McCarthy v. McCarthy

| Conn. | Sep 15, 1869

Butler, J.

We are all satisfied in this case that the judgment must stand.

The first objection raised upon the motions is, that the conveyance of the legal title to the premises in question to the plaintiffs upon which they founded their right to recover, was made pursuant to and as part of a collusive and illegal agreement 'between the defendant and his wife, in relation to a divorce.

It appears from the finding of the committee that the defendant brought a petition for divorce against his wife, the trial of which was commenced and proceeded with until the evidence of the petitioner was heard and he had rested his case, and thereupon the judge suggested to the counsel engaged,.that a compromise should be had. Pursuant to the suggestion a compromise was agreed upon, to the effect that opposition to the petition for divorce should be withdrawn, that a guardian should be appointed for their children and that the premises in question should be conveyed to them. No such collusive and illegal agreement as the defendant claims, appears expressly or by necessary implication from the facts so found.

In the first place, the Superior Court must be presumed to have acted rightly, and the clear presumption is that the judge when he suggested a compromise was satisfied that a divorce must be granted. It is not for a moment to be supposed that the judge had reference to the granting of a divorce, or that he desired that the withdrawal of opposition to it should be made a matter of compromise and agreement. The clear presumption must therefore be that'the suggestion of the judge had reference to other incidental matters in issue between the parties, and the presumption is confirmed by the fact that the custody of the children and.a provision for their support were the principal elements of the compromise agreement. Under these circumstances, although a withdrawal of opposition was also an element in the agreement, that fact was not stated to the court, and we cannot hold that there was anything collusive or illegal in the agreement which can affect the rights of these parties. We must presume that the divorce would have been granted had no compromise been effected.

But on the assumption that the divorce was obtained by means of a collusive and illegal agreement, the title of the plaintiffs is good. They were not parties to the collusive agreement; the gift to them was a pex-fect gift and cannot be recalled.

The second point made by the defendant is equally untenable. Coxxcedixxg the rule to be that a mortgage is a mere security, that payment before the law day.lxas expired entitles the mortgagor to an immediate re-conveyance, and that there is a.presuxnption, in the absence of evidexxce to the contrary, that the payment was made before the law day expired, and xxo sxxch evidexxce appeax’s in this case, the doctrine cannot avail the defendant. Where the coxxveyance is a mortgage upon its face, and the payment is made after the day, by the terms of the deed the title becomes absolute at law and relief can only be had in equity. In this case the deed was not a mortgage on its face though intended as a mortgage, and Plumb hold the entire equity of redemption. The title did not revert on payment of the debt. Conceding that the defendant had an equitable right to a re-conveyance, it was a right which he could abandon, relinquish or bestow by way of gift, and when he requested Plumb to make the conveyance to his children with the intention that the property should be theirs forever, as the record shows he did, it was as much a gift of the property, and the title of the children is as perfect, as if he had taken a re-conveyance from Plumb, and conveyed directly to the children in consideration of love and affection.

There is no error and a new trial is not advised.

In this opinion the other judges concurred.