Dickinson v. Glenney

Storrs, C. J.

The instrument which the superior court is solicited to correct, was a deed of a married woman, purporting in the body of it to be her deed only, and acknowledged by herself alone, but executed by her and her husband, conveying her real estate to a third person who immediately deeded it to her husband; neither transfer resting upon any actual consideration. The petitioner is a devisee of her husband; the respondents are heirs of the wife ; so that each is a mere representative of one or the other, and has no better *110 position in a court of chancery than his predecessor would hold if living.

Under these circumstances it is objected on the part of the respondents, that the functions of a court of equity will not be set in motion as between parties thus situated. It is a familiar doctrine that chancery will not enforce voluntary contracts inter vivos; and that, at all events, where a gift is imperfect from one living person to another, equity will leave the donee where it finds him. Such a party having acquired his imperfect title without the payment of any actual consideration, or under such circumstances as raise no equitable obligation against the giver, has in reality no equity. This general principle has been specifically applied in the case of petitions for the correction of defective voluntary agreements, (1 Story Eq. Jur., § 176,) and such an application seems to be an inevitable consequence of the general rule. Equally irresistible is the inference that the aid of chancery will not be extended to a mere volunteer because the respondent is a volunteer also. The latter is, in such a case, a mere representative of the giver, but as such stands in as good a position as the party whom he represents. Or, as- the reason is sometimes less accurately stated, the equities of the volunteers are equal, and as between equal equities chancery remains indifferent and stationary.

The expenditure by the husband on the real estate, after the pretended conveyance to him, cannot vary the case. It could not be maintained that, as between husband and wife, such a circumstance would entitle the former to a conveyance from the latter.

In general an agreement of a married woman relative to her real estate, although concurred in by her husband, is absolutely void; invalid for reasons of policy, quite as cogent, to say the least, as those which justify the avoidance of contracts under the statute of frauds. By express legislation, however, an exception is made in this state in favor of deeds executed by married women jointly with their husbands, under the hands and seals of both, and by both acknowledged, and duly recorded. Such deeds are validated. *111 (Rev. Stat., tit. 29, § 16.) But will chancery supply the defect of any of these essential requisites on the ground that the omission occurred accidentally, and that the parties intended to make a valid deed ? There is nothing in the origin of the mistake to entitle it in a peculiar manner to the remedial activity of a court of chancery. It would seem to have been solely due to an ignorance of the formal requisites of such a conveyance. If the present defect were to be cured on that ground, any other and all formal deficiencies occurring through like ignorance should be supplied, until in some cases an entire agreement might be thus judicially developed in order to carry out the good intentions of the contracting parties.

But, at the threshold of this inquiry, we are met with the established doctrine that equity will not contravene the positive enactments or requirements of law and defeat its policy, by supplying, under the guise of amending defective instruments, those deficient elements of form without which the agreement is absolutely void, even as between the parties to it; that it will not fabricate for contracting parties those essential ingredients of a contract, without which in the eye of the law there subsists no valid contract whatever. In such cases the intent of parties to conform to the enactments or rules of law will not avail them, and, having fallen short of its requirements, they have consummated no agreement at all.

The leading case on this subject is that of Hibbert v. Rolliston, (2 Brown’s Ch. R., 571,) in which the court refused to validate, on the score of making an instrument conform to the intent of the parties, a mortgage of a ship, which did not contain a recital of its registry. An English statute, with a view to sustain its system of partiality to vessels belonging to British owners, made all bills of sales of vessels not containing a recital of their registry-certificate, “ utterly null and void.” It was contended in the case cited, that the intention of a mortgagor to give a valid security raised an equity in favor of the mortgagee. The answer to the bill admitted the intent and the mistake. But, as an act of Parliament *112 stood in the way of the supposed equity, the court dismissed the bill. The same doctrine, in a case not distinguishable from the last, was asserted not long after in Ex parte Bulteet, (2 Cox, 243,) and again in Thompson v. Leake, (1 Madd. Ch., 39.) In the latter the court say emphatically-^** The act of Parliament destroys the contract when not according to the prescribed form; a man has not, as in other cases, a contract to stand upon.” Similar decisions have been rendered in response to applications to reform agreements void under the English Annuity Act. In this country the general doctrine has never been questioned. It was acted upon in Bright v. Boyd, (1 Story’s R., 478,) in which the court refused to validate an administrator’s deed, the administrator having made a void sale through neglect to give bonds before proceeding to make conveyances.

We have no doubt that the rule, which, by creating an arbitrary disability, protects married women from the alienation of their real estate through the acts or coercion of their husbands, is so far founded on policy as to disqualify courts of equity to validate instruments made in contravention of the rule. In fact, in Bolton v. Williams, (2 Ves. Jr., 156,) the court declined to make good against a married woman an agreement bad at law. But it sometimes happens that where equity is thus compelled to yield to the absolute requirements of law, restraining its efficacy in reforming agreements, some other agreement behind the defective contract may subsist, of which equity can lay hold, and thus indirectly, though in strict conformity with established principles, afford a remedy for the deficiency. A defective deed is sometimes treated practically as an executory contract for the sale of land and its execution is decreed. We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but belongs rather to the branch of equity jurisprudence which relates to the specific performance of contracts ; to the performance of contracts of which the defective instrument is the evidence or memorandum.

In the present case this principle will not avail the petitioners. If they resort to an agreement lying back of the *113 deed, they will bring to light only a contract legally void. For it is not to be denied that the executory agreement of a married woman concerning her real estate, though assented to by her husband, is absolutely a nullity; a proposition which, as we have already stated, is true of all the contracts of married women other than those which the statute expressly validates. This court so held in terms, many years ago, in a decision approved in other states, (Butler v. Buck ingham, 5 Day, 492 ,) and the doctrine of which is adopted by the leading American Commentators, (2 Story Eq. Jur., § 1391, 2 Kent Com., 168;) while the supreme court of New York have refused to regard the unacknowledged deed of a married woman as the proper basis of a decree of specific performance. (Martin v. Dwelly, 6 Wend., 9 .) The inability of courts of chancery to enforce a married woman’s covenants, is, in the case just cited, discussed at large and distinctly asserted. In fact, it would hardly seem to need authority to determine that, if the defective deed of a married woman cannot as such be corrected, no executory agreement of hers evidenced by the deed can be enforced against her. The same policy which would destroy a contract in the shape of a conveyance lacking certain requisites, would be equally fatal to an agreement to make such a conveyance.

We advise therefore that the bill be dismissed.

In this opinion the other judges concurred.

Bill dismissed.