Crane v. Gough , 4 Md. 316 ( 1853 )

Le Grand, C. J.,

delivered the opinion of this court.

The bill in this case was filed by the administrator of Mrs. Crane, and substantially makes the following case. It charges that Mrs. Crane, prior to her intermarriage with the testator of the defendant, was the owner and possessor of certain notes and bonds for the payment'of money; that her husband survived her, but did not during his life reduce the same into possession by collecting the money, or by the recovery of judgment or otherwise; that the notes and bonds were payable to Mrs. Crane by the name of Gough, which she bore prior to her intermarriage with Mr. Crane, and that neither the notes nor bonds were endorsed or assigned to him or any other person. The bill states these evidences of debt to be in the possession of the defendants, and prays a decree may be passed directing their delivery to the appellee for the benefit of the representatives and distributees of complainants.

The answer admits the possession of these securities, but insists they were made, by virtue of an ante-nuptial contract, the property of their testator. It also admits they were neither endorsed nor assigned to Mr. Crane.

It is conceded that these securities devolved on Mr. Crane jure mariti, and that, by virtue thereof, he might have reduced them into possession by collecting the money, obtaining judgment, or by exchanging them for other securities. Nor is it denied, that failing to do either, they passed to the administrator of Mrs. Crane under section 8 of sub-chapter 5 of the act of 1798, chapter 101.

The defence interposed, however, to the claim of the administrator of Mrs. Crane, arises out of the agreement set up in the answer of the defendants. They claim the notes and bonds in virtue of an ante-nuptial contract alleged to have been made between Mrs. Crane, (then Mrs. Gough,) and her future husband, by which, in consideration of the marriage, he was to have the notes and bonds, and to allow her during her life the interest thereon as pin-money.

It is the effect of this alleged contract we are now to consider. Independently of it, the title of the administrator is clear and indisputable under the act'of 1798, chapter 101.

Two objections have been urged to the contract: — First, that there is no proof that any such was made; and sccondi that if there was such a contract made it was of no avail, because not in writing as required by the 4th section of the statute of frauds.

Upon both of these propositions we dissent from the conclusions of the chancellor. We think the testimony is sufficient to establish the existence of the contract, and also to take it out of the operation of the statute, or, at least, to enable the appellants to defend their possession against the claim of the appellee.

First, as to the contract. The evidence, we think, fully establishes its existence. We refer to the testimony of Mrs. Drury and Dr. R. M. Jones. In answer to the second interrogatory of the examination-in-chief Mrs. Drury says: “About three weeks before Mrs. Gough’s marriage to Col. Crane, Col. Crane remained all night at Mrs. Sally Smith’s on that occasion, where she, Mrs. Gough, was staying. Mrs. Gough came into Mrs. Smith’s room, where she, Mrs. Smith, was sick, and said to Mrs. Smith and witness, that she and Col. Crane had made a bargain; witness asked her what the bargain was? She, Mrs. Gough, replied, that she had given all her notes for her money to Col. Crane, and he promised to give her the interest of them as long as she lived, and that she had said to him, Col., you know that when I die it is all yours.’ Witness has often heard Mrs. Gough declare before her marriage to Col. Crane, that she wished no one to have her property, except Col. Crane and his children.” And to the first cross-interrogatory she answers as follows: “She, Mrs. Gough, said she had given up the notes to Col. Crane, and he was to allow her the interest -of them as long as she lived, and that she and Col. Crane were going to be married, and she wanted no one else to have her properly except Col. Crane, or his children.”

Dr. Randolph Jones, in answer to the second interrogatory, says: “on one occasion Mrs. Gough, (lately Mrs. Crane,) came down to his house to see a sick servant woman belonging to her, but hired by this deponent before her marriage with Cch Crane, when deponent tendered her payment of a note which she held against him, which payment she refused, stating that she was shortly to be married to Col. Crane;: that there was an agreement between her and Col. Crane, that-he, Col. Crane-, was to have all her bonds and notes, and that he was going to allow her the interest of them for pin-money; this was about three weeks previous to her marriage to Col. Crane.”

To the 5th interrogatory the same witness answers: “I had a conversation with Mrs. Crane on the second or third day after her marriage to Col.' Crane, in which- she- referred te a locket which she then wore, stating that, that locket was all the property she then had, that she had given her notes and negroes- to- the colonel, meaning Col. Crane, to whom she pointed at the same time, and that she would be no longer subject to- the harrassments of collecting money and hiring out negroes-. She also stated that she- had no relatives that cared for her, and that she had rather that Col. Crane’s children should have her property than any one she knew of.”

To- a portion of this testimony the complainants excepted.To a part of it on the ground that it only tends to prove a parol agreement unexecuted; and to the remainder, because it is of declarations made by complainant’s intestate after marriage, and not necessarily tending to prove an ante-nuptial agreement. To the answer of Mrs. Drury to the first cross-interrogatory there is no objection.

In our opinion these exceptions are not tenable. The testimony of Mrs. Drury, in our judgment, is not confined to3 the proof of an unexecuted parol contract, but goes to the extent, not only of the making of the contract, but to its fulfilment also; and that of Dr. Jones both to the making of the-contract and the acknowledgment by Mrs. Crane of its execution.

, It was argued by counsel that these declarations of Mrs. Crane, both before and after marriage, could have no influence on the rights of the complainant, because they were not made in the presence of, nor assented to by, Col. Crane. In. point of fact a portion of them were made in the presence of Col. Crane; we allude to those addressed to Dr. Jones after the marriage.

The objection seems to be founded on the idea that as Col. Crane was not bound by the declarations made out of his hearing, they can have no operation on the claims of the representatives of Mrs. Crane. To this view we cannot assent. It is true there are cases in which a court of equity, in the exercise of a wise and just discretion, will not decree a specific performance of a contract devoid of mutuality, and this is on the ground that a decree for specific performance is not ex debito justitim, but a matter resting in the wholesome and equitable discretion of the court. And, in cáses where a party seeks the specific performance of a contract, which imposes all its obligations and confers none of its benefits on one of the parties, a court of equity may very properly refuse to decree its execution. But in cases where the party charged admits the contract and professes a willingness to perform it, courts of equity, if its terms be not immoral or opposed to the policy of the law, never interfere in his behalf. It is to this class of cases the one now under consideration belongs. Mrs. Crane admitted the existence of the contract and asserted her rights under it. It was a contract in restriction of the marital rights of the husband. In the case before us it is set up by way of defence, by the executors of the husband. If the case were reversed, how would it stand? If Mrs. Crane had filed a bill against her husband, (which she could have done, Acton vs. Peirce, 2 Vernon, 480, and Cannel vs. Buckle, 2 Peere Wms., 243,) and proved the making of the contract in consideration of the contemplated marriage and the delivery of the notes and bonds in pursuance of it, a court of equity would not have hesitated to decree to her the payment of the interest on the securities. Of this there can be no doubt. But the case as pr esented to us on behalf of the executors of the husband is still stronger. They did not initiate the proceedings, but were content to repose on the possession which they claim under an executed contract. And although they might not be able to sustain their right to a decree for specific performance, it does not therefore follow, that they cannot successfully vindicate the rightfulness of their possession. There are many cases where a court of equity will not exert its extraordinary functions to enable a party to acquire possession of a thing, but in which, nevertheless, it will refuse to disturb the possession when it has been obtained without its agency.

The testimony of Mrs. Drury shows that Mrs. Gough “had given up the notes to Col. Crane,” and the evidence of Dr. Jones is to the same effect. He says, that he had a conversation with Mrs. Crane on the second or third day after her marriage to Col. Crane, in which she referred to a locket which she then wore, stating that, “that locket was all the property she then had, that she had given her notes and negroes to the colonel,” &c.

This testimony most incontestably establishes the factum of the contract. But it is said it is void under the fourth section of the statute of frauds. That section provides, that “no action shall be brought, whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or to charge any person upon any agreement made in consideration of marriage; or upon any contract or sales of lands, tenements or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto, by him properly authorized.”

The provision of the section is, that no action shall be brought whereby to charge any person upon any agreement made in consideration of marriage, &c. It does not, as stated by the chancellor, render all such contracts void if they be not in writing. It merely inhibits an action oft them. If they be fulfilled and executed, they are just as valid as though they had been in writing; and the rights and property acquired under them are just as sacred and as much, respected as if they had been evidenced by a writing signed by the parties. Laythoarp vs. Bryant, 2 Bing. N. C., 735. (29 Eng. C. L., 474.) The principle is very clearly stated by the Supreme Court of Vermont, in the case of Philbrook vs. Belknap, 6 Vermont, 386. Speaking c.f the contract then under their consideration, they use this language: “Admitting that this contract is within the terms of the statute, yet it may be well to inquire, what is the effect of the statute upon it. Although it. is common to speak of a contract void by the statute of frauds, yet, strictly speaking, the statute does not make the contract void, except for ¡he purpose of sustaining an action upon it, to enforce it. The statute provides, that no action shall be sustained upon certain contracts, unless they are evidenced by writing. It operates therefore upon the contract, only while it is executory. It does not make the performance of such a contract unlawful, but, if the parties choose to perform it, the contract remains in full force notwithstanding the statute, so far as relates to the legal effect and consequences of what has been done under it. Hence a party may always defend under such a contract, when sued for any act done under it.” To this point any number of cases might be cited.

The defendants here seek merely to defend their possession under the contract which they allege to have been executed. The question then is — is there proof enough to show the execution of the contract ? We think there is. The declarations of Mrs. Crane prior'to her marriage, went to the extent of showing that she had given up her notes and bonds to Col. Crane, and those made to Dr. Jones, shortly after the marriage in the presence of her husband, amount to an acknowledgment of its fulfilment. Now, although marriage is not per sc a part performance sufficient to take a case out of Ihe stalufe, it is nevertheless a sufficient consideration for the contract, and one which courts regard with especial favor as of most meri" torious character. The declarations of Mrs. Crane, prior to the marriage, indicate with sufficient clearness its terms, and those immediately after its solemnization, are, in our judgment, equivalent to an acknowledgment of its execution on her part, and we are, therefore, warranted in the conclusion, that the possession of Col. Crane, was obtained under the contract and not in virtue of his rights as husband. If the bonds, &c., were in possession of Col. Crane, jure mariti, she need not have said anything on the subject; the law passed the title and right of possession. But in these conversations she speaks of her having given the bonds, &c., and must be considered as referring to what was done under the agreement; and it is evident she was so understood by those to whom she addressed herself. Had she proceeded against Col. Crane, and had he acknowledged he received the securities under the contract now relied upon by the defendants, a court of equity would have decreed in favor of the wife. On the whole, we think the evidence sufficient to show such an execution of the contract, as to withdraw the case from the operation of the statute of frauds. The answer of Mrs. Drury to the first cross-interrogatory of the complainant, and the testimony of Dr. R. M. Jones, is a sufficient compliance with the requisition of the rule, which makes it incumbent on the party insisting upon the non-application of the statute, to establish his case by distinct and full evidence.

A written assignment of the bonds was not essential. An equitable _ assignment of a chose in action maybe by parol. See on this point, 1 Bacon’s Abridgt., (Bouvier’s Ed.,) 383, and the numerous cases there collected.

We say nothing of the prayer contained in the answer of the defendants, to compel the assignment by the complainants of the securities, because it was abandoned by the solicitors of the defendants. Nor do we deem it important to inquire whether the case macle by the bill was one which gave the court of chancery jurisdiction. The views which we have already expressed dispense with all necessity for such an inquiry.

We reverse the decree of the chancellor and dismiss the bill; but require each party to pay his own costs in this court and the court of chancery.

By

Judge Tuck :—

I concur in opinion with the court, that the ante-nuptial contract set up in the answer of the appellants is proved as stated in the bill of complaint; but I do not think that the alleged performance on the part of Mrs. Crane, and the possession of the bonds by Mr. Crane, so exclusively referable to the contract, as to take the case without the operation of the statute of frauds. But 1 concur in the judgment of this court because, for the reasons urged in the argument, I am of opinion the objection to the jurisdiction of the court of chancery was well taken ; the bill not stating any special circumstances to show that the complainant had not an adequate remedy at law.

Decree reversed and iill dismissed, each party to pay his own costs in this and the court of chancery.