Hunt v. . Johnson

44 N.Y. 27, 1870 N.Y. LEXIS 123

• Court: New York Court of Appeals
• Decided: December 27, 1870
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The unity of person between husband and wife is such that neither can grant to the other an estate in possession, remainder or reversion, to take effect in possession during the life of the grantor. This is a rule of the common law, which has been adhered to in many cases, where the courts have said that they would have been glad to have got rid of it. (White v. Wager, 25 N.Y.R., 329, and the numerous cases there cited.)

It is also a general rule of the common law, that to the validity of a deed, a consideration is essential. Minturn v.Seymour, 4 J. Ch. R., 500; Verplanck v. Strong, 12 J.R., 557, and cases post.)

It may be conceded also, that the voluntary executory agreement of a party, will not generally be enforced against him. (Jefferys v. Jefferys, 1 Craig. Phillips, 138; Dillon v.Coppin, 4 Mylne. Craig., 647; Holloway v. Heddington, 8 Sim. R., 324; Story Eq. post.)

The appellants invoke each of these principles in condemnation of Mrs. Hunt's claim in the present case. They insist, that as the deed in question was a transaction directly between the husband and the wife, it is necessarily void. They insist also, that the agreement is executory in its character, and that it is unsupported by any consideration, which the law will recognize.

At the common law, the deed from Mr. Hunt to his wife is invalid. It has an inherent and fatal defect, in that it is a conveyance in presenti by the husband to the wife. Can a court of equity relieve against this defect?

The case of Shepard v. Shepard, decided in this State more than fifty years since, by one of the best equity judges that ever presided in our courts, answers the question in the affirmative. (7 John. C.R., 57.) On the 26th of December, 1808, Hazel Shepard executed and delivered to his wife a deed of a lot of land containing fifty acres. Nine years afterward he executed a deed of the same land to his son. Shepard died in 1819. There were many facts in the case, tending to establish an equity in the wife, although there was no consideration of a pecuniary character, and she filed a bill in equity against the son, asking as one alternative, that he be decreed to release to her his interest in the fifty acre lot. In deciding in favor of the plaintiff's claim, Chancellor KENT says: "The deed from H.S. to the plaintiff was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife, during coverture. (Co. Lit., 3a.) And in equity, the courts have frequently refused to lend assistance to such a deed, or to any agreement between them." He then cites, and comments upon several cases to that effect. He proceeds: "It is to be observed, however, that none of these cases were determined strictly and entirely upon the incapacity of the husband to convey to the wife, according to the rule of law; and they do not preclude the assertion of a right in a court of equity, under certain circumstances, to assert such a conveyance. The court relied upon the staleness of the demand in the first case, and upon the want of consideration in the second, and upon the extravagance of the gift in the third, as also constituting grounds for the decree; and it is pretty apparent, that if the grant in each case had been no more than a suitable and meritorious provision for the wife, the court would have inclined to assert it." After citing and commenting upon several English cases, in which effect had been given to articles of agreement, made directly between the husband and the wife, he adds: "The consideration for the deed to the wife in the case before me, was very meritorious. It was natural affection, and to make a sure maintenance for the said Anna S., wife and consort of H.S., in case she should survive him." After further setting forth the facts, establishing the equity of the case, he finishes that branch of the case in these words: "I conclude accordingly, that the deed from the husband to the wife may, and ought in this case, to be aided and enforced by this court." (Shepard v. Shepard, supra.)

The same doctrine is laid down in Newfolk v. Thomson (3d Edw., Ch. R., 92). In Garlick v. Strong (3 Paige, 440) a post nuptial contract between the husband and wife, by which a bond and mortgage was set apart for the use of the wife, was sustained. To the same effect in Bullard v. Briggs (7 Pick. R., 533). In his commentaries (2d vol., 163), Chancellor KENT thus lays down the rule: "Gifts from the husband to the wife may be supported as her separate property, if they be not prejudicial to creditors; even without the intervention of trustees, and when the husband, after marriage, agreed in writing to settle part of the wife's property upon her, the agreement was held to enure to the benefit of the children, and that the wife herself could not waive it."

Judge STORY says (2 Story Com. Eq., § 1395): "The doctrine is now firmly settled in equity, that a wife may bestow her separate property, by appointment or otherwise, upon her husband as well as a stranger." The transaction is, however, to be examined with watchfulness, to guard against undue influence on the part of the husband. Rich v. Cockell (9 Ves., 369) sustains the same doctrine. In Clancy on married women, 355, it is thus expressed: "As a married woman can deal and bargain with her husband with respect to her separate estate, so she may deal with a stranger without the privity of her husband." "And a married woman may not only deal with her husband and a stranger with respect to her separate property, but she may sell it to the person who holds it in trust for her." See also the same author, p. 458. See Atherby, on marriage settlements, p. 84, 85 (11 Law Library, new series).

For a full exposition of the English cases on this subject, I refer to White's equity cases, Ellison v. Ellison, Leading cases in equity (65 Law Library, 216). He says: "After a careful examination of the authorities, Lord Ch. SUGDEN laid down the rule that the meritorious consideration of providing for a child was sufficient to lead to the enforcement in equity of an executory contract as against the person contracting." After citing the various decisions upon the point, the author concludes: "Considering, then, that the direct decision of Lord Ch. SUGDEN stands supported by Lord ELDON'S recognition of the same principles, and not opposed by any decision whatever, it may be stated as the result of the English authorities that equity will aid a defective transfer, which was intended and meant to be a complete present transfer, and probably will enforce an executory agreement upon the inducement of a meritorious consideration; that is to say, in favor of a wife or child, and against one not standing in those relations as a brother or other connection; but will not interfere between persons standing upon the same meritorious considerations." He adds, that the principle of a meritorious consideration reaches only to the cases of a wife and child; not to collaterals nor to remote descendants.

There are two cases in our own courts which are supposed to be hostile to the theory, that a conveyance between husband and wife can be corrected or enforced. These are White v. Wager (25 N YR., 328) and Winans v. Peebles (32 N.Y.R., 423).

In White v. Wager the question of the equitable interposition of the court did not and could not arise. The action was to recover damages for breach of warranty of title. The plaintiff alleged that no title to the land was transferred to him, because no title was in his grantor. He alleged that no title was in his grantor (the defendant), because he obtained his title by a conveyance directly from his wife; and that by the rules of law a wife could not convey to her husband a title to take effect in possession during her life. The defendant did not attempt apparently to sustain his title by an appeal to the equitable powers of the court; or, if he did, it was in the faintest manner. This power manifestly could be invoked only in a case where the question should arise between the husband or those claiming under him, and those who, except for the deed, would have had the title as heirs of the wife. The latter persons were indispensable parties to a settlement of that question. A disposition of it between the husband and a stranger could not have affected their rights. If allowed to be mooted in a suit with a stranger, it might be decided in one way and upon an understanding of all the facts upon the presentation of the heirs of the wife, another decision might well be reached. The stranger had no right to invoke an equity, as against the heirs of the wife, who were not parties to the suit. It was therefore quite logical that in delivering the opinion of the court, DENIO, J., should have said that "the defective conveyance cannot be aided by the application of equitable principles." White v. Wager was well decided upon its facts, and that without trenching upon the well settled powers of the court to afford equitable relief in a proper case, and when presented by the parties entitled to ask it.

In Winans v. Peebles, supra, the proper parties were before the court. It was an action by the heirs of the wife (her children by a former marriage) to set aside a conveyance made by her to her husband. The title of the wife was by a deed from a third person, the consideration for which was paid by her father. The conveyance was made by her directly to her husband, and upon the request of her father, made at the time the property was given to her, and her verbal promise to convey to her husband after her father's death. The court below sustained the conveyance upon principles of equity. The Court of Appeals reversed this judgment, holding the law to have been established to the contrary in White v. Wager, supra. The court say (DAVIS, J.) that the deed from the married woman to her husband was void, and that being wholly without consideration, a court of equity would not interfere to sustain it. It does not appear whether the deed was expressed to be in consideration of love and affection, or whether that was actually the moving consideration. It is simply stated that no consideration was paid by the husband or received by the wife.

That case differs from the present action in this, that it was a conveyance by the wife to the husband; this was by the husband to the wife. At law either conveyance is equally void. They do not necessarily stand upon the same basis in equity. It is the duty of the husband to provide an assured and comfortable support for his wife during his life, and after his death. No duty rests upon the wife to provide for the husband. The customs of the country and the laws of the land look upon her as the party to be aided and sustained by the toil and the wealth of the husband. An application of the husband's property for her comfort is eminently equitable, and has been favored by the courts from their earliest existence. No judge has yet announced that this equity or this favor is to be extended to gifts from the wife to the husband. There is in the nature of things a broad and palpable distinction against an equitable claim in the husband's favor. Upon this distinction the present case may safely rest.

If Winans v. Peebles is construed to hold, as I think it should not be, that a deed between husband and wife is not capable of reformation in a court of equity under any circumstances, it is against principle and authority. If it is construed to hold that the intention to make a provision for a wife is not a sufficient consideration for such a deed (executed), it is in hostility to Shepard v. Shepard, and to the clear current of the English cases. If it is construed to hold merely that such a consideration would not be sufficient to sustain a deed from a wife to her husband, leaving untouched the question of its sufficiency in the case of a deed from the husband to the wife, it does not interfere with my view of the proper decision of the present case.

The court below deemed the case before us a proper one in which to exercise its power of equitable interposition. In this result I concur. Mr. Hunt had a moderate fortune. His wife and himself, for more than thirty years, had lived happily together. He had toiled to accumulate this property. She had exercised a judicious economy in the administration of his household affairs. We may assume that he considered his success in business, and his reputation as a public officer, as due in part at least to the tender affection and the wise counsels of a sensible wife. Few men succeed in any department whose pecuniary affairs are in disorder, or whose domestic relations are in an unhappy state. Mr. Hunt evidently intended that his wife should have every comfort and every advantage which his estate could furnish. Such is the express declaration of his will. Such was his intention when he gave her $30,000 of Western bonds, in addition to the provision made by his will. When he discovered that these bonds had become valueless, he attempted to supply their place in part by a gift of the lands in question. He intended to make a valid conveyance to her of those lands. He died in the belief that he had done so. To remedy his error, to make that effectual which he intended to accomplish, to give to his wife exactly what it was right he should give, and what he supposed he had given, is the plainest dictate of equity.

It is objected to the view I have taken, that the court exercises its power of reformation in these cases only when the husband desires to make a provision for the support and maintenance of his wife during her life, and that it does not extend to the case of a gift where the absolute title is vested in her. It is further said that the present is the case of a gift simply, and not of a provision for support, because Mr. Hunt had by his will already given his wife the entire income of his property, and if insufficient for her support had authorized the application of the principal to the same purpose. I am not prepared to assent to the correctness of this distinction. In the case of Shepard, supra, the conveyance was of the fee, and founded upon a desire to make a "sure maintenance." In Garlick v. Strong, supra, the entire interest in the bond and mortgage was decreed to be vested in the wife. In Bullard v. Briggs, the whole estate was to go to the wife. In the extract from his commentary, supra, Ch. KENT speaks of "gifts from the husband to the wife," as to be sustained, not confining his language to usufruct or income. In Fenner v. Taylor (1 Sim., 169,supra), the entire interest in the property was settled on the wife, and so is it in many of the other authorities which I have cited. There is no foundation for the distinction that love and affection to a wife constitute a sufficient consideration for a husband's deed to her, if the deed is expressed to give the title for her maintenance and support, although it is in fee, but if induced by the same affection, but not expressed to be for her maintenance and support, the consideration is insufficient. The distinction is shadowy and baseless.

I cannot acquiesce in giving so narrow a construction to the intention of Mr. Hunt in giving a maintenance and support to his wife. He had given to her, by his will, the entire income of his estate during her life; and if that should prove inadequate to her support in a manner equal to that she had before possessed, resort could be had "to the principal if necessary." Who was to decide how her former and her present style of living corresponded? Who was to decide whether, at any time, a resort to the principal had become a necessity? Not Mrs. Hunt. The executors were to settle this point in the first instance, Mrs. Hunt having a right to resort to the courts to correct their judgment. If he reflected at all upon this point, Mr. Hunt must have desired to avoid this contingency of a contest between his wife and the executors, and the delay and expenses of a litigation. That he was not satisfied with this provision of the will for her support is quite evident. To make her position more assured, he gave her first the western bonds to the amount of $30,000, notwithstanding, or in addition to the power given already in his will, that she could resort to the principal if necessary. When these failed he gave her, with the same intent, all his interest in the lands in question. It should not be forgotten that he had frequently declared his intention "to make other and further provisions for his wife, in addition to the provisions of the will."

Were the rule limited to deeds made for the support and maintenance of the wife, I should hold this to be one of that class, and should deem it a proper case in which to exercise the equitable power of the court. The term "further provisions," in addition to "the provisions" of the will, clearly point to this conclusion. While these words do not mean simply food or supplies, they show that the idea of support and maintenance, in its extended sense, was in the mind of the donor.

Had the agreement in this case been purely executory, there would have been some difficulty in its reformation within the authority of Jeffreys v. Jeffreys (1 Craig Phillips, 138), and Dillon v. Coppin (4 My. Craig, 647); 1 Story Eq., § 973, etc. Being intended as a gift to the wife, and the opponent not standing in the confidential relation of a wife or a son, but of a collateral relative, if the rule cited from White's leading equity cases is correct, the instrument would be capable of reformation although purely executory. The one before us was, however, an executed contract. It was a deed sufficient and perfect in its words of transfer. (Hayes v. Kershow 1 Sand. Ch. R., and cases cited, 261.) If it had been a conveyance to a son instead of a wife, the words "I hereby give, transfer and set over, free and clear of all encumbrances, the one undivided half," etc., would have conveyed a legal title. Indeed, these are the appropriate and technical words by which an immediate transfer is effected. (4 Kent Com., 492, m and n.) That the grantor intended thereafter to execute a more formal deed, is no objection to this view of the case. Under both of the classes of cases to which I have referred, this deed is capable of reformation, viz., as being in favor of a wife (no equally meritorious relative contesting), and as being an executed contract.

The appellants made a further point, that the deed is invalid by the laws of Iowa, both upon the general principles heretofore discussed, and for the further alleged reason that a deed is not valid in that State until it is acknowledged by the grantor as his "voluntary act." We have no knowledge that such is the law of Iowa. A statute is offered to be read before us on this appeal, which was not offered to the jury. The amended Code (section 426) declares that the printed statute of another State "shall be admitted by the courts and officers of this State on all occasions as presumptive evidence of such laws, and that the unwritten or common law of every other State may be proved as facts by parol evidence, and the books of reports of cases adjudged in their courts may be admitted as presumptive evidence of the law." The statutes of other States, it has always been held, are to be proved as matters of fact. The Code simplifies the mode of proof by enacting that it may be made by producing a printed volume purporting to be by authority of the State government, in which the statutes are contained. This is made presumptive evidence of its existence. It is, however, proof to be produced on the trial like other proof. It cannot be produced in the appellate court any more than the respondent could produce counter testimony before this court, that such is not the law of Iowa. The Court of Appeals does not sit for that purpose. The point is not before this court, and we are not competent to pass upon it.

Since the hearing before the General Term, Nathaniel Hunt has died, and an order has been entered substituting his surviving children as defendants in this suit. This seems to have been done upon their own motion. They appear before us as on that motion by a responsible and a respectable counsel. We have only to decide the question presented to us. All other questions will be disposed of by the parties or their counsel as they may arise. (Hamilton v. Wright, 37 N.Y.R., 502;Jackson v. Babcock, 16 id., 246.)

The judgment of the General Term should be affirmed, without costs to either party.