Todd's Heirs v. Wickliffe , 57 Ky. 866 ( 1858 )

Chief Justice Wheat

delivered the opinion of the court.

In the month of October, 1826, Robert WicklifFe and Mary O. Russell intermarried. Both parties resided in Fayette county, Kentucky; the latter was a widow, who then owned several tracts of land; some houses and lots in Lexington, and sundry slaves, to all which she had a title in fee simple.

On the 12th day of September, 1827, Robert WicklifFe and his wife Mary O. WicklifFe, by their deed, conveyed all the real property and slaves which the said Mary O. owned at the time of her marriage, (excepting such land as was held adversely,) to Richard H. Chinn, who on the same day conveyed the same property back to Robert WicklifFe, for the consideration expressed in a tripartite deed of that date, to which said Chinn and both of the Wickliffe’s were parties.

The latter deed witnessed, “ that whereas, it was ‘ verbally agreed between the said Robert WicklifFe £ and Mary Owen Wicklifle, his wife, previous to their £ intermarriage, that they would at convenient time, £ make a proper disposition of the estate of the said £ Mary Owen WicklifFe, and a portion of the estate £ of the said Robert, by way of jointure or settle- ‘ ment upon the said Mary, and by which the said ‘ Mazy Owen WicklifFe should be vested with the full £ and entire power by her last will and testament to ‘ emancipate or otherwise to dispose of any or all the ‘ slaves and their descendants, of which she was pos- ‘ sessed at the time of her intermarriage, although 1 she might depart this life before the said Robert; ‘ and that the beneficial interest in her real estate £ should vest in the said Robert. And whereas, the £ said Robert and Mary Owen Wicklifle, with a view ‘ to effect their said understanding and agz'eement, £ have on this day conveyed unto the said Chinn the ‘ real estate of the said Mary, except such as is held £ in adverse possession, and the said Chinn hath con- ‘ veyed the same to the said Robez’t Wicklifle in fee £ simple, and with a view completely to 'carry the said £ agreement into effect, it is hereby stipulated and £ agreed between the parties, that the said real estate £ and every part of it, so conveyed to the said Robert ‘ WicklifFe, shall stand and be confirmed unto him ’ and his heirs and assigns forever. In consideration £ whereof, and the further consideration of one dollar, £ to the said Robert in hand by the said Chinn paid, ‘ the receipt whereof is hereby acknowledged, he ‘ the said Robert Wicklifle, doth covenant and agree 1 to and with the said Chinn, that he will stand seized 1 and possessed of the tract of land commonly called ‘ the pond tract; being composed of a part of the £ pond tract properly so called, and the Mansfield £ tract, also of the Ellerslie adjoining thei’eto, also the £ mansion house in which the said Wicklifle now re- £ sides in the town . of Lexington, together with the £ lots within the same general inclosure which in- ‘ eludes the said house, to the use and benefit of the ‘ said Mary 0. WicklifFe during her natural life, and ‘ in the event she should survive him the said Robert, ‘ then to be held and occupied and enjoyed by her ‘for during the term of her natural life, free from all ‘ sales, if any, which he might make without her con-1 sent, and all his debts or creditors, hereby declaring ‘that the said Mary Owen WicklifFe shall, in lieu of ‘ her dower in other lands, have, hold, and enjoy the ‘ same, free of all impeachment of waste, to use at ‘ her pleasure during her life, if she should survive ‘ him, and then to pass to his heirs, devisees, or as- ‘ signs; and he doth further covenant and agree, that ‘ in the event of his said wife surviving him, that ‘ the whole of the slaves of which she was possessed ‘ at the time of their intermarriage, together with the ‘ descendants thereof, shall vest absolutely in the said ‘ Mary Owen WicklifFe, and that he will not during ‘ their joint lives, sell or dispose of any of said slaves ‘ without her consent in writing first had; and the said ‘ WicklifFe doth further covenant, that in the event of ‘ his said wife departing this life before him, that ‘ she may by her last will and testament or other ‘ instrument in writing, liberate all said slaves, or 1 any of them, or by last will and testament to dis- ‘ pose of them in any manner she may desire; and ‘ for himself and his heirs, &c., he hereby covenants, < she shall have full power and authority, irrevocably ‘ to make and publish a last will and testament, here- ‘ by on his part ratifying and confirming the same in ‘ relation to said slaves, and covenanting tó be bound ■ ‘ and governed thereby; but nothing in this article ‘ or deed is to be so construed, as to prevent the said ‘WicklifFe and wife, by their joint deed or other in- ‘ strument in writing, from liberating or otherwise ‘ disposing of the said slaves, or any of them, nor to ‘ prevent the said WicklifFe from controlling them as ‘ his slaves during their continuance in slavery un- ‘ der the said WicklifFe and wife, or either of them. ‘ It is further understood, that the provisions in rela-

1. The consideration of love and affection isa sufficient consideration between husband and wife, and will support a deed from the wife to the husband when made to carry into effect an antenuptial agreement between the parties.

‘ tion to the slaves aforesaid, or the slaves Peter and 1 Jim, shall in no wise prevent the said Mary Owen 4 from her dower and distribution in the other slaves ! and personal estate of said Robert Wickliffe; but ‘ in the event of the said Robert dying' intestate, or ‘ making a will unsatisfactory to her, she is to have, ‘take, and enjoy her dower and distributive share in ‘ his slaves and personal estate, inclusive of the ‘ slaves aforesaid.

“ In witness whereof, the parties aforesaid, set their ‘ hands and affixed their seals, &c.”

The same real estate and slaves- was afterwards conveyed by Robert Wickliffe and-, wife, to William Owsley, who re-conveyed it to Robert Wickliffe, on the same day.

These two last conveyances ware made, as it is alleged, to cure some supposed defect in the previous deeds. Mary 0. Wickliffe died in the year 1844. This action was commenced in the year 1854, by persons claiming to be the heirs of Mary O. Wickliff, to set aside the before mentioned deeds, and for other relief, prayed for in the appellant’s pleadings.

Appellants in the court below based their claim to the relief which they sought upon these grounds: 1st. The want of consideration to uphold the deeds. 2d. For want of legal, authentication of the deeds. 3d. For the want of ability in the parties to contract in such form. 4th. Fraud in obtaining the deeds. 5th. For a failure of the consideration upon which the deeds were executed.

Robert Wickliffe, by his answer and amended answer, denied every material allegation in the appellant’s petition and amended petition.' Upon final hearing, the circuit court dismissed' appellant’s petition with costs, and they have appealed to this court; and now insist upon a reversal, upon the grounds above stated. We shall consider these grounds in the order in which they are stated.

First. The consideration stated in the tripartite deed, is a sufficient consideration, although not a large one. If Mary O. Wickliffe was capable of contracting, she was competent to judge of the sufficiency of the consideration, and had a right to convey her property to her husband, in this indirect mode, upon a small consideration, in property, or even upon the consideration of love and affection alone; or upon consideration of marriage; which seems to have been the moving consideration to the ante-nuptial agreement.

2. A conveyance by husband and wife of the real estate of the wife to a third person, with the intent that it be reconveyed to the husband alone, to invest him with the title to the estate,is valid if made without the coercion of the husband, or any undue influence over the wife. {Scarborough vs. Watkins & Wife, 9 B. Mon. 546.) 3. The rule of law which requires of a guardian, trustee, or attorney contracting with the ward, cestui que trust, or client to show the entire fairness of the transaction, has never been applied to husband and wife where the wife ty to the husbM" as by the' an-dent common law there could between^theuu8

Second. As no objection was pointed out to the authentication of the deeds, either in this court, or the court below, we shall not further notice the second ground stated.

Third. As to the third ground, we deem it sufficient to say, that this court decided in the case of Scarborough vs. Watkins and Wife, 9 B. Monroe, 546, that a conveyance by husband and wife to a third person, of the real estate of the wife, for the purpose of being conveyed to the husband, to invest him with the estate of the wife, is valid, if made without coercion or undue influence of the husband.

Fourth. Upon the fourth ground, appellants insist, that constructive fraud existed, as evidenced by a conveyance of the wife’s property to the husband, and that the burden of the proof is upon appellee to show that he acted fairly when he obtained a conveyance of his wife’s lands. We admit, that where certain persons standing in certain relations to each other, trade, as where a trustee, obtain a conveyance from the cestui que trust, or a guardian obtains one from his ward, when such conveyances are impeached by the party who conveys, the law requires the fiduciary to prove that the transaction was fair, and advantageous to the person who under such circumstances conveyed. But we are not prepared to admit, that this rule ever applied to husband and wife, as by the ancient common law there could be no dealing at all between them. In process of time, however, a mode was invented in England, by which a wjpe coui¿) in conjunction with her husband, convey away her real property. This process was a fine, or common recovery, which required the interposition of a court to make the conveyance effectual,

4. The statute £^440’ Sef 4,)' authorizes femes covert, in conjunction with their husbands, to convey their estate of inheritancejupon privy examination in the manner pointed out by that act, and declares such conveyances to be as effectual to pass all her right as if she 'Yas, an unmar' ned woman.

By this process the wife was enabled to convey, if upon privy examination in court, she declared that she signed and acknowledged the deed freely and voluntarily, and without the coercion of the husband.

By several statutes of this commonwealth, and particularly by the act of 1796, (Stat. Laws, 440, sec. 4,) it is provided that a feme covert, in conjunction with her husband, may by deed pass the title to her real estate of inheritance, upon privy examination, in the manner therein pointed out, and when so done, it is declared that it shall not only be sufficient to pass any right of dower thereby intended to be conveyed or released, but be as effectual for every other purpose, as if she were an unmarried woman.

By these statutes, the law provides a substitute for courts, to take the acknowledgments of married women, when about to convey their real estate. ’ J These substitutes are in substance empowered to do all that a court could do in such cases; and the same effect is given to their acts when done in the manner prescribed, as if the acts had been done in court.

In Scarborough vs. Watkins and Wife, 9 B. Monroe, 546, this court, speaking of the power of the wife to bind herself, said, “the general rule, that the wife ‘ cannot so contract as to bind himself, is, however, ‘ subject to exceptions. The wife, in conjunction with ‘ her husband, can convey away her real property. ‘ In England, this can only be done by a fine, or com- ‘ mon recovery, which are effected by the interposi- ‘ tion of a court. In this state, it can be done in the ! mode prescribed by the statutes regulating the subject, and, when done in that manner, it is consider- ‘ ed as the free voluntary act of the wife, relieved from all coercion by the husband.”

Now, if such act when done, is to be considered as the free voluntary act of the wife, relieved from all coercion by the husband; is it not absurd to say that in such case, the court must consider such act prima facie fraudulent, where the husband happens to be the beneficiary, and thus to impose upon him the burden of showing that he acquired the property fairly which the conveyance was intended to pass? We think it absurd in the extreme. In all instances, (and they are many,) before the adoption of the Revised Statutes, where the land of the wife is sold and conveyed by the husband and wife for money, the money becomes the property of the husband, and yet no one ever supposed that all such conveyances were prima facie fraudulent.

5. The chancellor will not presume that a conveyance by a wife to her hug-band, made through a third person, is fraudulent, and require of the husband proof of its fairness. (Scarborough vs.Watkins 8f Wife,9 B. Monroe, 546.)

On the contrary, we think the eifect of the statutes ids to make the conveyance prima facie fair, and the burden of proof is upon the party who insists that such conveyances are fraudulent. “ Courts of equity 1 examine every such transaction with great caution, ‘and with some apprehension of undue influence, ‘ but unless such influence is evinced, the gift will be ‘ considered valid.” (Story's Equity Jurisprudence, 764-5; Clancy on Married Women, 350.) “ If, however, ‘ the doctrine contended for, that in the case of a ‘ gift by the wife to the husband, a presumption of ‘ improper influence arises, had been recognised as ‘just, courts of equity would never have sanctioned ‘ such gifts, but must have declared them illegal and ‘void.” (ScarboroUgh vs. Watkins and Wife, 9 B. Mon. 546.)

The above was said in a case where the wife had given her real estate of inheritance to her husband. With equal, if not greater force, may such reasons apply, where the wife has conveyed her estate for a valuable consideration to her husband, even though done by the indirect manner in which it was done in the case now before us. If we are correct in comin'g to the conclusion above indicated, it follows that the appellants must show the transactions between Rob’t Wickliffe and wife, and Chinn and Owsley, fraudulent, before the deeds can be set aside for fraud.

Have they done so? We think not. But appellants counsel insist that the tripartite deed furnishes evidence of positive fraud against Robert Wickliffe. Giving a fair and reasonable construction to the recital of the ante-nuptial agreement in the last mentioned deed, and also the same construction to the deed, we think that that conveyance furnishes satisfactory evidence that every material part of the an.te-nuptial contract was substantially complied with. But it is said that the portion of the deed which related to the slaves, was variant from the recital in. the ante-nuptiál contract. We are of a different, opinion. All that Mary 0. Wickliffe desired was to have the right secured to her to emancipate her slaves—that right was secured “by the deed; and it does not appear that she chose to exercise that right. But it appears that the slaves have been emancipated. Suppose that part of the ante-nuptial agreement had not been carried out, who has a right to complain of the failure? Who has been injured? Not the slaves, who are the only persons to be benefitted by that part of the agreement. Even if there had been a substantial failure to comply with so much of the agreement as concerned the slaves, the most that could have been done, we apprehend, would have been a reformation of so much of the deed; and we are not prepared to say that this could have b.een done, at the instance of the appellants.

It is also insisted that the beneficial interest in Mary 0. Wickliffe’s estates, contemplated, in. the ante-nuptial agreement, meant only, a life estate. As a beneficial interest in an estate may be co-extensive with the estate, no matter how great its duration may be; and as, the parties to the tripartite deed seem to have used the word in its largest sense, with a full understanding that Mary-O. Wickliffe was conveying her estate in fee to her hu'sband, by the operation,of the three deeds, and as she not only acquiesced so long, in what she had done at the first, and after she had joined in a conveyance with her husband to William Owsley, and after Owsley conveyed the property to her husband, she still approved of her acts, and expressed herself satisfied with what she had done, we think we would judge rashly if we were to assume or conclude that she had not intended to use the word beneficial in the sense in which it is used in the deed.

But it is contended that Robert Wickliffe, by the ante-nuptial agreement, undertook to make a proper disposition of the estate of Mary O. Wickliffee, and a portion of the estate of the said Robert, by way of jointure.

We dot consider ourselves authorized to say what would be a proper disposition of the estate of Mary O. Wickliffe, and a portion of the estate of Robert Wickliffe, by way of jointure or settlement upon Mary 0. Wickliffe. Robert Wickliffe and wife did make a disposition of her estate; they also made a disposition of a part of the said Robert’s estate, by settlement upon Mary 0. Wickliffe. The parties themselves, at the time considered this disposition proper, and we do not learn that Mary 0. Wickliffe, although she lived about seventeen years after the tripartite deed was executed, ever thought that that disposition was not proper, and such as the parties concerned, fully understood and intended to make. The contrary seems to be true, for it is evident from the testimony in the cause, that Mary 0. Wickliffe lived and died satisfied with the disposition made of her property, and the provision made for her by her husband. From the decision of the parties, as to what was proper, we think the parties concerned, being of sound mind, and of more than common intelligence, were the best judges, and from their decision on this subject, there ought tobe no appeal.

When we consider the length of time which elapsed, after the execution of the first set of deeds, the execution of the second set, and when they were executed, and the object in view, moving the parties to their execution, the continued acquiescence of Mary O. Wickliffe, as long as she lived, the satisfaction she expressed with what she had done, with the additional facts, that Wickliffe and wife lived together most amicably and happily, and that she had no children, nor any blood relations nearer than cousins, we think they present a series of circumstances repelling the idea that Mary Ü. Wickliffe ever thought herself defrauded in the execution of the deeds, or by the manner of their procurement, or that the conveyance of her estate was not upon sufficient consideration, or that there was any failure of the consideration.

To our minds these facts and circumstances fully repel the idea of fraud, or of the failure of consideration.

Upon the whole case, as presented by the record, a majority of the court have come to the conclusion that the decision of the court below was right upon the law and facts, without any regard to the plea of the statutes of limitations.

Wherefore, the judgment of the court below is affirmed.