepard, and Jones and Wife v. Obenchain, 10 Gratt. 259, supra, are all instances of contracts or deeds, void at law, being specifically executed or aided in equity. They were deeds by husbands to their wives utterly void at law, as much so as any voluntary agreement, not under seal. The case too of ex parte Pye v. Dupost, supra, and McFarden v. Jenkins, supra, and numerous other similar cases, seems to indicate that there should be no necessity that a valid contract or assignment at law should, necessarily, exist before equity furnishes its aid. These cases establishing that a court of equity will, in favor of a mere volunteer, enforce a simple declaration in writing, not under seal, by an owner of property, that it shall be held in trust for the objects of his bounty, we conclude therefore that a. voluntary agreement, whether under seal or not, will be enforced by a court of equity, in favor of a wife or child, or a defective conveyance or assignment, whether under seal or not, will be aided in favor of a wife or child, whether it be under seal or not;
There is still another 'question presented, by the record, in this cause, and which remains to be disposed of. The answer’ in this case, under the provisions of section thirty-five of chapter one hundred and twenty-five of Code of West Virginia, alleges new matter and prays af-
We think there is nothing in the position that the complainants have lost their right to the aid of the court, by their unreasonable delay... The answer, in a portion not above quoted, admits that the complainants hav.e been in possession of the farm ever since the execution of this paper, and in fact long before- — -this will, effectually, prevent lapse of time from affecting their rights. Though the paper is spoken of in the bill as vague and uncertain, yet with the facts stated in the bill an.d admitted in the answer, the description of the property is ample to prevent any ■ mistake as to the meaning of the paper. Its vagueness, therefore, is no reason why this contract should not, be specifically, enforced.
The decree of the circuit court, of the twenty-third day of August, 1876, must be affirmed, and the appellee’s recover of the appellants, their costs about this appeal expended, and $30 damages.
Decree Affirmed.