The opinion of the court was delivered by
Hoyt, J. —
This action was brought by appellant to set aside a deed made by the respondent, L. P. Daussat, to the other respondent. It is conceded that the grantee had no knowledge that the grantor was indebted to anyone until long after the execution and recording of the deed, and that the deed in her hands, if otherwise supported, cannot be affected by anyfraudulent intent which may have moved [200]*200the grantor to the making of the same. Appellant, how' ever, attacks the deed upon two grounds: First, that it was never delivered to the grantee; and, second, that it was purely voluntary, being supported by no consideration whatever.
As to the first question, the conceded facts show that in accordance with a prior arrangement with the grantor the grantee caused the deed to be prepared and sent to the grantor with instructions for him to execute the same and have it recorded immediately. Under these circumstances, was the delivery to the auditor for record a delivery to the grantee? M.any cases, have been cited by the appellant to show that a delivery to, a third person without the knowledge or-direction of the grantee is not a good delivery, and for the purposes of this case this may be conceded to be the law. We have examined all the cases cited by the appellant and fail to find a single one among them that goes farther than we have above indicated. In the case at bar, however, there was not only a delivery by the grantor to the auditor under such circumstances as clearly showed his intent to give the instrument force, but such delivery was in compliance with the prior instructions of the grantee, and under these circumstances for the purposes of such delivery, the auditor became the agent of the grantee, and a delivery to him gave the deed full force.
As to the next question, the facts shown by the record are that long prior to the making of the deed in question negotiations had been in progress between the parties thereto looking to a marriage between them. More than a year before such execution the grantor in said deed had asked of the grantee her hand in marriage, but the grantee had refused at that time to enter into a contract in relation thereto on account of the want of visible means of support for a family in the hands of the grantor. Some time after this, by reason of the death of a relative, the [201]*201grantor became the prospective owner of property including that in question, and upon his suggestion of this fact to grantee, and an agreement on his part that as soon as his title to the land in question was perfected he would deed it to her, she consented to enter into a contract of marriage with him, and did enter into such contract. Some time after this, the grantor’s title having been perfected, he wrote the grantee to that effect, and inclosed to her the probate proceedings showingtitle in him. Whereupon she at once took the papers to her attorney and caused to be prepared a draft of a deed which she sent the grantor with instructions for the execution and delivery as hereinbefore stated. At that time, as we have seen by the conceded facts above stated, the grantee in said deed had no knowledge whatever of any circumstances which would make the execution of such deed on the part of the grantor fraudulent as to him, and the sole question is as to whether or not as between the parties thereto there was any consideration for the execution of said deed. That the contract of marriage is a good consideration for a deed made on account thereof is unquestioned. Such a contract has been held not only to be a good consideration, but a valuable consideration of the highest nature. Two objections, however, are raised by appellant as against this marriage contract as a consideration for the deed: (1) That it was not in writing, and therefore void under the statute of frauds; and (2) that before the marriage relation was entered into in pursuance of said contract, knowledge of the fraudulent intent of the grantor was brought home to the grantee.
As to the first objection we may concede it to be as contended for by appellant, and yet as we view the facts the circumstances of this case do not bring it within the objection urged. As we view it this contract of marriage was in fact reduced to writing. It is true that it was not so reduced as to bring it strictly within the rule for the execution of such. [202]*202contracts, but we think it came substantially within such rule; for while it is true that there was no memorandum of agreement signed by the party to be charged, yet we think there was sufficient recital of such contract in the deed to show a written contract. And that under the circumstances under which said deed was prepared and sent by the grantee to the grantor for execution she became bound by such recital. This, we think, would be true if the provision in relation to such contract was a recital pure and simple, as under the circumstances above stated we think a court should hold the grantee bound by all the recitals in the deed. But the statement relating to said contract in this deed is more than a simple recital, it is stated as a part of the consideration for the deed, and is substantially as follows:
“For and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection and livelihood of the said party of the second part, and in consideration of the promise of the said party of the second part to marry him, said party of the first part does by these presents give.”
That this memorandum clearly evidenced an agreement of marriage on her part in consideration of making the deed on his part is beyond question. And if such memorandum had been signed by her, there could be no doubt but that the statute of frauds had been complied with. And as we have seen that her relations to such statement were such as to make it equally binding upon her as though she had signed it, it follows that there is a sufficient statement of the consideration for said deed. When this deed was delivered then it was supported by sufficient consideration and was binding not only as between the parties thereto, but as to all the world.
Was the fact that the grantee therein became aware of the fraudulent intent of the grantor before she had actually [203]*203complied with her contract of marriage by the consummation thereof sufficent to avoid the deed ? No case has been cited going to this extent; on the contrary several cases have been cited which seem clearly to establish a contrary doctrine. See Smith v. Allen, 5 Allen 456, 81 Am. Dec. 758, in which it was decided that though the marriage was prevented by the death of the grantor, yet the deed remained good in the hands of the grantee. What is the consideration for a deed made under such circumstances? We think it is the agreement to marry, and that if the agreement is entered into in good faith, and under such circumstances as to bind the party, and the deed is executed in consideration thereof, the transaction is complete, and the deed will be unaffected by anything that may happen thereafter. If the grantee refuse to carry out her contract the grantor has his remedy the same as he would for the violation of any other executory agreement. It would not do to hold that the grantee should, without fault on her part, be deprived of the benefits of her contract.
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The opinion of the court was delivered by
Hoyt, J. —
This action was brought by appellant to set aside a deed made by the respondent, L. P. Daussat, to the other respondent. It is conceded that the grantee had no knowledge that the grantor was indebted to anyone until long after the execution and recording of the deed, and that the deed in her hands, if otherwise supported, cannot be affected by anyfraudulent intent which may have moved [200]*200the grantor to the making of the same. Appellant, how' ever, attacks the deed upon two grounds: First, that it was never delivered to the grantee; and, second, that it was purely voluntary, being supported by no consideration whatever.
As to the first question, the conceded facts show that in accordance with a prior arrangement with the grantor the grantee caused the deed to be prepared and sent to the grantor with instructions for him to execute the same and have it recorded immediately. Under these circumstances, was the delivery to the auditor for record a delivery to the grantee? M.any cases, have been cited by the appellant to show that a delivery to, a third person without the knowledge or-direction of the grantee is not a good delivery, and for the purposes of this case this may be conceded to be the law. We have examined all the cases cited by the appellant and fail to find a single one among them that goes farther than we have above indicated. In the case at bar, however, there was not only a delivery by the grantor to the auditor under such circumstances as clearly showed his intent to give the instrument force, but such delivery was in compliance with the prior instructions of the grantee, and under these circumstances for the purposes of such delivery, the auditor became the agent of the grantee, and a delivery to him gave the deed full force.
As to the next question, the facts shown by the record are that long prior to the making of the deed in question negotiations had been in progress between the parties thereto looking to a marriage between them. More than a year before such execution the grantor in said deed had asked of the grantee her hand in marriage, but the grantee had refused at that time to enter into a contract in relation thereto on account of the want of visible means of support for a family in the hands of the grantor. Some time after this, by reason of the death of a relative, the [201]*201grantor became the prospective owner of property including that in question, and upon his suggestion of this fact to grantee, and an agreement on his part that as soon as his title to the land in question was perfected he would deed it to her, she consented to enter into a contract of marriage with him, and did enter into such contract. Some time after this, the grantor’s title having been perfected, he wrote the grantee to that effect, and inclosed to her the probate proceedings showingtitle in him. Whereupon she at once took the papers to her attorney and caused to be prepared a draft of a deed which she sent the grantor with instructions for the execution and delivery as hereinbefore stated. At that time, as we have seen by the conceded facts above stated, the grantee in said deed had no knowledge whatever of any circumstances which would make the execution of such deed on the part of the grantor fraudulent as to him, and the sole question is as to whether or not as between the parties thereto there was any consideration for the execution of said deed. That the contract of marriage is a good consideration for a deed made on account thereof is unquestioned. Such a contract has been held not only to be a good consideration, but a valuable consideration of the highest nature. Two objections, however, are raised by appellant as against this marriage contract as a consideration for the deed: (1) That it was not in writing, and therefore void under the statute of frauds; and (2) that before the marriage relation was entered into in pursuance of said contract, knowledge of the fraudulent intent of the grantor was brought home to the grantee.
As to the first objection we may concede it to be as contended for by appellant, and yet as we view the facts the circumstances of this case do not bring it within the objection urged. As we view it this contract of marriage was in fact reduced to writing. It is true that it was not so reduced as to bring it strictly within the rule for the execution of such. [202]*202contracts, but we think it came substantially within such rule; for while it is true that there was no memorandum of agreement signed by the party to be charged, yet we think there was sufficient recital of such contract in the deed to show a written contract. And that under the circumstances under which said deed was prepared and sent by the grantee to the grantor for execution she became bound by such recital. This, we think, would be true if the provision in relation to such contract was a recital pure and simple, as under the circumstances above stated we think a court should hold the grantee bound by all the recitals in the deed. But the statement relating to said contract in this deed is more than a simple recital, it is stated as a part of the consideration for the deed, and is substantially as follows:
“For and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection and livelihood of the said party of the second part, and in consideration of the promise of the said party of the second part to marry him, said party of the first part does by these presents give.”
That this memorandum clearly evidenced an agreement of marriage on her part in consideration of making the deed on his part is beyond question. And if such memorandum had been signed by her, there could be no doubt but that the statute of frauds had been complied with. And as we have seen that her relations to such statement were such as to make it equally binding upon her as though she had signed it, it follows that there is a sufficient statement of the consideration for said deed. When this deed was delivered then it was supported by sufficient consideration and was binding not only as between the parties thereto, but as to all the world.
Was the fact that the grantee therein became aware of the fraudulent intent of the grantor before she had actually [203]*203complied with her contract of marriage by the consummation thereof sufficent to avoid the deed ? No case has been cited going to this extent; on the contrary several cases have been cited which seem clearly to establish a contrary doctrine. See Smith v. Allen, 5 Allen 456, 81 Am. Dec. 758, in which it was decided that though the marriage was prevented by the death of the grantor, yet the deed remained good in the hands of the grantee. What is the consideration for a deed made under such circumstances? We think it is the agreement to marry, and that if the agreement is entered into in good faith, and under such circumstances as to bind the party, and the deed is executed in consideration thereof, the transaction is complete, and the deed will be unaffected by anything that may happen thereafter. If the grantee refuse to carry out her contract the grantor has his remedy the same as he would for the violation of any other executory agreement. It would not do to hold that the grantee should, without fault on her part, be deprived of the benefits of her contract. For some months, and in principle it may as well have been for some years, the grantee had been bound by her agreement to marry, entered into in perfect good faith and for a valuable and proper consideration. To hold that because she afterwards learned of some fact that showed a fraudulent intent on the part of the grantor, she should be deprived of the benefits of a contract which during its existence, if she at all observed the proprieties of the relation thereby established, practically prevented her from taking any steps looking to the formation of a marriage relation as between herself and any other party, would to our minds be unjust in the highest degree. Naturally during the continuance of this contract the associations between the parties were very intimate and the affections may have become so involved that to break off the relation would destroy the happiness and perhaps the health of the parties thereto. If the argument of appel[204]*204lant were to prevail, the innocent party must refuse to carry out a contract upon which her heart has become ■fixed or enter into the same without any such safeguard as her prudence had thought it necessary to provide for. It is impossible to place the parties in the condition they were in before the execution of the deed, and as the innocent party cannot be put in statu quo, she cannot be compelled to surrender the fruits of her bargain. But it is not necessary to enlarge upon the question. As we view the law, it is the contract to marry, and not the marriage' itself, which is the consideration which supports the deed, and this being so, if at the time the deed is made the con' tract to marry for which it is given is a binding one between the parties, and executed with the solemnities required by the statute for that purpose, an indefeasible title vests in the grantee.
It follows that the decree of the court below must be affirmed.
Anders, C. J., and Dunbar, Stiles and Scott, JJ'., concur.