Haussman v. Burnham

Phelps, J. The facts material to the issue in this case are these:— [The facts being fully stated, (ante p. 120,) the statement of them by the judge is omitted.] The plaintiff claimed in his complaint—1st, pecuniary damages; 2d, a reformation of the deed from Mrs. Haussman to the attorney, so as to join Mr. Haussman as grantor with his wife; 3d, the removal of the cloud on the plaintiff’s title by commanding the defendants to convey to Mr. Haussman any title or interest in the premises which they may have; and 4th, such other and further relief as to equity may appertain. The question is, whether by this action there is a remedy for those who by the aforesaid mistake have been deprived of an estate which was by both parties intended for them, and which but for such mistake they would have received. It is scarcely possible that the case could be made which would present clearer or stronger equities, and it would seem that the consequences of such a mistake should be relieved against unless there are insurmountable obstacles in the way, and a court of equity should be astute and diligent in its efforts to prevent such manifest injustice. The underlying question in the case is, whether the promise by Mrs. Haussman to reconvey the property was valid. That the legal and equitable title, subject to the reserved life estate in Mr. Haussman, was vested in her, is conceded. Indeed the defendants claim and derive whatever title or interest they possess in the property, through the deed from Mr. Haussman to his wife, which was made pursuant to the agreement between them, a part of which was the promise of Mrs. Haussman to reconvey. That husband and wife may during coverture make contracts for the -conveyance of property between themselves which will be good in equity, has long been settled both in Great Britain and here. The court will examine them with — 133 — great care, and when they are found to contain the essential requisites which exist in the case before us, they will always be upheld. Slanning v. Style, 3 P. Wms. 334 ; Lucas v. Lucas, 1 Atk., 270 ; Lady Arundell v. Phipps, 10 Ves., 146 ; Livingston v. Livingston, 2 Johns. Ch., 537 ; Shepard v. Shepard, 7 id., 57 ; Wallingsford v. Allen, 10 Peters, 594 ; Hinman v. Parkis, 33 Conn., 197-8. The consideration for the promise of Mrs. Haussman was the conveyance to her, and the provision for her support secured by it. That it was valuable and adequate cannot be questioned, nor that it was made for the benefit of herself and her estate. It was reasonable and certain in its terms, and would not if executed interfere with the rights of creditors, and she might well have made the reconveyance in pursuance of it. If it was void at law, its validity in equity cannot now be doubted. Donovan’s Appeal from Probate, 41 Conn., 551 ; Hitchcock v. Kiely, id., 611. It is said the property was not her sole and separate estate, and therefore her promise to reconvey was invalid. This objection has been practically disposed of in what is said respecting the validity of the promise. As the promise by which she obtained the conveyance was for the benefit of herself and her estate, it is unimportant whether the property to which it related was her sole and separate estate. The contract of a married woman for the benefit of herself or her estate is binding in equity, and the estate affected by it need not be held by her to her sole and separate use. See authorities last above cited. The statute of frauds is also interposed as a defence. If this was a contract relating to the sale of land, and therefore originally within the statute, it was part of an agreement which had been fully performed by the other contracting party to it, and therefore taken from its operation. It is not objectionable for the reason that the promise was not to be performed within a year. No time for performance was stipulated, and it might have been made at any time. That statute has no application to this case. Hayden v. Denslow, 27 Conn., 341 ; 1 Rev. Swift’s Dig., 255, and cases cited. — 134 — It is claimed that the mistake was one of law and not of fact, and that therefore a court of equity can give no relief. This has been considered the general rule on the subject, but in Stedwell v. Anderson, 21 Conn., 144, the court say that it is not of universal or unqualified application. And in Patterson v. Bloomer, 35 Conn., 64, a case where the parties were mistaken as to the legal effect of a chattel mortgage under which possession was not retained by the vendee, and where a specific performance of the contract was asked, Butler, J., giving the opinion of the court says: “The parties were mistaken. Such a mortgage would be worthless unless possession was retained by the vendee. It is too clear for doubt that the respondent never would have entered into that agreement but for the mistaken supposition that in the execution of it he was to have the protection of a valid mortgage. It is equally clear that such a mistake is a most material one, and that it was the right and duty of the respondent to refuse to execute the agreement on discovering it, and it would be grossly inequitable and unjust to compel him to perform it.” The analogy between that case and this is very striking, and the principle which the court there applied seems directly applicable to the facts here. It is said that the complaint alleges no request to reconvey—that such a request was a condition precedent to the plaintiff’s right to a reconveyance—that it should have been alleged, and because it was not, no evidence to prove it was admissible—and that to the admission of such evidence objection was duly made. Ordinarily such an allegation would be necessary, but it appears that Mrs. Haussman was willing and attempted to make, and supposed she had made, a proper conveyance. If no request was made, there was such an attempted performance by her, by acts which in their order were subsequent to a request, that she must be held to have waived it, and the waiver will have the same operation and effect against those who stand in her place as against herself. The defendants are claiming the property by inheritance from her, — 135 — and under no other title. The promise to reconvey was made by her, and she held the property subject to a request at any time to make the reconveyance. That liability and duty constituted an equity which attached to it in her hands, and the defendants took and now hold it subject to the same equity, which can be enforced against them in the same manner and to the same extent that it might have been against her if she were living. That a request to reeonvey was in fact made by Mr. Haussman is found by the court, but under the circumstances we consider it entirely immaterial. It is further said that the husband did not offer to join with his wife in a reconveyance. This is true, and in his non-joinder consists the mistake sought to be relieved against. He was willing to join and would have done so but for the erroneous legal advice by his attorney, in whom he confided and on whose judgment he was justified in relying. If the non-joinder and the mistake which occasioned it can be remedied, we think the omission of the offer to join too technical and unimportant to be allowed to prevent the court from doing equity when it is clearly demanded and should be done unless there are substantial reasons to the contrary. It is also urged that the agreement between the parties contradicts, or is inconsistent with, the deed from Mr. Haussman, because it is alleged in the complaint that the consideration was the promise of Mrs. Haussman to reconvey, whereas in the deed it was stated to be of a pecuniary character. It has been often decided by this court, and is as well settled by its repeated adjudications as any question can be, that when the real consideration for a conveyance is different from that expressed in the deed it may be shown by parol, and the variance does not impair the validity or change the effect of the conveyance. The contract which was the consideration for the deed was not intended to be reduced to writing or incorporated in the deed, and the deed was only given in pursuance and partexe — 136 — cution of the contract. Crocker v. Higgins, 7 Conn., 342 ; Collins v. Tillou, 26 id., 368 ; Galpin v. Atwater, 29 id., 99 ; Clarke v. Tappin, 32 id., 67, 68 ; Purcell v. Burns, 39 id., 429 ; Post v. Gilbert, 44 id., 10 ; Schindler v. Mulheiser, 45 id., 154 ; Hubbard v. Ensign, 46 id., 585 ; McFarland v. Sikes, 54 id., 252. It is said also that the agreement to reconvey is inconsistent with the life estate reserved in the deed. The promise of Mrs. Haussman to reconvey the estate was simply an agreement to reeonvey what had been previously conveyed to her. She could have done nothing more, and it is obvious that nothing else was contemplated, or promised, or understood by the parties to be promised. It is also said that it is inconsistent with the use and be-hoof, and the covenant of non-claim, contained in the deed. These are objections of a similar character with the last, and like that rest on no substantial foundation. The use and behoof of the grantee, and the non-claim by the grantor, relate only to the quantity and character of the estate conveyed, and have no connection with or reference to any interest in the premises which was reserved. The further claim is made that the deed from Mrs. Haussman was a voluntary conveyance, and for that reason a court of equity will not relieve. There was a good and valuable consideration for the deed in the title to and use of the property she received from Mr. Haussman under the agreement. She does not appear to have been indebted, no creditors were defrauded or prejudiced, and the claim that it was voluntary is wholly unsupported. It is also insisted that no judgment can be rendered against the defendant Erwin Larens, because he is a non-resident of the state, and no service of the complaint was made on him. He appeared by counsel, and, without interposing any objection to the jurisdiction of the court, pleaded to the merits of the case. He waived service by voluntarily submitting to the jurisdiction, and as the property involved in this issue is situated in this state, and within the jurisdiction of its courts, — 137 — there is no reason for this claim. Payne v. Farmers & Citizens’ Bank, 29 Conn., 415. It is claimed further that the deed by Mrs. Haussman was void, and that a court of equity has no power to give it vitality and force. This may be so, but the court may look through the deed to the contract back of it, and enforce that, provided it is valid. Goodman v. Randall, 44 Conn., 321. Some remarks in the opinion of the court in the case of Dickinson v. Glenney, 27 Conn., 104, on which the defendants rely, at first sight appear to be at variance with that doctrine. The court was dealing in that case with a deed which was purely voluntary, and wholly without consideration, and which failed of having been properly executed by the mere ignorance of the parties with respect to the necessary legal formalities, and which had no valid contract behind it which could have been enforced. The parties had not the excuse of having been misled by the mistaken judgment of a legal adviser in whom they properly trusted, and the accident or mistake consisted wholly in their ignorance of the law, which they took no pains to prevent. Toward the close of the opinion the court, by Storrs, C. J., say, on p. 112 :—“ It sometimes happens that where equity is compelled to yield to the absolute requirements of law restraining its efficacy in reforming agreements, some other agreement behind the defective contract may exist 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 lands and its execution is decreed. We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but rather belongs 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 the principle will not avail the petitioners. If they resort to an agreement lying back of the deed, they will bring — 138 — 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.” That case was decided prior to the statute of 1872 giving a remedy at law against married women upon contracts made by them for the benefit of themselves or their estates, and before the many judicial decisions and statutory provisions which have since greatly enlarged the capacity of married women with respect to their property and rights, and extended their remedies and liabilities upon their contracts. This has necessarily carried with it a corresponding enlargement of the jurisdiction of courts, both of law and equity, with respect to them and. their estates. The reasoning of the opinion was well adapted to the facts of that case and the law as it then existed. But we think we may now well hold, without modifying that opinion except so far' as the difference in the facts and the changes in the law necessarily produce that effect, that the defendants are not equitably entitled to retain the estate, and that such relief should be granted as it is competent for a court of equity to give. In the view we have taken of the case it seems entirely unimportant whether the deed from Mr. Haussman raised a trust of any kind for the benefit of himself or his heirs; and we discover nothing in the conduct of Mrs. Haussman, or in the relations of the parties, which we think tends to establish actual or constructive fraud. We think the arm of equity is long enough to reach the injustice we are endeavoring to prevent, and that it can be done without violence to established principles. As the complaint is framed however, and as the record now stands, we think there are serious difficulties in the way of advising the Superior Court to render a judgment for the plaintiff. We do not see how, since the decease of Mr. Haussman, we can properly advise that the deed from Mrs. Haussman to the attorney be reformed so as to join — 139 — Mr. Haussman as a grantor with his wife, and permit and direct him to execute the same; nor that the alleged cloud be removed from the plaintiff’s title by a decree commanding the defendants to convey to Mr. Haussman such title or interest in the property as they may have. The heirs at law of Mr. Haussman are now the only parties properly entitled to relief. They have n ot since his death been made parties to the action, and are not regularly before the court or legally asking for relief. It is true that the death of Mr. Haussman has been suggested on the record and that his administrator has entered to prosecute the action. We do not see how he is entitled in his representative character to relief, or to a judgment for the benefit of the heirs. If it was an action at law to recover the possession of the estate under Gen. Statutes, § 1012, there might be no difficulty; but the statute is in express terms limited to an action of disseisin, and we do not feel justified in extending it by analogy, though the object sought to be obtained in this case is similar to that provided for in the statute. We think the case should be remanded to the Superior Court, where the plaintiff can ask liberty to file a supplemental complaint showing the interest of the heirs of Mr. Haussman in the subject matter, and making them parties, and by such additional averments as may be pertinent and proper, demand for them appropriate relief. In this opinion Loomis, Torrance and Thayer, Js., concurred.