Majority
Headnote
In. an action brought by the plaintiff to quiet his title to land conveyed to him. by the defendant’s husband in trust to pay debts, wherein besides seeking the relief granted by the statutory provision for enforcing the determination of claims to land, (2 M: S. 313, § 3,) the complaint demanded as relief that such title might be “ adjudged free and clear from any right claimed by the defendant,” and she set up as a defense a prior right under a deed with full covenants, of the same premises, executed directly to her by her husband, (before the conveyance thereof to the plaintiff, under WHick the latter claims,) pursuant to a prior agreement between herself and her husband for a valuable as well as a godd consideration, with intent to vest in the defendant the fee simple absolute of such land and settle the same upon her as a provision for her, and as her separate estate, it being suited to the means and liabilities of the husband at the time. On demurred to an ariswer containing such defense, Held,By the Court,
This action, even if only the same relief was 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 v. Tillotson, 18 Barb. 332 . Mann v. Provost, 3 Abb. 446 .) The same defenses to defeat the right to such relief might be set up by the defendant. Such statutory proceedings 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 posssssion, 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 v. Miller,
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 and 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 re-. pelling 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 armed 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 defenses 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. (Hey wood v. City of Buffalo, 14 N. Y. Rep. 534 .) Since the law will not interfere to prevent speculative injuries, (Scott v. Onderdonk, 14 N. Y. Rep. 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 v. Clift, 2 N. Y. Rep. 118 . Ward v. Dewey, 16 N. Y.
The first defense demurred to sets out 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 defense 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
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 interest 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. L. 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 receive from him, a provision for her support, needs no further argumént to refute it than the bare statement of the position. (Power v. Lester, 17 How. Pr. 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
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 defense, must be a trust, and as such prohibited by the Revised Statutes respecting uses and trusts, (1 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 lato,” 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 v. Fleet, 14 Wend. 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 instrmment, 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’s Eq. Jur. § 1380. Wallingford v. Allen, 10 Peters U. S. Rep. 583.) Nor is an antenuptial agreement indispensible as a consideration. (Shepard v. Shepard, 7 John. Ch. 60. Garlick v. Strong, 3 Paige, 452. Neufville v. Thomson, 3 Ewd. V. C. Rep. 93. Strong v. Skinner, 4 Barb. 552 . Simmons v. McElwain, 26 id. 419.) The language of the authorities is that in a proper case, (Shepard v. Shepard, ubi supra,) where the consideration was meritorious or to prevent injustice, or where equity demands it. (Simmons v. McElwain, ubi supra, and Winans v. Peebles, 31 Barb. 380 .) Where the lights 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. (Shepard v. Shep
In this case it is alleged, in the second defense, that the conveyance was made to the defendant in pursuance of a previous agreement for both a good and a 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 creditor’s rights. An agreement to release dower may be a sufficient valuable consideration to sustain it, even as against creditors, as I have had occasion to hold recently at special term, (Manhattan Company v. Slate and others, MSS. term, 186 ,) but it is not set forth to 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 defense, is erroneous.
As the same matters are set up as a basis of equitable relief in the fourth defense, by way of 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 v. Jones, 38 Barb. 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 defenses in any kind of actions. (Crary v. Goodman, 12 N. Y. Rep. 266 . Phillips v. Gorham, 17 id. 270 .) The demurrer to this defense is also not well taken.
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 defenses upon
Cases cited
- Hammond v. Tillotson 18 Barb. 332 p. 123, p. 127
- Richards v. Edick 17 Barb. 260 p. 123
- Gould v. Gager 24 How. Pr. 440 p. 124
- Goulding v. Davidson 28 Barb. 438 p. 124
- Simmons v. McElwain 26 Barb. 419 p. 125
- Tisdale v. Jones 38 Barb. 523 p. 125, p. 132
- Hunt v. Farmers' Loan & Trust Co. 8 How. Pr. 416 p. 126
- Fleetwood v. City of New York 2 Sandf. 475 p. 129