Gough v. Crane , 3 Md. Ch. 119 ( 1852 )

The Chancellor :

Putting aside the ante-nuptial agreement set up by the answer, it is perfectly clear that the securities which form the subject of the controversy, are the property of the complainant as administrator of Mary Crane.

These securities consist of certain sealed notes which were given to and held by Mary Crane, then Mary Gough, prior to her intermarriage with George Crane, the testator of the defendants ; and though by the marriage they devolved upon him jure mariti, and he might have reduced them to possession during their joint lives or after her death, he surviving her, and thus made them bis property, yet, having failed to do so, or to recover judgment upon them, or to alter the security, they, according to our Act of Assembly, upon his death, devolved upon her representative. Act of 1798, ch. 101, sub. ch. 5, sec. 8. The Act of Assembly of this State changing in this respect the rule founded upon the English statute of distributions, which gives to the representatives of the husband who survived his wife, her dioses in action not reduced to possession to the exclusion of the representatives of the wife. 2 Kent’s Com., 136. If, to be sure, the husband in his lifetime had reduced these dioses in action to possession, or had obtained judgment upon them at law, or in equity, either in his own favor or in favor of himself and his wife, and he had survived her, his representatives, ho subsequently dying, would have been entitled; but as he did neither, and the securities remained unchanged, and as they were originally her property, her representatives are entitled to them. Leadenham, vs. Nicholson, 1 H. & G., 267.

All this is quite plain and undisputed, but the answer in this case takes the ground, and counsel have urged in argument that the ante-nuptial contract, which it is insisted was made between Mr. and Mrs. Crane, has entirely changed the relative rights of the parties. And that in virtue of that agreement, these securities, it is said, now belong to, and should be recovered and enjoyed by the representatives of the husband.

The answer, after admitting the facts stated in the bill, alleges, “ that prior to the marriage between the parties, the said bonds were in consideration of the marriage which was about to bo solemnized between them, and which did take place on the 3d of September, 1846, given by the said Mary Gough to the said George Crane, and that in accordance with said gift and agreement, the said bonds were delivered to the said George Crane, and remained in his possession up to the time of his death, in August, 1849.” Again, “ that the said bonds in consideration of the approaching marriage between the said George Crane and Mary Gough, and which said marriage did take place at the time aforesaid, were, by the agreement of the said Mary Gough with said George Crane, to become the property of the said George Crane at the time of his intermarriage with her, and that in consequence of said agreement, and the said marriage, the said bonds came into the possession and did become the property of the said George Crane, and that respondents, ás his executors, are now entitled to them.”

The defence, therefore, assuming that the objection to the jurisdiction of the Court is not well taken, is put upon the ground of an ante-nuptial agreement, by which it is alleged that these choses in action became upon the marriage the absolute property of the husband, and now should pass to his representatives.

The agreement relied upon in the answer not being in writing, cannot be set up as an objection to the title of the plaintiff unless there is something in the circumstances of the case which will relieve it from the operation of the statute of frauds, which declares that no action shall be brought whereby to charge to any person upon any agreement made in consideration of marriage, unless the agreement, or some memorandum or note thereof, shall be in writing and signed by the party, &c.

The circumstances relied upon here to save this case from the operation of the statute is part performance, and this part performance is the marriage itself and delivery of the bonds to the husband, those being the acts of performance set up in the answer. But it is clear and incontestable that the marriage itself standing alone is no part performance within this clause of the statute for reasons which are strongly stated in the case of Moutacute vs. Maxwell, 1 Peere Wms., 618. In that case it will be found that the circumstances supporting the promise which was made by the intended husband to the wife to allow her to enjoy her own estate to her separate use, were infinitely stronger than any which exist in this, and yet the Lord Chancellor held the plea of the statute good, and refused to enforce the agreement, and though subsequently, and when by an amended bill circumstances were stated from which it appeared that the agreement was designed to be reduced to writing, but this was prevented by the fraud of the husband, the Court overruled the plea and directed the defendant to answer, saying, that the fraud might entitle the plaintiff to relief, yet the doctrine, that if the parties rely wholly upon the parol agreement neither can compel the other to a specific performance is expressly reasserted; and it was also again declared, that if the marriage could be considered as an execution of the contract to take the case out of the statute, the clause in question would be a perfect nullity. 1 Eq. Cases Air., 19 ; Prec. in Ch., 526 ; Roberts on Frauds, 196, 197, 198.

Supposing, therefore, that there was a parol contract between Mr. and Mrs. Crane prior to the marriage that these moneyed securities should in consideration of marriage become the property of the husband, and that the only act of performance is the marriage itself, it is clear upon authority, that if the agreement remains unexecuted, this Court has no power to decree its specific performance, in opposition to the statute of frauds. It is true, this is not a bill by the representatives of the husband asking the Court to decree an execution of this contract against the representatives of the wife, and resisted by them as an invasion of the statute of frauds, but to the bill of the representatives of the wife, praying to have these securities restored to them by the representatives of the husband the latter set up the parol agreement, which has been referred to, and seek protection under it; and the plaintiff, by exception, objects to this defence, and the testimony in support of it, upon the ground that it tends to establish an unexecuted parol agreement; and this, as it appears to me, presents the question wdiether the contract relied upon can bo proved by parol in opposition to the statute of frauds. It is undeniable, as has been already said, that upon our statute, and upon the decision of our courts, the right of property is in the plaintiffs, and that a Court having jurisdiction of the subject would be required to restore them to their possession, unless some valid contract is shown by which the rule of law is changed.

It is urged, however, that not only did the marriage take place pursuant to the contract, but the intended husband was put in possession of the securities, and. held them until the period of his death, in 1849; and the case of Duvall et al. vs. Gittings et al., 3 Gill, 138, is relied upon as showing that these circumstances are sufficient to take the case out of the statute. That case undoubtedly does prove that an agreement by parol made by a father with his daughter in consideration of her marriage, and as a marriage endowment, is founded on a valuable consideration, and that upon the consummation of the marriage, and the delivery of the possession of the property to the daughter, the case is taken out of the operation of the statute, and will be enforced in equity. In the case of Cannel vs. Buckle, 2 Peere Wms., 243, it was held by Lord Macclesfield, that a bond given by a woman to her intended husband, that in case of their marriage she would convey her land to him, would, after the marriage, be enforced in equity, though the bond is void at law, and this case is cited with approbation by Mr. Justice Story. 2 Story's Eq., sec. 739. The case of Acton vs. Peirce, 2 Vernon, 480, is to the same effect, and proves that a bond given to the wife by the husband before marriage, to leave her one thousand pounds, though extinguished at law by the marriage, will be enforced in equity, and numerous cases cited in the notes confirm this position.

Considering, therefore, the agreement as resting upon a valuable consideration, and that if in writing it would be enforced in a Court of Equity, and though unlike in some essential features, the case of Dugan vs. Gittings, it might be extricated from the operation of the statute of frauds if attended with some other circumstances which existed in that case, it remains to be seen whether the circumstances are the same in substance, because if substantially the same, a difference in detail or particulars cannot vary the principle applicable to them.

In the case of Dugan vs. Gittings, there was not a shadow of doubt of the agreement and the delivery of the possession of the property to the daughter in pursuance of the agreement. The Court speaks of the agreement to give in consideration of the marriage, and the delivery of the possession nndor the contract as being supported “ by a mass of proof which it was impossible to resist.” And they say that the performance of the consideration, and the change of possession under the contract are ingredients which, when combined, have always been regarded as relieving the parol agreement from the operation of the statute. But in this case there is no legal admissible testimony of mutual promises to marry, all the proof upon that subject being found in the declarations of the lady made in the absence of the husband, and it is only from the fact that the marriage did in fact take place shortly after the date of the conversations, that the agreement of the parties to be married can he inferred.

Conceding, however, that the circumstances are sufficiently strong to infer a mutual promise to marry, it is very clear that there is no evidence to hind the husband to the terms of the agreement, as stated by the wife to the witnesses. These terms were, that there was an agreement between her and Colonel Crane. “ That he, Colonel 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 is the proof of one witness. The other witness proves that Mrs. Gough said, “that she and Colonel Crane had made a bargain. Witness asked her what the bargain was; and she replied, that she had given all her notes for her money to Colonel Crane; and he promised to give her the interest of them as long as she lived.” Now, with regard to this part of the contract, which is unquestionably very material, because it essentially impaired, if it existed, the marital rights of the husband, there is no proof whatever other than the declarations of the woman made in the absence and out of the hearing of the husband. And it cannot therefore he pretended that, if the positions of these parties were changed, and she was asking the Court to enforce the contract, it could not be done. And not only is there no proof that any such agreement was made by Colonel Crane, but there is no pretence that it ever was performed by him. His right, or the right of his representatives to enforce this contract, rests exclusively upon the fact of the marriage and delivery of the bonds to him as asserted by the answer. But the marriage, as we have seen, is no such part performance as will rescue the agreement from the operation of the statute; and an examination of the proof will show that the delivery of the possession of the bonds cannot be traced with any degree of certainty to the agreement relied upon in the answer. It is certainly, to say the least, very doubtful, whether the securities were delivered to the husband prior to the marriage. On the contrary, my impression is very decided that Mrs. Hough retained them in her own possession until after that event. It is true, in her conversation with Mrs. Drury, which occurred about three weeks prior to the marriage, she says she had made a bargain and had given her notes to Colonel Crane; but making a' bargain and giving do not always or necessarily infer the parting with the possession of the thing given; and upon cross-examination, the same witness expressly says: Mrs. Hough retained the notes in her own possession up to the time of the marriage. And there is not a scintilla of evidence other than what has been mentioned above to prove the contrary. That Colonel Crane should be in possession of the notes after the marriage, is of course consistent with the relations which then subsisted between them, and surely cannot be referred exclusively to the agreement. After the marriage, unless there was some agreement to the contrary, she had no right to withhold them from him.

The proof in this case, therefore, falls far short of the evidence in that of Dugan vs. Gittings, and I entertain a strong conviction that if the husband or the husband’s representatives were here as plaintiffs, asking this Court specifically to enforce the agreement, the application would be unsuccessful.

It has been repeatedly decided by this Court, and the principle is believed to be too firmly settled to be shaken or drawn in question, that to take a case out of the statute of frauds on the ground of part performance, the plaintiff must make out, by clear and satisfactory proof, the existence of the contract as charged in the bill. And the act of part performance must be of the identical contract set up by him. Owings vs. Baldwin and Wheeler, 1 Maryland Ch. Decisions, 120, afterwards affirmed on appeal to the Court of Appeals; Beard vs. Linthicum, ib., 345. It is impossible to dispute the principle, and the disinclination of the Courts to make further inroads upon the statute by excepting cases from its operation is apparent in all the recent cases. Philips vs. Thompson, 1 Johns. Ch. Rep., 131; Parkhurst vs. Van Cortlandt, ib., 284. The disposition is rather to retrace the steps which have been taken in what is now considered the wrong direction, but at all events, if this is not so, a firm determination exists to make no further relaxation of the statute.

It is quite true that in this case the representatives of the husband did not come into the Court asking it to interfere actively to compel the specific performance of the contract set up in their answer. They are here as defendants, and seek to defend themselves against the claim asserted in the bill, upon the ground of an agreement, by which they insist that the property in dispute belongs to their testator; and it is urged, that upon a principle recognised by this Court, they will not under such circumstances be required to exhibit as strong a case as would bo required of them if they, as plaintiffs, were invoking the active interposition of the Court in their behalf. 2 Story’s Eq., secs. 769, 770, 771. If the plaintiff in this case was seeking to enforce the specific performance of a written contract against them, grounds of defence would be open in opposition to such application, which would not avail them if they as plaintiffs were asking the aid of the Court, because chancery when called upon to exert its extraordinary power to coerce the specific performance of contracts, acts with less restraint than when exercising its ordinary jurisdiction, and will not interfere, unless satisfied that the application is just and reasonable in all respects. Waters vs. Howard, 1 Maryland Ch. Decisions, 112. In the exercise of a sound judicial discretion, the Court will not be active in specifically enforcing claims, not under the actual circumstances just between the parties, but will turn them over to another tribunal, where such damages may be awarded as in the estimation of a jury may be reasonable and proper. 2 Story’s Eq., sec. 770.

But in this case the plaintiff is not asking the Court to enforce the specific execution of a contract made by the original parties, nor are the defendants attempting to defend themselves against any such claim by proof that the granting of the application would be contrary to the principles of justice. No application is made to the Court for the execution of its extraordinary jurisdiction, when it may or may not interfere, in the exercise of a sound but not unlicensed discretion, and when, freeing itself from those strict rules which usually prevail in the administration of justice, it may look at circumstances which otherwise it would not be at liberty to consider, and ascertain whether the demand made upon it is fair and reasonable in all respects, and act or refuse to act accordingly.

The plaintiff is not here asking the Court to enforce a contract between these parties. He comes before the Court upon a clear and acknowdedged title, not founded upon convention, but upon admitted law, and asks the Court to restore to him rights which by the law he is unquestionably entitled to. The defendants meet this demand by setting up a parol contract, which being by parol is void under the statute of frauds, and ask that they may be allowed to take shelter under it, because it has been in part performed. Now, it appears to me that under such circumstances, the defendants should be held to the same clear, definite, and unequivocal proof of the contract set up in the answer as would be required of them, if they, as plaintiffs, were asking for its specific performance. There surely is, in this case, no reason why the rule which requires that the identical contract laid in the bill shall be proved, when the operation of the ■ statute of frauds is sought to be avoided upon the ground of part performance, because, being presented in the answer, the plaintiff is deprived of the opportunity which he would enjoy of denying it upon oath if the relative position of the parties was changed.

It is said, however, that the proof makes out a clear case of intention, and that this Court has the power and will cure the defect, and execute the contract according to the intention of the partios. There can be no doubt in this state, that chancery will receive parol proof to reform a written contract so as to make it correspond with the real intention of the parties, and then decree its specific execution as rectified. Moale vs. Buchanan., 11 G. & J., 314. Thus repudiating the doctrine that parol evidence of mistake could only be offered by the defendant to rehut an equity. But this is not a case in which parol evidence is offered to rectify a written contract upon the ground of fraud, surprise, or mistake. The contract here is by parol, and void; and if tho intention of the parties was over so clearly expressed, it would be no better. It would still be void for want of writing, and no reformation of it by this Court can make it otherwise. It follows, therefore, that in my opinion the defence cannot be maintained, and that the plaintiff must have relief if this Court has jurisdiction to give it to him.

The objection to the jurisdiction is for the first time taken at the hearing, and after the argument had commenced, and though I do not doom myself at liberty to disregard it on that ground, it certainly furnishes a reason for looking with some degree of disfavor upon it. Prior to the passage of the Act of 1841, ch. 163, an objection to tho jurisdiction of this Court might be taken in the Court of Appeals, though the defendant had wholly omitted to place his defence upon that ground in the Chancery Court, so that it frequently happened that parties who had meritorious claims if prosecuted in the proper forum, lost them by having an exception to the jurisdiction sprung for the first time in the Appellate Court, when, if tho objection should ho sustained, limitations or loss of evidence would be fatal to a recovery upon being compelled to sue at law. The Act referred to was to cure this evil; and though it does not apply to this Court, or require the defendant to object to its jurisdiction at any particular stage of the cause, its policy, and the manifest justice of the provision may be permitted to have some little influence when a question not free from doubt is presented. The Court was called upon in the case of Hughes vs. Jones, 2 Maryland Ch. Decisions, 179, to consider this subject, and it was then said, that if “the want of jurisdiction is apparent, the delay, and the circumstances under which the objection was made, must be disregarded, however severely it might operate; but if there be any doubt upon the subject, the Court may surely take these circumstances into consideration, and be induced by them to give unwilling heed to the objection.” In this case, the answer rests the case upon the merits disclosed by it, and the general replication was entered, and a commission by consent of parties was issued to. take proof more than two years ago. But in addition to this reason why the Court should not now lend a willing ear to the objection to its jurisdiction, it is by no means cei’tain that the plaintiff has that plain, adequate, and complete remedy at law which should deny him the aid of Chancery.

The action of trover would only enable him to recover damages for the demand and refusal, and the plaintiff had no authority to make the demand until after he took out letters of administration in December, 1849, which would fall far short of his recovery under this bill if he succeeds in getting a decree. Fishwick vs. Sewell, 4 H. & J., 394. Besides, in the action of trover, he recovers only damages against the defendants, giving him a personal demand against them, which it must be obvious may be a much inferior security, to a decree which shall direct a specific delivery of the bonds and notes to the complainant. If replevin is brought, the complainant must give bond with surety for a large sum of money, which in many cases may be extremely inconvenient, and in some impossible; besides, that it would be requiring of an administrator to assume a personal responsibility, which should not be lightly demanded of him. This circumstance, it will be seen, had some weight attached to it in the case of Hughes vs. Jones, already referred to. Besides, even if replevin were brought, and the notes under it delivered to the complainant, the defendant upon giving a retorno habendo bond would have them restored to him, and his claim to the specific thing converted probably into a personal demand upon the bond in the event of his succeeding in the action.

J. M. S. Causin, for Plaintiff. Geo. Brent, for Defendants.

In White’s Equity Cases, 65, Law Lib., 545, many cases are collected establishing the principle that a Court of Equity will decree a specific delivery up of deeds or writings to the persons legally entitled to them; and in Jackson vs. Butler, 2 Atk., 306, where mortgage deeds delivered to a person for the purpose of receiving the principal arid interest due on them had been pawned by him, were decreed to be délivered up by the pawnee, Lord Hardwicke observing, that the plaintiff might have had an action of trover, but then he could only have had damages for the detaining, but not the deeds themselves, and therefore he was right in bringing a bill in equity for the recovery of his deeds.

Under all the circumstances of the case, therefore, I shall decree the specific delivery of these notes. It appears to me at least doubtful whether the plaintiff has that plain, adequate, and complete remedy at law which will preclude the interposition in his favor of this Court; and seeing that the objection was not made until after the argument of the cause had commenced, which, though not of itself a sufficient reason for refusing altogether to listen to it, is a reason why the Court should lean against it, and I am not disposed now to yield to it. But though the decree will bo for the plaintiff, the costs will not be thrown upon the defendants, who in resisting the claim made upon them, acted in the proper discharge of their duty.

[An appeal was taken in this ease, which is still pending.]