Gamble v. Gamble's Adm'r.

COLLIER, C. J. By a principle of the common law, the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union. From this principle it results, that at law no contracts can be made between husband and wife, without the intervention of trustees. [2 Kent’s Com. 129.] “ The principles of the common law apply to pronounce them a mere nullity.” Yet courts of equity, though they follow the law, will, under particular circumstances give effect and validity to post nuptialcoati-acts. [2 Story’s Eq. § 1372.] “In respect to gifts or grants of property by a husband to his wife, after marriage, they are ordinarily, (but not universally,) void at law. But courts of equity will uphold them in many cases, where they would be held void at law; though in other cases the rule of law will be recognized and enforced.” [2 Story’s Equity, § 1374.] It was formerly supposed, that in all such arrangements the interposition of trustees was indispensable to the protection of the wife ; but it is now well established that courts of equity will protect the wife’s inter-interest against the marital rights of the husband, although no trustees are interposed. [Id. § 1380; Hoot v. Sorrell, et al. at this term; see also, my opinion in Frisbie v. McCarty, 1 Stew. & P. Rep. 56.] In Sheppard v. Sheppard 7 Johnson’s Chancery Exports, 60, it was said that a deed from a man to his wife “ was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife during coverture,” and courts of equity have frequently refused to lend assistance — 973 — to such a deed, or to any agreement between them; though it must be conceded that there are many cases in which such conveyances have been upheld. And it has been held, that a deed of gift of negroes from the husband to the wife, without the intervention of a trustee, upon an agreement to live separate, will be no bar to an action at law, by the husband, for the recovery of the property. [3 How. Rep. (Miss.) 324.] In that case it appeared that the husband signed the articles of separation, and put his wife in possession of the slaves. The court said, the deed is an absolute gift to the wife, without qualification — it does not profess to give her a separate property; consequently an absolute right vested in the husband, and unless he divested himself of it, he must be entitled to recover. Again, the marriage was not dissolved by the agreement to live separate, and the gift by ’ the husband cannot be made available at law, and was improperly admitted as evidence. “ Such matters are peculiarly cognizable in equity and if the defendant has a remed y it is there, and not at law.” [See also, 1 Atk. Rep. 270; 3 Id 679; Clancy on Rights, &c. 251.] In the case cited from 7 Johns. Ch. Rep. supra, as well as in several cases there referred to by the chancellor, the husband was dead previous to the institution of the suit; such was also the fact in Elms v. Hughes, 3 Dess. Rep. 155; yet in none of them was it supposed that the death of the husband had any effect upon the conveyance which he made to his wife. The jurisdiction of equity was regarded as appropriate — in fact the only tribunal that could recognize and validate the act. If a post nuptial gift in presentí, from a man to his wife directly, is merely void at law, and inures to his own benefit, it is difficult to perceive how the death of the husband can impart validity to it. The object of the gift in such case would be the husband’s property at his death, and if the wife was to take possession of it under a claim of right, founded on the conveyance, though she might not become an executor de son tort, her claim would be disallowed. The act was invalid, as we have seen, in virtue of the law operating upon it, and the mere volition of the wife that it shall be effectual, manifested by exercising dominion over the — 974 — thing, cannot impart to it validity. Conceding to her the possession under a claim of right, and still she would have no title to which the possession could attach and perfect, of which a court of law would take notice. Deeds that are voidable only, are sometimes validated by something occurring after their execution, but those which are void ab initio cannot thus acquire vitality. It is not competent for a court of law to inquire, whether a gift such as we are considering is sustained by a meritorious consideration, and is such as equity would uphold. That tribunal is incompetent to institute and pass upon such an inquiry, which can be solved by considerations of which a court of chancery is the appropriate arbiter, and of which it has exclusive jurisdiction. The wife’s rights, if she have any, are dormant until they are established in equity — until then they are in embryo, and cannot be recognized at law. A court of equity may see in such a transaction, the elements of vitality, but until body, form and action are imparted to these, a court of law must treat it as inanimate and lifeless. There may be cases in which possession will perfect a title which it would be necessary otherwise to assert in equity; but in these it is apprehended that a court of law would regard the title as good when coupled with the possession, qnd the only effect of the suit could be, to be let into its enjoyment. Such we have seen is not the character of the case before us. Here the intestate had no title until a court of equity should establish it. Each of these tribunals are charged with the jurisdiction of matters which pertain to the one in exclusion of the other, and it is well settled, that at law a defence purely equitable cannot be entertained. In Elliott v. Elliott, 1 Dev. & Bat. Eq. Rep. 65, it was decided that the formal signing, sealing and having attested a deed by a husband to his wife, cannot be taken for a delivery, or as having been intended as such. “ There must be proof of some further act; delivery in fact, or the production of the deed by the wife, with evidence at least of such acts on her part in relation to the property in his lifetime, as would induce the belief that she had the deed in his lifetime, and by his consent; this is the more necessary, as the intimate relation between the parties, and her means of access to — 975 — his papers, affords opportunities to possess herself of the instrument without his consent or knowledge. The ordinary presumptions therefore do not reach such a case.” That was a case in equity, and it was added that the “court expects satisfactory and clear evidence that the deed was delivered, and that her husband meant to make thereby such a separate provision for her as the deed purports to create, that is, immediate, and to make himself her trustee, instead of being the beneficial owner.” Further, “ A wife must have merits to make the court active in her behalf. She is not like a purchaser for value. The aid of the court is discretionary under all the circumstances.” In Frisbie and wife v. McCarty, 1 Stew. & P. Rep. 56, the plaintiff relied upon a deed of gift made to the wife by her father, when she was unmarried, and but teu or twelve years of age. A question arose as to the necessity of a delivery of the deed, and it was decided, that so long as the donor retained possession, without ever having delivered it, either to the donee if capable of receiving it, or to some person for her use and benefit, or into the proper office to be recorded, the gift is imperfect and the deed is void. The delivery should be such as would deprive the donor of the power of revocation; for until then he reserves to himself the locus penitentice. .--♦If the delivery of the deed in the case before us had béfela^ >a-pertinent and material inquiry, the court should not tew-assumed it as a conclusion of law, but should have referred its solution to the jury. The effect of the joint bill of sale by husband and wife to Walker — the declarations of the husband, and of the defendant since his death, that the slaves were the property of the wife, &c. in determining the question of delivery, were all proper matters for the consideration of the jury under the direction of the court. If the character of the wife’s possession was a question in issue, we think the fact she had administered with the will annexed, on her husband’s estate, should have induced the court to charge the jury, that her possession as administrator could not be united to, and perfect an equitable title, which she claimed in her individual capacity. The possession of the property of a deceased person as executor or administra — 976 — tor merely, cannot invest the possession with rights independent of, and disconnected with his trust estate. [12 Ves R. 497; 2 Dess. R. 101; 3 id. 155.] The admissions of the defendant that the slave sought to be recovered in this action was the property of the plaintiff’s intestate, cannot estop him from showing that the reverse ,is true, or that he was mistaken. Such an admission is a matter in pais, and cannot operate as an estoppel. Nor can his admission that himself and the plaintiff had settled their controversy in respect to the slave in question, but 'ascertaining that he was not authorized to make such a settlement, they had vacated it, and the paper which evidenced it was destroyed, and the plaintiff would now take the slave from his possession by suit, cannot conclude the defendant from making defence. It may show what was the defendant’s opinion at that time, as to the validity of the intestate’s title, but does not preclude him from proving that he was mistaken ; nor does it seem to us to dispense with all proof on the part of the plaintiff. The admissions do not seem to have misled the plaintiff or-the intestate, or to have induced the prosecution of the present suit. There are cases where a party has been estopped by his admission from proving the contrary • thus where a person upon a demand of goods admitted that nst him, he will be liable, although he had not a genera ad them, and thereby induces another to bring detinue" Controlling power over the thing. [3 Car. & P. Rep. 136.] In respect to the registration of the deed of 1828, it may be enough to say that the indorsement of the clerk in Virginia, that it was acknowledged and recorded, is not such evidence of the fact as the courts of this State can notice. The act of Congress prescribes the mode in which such deeds shall be authenticated to entitle them to the dignity of evidence in the courts of the sister States, and it is perfectly clear that the deed as presented to the circuit court did not conform to the act. In addition it may be said, that it does not appear that there was any statute of Virginia which required or authorized the registration of such a deed, and in the absence of proof it cannot be presumed. — 977 — It cannot be assumed that the defendant is a wrongdoer, and cannot therefore controvert the plaintiff’s claim. If the estate he represents has the superior title, he may assert it and defeat a recovery against him. The cases cited by the defendant in error are inapplicable, and do not prove the reverse to be the law in a case circumstanced as the present. But if the law were otherwise, the plaintiff would fail for the defect of his own title — or rather because he has not shown a prima facie legal title in his intestate. We infer from the proof in he record, that the sale by the husband and wife to Walker, was merely rescinded ; and consequently the rights of all parties were placed in statu quo. What we have said will indicate our view of the laws in this case, without making a particular application of it to the questions raised upon the bill of exceptions. The result is, the judgment must be reversed, and the cause remanded.