Peck v. Brown , 2 Rob. 119 ( 1864 )

By the court, Robertson, J.

This action, even if only the same relief were sought in it, as was formerly given under" the statute respecting the determination of claims to land (2 R. S. 313, § 3), would be subject to the same rules as all other actions. (Code, § 449, Hammond agt. Tillotson, 18 Barb. R. 332 ; Man agt. Provoost, 3 Abb. Rep. 446.) The same defences to defeat the right to such relief might be set up by the defendant. Such statutory proceeding, evidently included only the determination of legal titles, as the defendant was to be barred only from claiming an estate of inheritance or freehold in possession, reversion or remainder in the premises. It did not include the setting aside of a conveyance upon the ground of the grantor’s incompetency, (Bridges agt. Miller, 2 Duer Rep. 683), or the rights of parties under a contract to convey. Were the- action so limited and the right claimed by the defendant in her second and fourth defences purely equitable', they might possibly be insufficient as defences.

But the relief demanded in the complaint in addition to that given under the statutory proceeding" is that the plaintiff’s title may be quieted and adjudged free and clear from any right claimed by the defendant and other relief.

•This includes the removal of the defendant’s claim, whatever it may be, from interfering with the title. It is by no means clear that the right set up by the defendant is not practically as much a legal one as the plaintiff’s. The language of the cases where deeds from a husband to a wife have been sustained in equity is by no means clear as to the mode in which the wife’s rights are to be protected or enforced, unless by repelling hostile claimants whenever they commenced an attack in a suit at law by an injunction in equity. Nor does it seem to be settled whether a second deed from the husband, through the intervention of a third person, is necessary to complete the wife’s title: at all events, the defendant has the same right to resist the attack of the present plaintiff upon her title, as if it were a legal one. He is neither a bona fide purchaser nor clothed with the rights of a creditor. He is only a voluntary trustee created by the defendant’s husband, and having no more rights than he would have had to interfere with the defendant’s estate or interest. The defences made therefore were proper if they were sufficient in law. The complaint in this case, however, is defective, as one in an action to remove a cloud from the plaintiff’s title, because it does not show the nature of the defendant’s claim. (Heywood agt. City of Buffalo, 14 N. Y. R. 534.) Since the law will not interfere to prevent speculative injuries. (Scott agt. Onderdonk, 14 N. Y. R. 9.) If it had simply stated such claim to arise from a deed from the defendant’s husband to her on the face of which their relation appeared, it would have been demurrable, as the defect, if any, appeared on its face. (Cox agt. Clift, 2 N. Y. R. 118; Ward agt. Dewey, 16 N. Y. R. 519 ; Fleet-wood agt. City of New York, 2 Sandf. R. 475.) If such deed, although prima facie void at law, could be sustained by extrinsic facts, the plaintiff would be bound to deny their existence in order to make the defendant’s claim void. This defect, however, cannot be taken advantage of as regards the counter-claim. (Graham agt. Dunnigan, 6 Duer R. 629.)

The first defence demurred to sets up that the defendant’s husband when entirely free from embarrassment for the purpose of applying the same to the separate use of the defendant conveyed to her in fee simple a portion of the property set out in the complaint which is specifically described by deed duly acknowledged and recorded. It also alleges that he did so in performance of an agreement to that effect with the defendant, and in consideration of his love and affection for her, and for other meritorious, valuable and pecuniary considerations. It further alleges that such settlement was no more than a reasonable provision for the defendant, in view of the pecuniary circumstances of her husband, and was so meant by him. Also that he was a man of great wealth, and the defendant had released her dower in large tracts of land. There is no allegation that the release of such dower formed any part of the consideration for such settlement or any part of the agreement on which it was made.

If such second defence is not sufficiently definite, or certain in furnishing the details of the agreement for the execution of the settlement or the pecuniary consideration of it, the remedy of the plaintiff is to move to make it so, until he does so, it is to be presumed he understands the entire nature of them, particularly on demurrer where he claims whatever they were, such settlement forms no bar to his recovery, which is the matter now to be determined.

The voidness at law of a deed directly from a husband to a wife, which is the highly artificial result of the technical theory of their being but one person (1 Bl. Com. 442,) does not interfere with equitable rights which may grow out of such an instrument, they being capable in equity of being considered two persons. (2 Story Eq. Jur. §§ 1368 to 7375.) Such result at common law could always be obviated by interposing a stranger to accept a deed from the husband- and give one to the wife. That there was no policy of the law to be carried out by defeating a deed directly from the husband to the wife is evident from the harmlessness of a recital in a conveyance to a stranger by the husband that it was for the purpose of conveying to the wife. (Lynch agt. Livingston, 6 N. Y. R. 422.)

It has been indirectly suggested rather than seriously urged, that the statute of 1849 (Sess. L. 1849, 528, § 1), which empowers a married woman to take, hold, and convey as a feme sole, property derived from any one but her husband, may by implication deprive her of the right of acquiring any property or interests by the gift of her husband, although only to be enforced in equity. Whether it is intended to carry this doctrine so far as to deprive her of any rights she might acquire as purchaser or creditor does not appear.

It would be sufficiently daring if it took away from all husbands, however wealthy, the right of making provisions for the support of their wives. The title of the statute is “ An Act for the more effectual protection of the property of married women,” (N. Y. Sess. Laws, 1848, Ch. 200) : not to restrict or limit their rights. The section in question gives a married woman the power of a feme sole, in certain cases from which gifts by their husbands are simply excluded.

The strange inference, that such a statute meant to take away the right of a husband to make, or a wife to receive from him, a provision for her support, needs no further argument to refute it, than the bare statement of the provision. (Powers agt. Lester, 17 How. P. R. 413.) But it is seriously argued that this court should not exert its'powers in equity “ to sustain a claim in contravention of an express statute.” How a court can do so when it is only asked as a court of equity to protect the interest of a wife as a cestui que trust, or perhaps a ward in chancery, and not establish any powers in her as a feme sole over the subject of the trust, I am at a loss to perceive.

Another question, by no means novel, has been raised in - this case, that any equity of the wife growing out of the facts stated in the second defence must be a trust, and as such, prohibited by the Revised Statutes respecting uses and trusts, (2 R. S. 727, §45,) because not enumerated therein. One of such provisions (§ 50) expressly declares that the preceding sections shall not apply to trusts arising “ by implication of law," and the next section prohibits a resulting trust in a particular case. The 54th section of the same statute protects the rights of an innocent purchaser for a valuable consideration against an implied or resulting trust. Thus in the strongest manner recognizing and upholding implied trusts. (Johnson agt. Fleet, 14 Wen. R. 179.)

Nothing, therefore, remains to be considered except what rights a wife derives by a settlement made by a husband upon her, in consideration partly of his affection for her, and partly of pecuniary considerations, although by an imperfect instrument, but executed with intent to carry out a previous post-nuptial agreement. The intervention of a stranger as a party to be contracted with, in order to sustain a wife’s rights as her trustee, is not necessary in equity, which would thereby become as rigid and technical as the common law. (2 Story Eq. Jur. § 1380, Walling-ford agt. Allen, 10 Peters’ U. S. R. 583.) Nor is any ante-nuptial agreement indispensible as a consideration. (Shepard agt. Shepard, 7 John. C. R. 60 ; Garlick agt. Strong, 3 Paige, Rep. 452; Neufville agt. Thomson, 3 Edw. V. C. R. 93 ; Strong agt. Skinner, 4 Barb. R. 552 ; Simmons agt. McElwain, 26 Barb. Rep. 417.) The language of the authorities is, that, in a proper case, (Shepard agt. Shepard, ubi supra,) where the consideration was meritorious or to prevent injustice, or where equity demands it, (Simmons agt. McElwain, ubi supra, and Winans agt. Peebles, 31 Barb. R. 380,) where the rights of creditors do not intervene, mere affection and a desire to provide for the wife suitably, according to the husband’s means, are sufficient to sustain it. (Shephard agt. Shephard, Wallingford agt. Allen, Garlock agt. Strong ubi sup.) Some valuable consideration proceeding from the wife on the faith of such promised settlement seems to be necessary where creditors intervene. (Wickes agt. Clark, 3 Edw. V. C. R. 58.) The same rule prevails in favor of the husband. (Livingston agt. Livingston, 2 J. Ch. Rep. 537 ; Jaques agt. Metho. Epis. Ch. 17 John. Rep. 548.)

In this case it is alleged in the second defence, that the conveyance was made to the defendant in pursuance of a previous agreement, for both a good and valuable consideration, and. that it was a suitable one, having regard to the property of the husband; this is admitted by the demurrer, and equity will therefore sustain such a settlement, even if the plaintiff was a creditor or could claim a creditors rights. An agreement to release dower may be such a sufficient valuable consideration to sustain it, even as against creditors, as I have had occasion to hold recently at special term (Manhattan Company agt. Slate, et al. MS.) ; but it is not set forth to have been one in this case. The allegation of releasing dower is entirely isolated, is not connected with, nor does it refer to any other, and might be stricken out without prejudice.

The order appealed from, therefore, in so far as it sustains the demurrer to the second defence, is erroneous.

As the same matters are set up as a basis of equitable relief in the fourth defence, by way of a counter-claim, and relate to the land or the defendant’s claim thereto, as the subject of the action, such counter-claim sets forth a good cause of action to prevent the plaintiff from embarrassing the defendant’s equity with his legal conveyance. (Tisdale agt. Jones, 38 Barb. R. 523.) The fact that the plaintiff’s action is a substitute for a former special proceeding (if it be so exclusively, and not one to remove a cloud upon the title), does not deprive the defendant of the right granted by the Code (§ 150) of setting up equitable defences in any kind of actions. (Crary agt. Goodman, 12 N. Y. R. 266 ; Philips agt. Gorham, 17 N. Y. R. 270.)

The demurrer to this defence is also not well taken.

The third defence presents simply the question, whether a trustee, after the purposes of his trust have been accomplished, retains any interest in land conveyed to him to enable him to litigate the claims of others ?

A great many allegations unnecessary to raise that question, are contained in this defence : such as the priority in time of the conveyance to the defendant, to the accruing of any claims of any creditor of her husband represented by the plaintiff; the barring of many debts of his by the statute of limitations, and the like.

The important allegation is contained in it, that the plaintiff has in his hands more than, sufficient money, proceeds of sales by him of part of the assigned property, to satisfy all the legal, subsisting, and outstanding debts of the assignor. If it clearly appeared by such defence, that such debts did not include those barred by the statute of limitations, it would be insufficient, since the plaintiff’s trusts do not cease by the running of the statute against such debts. But it does not; the allegation of the running of such statute is mere surplusage, and might be stricken out without prejudice. The language of the statute is clear and peremptory, that .the estate of the trustees of an express trust shall cease when the purposes for which such trust has bepn created shall cease. (1 R. S. 730, § 67.)

A trustee therefore only takes so much of the entire legal ownership of the land as is necessary to carry out the trusts. His interest is contingent, and leaves the general ownership to remain with his grantor and his heirs or assignees. A reconveyance after the trusts are'fulfilled is unnecessary. The property reverts to the owner, or rather becomes divested of the incumbrance of the trusts, as in case of a mortgage paid. ' This defence, therefore, amounts to a denial of title in the plaintiff, which is sufficient. (Harrison agt. McIntosh, 1 J. R. 384 ; Bloom agt. Burdick, 1 Hill R. 130.) The order appealed from was therefore erroneous in sustaining the demurrer to the third defence.

The order appealed from must therefore be so modified as to give judgment for the defendant against the plaintiff as to the property specified in the second and fourth defences upon the issues máde by the former, and the counterclaim contained in the latter, and as to the plaintiff’s whole cause of action upon the third defence, instead of judgment for the plaintiff upon the demurrer, with liberty to the plaintiff to withdraw his demurrer, and reply in twenty days to those defences upon paying the costs of such demurrer at special term.