Webb v. Webb's Heirs

[bilí, in equity by heirs at law of deceased husband for reformation AND SPECIFIC PERFORMANCE OF ANTE-NUPTIAL CONTRACT, AND INJUNCTION OF PROCEEDINGS AT LAW BY WIDOW FOR DOWER.] 1. Ante-nuptial contract, barring dower, specifically enforced. — In this case, a specific performance of an ante-nuptial contract, barring the wife of dower, ivas decreed against her, at the suit of the heirs-at-law of her deceased husband, where the contract secured to her separate use her interest in the estate of a former husband, which was worth about $1200, and further, “during her life or widowhood,” in the event of her survivorship, “ one third of the estate, both real and personal, of which the said [husband] should happen to die seized and possessed” ; it being shown that the estate of the husband, who was between 60 and 70 years old at the time the contract was made, and had four children by a former wife, was worth about $25,000, of which $10,000 was in lands; that the wife, who was then over 40 years old, was principally induced to make the contract, that she might be better enabled to educate her children by her former husband ; and that the contract was partially performed, so that the parties could not be placed in statu quo. 2. Repugnancy in deed. — The rule is well settled, that if two clauses of a deed are so repugnant that they cannot stand together, the first must prevail over the last; but the granting clause will control an introductory recital, as to the interest intended to be conveyed.. 3. Answer averring affirmative matter in avoidance. — Where the defendant, in a bill for the reformation and specific performance of an ante-nuptial contract, was required to answer all the allegations of the bill, particularly as to the existence of the alleged mistake, and to say whether the deed contained the true contract of the parties ; and the answer, admitting the alleged mistake, averred that another material stipulation of the contract was by mistake omitted from the deed, — held, that this averment was not responsive, but was affirmative matter requiring to be proved.

Appeal from tbe Chancery Court of Limestone. Heard before the Hon. E. D. Townes. This bill was filed by the heirs-at-law and distributees -of John Webb, deceased, against his widow and personal representative ; asking the reformation and specific performance of an ante-nuptial contract entered into between said Webb and his second wife (now his widow), and an injunction of certain proceedings instituted by Mrs. Webb in the probate court for her dower and distributive share of her said husband’s estate. The ante-nuptial contract, upon which the principal questions in the case arise, is as follows : “ This indenture, made and entered into on the 13th day of September, A. D. 1832, by and between John Webb, of-the county of Limestone, in the State of Alabama, of the first part; Mary S. Lewis, widow and relict of Peter C. Lewis, deceased, late of Madison county in said State, of the second part; and John R. B. Eldridge, of the third part,- (the said parties of the second and third parts being residents of said county of Madison,) vñinesseth, that whereas, with the permission of Divine Providence, a marriage is intended to be shortly had and solemnized between the said John Webb and Mary S. Lewis ; and whereas the said Mary S. Lewis is entitled to a- distributive share of one fourth part of the personal estate of the said Peter C. Lewis, and'also to a life estate in one third part of all the lands and tenements of which the said Peter C. Lewis died seized and possessed ; and whereas the said John Webb, with the concurrence and wish of the said Mary S. Lewis, is willing and desirous that the said property belonging to the said Mary should, previous to the consummation of said marriage, be placed beyond the reach, power and control of the said John Webb; and whereas it is agreed between the said John Webb and Mary S. Lewis, that if the said Mary S., after the consummation of the said marriage, should happen to survive the said John Webb, then, and in that case, the said Mary should be entitled to a life estate in all the property, both real and personal, of which the said John Webb should die seized and possessed, so long (and no longer) as the said Mary should remain in a state of widowhood: Now this indenture witnesseth, that for and in consideration of the premises above set forth, and also for and in consideration further of the sum of five dollars, to the said Mary S. Lewis in hand paid by the said John R. B. Eldridge at and before the sealing and delivery.of these presents, the receipt whereof is hereby acknowledged, she, the said Mary S. Lewis, by and with the privity, consent and agreement of the said John Webb, testified by his being made a party to, and his sealing and delivery of these presents, hath granted, bargained, sold, assigned, transferred and set over, and by these presents doth grant, bargain, sell, assign, transfer and set over, unto the said John R. B. Eldridge, his executors, administrators and'assigns, all the said one fourth part of the personal estate of the said Peter 0. Lewis, deceased, and all the said one third part of the lands and tenements of which the said Peter C. Lewis died seized or possessed ; to have and to hold the said property hereby conveyed, or intended to be conveyed, unto the said John R. B. Eldridge, his executors, administrators and assigns, upon such trusts nevertheless, and to and for such intents and purposes, and under such provisions and agreements, as are hereinafter mentioned — that is to say, in trust for the said Mary S. Lewis and her assigns, until the solemnization of the said intended marriage ; and from and after the said solemnization of the said intended marriage, then upon trust that the said John R. B. Eldridge, his executors, administrators and assigns, shall so permit the legal heirs of the said Peter C. Lewis, during the joint lives of the said Mary S. Lewis and her said intended husband, John Webb, to have, receive, take and enjoy all the interest and profits of the said property hereby conveyed and intended to be conveyed, to and for their own use and benefit; and from and after the decease of such of them, the said John Webb and Mary S. Lewis, as shall first happen to die, then upon trust that he, the said John R. B. Eldridge, his executors, administrators and assigns, shall and do assign, transfer and pay over all the said property hereby conveyed and intended to be conveyed, unto the said Mary S. Lewis, in case she should survive the said John Webb, and should, moreover, marry again after the death of said John Webb ; but, if the said Mary S. Lewis should happen to die before her intended husband, the said John Webb, then and in that case it shall be the duty of the said John R. B. Eldridge, his executors, administrators and assigns, to transfer, assign and convey the said personal property hereby conveyed, or intended to be conveyed to him, to such person and persons, and at the time and times, and iu such parts and proportions, manner and form, as she, the said Mary S. Lewis, shall from time to time, notwithstanding her coverture, by any writing or writings under her hand and seal, attested by three or more credible witnesses, or by her last will and testament in writing, to be by her signed, sealed and published, and declared in the presence of the like number of witnesses, direct, limit, or appoint; to the intent that the same may not be at the disposal of, or subject to, the control, debts, forfeitures, or engagements of the said John Webb; and in default of such direction, limitation or appointment by the said Mary S. Lewis, then and in that case to the legal heirs of the said Peter 0. Lewis, and to such heirs of the body of the said Mary S. as shall happen to be born during the existence of said intended marriage, to the same intent as above set forth ; and then this trust to cease and be ended. And this indenture further witnesseth, that for and in consideration of said intended marriage, and also for the farther consideration of five dollars iu hand paid to the said John Webb, at and before the sealing and delivery of these presents, by the said Mary S. Lewis, the receipt whereof he doth hereby acknowledge, he, the said John Webb, with the knowledge, privity and consent of his intended wife, testified by her being made a party to, and her sealing and delivery of these presents, doth covenant and agree with the said Mary S. Lewis, that in case she, the said Mary S. Lewis, after the consummation of the said intended marriage, should happen to survive the said John Webb, her intended husband, then' and in that case she shall be entitled to have, demand, recover and receive, during the term of her natural life or widowhood, should she subsequently marry, one third part of the estate, both real and personal, of which the said John Webb should happen to die seized and possessed ; and the said Mary S. Lewis, on her part, covenants and agrees with the said John Webb to accept said settlement in lieu of all claims which by law she might otherwise have upon the estate of the said John Webb, if after said marriage she should happen to survive him ; and that if, surviving him, the said John Webb, she, the said Mary S. Lewis, should subsequently marry again, then and in that case she, the said Mary S. Lewis, hereby forever quit-claims all and every right and demand, whether of dower or of a distributive share, in and to the estate of the said John Webb. In witness whereof,” &c. The bill alleged, that this deed did not express the true contract between the parties, in this: that it was their intention, that the said Mary S. Lewis, in the event of her surviving said John Webb, should be entitled, during her natural life or widowhood, to one third part only of the real and personal estate of which said John Webb might die seized and possessed ; and that the clause of the deed, giving her in that event an estate for life or widowhood in all the property of which said John Webb might die seized and possessed, was inserted through mistake on the part of the draftsman. The bill further alleged, that the marriage contemplated between the parties’ was solemnized soon after the execution of this deed, and the parties lived together until the death of John Webb, which occurred in July, 1850 ; and that Mrs. Webb, since his death, has instituted proceedings in the probate court for her dower and distributive share of his estate. Mrs. Webb answered the bill, admitting the execution of the ante-nuptial agreement, and the alleged mistake in its terms ; alleging that it was further stipulated by said agreement, though by mistake the writing does not contain any such provision, that said Webb should, out of his own means and property, defray the expenses of the education of respondent’s two youngest children by her former husband; insisting that said contract was not supported by an adequate and sufficient consideration to make it binding on her, and ought not to be enforced against her, and that it was violated by said Webb in his lifetime ; and demurring to the bill for wan.t of equity. On final hearing, on bill, answers and proof, the chancellor sustained the validity of the ante-nuptial contract, decreed a specific performance of it, and perpetuated the injunction ; and his decree is now assigned as error. I. The bill should have been dismissed for want of equity, because it did not show that Mrs. Webb had married again. According to the terms of the contract, she did not forfeit her dower and right to a distributive share of the personalty of her husband’s estate, unless she again married. The words of the contract are, “ If, after said marriage, she should happen to survive him, and if, surviving him, she should marry again, then and in that case she quit-claims all and every right and demand, whether of dower or of a distributive share, in and to the estate of the said John Webb” ; thus making the forfeiture of her rights in and to his estate depend upon two contingencies — her surviving him, and her marrying again. II. The court will not enforce a specific performance of the contract,— 1. Because of its uncertainty. The bill alleges, that the written instrument does not express the true contract of the parties ; while the answer, in direct response to the interrogatories, “ Does it [the deed] contain the agreement made between herself and'said John Webb,” and “ Let her answer all the allegations of the bill,” Sets up a contract different from that alleged in the bill, as well as that evidenced by the deed ; and the proof does not remove this uncertainty. On this state of pleading and proof, the court cannot know that it is enforcing the real contract of the parties. Equity will not enforce the specific performance of a contract, unless its terms are clear and free from doubt. — 4 Porter, 291; 3 Ala. 421 ; 6 Paige, 288; 14 Peters, 77 ; 5 Wendell, 638. Uncertainty in the terms of a contract is an insuperable obstacle to a decree for a specific performance. — Aday v. Echols, 18 Ala. 353; 1 Madd. Oh.. 425; 5 Yesey, 452; 9 United States Digest, 161, § 140. 2. On account of the inadequacy of consideration. Mere inadequacy of consideration alone, without any other ingredient, will stay the exercise of the discretion of the chancery court from enforcing a specific performance. — 2 Ala. 91 ; 1 Madd. 424 ; 6 Johns. Oh. 222 ; 2 ii. 23 ; 1 Dess. 257 ; 4 Peters, 311; 1 Yesey, sr., 279’. Even though the inadequacy is not so gross as to amount to fraud. — 10 Yesey, 292-300 ; 1 Bro. 0. O. 484 ; 2 Ala. 83. The power rests in the discretion of the court, and cannot be demanded ex débito jus-titice. — 2 Ala. 91; 6 Johns'. Oh. 222 ; 12 Yesey, 331. It will only be exercised in cases of extraordinary fairness. — 1 Eq. Digest, (Barb. & Har.) 103, § 37 ; ib. 117, § 53 ; 3 ILayw. 200 ; 3 Cowen, 445 ; 4 Peters, 311 ; 6 Johns. Ch. 111. The difference is well settled, between that degree of unfairness which will induce the court to interfere actively by setting aside a contract, and that less degree of unfairness on account of which the court will merely withhold its aid, and refuse to enforce a specific performance. — 5 Peters, 264 ; 7 Ala. 71. It is submitted that a specific performance cannot, consistently with the principles asserted in these authorities, be decreed in this case. In addition to the inadequacy of the consideration, which alone is sufficient to justify the refusal of the relief prayed, the provision for Mrs. Webb out of the estate of her husband was contingent, and dependent on his will ; and it was in his power, by divesting himself of his estate, to leave her penniless. Public policy demands the condemnation of a contract which contains such a feature. — Liglitfoot v. Colgin, 5 Munford, 42. 3. Because the contract was not performed by Webb. The proof shows that a considerable part of the property of Peter 0. Lewis, deceased, “came into the possession, and under the control of John Webb”; that household and kitchen furniture to the amount of several hundred dollars, the use of slaves worth nearly two hundred dollars, and other items of less value, went into his possession, contrary to the provisions of the deed, — thereby increasing his estate, and diminishing the trust estate of Mrs. Webb. It is further shown, that John Webb did not perform the duties which, by the terms of the contract as set up in the answer, ho undertook to perform, in educating the children of Mrs. Webb. The allegations of the answer, as to these terms of the contract, are responsive to the bill, and are not contradicted by the proof. Theparty who seeks the specific performance of a contract, must show that he has complied with the stipulations which it imposed on him, or that he is in no default' on account of his failure to do so ; and his performance must be according to the true intent and meaning of the contract. — 1 Porter, 310-74 ; 10 Ala. 777 ; 4 Cranch, 137 ; 1 Dess. 161; 2 Sumner, 295 ; 1 Madd. Ch. 418 ; 4 Peters, 311; 6 Peters, 389 ; 2 Wheaton, 336; 1 Equity Digest, (Barb. & Har.) 103, § 37 ; ib. 112, §§ 6-13 ; 8 U. S. Digest, 125, § 152 ; 3Hayw. 200 ; 3 Cowen, 445 ; 6 Johns. Ch. Ill ; 14 Yesey, 519; 2 Yesey, sr., 298 ; 1 Peters' C. C. R. 380. 4. The contract which the decree enforces, is not the contract which was really entered into between the parties. The bill alleges that the deed does not express the contract of the parties, and the answer admits the allegation ; yet the decree enforces a specific performance of the deed. 5. The decree violates the fundamental rule, which requires that a decree should be secundum allegata et probata. Even if the proof makes out a case which entitles the complainant to recover, he cannot recover on a bill, the allegations of which are not adapted to the case proved. — Gibson v. Carson, 3 Ala. 421 ; Clemens v. Kellogg, 1 Ala. 330. To enforce the specific performance of a contract, the complainant must make out the contract as laid by clear and satisfactory proof. 6 Yesey, 297 ; 1 Johns. Ch. 131; 2 Wheaton, 336 ; 2 Sumner, 295 ; 4 Watts & Serg. 228 ; 18 Ala. 353. If the agreement admitted in the answer differs from that stated in the bill, the plaintiff cannot have a decree except upon proof aliunde. — 1 Peters’ C. C. R. 380 ; 1 Madd. Ch. 382 ; 1 Barb. & Har. Eq. Digest, 123, § 104. These authorities present insuperable obstacles to a specific performance on the pleadings and proof in this case. 6. The evidence shows that there were outside assurances and reliances, and departures from these assurances by John Webb, as well as from the contract, which would render a specific performance at the instance of the complainants highly inequitable. — Gould v. Womack, 2 Ala. 83 ; Tamlyn’s Equity Evidence, 8 (41 Law Lib.); 14 Yesey, 519 ; 2 Yesey, sr., 298. 7. The estate of John Webb has been considerably benefited by his disregard of the contract; and these breaches of the contract were in such a state of facts, that objections by the parties interested, either the trustee or the heirs of Lewis, could not have been urged without a breach of social delicacy. Webb’s disregard of the contract is shown to have resulted in a loss to the estate of Lewis, fully equal in value to Mrs. Webb’s interest in that estate. It would be highly inequitable, under these circumstances, to enforce a specific performance of the contract in favor of Webb’s heirs. The maxim, that he who seeks equity must do equity, is enforced in few cases more rigidly than in suits for'specific performance. — 2 White & Tudor’s L. C. 550 ; 4 McMullen’s Eq. 1 ; 1 Strobh.Eq. 356 ; 9 Ala. 755. III. The English decisions under the statute of jointures, (27th Henry VIII, ch. 10,) and the decisions in other States under similar statutes, cannot be regarded as authority here, where the common-law rules prevail, for the purpose of barring the right to dower ; yet, for the purpose of sustaining the right to dower, they are authority. Because the right to dower was held barred by the joint force and energy of the statute and common law, does not show that it would have been barred by the rules of the common law alone ; but, if the common law and statute combined were no.t sufficient to bar the right, a fortiori, the common law alone would not. bar it. — McCartee v. Teller, 8 Wendell, 303 ; Stilley v. Folger, 14 Ohio, 643 ; 4 Kent’s Com. 58 ; Reeve’s Dom..Rel. 57 ; 1 Greenl. Cruise, 200. The decisions under the jointure statutes, under which no question can arise as to the adequacy of the provision, are especially delusive on the question of the adequacy of consideration. — 1 Bright on H. and W. 434 ; 1 Roper on H. and W. 462 ; 1 Bro. C. O. 116 ; 4 ib. 413. But marriage articles for jointure or settlement, and covenants to settle lands in jointure, are not within the statute 27th Henry VIII, and are adjudicated alone upon the principles which govern contracts ; and in these cases, when resort is had to equity to enforce a' specific performance, the court looks to the adequacy of the consideration and provision, and inquires whether the complainant has fully performed the contract. — Atherley on Marriage Settléments, 91, note (a); 2 Cas. in Ch. 17; 2 P. Wms. 243; 1 Madd. Ch. 420; 1 Vesey, sr., 376 ; 3 Dess. 190 ; 34 Maine, 135 ; 9 Gill, 361; 4 McLean, 99. 1. Dower is admitted to be a common-law right, which is much favored, and which cannot be barred, at law, by any ante-nuptial contract. In England, this hardship of the common law was remedied by the statute of jointures, 27 th Henry VIII, cb. 10, which has been substantially re-enacted in New York, Massachusetts, and several other American States. The strictness of construction which was applied to this statute greatly restricted its beneficial operation, and caused frequent recourse to the extraordinary powers of the court of chancery. The jurisdiction of chancery in these cases seems to have been based upon two- distinct principles : 1st, on the statute, in which class of cases it acted by analogy to the legal bar ; and, 2d, on the ground of a contract between parties competent to contract. In the first class of cases, the idea of a contract is wholly discarded ; the assent of the wife is not considered an. operative circumstance ; her infancy is no objection ; she is not even consulted ; her legal rights are taken away from her by operation of law; and the only question is concerning the adequacy of the provision made for her. In the other class of cases, where the wife is an adult, capable of contracting, and actually does contract in reference to her intended marriage, the question of equitable jointure is not involved : the court considers the contract on-its merits, and, in decreeing or refusing a specific performance, tests the case by the same principles which govern other contracts. These propositions arededucible from a careful examination of all the cases, English and American ; and but a few loose dicta, which militate against them, can be found.- — -Blunden v. Barker, 1 P. Wms. 633; Charles v. Andrews, 9 Modern, 151 ; G-iover v. Bates, 1 Atk. 439 ; Walker v. Walker, 1 Vesey, sr., 54; Slocombe v. Glubb, 2 Bro. C. C. 545 ; Caruthers v. Caruthers, 4 ib. 500 ; Simpson v. Gutteridge, 1 Mad. 609 ; Birmingham v. Kirwan,' 2 ;Sch. & L. 444 ; Drury v. Drury, 1 Eden, 39 ; Estcourt v. Estcourt, 1 Cox, 20 ; Chitty v. Chi tty, 3 Vesey, 545 ; Smith v. Smith; 5 ib. 189 ; Davila v. Davila, 2 Vernon, 724 ; Dyke v. Rendall, 13 English Law and Equity R. 410, overruling Power v. Sheil, 1 Molloy, 296 ; Gould v. Womack, 2 Ala. 83 ; Stilley v. Eolger, 14 Ohio, 610 ; McCartee v. Toller, 2 Paige, 511 ; S. C. 8 Wendell, 267 ; Andrews v. Andrews, 8 Conn. 80 ; Selleck v. Selleck, ib. 85, n‘ote. 2. In this State no statute similar to 27th Henry VIII has ever been enacted, and therefore the case must be adjudicated upon the principles which govern other cases of specific per-formalice ; and those principles, so far as applicable, are the following : In the first place, specific performance is never a matter of right, but of sound discretion in the court; yet this discretion is not an arbitrary, or capricious assumption of authority, but is regulated, as nearly as may be, by general and established rules. The first of these general rules is, that a specific performance will not .be refused, where the contract is executory, on account of the inadequacy of the consideration, unless the inadequacy is so great as to show that the contract is unfair, inequitable, and unconscionable. Gould v. Womack, 2 Ala. 83 ; Caruthers v. Caruthers, 4 Bro. O. C. 500 ; Dyke v. Rendall, 13 Eng. Law andEq. 410 ; Cathcart v; Robinson, 5 Peters, 265 ; Seymour v. De- ■ Jancey, 6 Johns. Ch. 222 ; Selleck v. Selleck, 8 Conn. 85, note ; Andrews v. Andrews, 28 Ala. 444 ; Stilley v. Eolger, 14 Ohio, 610 ; Ex parte Marsh, 1 Atk. 158 ; Brown v. Jones, ib. 188 ; Kelynge, 17 ; 3 Yesey, 545. But this rule only applies to contracts which are purely executory ; and where the contract has been partly performed, another general rule applies — that if the party asking a specific performance, has performed a valuable part of the contract, and is in no default as to the residue, he is entitled to a decree ; especially, where it is impossible to place him in statu quo. — Hays v. Hall, 4 Porter, 375 ; Casey v. Holmes, Bott& Earle, 10 Ala. 777; Andrews v. Andrews, 28 Ala. 434 ; 2 Story's Equity, §§ 759, 769, 772-4, and cases cited. 3. On the facts of the case, as shown in the record, ought the wife to be held to her contract ? The contract was made between parties who were advanced in years, and in every way capable of contracting: Mr. Webb is shown to have been nearly seventy years old, and Mrs. Webb admits that she was in her fortieth year. It does not seem to have sprung solely from affection, or to have been entirely free from motives of convenience. Mrs. Webb admits in her answer, “ that her primary object in entering into said contract was to secure the means of educating her children” ; thus showing deliberation, sagacity, and the cool exercise of judgment on her part. No fraud, deception, unfairness, or misrepresentation, in entering into the contract, is pretended. In point of consideration, the provision secured to the wife was as ample as she could reasonably have expected. By the contract she reserved to her present, vested and exclusive interest all the property belonging to her by-virtue of her former marriage, which is shown to have been worth about §1,800 ; and this afforded her the,means of educating her children as she desired. In addition to this, the contract secured to her,, “ during her life or widowhood, one third of all the property, both real and personal, of which the said John Webb should happen to die seized.and possessed.” Mr. Webb’s estate is proved-to have been worth, at that time, about §25,000, of which about $6,000 was in real estate; and he had four children. If there had been no contract, the widow’s dower would have been one third of all the real estate — just what the contract gives her ; and her distributive share of the personalty would have been one fifth absolutely, instead of one third during life or widowhood. That the husband might dispose of the personalty, and thus defeat her rights in it, is no objection to the contract, because he might by the same means cut off her distributive share at law ; and the restriction as to widowhood, at her time of life, cannot be considered onerous. Regarding the husband’s estate alone, exclusive of the other property reserved to her separate use, the provision for the wife is ample, and more than an equivalent for the contingencies which she surrendered. But this inquiry -into the adequacy of the consideration does not necessarily arise: the fact that the husband has performed his part of the contract, and that the parties cannot now be placed in statu quo, renders all inquiry into the adequacy of the consideration superfluous. Conceding the fact, "which is urged against this position, that Mr. Webb took possession of a female servant and some household furniture belonging to Mrs. Webb, it avails nothing. There is no proof that the property was carried to his house, or was retained or used by him, without or against her consent. Being the separate property of Mrs. Webb, she could deal with it as she chose ; she had a right to carry it to his residence, as she doubtless did, for her own use and benefit; and if her rights were invaded, she had a remedy. 4. Bnt it is said that the chancellor should have reformed before he specifically enforced the contract. The answer is, that no reformation was necessary, because the answer admitted the alleged mistake in the deed,' and the recitals are controlled by the granting clause. — Bacon’s Abr., “ Deed” ; Cruise’s Digest, 293-6 ; 7 Sm. & Mar. 495. 5. The contract alleged is substantially proved. The affirmative allegation of the answer, as to the existence of a mistake which is not alleged in the bill, is matter in avoidance, and is not proved. — 2 Stewart, 280 ; 4 Ala. 60.