Perkins v. Keith

By the Court. —

Lumpkin, C. J., delivering the opinion.

The capital defect in the argument of onr young brother, if he will pardon the criticism, is, in treating this as a contest between the husband, or representative of the deceased husband, and the wife or widow, instead of the father of the wife and his daughter, who are really the parties to the case. The argument is highly creditable to the research and industry of plaintiff’s counsel. The proposition assumed by Mr. *527 Peavy, and fully sustained by his authorities, need not be controverted for the purposes of this decision.

It is contended that a Court of Equity will not enforce the execution of a voluntary contract. Concede this to be true, William E. Perkins, the father, is not resisting the bill, but on the contrary, is willing and desirous to settle this property upon his daughter, and any children which she may have, in fulfilment of his promise when he permitted the slaves to go into possession of her and her husband.

Again, it is said that as between different volunteers a Court of Equity will not generally interfere, but will leave parties where it found them. In this case the practical application of this doctrine would be to turn over these negroes to Mr. Perkins, he having never parted with the title. He placed them in the possession of his son-in-law as a loan, temporarily, until a settlement could be made upon his daughter.

Further, it is argued, that a parol agreement, after marriage, to make a settlement upon a wife, is nudum pactum, and that even a parol agreement before should be evidenced by writing, under the Statute of Frauds.

This is not an agreement made by the husband either before or after marriage, nor is it a contest between the wife and the 'children by a former wife of the husband. The property loaned by the father is found in the possession of the husband at his death. The administrator of the husband proposes to distribute it as a part of the husband’s estate, amongst his widow and the children. The widow interposes by bill, alleging that the negroes in dispute are no portion of the assets of her deceased husband’s estate. For that her father after her intermarriage with George W. Keith, placed the property in his possession, with the express understanding and agreement between the husband and father, that the possession should not operate as a gift to the said George W., or otherwise vest the title in him, but was for the separate benefit of the complainant and such child or children as she might thereafter have, and it was further stipulated by the parties, that at some convenient time thereafter, a deed should *528 be executed in writing, conveying the property in trust, to the said George W. Keith, for the purposes aforesaid. He died before the instrument was made.

These facts being admitted, as they are by the demurrer, ought not the administrator of the deceased husband to be restrained from administering this property, and ought not the father to be decreed to execute a title pursuant to his promise ?

But it is finally insisted, that in case of a portion secured by settlement, a distributive share in case of intestacy to the full amount of the portion, will be decreed a satisfaction, or more properly speaking, a performance, and if the distributive share is of less value than the portion, it will be decreed a performance pro tanto.

Here, again, the controversy is considered between the wife and the deceased husband. What portion has he settled upon his wife, and what has a gift made to her by her father to do with any distributive shares which she may be entitled to from her husband’s estate?

In conclusion, we would state the law of this case to be this : The owner of an equitable title has the right to demand the conveyance of the legal title, 27 Georgia, Rep. 372; and it is no objection in the administrator’s mouth, that the bill seeks the enforcement of a voluntary agreement to convey. 16 Ga. Rep., 49 ; 27 Ga. Rep., 36 ; 28 Ga. Rep., 74 ; 1 White & Tudor’s Leading Cases, top page 176-8-9, 216, 218, 219,

Judgment affirmed. Let the defendants answer.