Flory v. Houck

Opinion by Mr. Justice Mitchell, The substantial question which must control this case is [267] whether a deed of settlement of land by a husband upon his wife, which at the time of execution would be void against creditors, can be sustained by relation back to an antenuptial agreement in parol. This question has been the subject of much discussion and difference of opinion in the English cases. It is agreed that before the statute of frauds such parol agreements were valid and binding, and therefore settlements made in pursuance of them after marriage were good even against existing creditors. And in some of the earlier chancery cases there was an inclination to regard the recital of the prior parol agreement in the deed of settlement as a memorandum in writing such as required by the statute of frauds, and therefore to make the validity of the settlement turn on the presence or absence of such recital in the deed. But in Warden v. Jones, 2 DeG. & J. 76, Lord Cranavorth said: “It cannot be enough merely to say in writing that there was a previous parol agreement. It must be proved that there was such an agreement, and to let in such proof is precisely what the statute meant to forbid.” And in Trowell v. Shenton, L. R. 8 Chan. Div. 318, Jessel, M. R., quoting the foregoing language, said: “ In that short passage the Lord Chancellor disposed of all the other authorities.” He accordingly held that, as the parol antenuptial agreement could not haAre been enforced against the husband, his subsequent deed in pursuance of it was voluntary within the statutes of Elizabeth as to fraudulent conveyances, and its validity must be judged by the circumstances at its date. This has been accepted as the settled result of the English authorities: May on Fraudulent Conveyances, * 382. In 1818, before either of the decisions cited, and Avhile the discussion was still open in England, the question came before Chancellor Kent in the leading case of Reade v. Livingston, 3 Johns. Ch. 481, 8 Am. Dec. 520. After a learned review and consideration of all the authorities and the principles on which they rested, the chancellor reached the same conclusion subsequently arrived at in England, that the parol agreement being invalid, and unenforceable by reason of the statute of frauds, could not support the subsequent settlement. The later New York cases have somewhat modified the chancellor’s view that a deed of settlement is fraudulent in law as against existing [268] debts without regard to their amount, and it appears to be now held that the intent to defraud must be inferable as a fact from the circumstances, including the ratio that the property settled bears to the husband’s estate and debts at the time. See Babcock v. Eckler, 24 N. Y. 623, and Cole v. Tyler, 65 N. Y. 78. This latter view has also been taken in other states and ma}'- be said now to prevail generally: Sexton v. Wheaton, 1 Am. Lead. Cases, 17; Kehr v. Smith, 20 Wall. 31. But on the main point with which alone we are now concerned, the opinion of Kent in Reade v. Livingston has been generally followed, and is now practically the settled doctrine. “An ante nuptial contract of which no note in writing is made until after the marriage, while good between the parties, is not binding on creditors or innocent purchasers intervening: ” 8 Am. & Eng. Ency. of Law, 684, tit. Frauds, Stat. of II, 3. “A post nuptial settlement, if otherwise void as against creditors, will not be saved by the fact that it was made in fulfilment of an oral antenuptial, contract ; the latter has no effect in removing the voluntary character of the settlement:” 1 Reed on the Statute of Frauds, sec. 183. “ As against creditors such a settlement has no force: ” Browne on the Stat. of Frauds, sec. 223, note 1 (5th ed. 1895). “ A transfer in consideration of a parol antenuptial contract is not within the foregoing exception (of moral obligation) and is merely voluntary: ” Bump on Fraudulent Conveyances (4th ed.), sec. 276. “The principle that a conveyance of that character cannot be supported as against creditors who are entitled to impeach it, by proof of an antenuptial verbal agreement, even though such an agreement may be recited in the conveyance, has been recognized by numerous American authorities (citing them) and may now be considered as settled in our jurisprudence: ” Throop on Verbal Agreements, sec. 734. See also Story’s Equity Jur. sec. 374; 2 Kent’s Com.* 173; May on Fraudulent Conveyances, *383. The results of the decisions thus stated with such unanimity by the text writers are sufficient to settle the general question in the absence of any express adjudication by this Court. Sackett v. Spencer, 65 Pa. 89, relied on by appellant, does not touch the point, for, although the syllabus in the report states the proposition broadly that “ where one sells land by parol and afterwards conveys, no one can gainsay this, although he was [269] not compellable to convey,” yet tbe case really turned on whether the husband ever had any interest in the land which could have availed his creditors. The defendant claimed that the wife furnished the money that paid for the land from her separate estate, and the husband held the title only to secure repayment to her by the real purchaser, Spencer. The jury so found, and in the opinion of this Court it was said that that finding controlled the case. The English decisions above cited and Reade v. Livingston, supra, arose on that portion of the fourth section of the statute 29 Car. 2, which requires agreements upon consideration of marriage to be in writing, whether relating to real or personal property. This section is not in force in Pennsylvania, but that fact does not affect the present question. The objection here is not to the consideration of marriage, but to the conveyance of land by parol. Contracts of which marriage is the consideration stand in this state upon the same basis as all other contracts and, like all others, when they are to affect the title to land they are required to be in writing, because the subject-matter is within the statute of frauds, and there is nothing in the statute to permit a distinction between one kind of consideration and another. What the statute deals with is not the consideration but the mode of proof. Nor can settlements in pursuance of such parol contracts be sustained as performance of a moral obligation, or on the ground that the marriage itself is such part performance as equity will consider sufficient to take the case out of the statute. The latter argument, if it were an open question, is not without considerable force, but the controlling view against it was tersely expressed by Lord Chancellor Cottenham in Lassence v. Tierney, 1 Mac. & Gord. 551, “ there would be an end of the statute .... if marriage be part performance every parol contract followed by marriage would be binding.” The rule is now universally recognized by the American as well as the English authorities. “ Consummation of the marriage is not such part performance as will take the case out of the statute: ” 8 Am. & Eng. Ency. of Law, 685, tit. Frauds, Stat. of II. 3 citing the decisions. “ When a parol contract is entered into in consideration of marriage the solemnization of the marriage is not such a part performance as will take the case out of the stat [270] ute: ” Bispham on Equity, sec. 385. And to same effect, Reed on Stat. of Frauds, sec. 182 ; Throop on Verbal Agreements, sec. 720; May on Fraudulent Conveyances, * 372; Fry on Specific Performance, sec. 593. Judgment affirmed.