Koch v. Koch

Grant, J.

(after stating the facts). 1. At the time of the marriage, Mr. Koch was 57 years old, and defendant 52. He had 8 children by his first marriage, the youngest of whom was then 10 years old, and one was weak-minded. She had been married twice; had three children by her first husband, and one by her second. They werq of full age. Her first husband died. From her second she was divorced. She had known Mr. Koch but six weeks before she married him. It was not a marriage of love, but of convenience. Soon after his wife died, he went to defendant with a view to employ her as his housekeeper. She testified, “I told him I would be nobody’s housekeeper.”

The alleged fraud consists in representing to her that he owned only 40 acres of land. It was worth between $2,500 and $3,000. Under her claim, she was willing, in consideration of marriage, to take from his family fully two-thirds of all his property. She was worth more than this in property obtained from her former husbands. The marriage contract was drawn by Mr. Stellwagen, a lawyer of ability and repute, in the city of Detroit. He explained it fully to her, and told her that she would obtain more property as his widow, in case of death, than she would by this contract. Her claim, therefore, that she supposed he was worth only 40 acres of land, is not sustained. The court below reached the correct conclusion upon the question of fraud.

2. It is urged that the contract was not delivered until after the marriage, and therefore is only binding at her option, under 3 Comp. Laws 1897, § 8934. Both parties went to Mr. Stellwagen, who, at their request, after agreeing upon the conditions, drew the contract, note, and mortgage. They were then, by mutual agreement, left with Mr. Stellwagen; the contract to be by him surren *190 dered to Mr. K., and the note and mortgage to Mrs. 3L, upon the consummation of the marriage. After the marriage they went to Mr. Stellwagen’s office, obtained the papers from him, and she had her mortgage recorded, and he the contract. The parties left these papers with Mr. S., to be delivered upon the happening of a certain event, namely, marriage. The event happened, and the papers were then delivered by their custodian under the agreement, and by the request of both. No one of the cases cited by defendant’s counsel holds that such a delivery, either of a deed or a contract, is not valid. Some of them are cases where there was no contract relation, but where a grantor — in most cases a parent — had made deeds designed to take effect in the future, but over which he kept control until his death. Taft v. Taft, 59 Mich. 185 ( 26 N. W. 426 , 60 Am. Rep. 291 ); Pennington v. Pennington, 75 Mich. 600 ( 42 N. W. 985 ).

An examination of McCullough v. Day, 45 Mich. 554 ( 8 N. W. 535 ), and Connor v. Buhl, 115 Mich. 531 ( 73 N. W. 821 ), will show that they are not in point.

When, pursuant to the agreement, Mr. Stellwagen, the custodian, delivered the contract, note, and mortgage, and the parties accepted them, that delivery related back to the first delivery, and made the papers the executed contracts of the parties at the time they were signed, acknowledged, and deposited with Mr. Stellwagen. This contract barred her dower and all interest in her husband’s estate, under 3 Comp. Laws 1897, § 8933.

The decree is affirmed.

The other Justices concurred.