Moayon v. Moayon

72 S.W. 33, 114 Ky. 855, 1903 Ky. LEXIS 54

• Court: Court of Appeals of Kentucky
• Decided: February 13, 1903
• Status: Published

Opinion

Opinion of tiie court ur

JUDGE O’REAR

— Reversing.

Appellant Birdie Moayon and appellee, Max Moayon, are husband and wife. They have two children, who are infants. The Fidelity Trust & Safety Vault Company is the guardian of these children. Prior to December 4, 1900, there was a separation of these parties on a ground, as is alleged, which entitled the wife to a divorce a vinculo. It is not material to this decision as to the nature of this cause. The wife had retained counsel, who had prepared for filing a petition for divorce from appel-' lee. On the 4th of December, 1900, at the instance of appellee, the parties treated for a settlement of their differences, resulting in a contract in writing between them, which we copy in full, as follows:

“This agreement, made and entered into this fourth day of December, 1900, by and between Max J. Moayon and his wife, Birdie Moayon, and the Fidelity Trust & Safety Vault Company, trustee for Beatrice and Jessamine, children of the said' Max and Birdie Moayon, witnesseth: That whereas, the said Max and Birdie are now, and have been for some months past, living separate, and apart from each other; and whereas, the said parties have this day agreed mutually to forego their differences, and to be reconciled, and live with each other as husband and wife, after the full execution of this agreement. Now, and in view of the fact that the parties have agreed that a settlement is to be made upon the said children by the said Max Moayon, in order to insure a sufficient estate for them and for their maintenance, education, and support, and tlm future welfare, now in consideration of the love and affection which the said Max Moayon bears the said children, Beatrice and Jessamine, and in consideration of one dollar in cash in hand paid, the receipt of which is hereby-acknowledged, and in consideration of the acceptance of the trust by said Fidelity Trust & Safety Vault Company under this agreement, the said Max Moayon hereby agrees to convey, transfer, and deliver in fee simple to the Fidelity Trust & Safety Vault Company, as trustee, for the use and benefit of the said Beatrice and Jessamine Moayon, his children, one-third of all of his estate, real, personal, or mixed, of whatever kind or nature, belonging to him in his own right, which he acquired under the will of Hannah Moayon, his mother, as well as all the other estate otherwise acquired or now owned by him; the said personal property to be delivered according to the rules of law, and the real estate to be conveyed by deed properly acknowledged and recorded as soon as the deeds can be prepared. The absolute estate is to be conveyed to said trustee for the use and benefit of the said children, and in the event of the death of either of said children the estate of such child shall go to and belong to'said Birdie Moayon, for her own sole, and separate use forever. Said trustee shall have the authority to collect all income from said estate so conveyed, and pay the same over to the said Birdie Moayon for the use and benefit of the said children's care and education. She shall not be required to render any account of the moneys thus received by her, but her receipt shall be an absolute acquittance of the trustee. Said trustee shall be authorized to convey, sell, exchange, or dispose of any part of the estate so conveyed, and transfer a fee simple title, whenever the said trustee deems it proper to do so, and conveyance by the said trustee shall convey the fee simple title, and the said trustee shall hold the proceeds received from any such conveyance for the same use, purposes, and to the same extent and in the same manner as the original estate is held under this agreement. It is agreed between the parties that within ten days a full inventory of all the estate of the said Moayon shall be delivered to the said Birdie Moayon and said Fidelity Trust & Safety Vault Company, and the deeds executed in accordance with this agreement, and the transfers of personalty made in accordance with the terms of this agreement and to carry into full effect the same. Witness the hands of the parties this 4th day of December, 1900, at Louisville, Kentucky. Max J. Moayon. Birdie Meyers Moayon.

“The Fidelity Trust & Safety Vault Company joins in the foregoing arrangement for the purpose, of signifying its acceptance of the trust to be created by the deed of conveyance contemplated by its terms. Fidelity Trust & Safety Vault Company, by John W. Barr, Vice President.”

The foregoing facts are gathered from appellant’s petition filed in this case seeking a specific performance of the above contract, it being also alleged that in pursuance thereto appellant Birdie had forgiven the wrongs of appellee, and had returned to his home, and resumed her relations as a dutiful wife; and from the date of this contract, and in performance of her part thereof, had continued to live with appellee as his wife, and was yet doing so. It was also averred that appellee had wholly failed to comply with his part of the agreement, the one above copied, and that he refused to do so. A full description of his property, alleged to be that intended by the, parties to be and that was embraced in the terms of the written contract, was given in the petition. It shows a number of pieces of real estate in Christian county, this State, and personal property of the value of about $20,000. Appellee interposed a demurrer to the petition, which was sustained, and the petition dismissed.

In support of the judgment it is argued that the contract is unenforceable for the following reasons: (1) That it is not founded upon a valuable consideration, and that it is disfavored upon principles of sound public policy; (2) that it is indefinite and uncertain, and inequitable and unreasonable; (3) that it is lacking in mutuality of obligation and remedy on the part of the wife; (4) that the description of the property to be conveyed is not sufficiently certain, nor is it sufficiently identified to satisfy the statute of frauds; (5) that the wife can not contract with her husband concerning her property rights, nor can she sue him therefor, other than in an action for divorce and alimony. As a determination for appellee of any one of the questions just outlined must result in an affirmance of the judgment, we will take them up and discuss and dispose of them in the order stated.

1. It is conceded by the demurrer that Mrs. Moayon had legal grounds for her separation and divorce; that she and her husband were, then living apart because of those grounds; and that she had retained counsel to prepare, and he had prepared, a suit for her seeking a divorce from her husband. She, at her husband’s solicitation, forgave his wrong, resumed a relation which he, by his conduct, had forfeited, and had no legal right to longer claim, and saved to him the costs of the threatened litigation. Also, under the facts admitted, she was certainly entitled to recover from him substantial alimony, including maintenance for herself and children pending the action, and including a sum sufficient to enable her to employ counsel and defray the costs of her suit against him. As between other persons, where one has a cause of action against the other, and is about to begin a suit on it, its abandonment and satisfaction will constitute a consideration to support a contract based upon that fact. Clarke v. McFarland’s Exrs, 5 Dana, 48; Brown v. Buford, 3 B. Mon., 508, 39 Am. Dec., 477; 6 Am. & Eng. Ency., of Law (2d Ed.) 947, and cases. Nor is it even necessary that the party sought to be charged shall have been benefited by the abandonment of the suit. If the other party has thereby been put to an irretrievably disadvantage, that fact will equally constitute what is termed a valuable consideration. Ford v. Crenshaw, 1 Litt., 70; Gaines v. Scott, 3 Ky., Law Rep., 418. Becoming reconciled to the husband, with full knowledge of his actionable offense, will be a bar, as a condonement, to the suit of the wife for divorce, based upon the original facts. Independent of the question whether the fact of the reconciliation was not of as much value to the wife as to the husband, and that a mere claim or right to a divorce is of no legal value, yet her right to a settlement upon herself and children as alimony and maintenance was a right possessing money value. When she abandoned and obliterated her cause for divorce in this case, it likewise nullified her' right to sue for and recover alimony.

It is argued, though, that it is the duty of the wife, no less than of the husband, to maintain in good faith the marital relation; that a promise of one. to pay money to the other to continue the married relation is at best but an agreement to pay for the performance of a duty already undertaken for a sufficient consideration (to-wit, the mutual undertaking to live together in the married state) ; and that, therefore there is nothing upon which to rest the new promise. Were it the fact that there was no cause for the separation, this argument of appellee would be good. The other side of this proposition — that is, an agreement between husband and wife by which' the former undertook to pay the latter a stipeñd in consideration of their living apart — has been before this court frequently. In all those cases it was shown that the, marital relations had become unendurable to the parties, whether because of statutory grounds of divorce or not was not always shown. The contract of the husband to pay the wife a stipulated sum, or to convey to her certain property, was upheld on the theory that it was the legal and moral duty of the husband to support the wife, and that these contracts were but another form of, and were in lieu of, the original undertaking, and were consequently valid. Gaines’ Admx. v. Poor, 3 Met., 303, 79 Am. Dec., 559; Flood v. Flood, 5 Bush, 170; Loud v. Loud, 4 Bush, 455; Evans v. Evans, 93 Ky., 510, (14 R., 628) (20 S. W., 605). Nor was it held in those cases to be necessary that the suit for divorce should be pending in order to support the agreement. It was sufficient if there was an actual or impending separation and suit for divorce. Gaines’ Admx. v. Poor, supra. It is the policy of the law, because it has been found best for social happiness and progress, that the state of marriage be encouraged. Certainly, if an agreement between husband and wife, settling the obligations of the husband to provide for the wife, in contemplation of their living permanently apart, will ha specifically enforced, as being based upon a sufficient legal consideration, and as being not contrary to the policy of the law, a fortiori must be a contract between them under like conditions founded on the consideration of the restoration or preservation of the marital relation. See Bishop on Marriage. Divorce and Separation, section 1279. As said in Adams v. Adams, 91 N. Y., 381, 43 Am. Rep., 675: “While the law- favors the settlement of controversies between all other 'persons, it would be a curious policy which would forbid: husband and wife to compromise their differences, or preclude either from foregoing a wrong committed by the other.” To same effect is the case of Phillips v. Meyers, 82 Ill., 70, 25 Am. Rep., 295. In Barbour v. Barbour,. 49 N. J. Eq., 429, 24 Atl., 227, the wife had abandoned-' her husband because of certain violations by him of the marital duties. She brought suit for divorce and alimony. He sought a reconciliation. Among other inducements offered by the husband was the agreement to convey her. certain real estate owned by him if she would be reconciled to him. Relying upon his assurances- and promisés, she did become reconciled, and again took up her former relations with him as wife. He then refused to comply with his agreement to convey her the property as.he had agreed. The court, at her suit for specific performance, granted the relief prayed for. In the course of the opinion it was said: “The agreement is an agreement respecting the conveyance of land. The consideration was a valuable one. No consideration can be named of higher importance or of more solemn significance. It is difficult to measure it. Dollars and cents afford no adequate conception of the true nature of the consideration moving upon the one side to the execution of this agreement. This agreement- is thus brought within -every case that recognizes the doctrine of part performance in the slightest degree. Upon the part of the wife it is not only partially, but entirely, performed. She not only agreed to become reconciled to him, but in the sincerest manner, by her conduct, manifested her determination so to continue.”- In addition to the foregoing, we think- the principle is also sustained by the following authorities: Smith v. Smith, 35 Hun., 378; Shepard v. Shepard, 7 Johns. Ch., 57, 11 Am. Dec., 396; Casto v. Fry, 33 W. Va., 449, 10 S. E., 799. We are consequently of opinion that the contract was based upon sufficient consideration, and is not opposed to a sound public policy.

2. That the contract is definite, certain, fair, and equitable, we have no doubt. The wife agrees to abandon,-and it is alleged has abandoned, her suit for divorce,- ’and has forgiven its cause. She, agrees to resume the wifely relation, and has done so in pursuance to the agreement. The husband undertook, besides his promise of a fulfillment of the conjugal duties, to convey to a named trustee one-third of all his property for the maintenance dnd education of their two children; it in event of their- death to go to the wife. It also was provided for the -management of the trust. The only serious criticism of the paper as to its indefiniteness or lack of equity, besides the matters of description and mutuality, which will be - discussed further on, is the, suggestion that it is unfair and inequitable to appellee to enforce a contract that- -may let into joint ownership with him in his property,- and in his mercantile establishment, other persons probably not desirable, and whose interference would jeopardize if not destroy the value of his business. As - to the real property, it not infrequently happens that it is owned jointly by persons of incompatible tastes. Yet we have never before heard it urged as a defense against the specific performance of one’s contract to sell an undivided interest in his land that his vendee might sell the interest to- some undesirable person entailing probably a disastrous suit to sell the whole property because, of its indivisibility. Those are questions that might properly influence one in determining whether he will sell an undivided interest in his property. But, after he has contracted to do so for an adequate consideration, we perceive no reason why equity should relieve him from a specific execution of his contract on such a ground. Upon the face of the contract, it does not appear to us. to be unfair. It settles upon the wife’s children certainly no more than the allegations of her petition show would probably have been set apart to her as alimony, had she prosecuted her suit. That she saw proper to have this sum settled on her children, instead of upon herself, is not a ground for objection by appellee.

3. It is very earnestly argued that the contract should not be 'enforced because of lack of mutuality in obligation and in remedy. It is asserted by appellee that, before a contract will be specifically enforced in equity, it must not only be reasonable and practicable., and supported by an adequate consideration, and be certain and definite in regard to the property to be conveyed, but it must be mutually binding upon the parties, and the remedy for its enforcement must also be mutual to the parties. It is the latter condition that we now address ourselves to. We concede the correctness of appellee’s proposition. Yet it may be satisfied with less than an ideal fulfillment of its full text. For example, it is generally held that, under the statutes of frauds and perjuries, where the contract is not in writing, if one party, relying on the agreement, and induced thereby, has executed his part of the contract, the other party may ha compelled to perform, or to respond in damages if specific performance is withheld. Not to do so would be to make the statute enacted to prevent frauds an instrument for effectuating a fraud. To examine minutely that part of the agreement bearing on this question, we again quote from it: “Whereas, the said Max and Birdie Moayon are now, and have been for some months past, living separate and apart from each other; and whereas, the said parties have this day mutually agreed to forego their differences, and to be reconciled and live with each other as husband and wife after the full execution of this agreement: Now, in view of the fact that the parties have agreed that a settlement is to be made upon the said children by the said Max Moayon, in order to insure a sufficient estate for them, and for their maintenance, education, and support and future welfare: Now, in consideration of the love and affection which the said Max Moayon bears the said children, Beatrice and Jessamine, and in consideration of one dollar cash in hand paid,” etc. We have not rested this contract on the consideration of the “love and affection” of the father to his children (though it seems that might alone have been sufficient in this State), any more than upon the one dollar recited as having been paid. In the ease of an executed contract, reciting several matters as constituting the consideration, if any one of them is sufficient, probably that would satisfy the inquiry. But in an 'executory contract, the execution of which is resisted by one of the parties, the inquiry should embrace all the matters recited as the consideration, because we can not say that the complaining party would have entered into, the contract in the' absence of any of the matters recited as the moving consideration for his action. The consideration of this contract may be thus stated: (a) The mutual agreement to forego differences; (b) the mutual agreement to be reconciled; (c) the mutual agreement to live with each other as husband and wife; (d) love and affection of'the husband for his children; (e) $1. The last two are not questioned. Appellant Mrs.. Moayon did forego the cause of their difference. That part of the contract is unquestionably executed. She did become reconciled to appellee. That is executed. The only remaining part of the contract is (c) “the mutual agreement to live with each other as husband and wife after the full execution of this agreement.” The parties saw proper to anticipate the time of execution of this clause of the contract, and resumed their living together before the full execution of the agreement. This was. necessarily by mutual consent, and neither party can take advantage by complaint of' that act. The case is-rested, however, on this point, upon the argument by appellee that the contract contemplated - not merely going' back to their former relation, but permanently continuing in it; that the wife’s undertaking on this score can not be fulfilled .short of the death of one of the. parties, for, so long as they both live, she might leave him. . It is then argued that, so long as she owes him any part of this undertaking (i. e., to live with him as his wife,), it is a duty that could not be enforced against her by the court; that no civil court ever has attempted to compel two people to so live together, no matter which was in fault. Therefore it • is claimed there is lacking that mutuality of remedy necessary to the enforcement in equity of this contract. Marriage contracts .and marriage articles have been upheld and enforced- by the courts from earliest times. They involve an agreement between a man and woman to assume the marital relation, — to live together as husband and wife, — in consideration of which each relinquishes his or her claim to the other’s property,, or one agrees to convey or deliver to the other certain property or money. If they, in pursuance of the agreement, did marry and live together as husband and wife, the contract has been considered always as executed, so far as that part of the undertaking was concerned. It has been held that neither misconduct of a party after marriage (Moore v. Moore, 1 Atk., 272; Sidney v. Sidney, 3 P. Wms., 269; Seagrave v. Seagrave, 13 Ves., Jr., 439; Fisher v. Koontz, 110 Iowa, 498, 80 N. W., 551), nor the subsequent divorce of the parties, in the absence of some term in the contract providing against such contingency, -or of some statutory regulation of the subject, affect the validity of the marriage, settlement (Evans v. Carrington, 2 De Gex, F. & J., 481; Barclay v. Waring, 58 Ga., 86; Babcock v. Smith, 22 Pick., 61; Child v. Pearl, 43 Vt., 224). Bonds for the. payment of money have been enforced upon the executed consideration of marriage. Smith v. Patterson, Cheves, Eq., 29; Ancker v. Levy, 3 Strob. Eq., 197; Logan v. Wienholt, 1 Clark & F., 611. The promise of a woman to marry a man was held a sufficient and valuable consideration to support his deed to her, where it appeared that she had been prevented from executing the promise without her fault, but by his death. Smith v. Allen, 5 Allen, 454, 81 Am. Dec., 758. The marriage contract (that is, the agreement to marry) is complete and executed when the parties to it have entered into the married relation in the manner required by statute. Undoubtedly every valid marriage contemplates that the parties shall live together as husband and wife “till • death them do part.” In a case like the, present one the agreement to live together as husband and wife could include nothing more on this point than the original vows •of matrimony did. To say that marriage was not an execution of that part of a marriage settlement between a

man and a woman, competent to marry, as would require the performance of the other undertakings in the settlement, would be to practically destroy that which for time out of mind has been regarded as a subject of such contracts, for it would necessarily postpone the execution of the remaining part of such contracts till the death of one of the parties; thereby substantially destroying their value, in many instances, to the party benefited, and intended to be protected by them. We must hold, in reason and under the authorities, that this feature of the contract under consideration was executed by the resumption of the parties of the marital relation and duties. What relief appellee would be entitled to, as to a restoration of the property, or some part thereof, if Mrs. Moayon should subsequently abandon him without cause, is a question we do not determine.

4. Does the contract sufficiently describe the property to be conveyed? The description in the contract is: “One-third of all his [appellee’s] estate, real, personal, oh, mixed, of whatever kind or nature, belonging to him in his own right, which he acquired under the will of Hannah Moayon, his mother, as well as all the other estate otherwise acquired or now owned by him.” Can the intention of the parties, and the property to be affected by the writing, be gathered from this description? If so, the statute is complied with. It is the purpose of the description of the property concerning which a contract is made, to identify it. As said in Warvelle on Vendors, vol. 1, section 96: “While an unequivocal description, giving location, area, and boundaries, is a literal and perfect observation of the rule, a less particular statement -will usually suffice,' provided it contains within itself the proper means of identification, as by reference to extrinsic facts or other instruments by means of which the land can be ascertained with sufficient certainty.” The ideal, perfect description is preferred. But we can not compel its adoption. It is our business to treat with such contracts as the parties have made, enforcing them when lawful and practicable. It is not necessary, then, that the writing should do more than indicate clearly what property is to be affected by it, if its description or identification can be gotten from the contract, or from any extrinsic fact or writing referred to in the contract. A portion of the property may be identified by the will of Hannah Moayon, specifically referred to in the contract. It is necessarily of record to be a will, and that record will satisfy so much of the contract as treats of' so much of appellee’s property as derives its title from that source. The remainder of the description is: “All the other estate otherwise acquired or owned by me.” In WarveBa on Vendors, section 135, it is said that a description as “my house and lot” imports a particular house and lot, rendered certain by the description that it is the one that belongs to “me.” 'The following descriptions have been held sufficient: “My lot on the plat in the town of S., on the plat of said town, on the river bank” (Colenck v. Hooper, 3 Ind., 316, 56 Am. Dec., 505); the “Snow farm” (Hollis v. Burgess, 37 Kan., 487, 15 Pac., 536); “H’s place at S.” (Hodges v. Kowing, 58 Conn., 12, 18 Atl., 979, 7 L. R. A., 87) ; the “Knapp home property” (Goodenow v. Curtis, 18 Mich., 298) ; an agreement to convey land described as “occupied” by the vendor or a third person (Angel v. Simpson, 85 Ala., 53, 3 South., 758; Towle v. Carmelo Land & Coal Co., 99 Cal., 397, 33 Pac., 1126; Doctor v. Hellberg, 65 Wis., 415, 27 N. W., 176). In all such cases parol evidence was admitted not to identify, but to designate, the subject-matter, already identified in the minds of the parties, in the. language of the contract when read in the light of the facts. In this State, in Overstreet v. Rice, 4 Bush, 3, 96 Am. Dec., 279, the expression, “We have swapped farms,” naming the terms, but without further description of either farm, was held sufficient, after the parties had themselves identified the lands intended to be affected,'by taking possession of them. In Ellis v. Deadman’s Heirs, 4 Bibb, 466, the writing was: “4 January, 1808. Received of Jesse Ellis $-, in part ,pay for a lot he bought of me in the town of Versailles; it being the cash part of the purchase of said lot. Nathan Deadman,” This court said: “Had the receipt specified the terms' of the agreement, there would have been no •doubt of the propriety of decreeing the specific execution.” It is as essential that the terms be specified as the, description of the property. “Ten acres adjoining him on the north;” in a bond for title to land of the vendor adjoining the vende'e, was held sufficient in Hanly v. Blackford, 1 Dana, 2, 25 Am. Dec., 114. In Henderson v. Perkins, 94 Ky., 211, (14 R., 782) 21 S. W., 1035), the description was, “my home place and storehouse.” It was held sufficient, on the authority of Ellis v. Deadman’s Heirs, supra, and Hanly v. Blackford, supra. In the case of Varnum v. State, 78 Ala., 28, the description was: “My entire crop of every descripti.on, raised by me, or caused to be-raised by me, annually till this debt is paid.” While that Was not concerning real estate, it was such a contract (one not to be performed within a year) as'was, by the, statutes of frauds, required to be in writing. Concerning that description that court said: “It is objected to the admission in evidence, of this mortgage that it was void for uncertainty in the description of the crops intended to be-included in it. Whatever force there may be in this objection to the instrument on its face, this alleged uncertainty .was capable of being removed, when read in the light of the circumstances surrounding the contracting parties at the time of its 'execution, by extraneous parol identification.” Parol evidence ■ can not be introduced to vary, enlarge, or restrict the written terms of the contract. But frequently it is the case that application of apparently vague descriptions must be by 'parol testimony, which puts before the court the facts and circumstances surrounding the parties when the - contract was made or is to be executed, that its terms may -be interpreted by the light from such surroundings. From this rule springs the maxim, “That is certain which can be made certain.,” In this case i.t has been said, “all” means all. “All. of my land” is a description, by necessary implication, and common understanding, referring to such lands as I may •own, evidenced by the public records where land titles are required to be recorded, or to my actual and continuous possession for such time as under the law constitutes a title. This identification is complete, and admits of no possibility of mistake in this case. Applying to it the familiar usage of the courts in such matters, parol testimony may be allowed to designate the particular properties described and identified by the writing, and in the contemplation of the parties in making the contract. ■

5. It is true that, by the common law, contracts between husband and wife were void. Yet equity recognized numerous instances in which the parties had peculiar property rights which they were .allowed to personally control, and to make contract concerning. It would be an anomaly and a reproach to the law to say that it recognizes a le.gal property right in one, to whom all the doors of every court were closed. Therefore it was early held (Story’s Eq. Jur., 1.372) that, although contracts between husband and wife are void at law, they are not always so in equity. This court has repeatedly affirmed the same doctrine. In Evans v. Evans, 93 Ky., 510, 14 R., 628, 20 S. W., 605, it was said: “Generally, if a contract between husband and wife merely be just and reasonable, and would be good at law when made by the husband with a trustee for the wife, it will be upheld in equity.” This case was followed in Bohannon v. Travis, 94 Ky., 59, 14 R., 912, 21 S. W., 354. In Ward v. Crotty, 4 Metc., 59, it was affirmed that the husband’s contract with the wife would be specifically enforced against him in equity, without the intervention of a trustee. This has been adhered to in Maraman’s Admr. v. Maraman, 4 Metc., 89, and Campbell v. Galbreath, 12 Bush, 459. It is further re-enforced by legislative enactment looking to the same end, viz., section 34 of the Civil Code, as follows: “In actions between husband and wife; in actions concerning her separate property; and in actions concerning her general property, in actions for personal suffering or of injury to her person and character, in which he refuses to unite, she may sue or be sued alone.” The wife may maintain her action..

It follows that the judgment must be reversed, and the cause is remanded for further proceedings not inconsistent herewith.