Bowie v. Stonestreet

Eccleston, J., delivered the opinion of this court The claim against the estate of Robert W. Bowie, by his widow, Catharine Bowie, as a creditor, has jected by the decision of the circuit court for Prince* county, and from that decision this appeal is taken. Mrs. Bowie’s claim is set out in her answer, in which she? alleges, that, at the time of her marriage she was possessed of a valuable tract of land in her own right, which she inherited from her father. That some years after the marriage, her husband, (being largely indebted,) frequently importuned her to consent to a sale of her land for the payment of his debts, — 426 — which she refused to do until he solemnly promised and agreed that he would convey to her other real estate of equal value with hers; that he designated the land held by him called “Connick’s Farm” as the land which he would convey in lieu of hers. The answer also states, that overcome by the importunities of her husband and confiding in his promise and agreement, she did consent to join him in the sale of her real estate, which was sold and conveyed accordingly. That the proceeds of the sale were received by her husband and applied to the payment of his debts, but that he never conveyed to her the “Connick’s Farm” or any other land in conformity with ■his promise. And she claims, that the agreement of her husband, in consequence of which she consented to sell her land, constitutes an equitable lien upon the lands of her husband to the extent of the value of her land so sold and applied to the payment of his debts; or, that in virtue of the agreement she is entitled to have the “Connick’s Farm” conveyed to her. She also claims dower in the real estate of her husband. On the 10th of February 1830, for the consideration of $9000, Mrs. Bowie and her husband executed a deed to Robert Ghiselin for the purpose of conveying to him the farm or parcel of land called “Enfield Chase,” which descended to Mrs. Bowie from her father. To establish the lien claimed under the alleged agreement, the appellant relies upon the testimony of Dr. James Harper, Ellen Harper, J. H. Waring, Mary Leonard and Mary Ghiselin. Dr. Harper speaks of conversations between himself and Mr. Bowie for some two or three years before the sale of “Enfield Chase,” in which Mr. Bowie said he had agreed to give his wife “Connick’s Farm” if she would agree to join with him in a sale of her land. Mr. Bowie was the first person who informed the witness that Mrs. Bowie had agreed to sell “En-field Chase” upon condition that he would give her “Connick’s Farm.” The doctor, in a confidential conversation with Mrs. Bowie, advised her not to sell. Either then or at some other time, Mrs. Bowie informed the witness that she had agreed with her husband to sell “Enfield Chase,” and he was to give her in lieu of it “Connick’s Farm.” The doctor told her it was the worst thing she ever did. — 427 — Ellen Harper testifies, that Mr. Bowie made a proposition to his wife to unite with him in a sale of her land for his use, offering to her “Connick’s Farm” in exchange, but that she did not accept the offer. This offer, the witness says, was made frequently during the years 1828 and 1829. J. H. Waring says, that between 1832 and 1835, he bad frequent conversations with R. W. Bowie, in which he promised to convey to his wife some property in compensation for “Enfield Chase,” which she had sold with him for his use, but he did not mention what particular property he would convey. On other occasions Mr. Bowie said he would not carry out what he had promised, because he thought Mrs. Bowie’s dower in his estate was worth more than he got by her. Mary Leonard’s testimony is, that Mr. Bowie made an offer of property to induce Mrs. Bowie to consent to the sale of “Enfield Chase.” The witness believes Mrs. Bowie sold “Enfield Chase” with the understanding, that she was to receive an equivalent from her husband. This information was received from Mrs. Bowie, but the witness cannot undertake to say she ever heard Mr. Bowie say so. Mrs. Bowie was advised by the witness not to part with her land, unless at the same time she got. an equivalent for it. After the deed for “Enfield Chase” was executed, Mrs. Bowie said her husband had promised to give her an equivalent for her land, but the witness does not recollect that Mrs. Bowie told her what property in particular she was to have under the agreement. Mary Ghiselin states, that the day on which the deed for “Enfield Chase” was executed, Mr. and Mrs. Bowie went in a carriage to Nottingham for the purpose of executing the deed. The witness accompanied them; and on the road Mr. Bowie promised to give his wife something, (witness thinks it was land,) that would be equivalent to the amount that Mrs. Bowie’s land had been sold for. Mrs. Ghiselin cannot say what land was specified as intended to be conveyed in lieu of “Enfield Chase.” Several times after the execution of the deed Mr. Bowie repeated the promise, and certainly rvithin six years prior to the examination of the witness, which was on the 16th of November 1849. — 428 — From an examination of the proof-it will readily appear, that to establish the claim for a specific lien or the right of' the appellant to have “Connick’s Farm” conveyed to her, the declarations of Mr. Bowie must be relied upon: and such declarations as cannot be viewed in the light of res gestae, or as having occurred when the alleged agreement was made, but such as took place in the absence of the appellant. Indeed, the chief reliance must be on the declarations stated by Dr. Harper. It is true that Ellen Harper proves an offer by Mr. Bowie of “Connick’s Farm” in lieu of “Enfield Chase,” but it was refused. The witness speaks of this offer as having been repeated frequently during the years 1828 and 1829, without saying, however, that it was accepted. In the conversations spoken of by Dr. Harper, Mr. Bowie told him he had agreed to give Mrs. Bowie “Connick’s Farm” if she would join him in the sale of “Enfield Chase.” And Mr. Bowie was the first person who informed the doctor that Mrs. Bowie had agreed to the sale of her land upon condition of her receiving “Connick’s Farm” in lieu of it. But no witness, except Ellen Harper and Dr. Harper, speaks of any offer, promise or agreement to convey “Connick’s Farm,” or any other land or property in particular. The declarations of Mrs. Bowie, made out of the presence of Mr. Bowie, have been brought into the record as evidence in her favor. Exceptions to these, and also to the declarations of Mr. Bowie, have been filed by the appellees. Her’s were not relied upon in argument, and it is unnecessary to notice them further than to say they cannot be used in support of her own claim. In regard to Mr. Bowie’s declarations it is to be recollected, they.are not introduced as evidence to sustain a claim against his heirs at law, or against volunteers claiming through or under him, but the rights of creditors are involved. And the effort is to establish the claim of a wife to a specific equitable lien in opposition to ^creditors through the instrumentality of the husband’s declarations, made, not in the wife’s presence, not part and parcel of the alleged agreement, but made to a third person, and simply stating what agreement had been made — 429 — between himself and his wife. To sustain this claim by proof of such admissions of the husband during the coverture would establish an exceedingly loose and dangerous mode of setting up secret equities between husband and wife. We have seen no adjudged case in which it. has been done. And considering this another effort, in direct opposition to the spirit and design of our recording statutes, to open still wider the door, which, by them was intended to be closed, and which has been opened quite wide enough, if not too wide already, we are indisposed to sustain it. Whilst we feel bound by the principles of adjudged cases, so far as to apply them to cases strictly analogous, we are not inclined so to construe those principles as to increase the difficulties and mischiefs intended to be guarded against by the registry laws. By the act of 1785, ch. 72, sec. 11, where a deed has been executed, the recording of which is made necessary by law, if without any fraudulent design the party claiming under it shall omit having it put upon record according to law, upon application to a court of equity, such court, when satisfied that the party claiming under the deed has a fair and equitable claim to the premises, may order the deed to be recorded; and when done, it is to have, as against the party making the deed, bis heirs, executors and administrators, the same effect and consequences, to all intents and purposes, as if the deed had been recorded within the time prescribed by law. But ample provision is made for protecting, against such deed, purchasers without notice, and also creditors who may have trusted the grantor after the date of the deed. If it was proper to afford protection to creditors under such circumstances, by legislative enactment, why should it not be right to allow their claims to exert an influence in a case like the present; where the wife is seeking to establish a specific lien upon the land of her husband, not by virtue of a deed unrecorded, but depending for its support upon his parol declarations, made not even in her presence, not to a third person authorized to act for her, as trustee or agent, but merely in conversations with her relatives or friends. — 430 — Another important consideration is, that during the husband’s life, and up to the time of his decease, so far as his creditors had any possible means of judging, he was the real and bona fide owner of this very property. He made efforts to sell it; and from the testimony of Fielder Bowie, it appears Mrs. Bowie was anxious that “Connicks Farm” should be sold for the payment of her husband’s debts. She requested the witness to urge two different persons to purchase it. And in these conversations with him, which occurred within a year prior to her husband’s decease, she made no claim whatever to the property. Entertaining these views, we do not think the proof sufficient to give the appellant a lien, or any specific claim upon “Connicks Farm.” Whether she has a right, in the character of a general creditor against the estate of her husband, for compensation on account of the sale of “Enfield Chase,” is a different question. A contract which a court of equity can enforce, may be entered into by a husband for the transfer of property to his wife, for a bona fide and valuable consideration coming from her. Livingston vs. Livingston, 2 Johns. Ch. Rep., 539. Atherley on Marriage Settlements, 160, 161 and 163, in 27 Law Lib. See also 1 Gill, 1. We have seen that whilst on the road to Nottingham, for the purpose of executing the deed for “Enfield Chase,” a promise was made in the presence of Mrs. Ghiselin by Mr. Bowie, that he would give his wife something, (Mrs. Ghiselin thinks land,) which would be equivalent to the amount that Mrs. Bowie’s land had been sold for. Although this proof may not be sufficiently definite and explicit to establish such a contract, in regard to what property the husband was to give or transfer to his wife, as would authorize a court of equity to decree a specific performance, nevertheless, we think it shows an agreement which calls for compensation, for the value of the land conveyed by the appellant, in performance of her portion of the contract. The circumstances — 431 — will justify this species of relief, under the principle recognized in 1 White & Tudor’s Leading Cases in Equity, 527, where it is said: “When the specific execution of a parol agreement cannot be decreed, in consequence of the uncertainty in the terms, or of the statute being relied on, the court will, if there is no remedy at law, or it is uncertain or embarrassed, or under circumstances of special equity, decree compensation to the extent of 1he purchase money paid, and the value of lasting improvements.” See the cases there cited, and also King’s Heirs & others, vs. Thompson & wife, 9 Peters’ S. C. Rep., 218 and 9 Gill, 41. The claim of the appellant is resisted, on the ground that the sale of her land was not because of an anticipated and understood consideration to be paid to her by her husband, but was owing entirely to his importunities. There is no proof to sustain this view, unless it is to be found in the answer and declarations of the appellant. It will be seen however, that in the answer, and in her conversations with the several witnesses, whenever she speaks of the importunities of Mr. Bowie, and her consenting to the sale, she invariably either says he promised to give, or was to give her “Connicks Farm,” or some equivalent. If her admissions or declarations are to be used for a purpose adverse to her claim, those made at the same time, which are in her favor, must be also received. And looking at the case in this view, we see no sufficient reason for supposing Mrs. Bowie consented to the sale of her land, merely because she was urged and importuned to do so, and not in consideration of the promise by her husband that she should have an equivalent. The appellees also insist, upon limitation or lapse of time as a bar to the claim. The wife’s claim being purely an equitable one, which she could not enforce against her husband during his life, in a court of law, there is no statute of limitations which can operate as a positive bar. Nor do we think the appellant’s right can be defeated, under the rules by which courts of equity are governed in relation to lapse of time, or the staleness of claims. Less than twenty years, — 432 — at all events, should not be sufficient under the circumstances of this case. To say that because a wife does not institute proceedings promptly against her husband, to enforce against him her equitable claim, she is to be considered as guilty of such gross laches in prosecuting her rights, or of such long and unreasonable acquiescence in the assertion of adverse rights, that equity will refuse to interfere in her behalf, is to establish a principle but little calculated to preserve the peace and harmony which should exist between husband and wife. What is said in 1 Story's Eq., sec. 1520, in regard to the effect of lapse of time, or the staleness of claims, in a court of equity, we do not think is properly applicable to such a case as this. A wife declining to sue her husband, cannot, with propriety, be said to be guilty of gross laches in prosecuting her rights, or of unreasonable acquiescence in the assertion of adverse rights. In Dugan vs. Gittings, 3 Gill, 161 to 164, it was insisted, that by the lapse of more than three years the claim for rents was barred; but this defence was not sustained, because the claim was purely an equitable one, and could not be enforced at law. On page 164, the court say, “but we place our opinion on the ground, that as the bill was instituted by the appellees, within less than twenty years from the period at which their right of action accrued; and as their claim for an account and payment of the rents was incidental to, and consequent upon, their assertion of title to the property, they are not barred by either limitations or laches.” Whatever may be the rule elsewhere, we think the decision in Dugan vs. Gittings, sanctions the view we have taken in this case; as the wife certainly could have no means of enforcing her claim against her husband, in a court of law, during his life. Under the doctrine of compensation, the appellant can claim but nine thousand dollars, with interest thereon from the death of her husband. According to the evidence, he was only to give her an equivalent for the sale of her land. As he was entitled during his life to the rents, issues and profits — 433 — of that estate, if under the agreement he had conveyed or transferred property to his wife, it would have been no violation of the terms of that contract, but perfectly consistent with them, if he had reserved to himself for life, the income thereof, securing to her the enjoyment of the property itself at his decease. Her land sold for $9000, and there is no proof showing it was worth more at the decease of Mr. Bowie. Equitable compensation, therefore, for the sale of her land, can entitle her to no more than $9000, with interest from the decease of her husband. To that extent she is to. be considered as a general creditor against the assets of the estate. The right of the appellant to claim compensation, as a general creditor, has been resisted, on the ground, that her answer for such a purpose is to be considered as a bill, and it does not make or present such a claim. In Parkhurst vs. Van Cortlandt, 1 Johns. Ch. Rep., 273, the bill prayed for the specific execution of an alleged agreement. Chancellor Kent thought the contract was not sustained by proof sufficiently explicit to authorize a decree for specific performance, but, nevertheless, he passed an order for the purpose of making an allowance to the complainants for beneficial and lasting improvements made by them upon the land. See also Watt vs. Grove, 2 Schoale & Lef., 492, 513. Thinking it proper however to send this case back for further proceedings, we deem it unnecessary to decide whether the answer is defective in the particular alluded to, because if it is so, under the act of 1854, ch. 230, it would be proper for the circuit court to allow the appellant to amend her answer. And that would not only delay her without benefiting the appellees, but would operate to their prejudice, and likewise to the injury of all other creditors, by procrastinating the final distribution of the assets, which we presume the appellees would not desire. The order of the court below is right, so far as it directs — 434 — an allowance in favor of the appellant, for dower, out of the proceeds of the land called “Connicks Farm.” Without reversing or affirming we will remand this case under the act of 1832, ch. 302, for further proceedings, that the principles announced in this opinion may be carried into effect; for which purpose a decree will be signed by this court. Cause remanded.