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could not be said to be using it as a private other known to the law.Washburn on Real dwelling-house only. In Johnstone v. Hall, Property, Vol. I, Chap. VII, $ 6, page 301. 4 W. R. 417, 2 K. & J., 414, the lessee “It is no right which her husband can bar had covenanted not to use buildings erected or incumber; nor she herself, except by deed on the lands demised for any of certain speci- in which her husband joins, and then it is fied trades, " or any other trade, business, or only in the way of estoppel, for her deed, employment whatsoever.” but only as private even of grant, does not pass any title to the dwelling-houses. One of the houses on the

estate. She has not, in this stage of her premises had been used for a girls' school, right, even a chose in action, in respect to the and Wood, V. C., recognized the authority of estate ; nor can she protect it in any way Kemp. V. Sober, and only refused relief be- from waste or deterioration by her husband or cause plaintiffs claimed as reversioners. In his alienee; nor is her right, in any sense, an Richards v. Revett, 26 W. R. 166, a lease interest in real estate, nor property of which contained a covenant not to allow any house value can be predicated. She can not convey built on the land adjoining that demised to it, nor is it a thing to be assigned by her durbe used for the sale of liquor, and it was ing the life of her husband.” Ibid, Vol. 1, p. held (following Wilson v. Hart, 14 W. R. 748, 301. L. R. 1 Ch. App. 463), that an assign with The author from which the above citation is notice was in the same position as a party to made refers to many decisions fully sustainthe covenant, and that the court would not ing the text. Yet, without verbal criticism on require substantial damages to be shown be- the terms inchoate,” and “consummate," fore granting an injunction to restrain a used by the author in the paragraph from breach. In Luker v. Dennis, 16 W. R. 167, which we have quoted, and without impugnon a lease of a public house, the lessee cove- ing the weight of authority justly belonging nanted with the plaintiff to purchase all the to this distinguished writer, we yet will dembeer which should be consumed upon the onstrate that the policy of the law, and, in premises, from the plaintiff. The court ruled many instances, the practice of our courts, that an assignee, as an assign with notice, was do not sustain the author in his posibound in equity by the covenant in the lease, tion. As far as Washburn extends his obserbut that such covenant was conditional on the vations as to the inchoate interest of the wife fulfillment of an implied covenant to supply in the real estate of her husband which may good beer, and that evidence to show a breach become consummate by her becoming a widow, of this implied covenant, on the plaintiffs' he is right, but he does not present the full legal part, was admissible. Lord Cowley v. Byas,

Lord Cowley v. Byas, view appertaining to this subject. 16 W. R. 1, arose under a statute which pro- In some respects the law looks upon the invided that no ground, not already used as a terest of the wife in her husband's estate as an cemetery, should be used for burials, within existing right. In nearly every state in the the distance of 100 yards from any dwelling- American union the law prescribes the method house, without the consent of the occupier. by which the wife shall divest herself of On an application for an injunction, restrain-dower, which, if not done, a purchaser fails

to from the boundary of which the plaintiff's and complete, and which the wife alone can house was less than 100 yards (listant, as a complete by her relinquishment, and which cemetery, the court of appeal held, that the remains to be consummated by no act of hers, act did not prevent the conversion of such but by the law, if she becomes a widow. The land into a cemetery, provided that no actual inchoate right of dower has, however, been interments were made within 100 yards of the considered during coverture as worthy the dwelling-house.

intervention of courts of equity, and pro

tected as an existing contingent right. THE NATURE OF THE ESTATE IN DOWER.

The following authority, with an able opin"The nature of the interest which, inchoate ion from the learned court, is worthy of the in the wife, becomes consummate in the widow most careful consideration, and if not in conin the way of dower, deserves a distinct no- flict with many decisions, certainly carries the tice, since, in many respects, it is unlike any law to a more reasonable extent. In the Su

preme Court of the State of Iowa, where the lative ages, constitutions, and habits of the statute, instead of giving the widow a life es- husband and wife. It is more than a possitate in dower, gives the fee simple to one- bility, and may well be denominated a contingthird of the husband's estate, it was de- ent interest. The case of Petty v. Petty, 4 cided by a full court that “ the wife may B. Monroe, 215, is fully considered and well maintain an action to preserve her right of reasoned, and is a direct authority in supdower while her husband is living; as where port of the right of this plaintiff to maintain by fraud the husband is allowing his real es- an action for the protection of her dower. tate to be sold under execution, in order to This was an action by the wife to set aside a defeat the dower of his wife, she may have conveyance made by her husband, a few days the sale set aside so far as to protect her before his marriage, of all his real estate, to dower.” Buzick v. Buzick et al., 42 Iowa, 3 his children of a former marriage. The plainCent. L. J. 786.

tiff alleged that the conveyance was in fraud The court in this case remarked, Day, J., of her right of dower. In the course of the delivering the opinion: " It would be a opinion the court say: “But the question standing reproach to a court of equity if it arises whether she has such an interest, in the were powerless to grant relief under the cir- life-time of her husband, as to maintain her cumstances disclosed in this case. It is bill. She may not survive her husband, and, claimed by appellants that the dower interest consequently, may never be entitled to a perof the wife is inchoate and contingent; that fect right to dower.

Yet she she may die before the husband, and then her might survive her husband, and in that event estate would never vest, and that, during the would be entitled to a vested interest, but for life-time of her husband, she can not be heard the deed. Though she has not a vested into complain, whatever disposition may by terest, yet she has, or would have had, immemade of the property subject to dower. If diately on the marriage, but for the deed, a this be so, the wife holds the dower entirely potential contingent right, of which she could at the mercy of her husband, and he may by not be deprired, and that right is valuable to confessing false judgments, and, conniving her as affording to her security for future with the purchaser at the sheriff's sale, al maintainance, in the event of her surviving ways defeat her dower. A right which a her husband, though it can not be enjoyed court can not protect, ceases to possess the while he lives. Though a contingent, it is a essential qualities of a right. Although the valuable interest, and may be sold, conveyed wife's dower, during the life-time of her hus- or released for a valuable consideration, and band, is inchoate and uncertain, yet it pos- the law treating it as valuable, and as an existsesses the elements of property. The relin- ing incumbrance on land, has provided a solemn quishment of dower constitutes a valuable mode for its release, guarding the wife from consideration, sufficient to support a convey- imposition or influence from the husband, in ance of property to the wife. Bullard v. the act of surrender. It has been deemed, in Briggs, 7 Pick 533. Its probable present chancery, a sufficient existing incumbrance, value may be computed by the annuity tables, if not surrendered, to authorize the recission 2 Scribner on Dower, page 6, note 5. In Bul- of an existing contract for land. May not a lard v. Briggs, supra, Parker, C. J., announc- court of chancery, therefore, treat it as such ing the opinion of the court, used this language

a valuable interest, though contingent, as to respecting the dower interest: "Though she free it from the embarrassment which the had no actual estate in the dower during the

fraudulent acts of the husband have thrown life of her husband, yet she had an interest around it, prior to, and in anticipation of marand a right, of which she could not be di- riage? We think it can.'" This is the opinvested, but by her consent or crime, or her ion of the court in the case of Petty v. Petty, dying before her husband. It was a valuable cited and approved in the case of Buzick v. interest, which is frequently the subject of Buzick. “It is admitted that dower is a mere contract and bargain; it was an interest which legal right, and that a court of equity, in asthe law recognizes as the subject of convey- suming a concurrent jurisdiction with the ance by fine in England, and by deed with us. courts of law upon the subject, professedly It is more or less valuable according to the re- acts upon the legal estate ; for dower does

66

not attach upon an equitable estate.” Story

PROMISSORY NOTES. Eq. Jur., Vol. 1, $ 630.

GIVENS v. MERCHANTS NATIONAL BANK. If Washburn is right in the position he maintains in relation to the subject of dower, it is Supreme Court of Nlinois, June Term, 1877. only because he has confined himself to a lim

[Filed October 9th, 1877.] ited discussion of the question as a purely Hon. JOHN SCHOLFIELD,Chief Justice.

SIDNEY BREESE, legal estate, which it is in its origin and status

T. LYLE DICKEY, in the courts; yet there is a concurrent equit

BENJAMIN R. SHELDON,
PINCKNEY H. WALKER,

Associate Justices. able jurisdiction, and Story says "it is highly " John M. SCOTT, favored in equity.”

ALFRED M. CRAIG, It appears that, while Washburn fully recog- 1. PLEA IN ABATEMENT NON-RESIDENCE OF nizes the rights of dower after the wife be- PARTIES.-In suit on a promissory note by endorsee

against endorser, it is not a good plea in abatement comes a widow, he does not appreciate or

that, when the cause of action accrued, and when suit omits to notice the power and functions of the was brougbt, both plaintiff and defendant were non

residents of the state in which suit was brought. courts of equity over what he considers an

2. ENDORSEMENT-JOINT LIABILITY.—The fact that inchoate right. It is evident, from the learn

a note is endorsed “St. Louis Marble Co., by James ing of our American courts, that the law leans Givens, pres't., James Givens, I. V. W. Dutcher," very much to the recognition, in a practical raises no presumption that it is a joint undertaking of

the two latter. sense, of what Washburn considers as during

3. PRESENTMENT AND NOTICE-WAIVER.-Knowlcoverture, not“ even a chose in action in

edge of the fact that a note is past maturity, and no respect to the estate” that is of the husband. presentment has been made or notice given to en

dorsers, is necessary in order to make good a waiver of On this point issue may be successfully taken

such fact by a promise of an endorser to pay the note. with the learned and able author of the work But proof of direct knowledge is not essential; it may on real property.

be inferred from circumstances. Washburn says, speaking of the powers of

SCHOLFIELD, C. J., delivered the opinion of the

court: the wife, in relation to her dower rights: “She

Appellee recovered a judgment against appelcan not convey it." The practice under the lant in the court below as endorser of a promissory statutes of nearly every state in the Union note, made by one Charles L. Rice to the St. Louis shows to the contrary, and recognizes pre

Marble Company. scribed forms in which the wife can, and is re

The note was executed and endorsed in St.

Louis, Missouri, where appellant resides. The quired to pursue in order to convey her right

suit was commenced by attachment, and the first to dower, not her future or contingent, but her objection urged is, the court below erred in sus. present existing right, to property that may or taining a demurrer to appellant's plea in abatemay not vest in future. It is on this point, we

ment. The plea alleged that both appellant and

appellee were, when the cause of action occurred, think, it could be shown from satisfactory au

and when the suit was brought, non-residents of thority, and the common practice of state

the state of Illinois, and residents of the state of courts, that Mr. Washburn has not fully rep- Missouri. The objection is not well taken. It is resented the power of the court. There are

expressly overruled in Mitchell v. Shook, 72 Ill. circumstances in which the courts have been

492; see, also, Mason v. Burton, 54 Id. 353;

Schulter v. Piatt, 12 Id. 418. required to exercise authority over the inchoate

Another objection urged is, that there is a variright of the wife to her dower, and to treat it ance between the allegations and proofs in this: as an existing right, leaving it to time to de- The note offered in evidence is endorsed thus: velop whether it will ever become vested or not.

" St. Louis MARBLE Co.,

By James Givens, Pres't. The learning involved in the discussion of

JAMES GIVENS, this topic is, to a certain extent, decidedly

I. V. W. DUTCHER." opposed to the doctrine set forth by Wash- Dutcher is not noticed in the declaration. It is burn. The logic of the law and common

insisted he is jointly liable as endorser with appel

lantsThisour a Supreme Court of Iowa, in the case of Buzick

is pretended to be drawn, is the simple endorseV. Buzick, and the authorities on which it

ment of the names on the note in blank in the orrests.

W. A. C. der we have given; and this, very clearly, instead Hoyt Post, Esq., has tendered his resignation as re

of raising the presumption of a joint undertaking porter to the Supreme Court of Michigan, to take effect

authorizes the presumption that the undertaking March 31, 1878, and Henry A. Chaney, Esq., one of our

was not joint, but that of successive endorsers; contributing editors,has been appointed to succeed him.

and in that view the suit was well brought against

appellant alone, without noticing the subsequent endorser. 2 Parsons on Bills and Notes, 19.

The principal contest is, however, whether the case is made out in respect of presentment and notice, the note having been executed and endorsed, and it being stipulated that, by the law of that state, proof of presentment and notice is required to fix the liability of the endorser. We understand the law in that state to be as it is recognized in many of the other states and laid down in text-books, that the consequences of a neglect to give notice of non-payment of a bill or note may be waived by the person entitled to take advantage of them, and that such waiver may be presumed from a promise made after maturity to pay the note with full knowledge of the facts, or under circumstances from which it is to be inferred the party ought to have had full knowledge of the facts. Chitty on Bills (8th Am. Ed.), 523– 534; 1 Parsons on Notes and Bills, 595; Story on Prom. Notes, $ 276; Dorsey v. Watson, 14 Mo. 62; Mentz v. Osborn, 5 Id. 546.

It is proved that appellant, on several occasions, after the maturity of the note, promised to pay it; but, he says, he was not aware at the time he made these promises that he had any legal defense to the note. This may be true, and have resulted simply from his ignorance of the law, or it may have been true because he was ignorant of the facts. If it was because of his ignorance of the law, it can not avail him, and he must be charged with full knowledge. Chitty on Bills (8th Am. Ed.), 735a ; Story on Prom. Notes, $ 362; Parsons on Notes and Bills, 607–608; Tibbetts v. Dowd, 23 Wend. 378.

It is said in Parsons on Notes and Bills, p. 602 : “It has been sometimes said that a waiver can not be inferred, But, if this is meant that direct knowledge must be proved, we think it incorrect. Indeed, there does not appear to be any good reason why knowledge may not be proved in the same manner, and by the same evidence in this matter as in any other. A jury will be justified in inferring knowledge from a variety of circumstances, such as the situation aud connection of the parties, the words and acts of the endorser, the time which has elapsed between the maturity of the note or bill and the promise, and the like." See, also, Story on Prom. Notes, $ 369. This seems to have been recognized by the court in Mentz v. Osborn, supra.

Here, in addition to the deliberate and unqualified promise of appellant to pay the note, made after its maturity, there was this additional evidence:

The note matured Nov. 1st, 1873, and on the 22d of December, 1873, the following letter was written by appellant and sent to the president of appellee:

“ St. Louis, Dec. 22d, 1873. Louis B. Parsons, Esq., Pres't. :

DEAR SIR:-In case you prosecute Charles L. Rice, on his note for $10,000, we agree to reimburse you all attorney's fees and other expenses attending such prosecution; this agreement not to interfere or prevent your bank from bringing

suit against us, or either of us, should you desire to do so. Very respectfully,

ST. LOUIS MARBLE CO. By James Givens, Vice-Pres't.

JAMES GIVENS.

I. V. W. DUTCHER." Pursuant to this request suit was instituted against the maker of the note, on the 24th day of December, 1873, in the Superior Court of Cook County, Illinois, in which county the maker resided, and judgment therein was rendered in favor of the plaintiff, for the amount due on the note, on the first Monday of March, 1874. And, thereupon, on the 10th day of April, 1874, appellant executed and caused to be delivered to appellee's president, the following agreement in writing: “Should it be necessary to institute proceedings to put C. L. Rice into bankruptcy, I hereby agree and bind myself to pay any and all expenses of any kind incurred by reason of such proceedings.

ST. LOUIS MARBLE Co.

By James Givens, Vice-Pres't. April 10th, 1874.

JAMES GIVENS." In conformity with this, appellee instituted, on on the 20th day of April, 1874, in the United States Court for the Northern District of Illinois, proper proceedings to put the maker of the note into bankruptcy, which resulted, in due time, in a decree to that effect. Execution was issued on the judgment and returned “No property found;": and nothing was realized from the proceedings in bankruptcy. Other evidence clearly shows the insolvency of the maker of the note, at the time of its maturity.

We think the evidence is abundantly sufficient to show that appellant had full notice of all the facts affecting his rights when he made the promise of payment. He knew the note was due and was unpaid. He knew what notice had been given himself of its presentment and non-payment, and he evidently also knew that the solvency of the maker was at least very doubtful.

We think the judgment is substantially right and that it should be affirmed.

MARRIAGE PROCURED BY FRAUD.

TOMPPERT'S EXR'S V. TOMPPERT.

Court of Appeals of Kentucky, September Term, 1877.

Hon. WM. LINDSAY, Chief Justice.

W. S. PRYOR, " M. H. COFER,

Associate Justices. " J. M. ELLIOTT, 1. A MARRIAGE PROCURED BY FRAUD IS VOIDABLE only at the election of the party defrauded.

2. THE PARTY WHO COMMITS THE FRAUD IS BOUND, and remains bound, until the party deceived has made his or her election, and will thereafter be bound or not, according to the election made. Whether an election, after discovering the fraud, would have absolved the parties from the obligations of the marriage, without the judgment of a court annulling the marriage, is not decided in this case.

3. THE RIGHT TO AVOID A MARRIAGE is personal, and if not taken advantage of by a party in his life. time, it can not be exercised after his death by his ex. ecutors or devisees.

4. A WIDOW HAVING NO CHILDREN BY HER LAST riages procured by force or fraud, or involving HUSBAND 18 entitled to one-third only of his personal palpable error, are void; for here the element of estate, if he left children by a former marriage. Sub

mutual consent is wanting, so essential to every sec. 4, sec. 11, ch. 31, General Statutes.

contract.” Mr. Reeve say8, speaking of marriages APPEAL from Louisville Chancery Court:

procured by fraud: “The true point of light in I. & J. Caldwell and Winston, for appellants. which this ought to be viewed, I apprehend, is, “Marriage is considered by the law in no other

that the marriage was void ab initio." And Mr. light than as a civil contract.” Tyler on Infancy Bishop, in his work on Marriage and Divorce and Coverture, sec, 618; see, also, Reeve's Do- (sec. 115) recognizes the same doctrine. mestic Relations, p. 195. The marriage of a man This is no mean array of authorities, yet we feel and a woman can not sanctify the fraud of the

compelled, at whatever risk, to dissent from their latter, as in this case, in procuring or inducing the views. marriage. “A marriage procured by force or Mr. Bishop (section 46), speaking of void and fraud is also void ab initio, and may be treated as voidable marriages, says: “A marriage is said to null by every court in which its validity may be be void when it is good for no legal purpose, and incidentally drawn in question; the basis of the its validity may be relied upon in any proceeding, marriage is consent, and the ingredient fraud or in any court, between any parties, either in the duress is as fatal in this as in any other contract, for lifetime or after the death of the supposed husthe free assent of the mind is wanting." 2 Kent's band and wife, whether the question arises directly Com., p. 42; see, also, Reeve on Dom. Rel. p. 206; or collaterally.” And in section 122 the same Schouler's Domestic Relations, pp. 25, 35; Tyler author says: “ There are various principles applion In. and Cov. p. 863; Mather v. Ney, 1 Maule & cable alike to fraud, error and duress. We may Selwyn, 265; Frankland v. Nicholson (other

presume that the guilty party would not be perwise Franklin), 3 Maule & Selwyn, 260. The pro- mitted so far to take advantage of his own wrong vision of the General Statutes (sec. 6, art 1, ch. as to maintain a suit for nullity solely on that 52), that courts of equity jurisdiction may declare ground. The party imposed upon may, if he void a marriage procured by force or fraud, is in choose, waive the tort, and thereby render the perfect accord with the authorities cited above.

marriage good. Thus, a voluntary cohabitation M. Mundy, for appellee.

after knowledge of the fraud or error, or after the COFER, J., delivered the opinion of the court: cause of fear is removed, will cure the defect,'

The appellee, under the name of Mary Albright, etc. And, again, in section 123, the same author was married to Phillip Tomppert, Sr., April 2, says of marriages procured by fraud, error or 1872. Tomppert died October 29, 1873, leaving no duress: “ They are good at the election of the issue of the marriage, having first made and pub- party injured, who, on being disenthralled from lished his last will and testament, devising all his

the influence of the fraud, error or duress, may estate to four children of a former marriage. then give a voluntary consent, and the other party This suit was brought by the appellee for the al- can not set up his wrong to object that the consent lotment of dower and distribution of the personal was not mutual." estate.

Mr. Tyler, in his work on Infancy and Coverture, The executor and devisees answered, and al- uses this language on this point: “ There is a great leged that she married the testator under the name difference between a void and a voidable marriage, of Mary Albright, claiming to be the widow of which it is important to notice. A void marriage is

Albright, when her name was not Albright, at all times a nullity, and binds no one, and is not and she was not the widow of Albright, and had valid for any legal purpose whatever; it leaves the never been married to him, and that her marriage parties to it in just the same situation, to all inwith Tomppert was procured by fraud and was tents and purposes, as though there had been no void, and on that and the additional ground that pretended marriage at all. In such cases, if the she, without fault on his part, abandoned the bed parties cohabit, they are adulterers and fornicaand board of the testator for several months be- tors, and their offspring, if any, are bastards. fore his death, resisted her claim to dower and But a voidable marriage is valid for all civil purdistribution. The chancellor adjudged in her poses, and binding upon the parties so long as it is favor, and the executor and devisees prosecute this acted upon and recognized by them, and until its appeal. We assume, for the purposes of the case, nullity is declared by a competent tribunal; and if that the facts alleged have been established by the inarriage has not been dissolved by sentence the evidence.

or decree during the joint lives of the parties, it Appellant's counsel cite several authorities will be too late to apply for its avoidance, and, which seem to sustain the broad proposition, that consequently, the survivor will be entitled to a marriage procured by fraud is void ab initio, curtesy, dower, and the other rights of a survivand may be treated whenever called into question. ing husband or wife.” The same distinction is Schouler's Domestic Relations, 35: Reeve's Do- stated in much the saine language by Mr. Schouler mestic Relations, p. 206; 2 Kent, 767; 3 Yaule & (p. 24) and was recognized by this court in BasSelwyn, 260 and 537. Chancellor Kent says: " A sett v. Bassett 9 Bush, 696. marriage procured by force or fraud is also void No other contract recognized by law is held to ab initio, and may be treated as null by every be void by fraud. It is true that text-writers and court in which its validity may be incidentally judges sometimes use the term void in speaking of drawn in question.” Mr Schouler says: "All mar: such contracts, but it is an inaccurate use of lan.

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