Six v. Shaner

Weisel, J., delivered the opinion of this Court. The deed by Josiah Dotterer to Martha Ann Shaner, exhibited with the bill in this case, was executed on the 17th of October, 1857, and without any terms to constitute the real estate therein conveyed, her sole and separate estate, she beiDg a feme covert. The Acts of Assembly of 1842, ch. 293, and 1853, ch. 245, which govern this case, did not invest her with a separate estate in the property so as to exclude the marital rights, of the husband. This con [443] Stmetion has been distinctly and repeatedly settled by this Court. Schindel vs. Schindel, 12 Md. Rep., 122, 312, 313. Bridges & Woods vs. McKenna, 14 Md. Rep., 266. Mut. Ins. Co. vs. Deale, 18 Md. Rep., 47. Weems vs. Weems, 19 Md. Rep., 345. Such being the nature of her title, no question can arise as to her power to affect or charge it by any contract or agreement of her own. It is only in regard to the separate property of a/eme covert that she can make a contract that equity would recognize and enforce. 4 Gill, 487. 18 Md. Rep., 269. But the object of the bill, as shown by its frame-work and the proof taken to support it, is to charge the property with a resulting trust in favor of the appellant, by reason of his supplying $850 to Mrs. Shaner to complete the purchase money due by her to Dotterer, or with an equitable mortgage based on the parol promise and agreement of Mrs. Shaner and her husband, when he paid the $850, that he should he fully secured by a lien on the land, either by mortgage or in some other form, as might he deemed most effectual. Such is the averment of the hill, and one of the prayers is, that the said sum may be declared and decreed to be a lien on -the said land, or a resulting trust in favor of the appellant. It was conceded, and cannot be denied, that a mere parol agreement to execute a mortgage of -real estate, cannot 'be enforced in equity because of the Statute of Frauds. But it was insisted, that when such an agreement is confessed by the answer, or has been performed in part, it is taken out of the operation of the statute, and will he enforced against the party making it, and all those claiming under him who had actual notice, or could he presumed to have notice of it, and that the answer of Shaner and the proof in the canse, are sufficient to place this case within the -exception to the rule. [444] The authorities before cited upon the subject of contracts by femes covert, establish the principle, that except as to her separate estate, any contract by the wife, made by her or by her husband, with or without her consent, is absolutely null and void, and she cannot be compelled to perform it. This principle, however, is to yield to any statutory mode for enabling married women to contract, or to bind or bar their interests in real estate. Morris vs. Harris, 9 Gilt, 28. Johns vs. Reardon, 11 Md. Rep., 470. Even if this principle did not stand in the way of the appellant’s claim to relief, the bill must charge the party to be affected by the decree with notice of the contract, and the proof must sufficiently sustain the averment. The bill in this case, while it charges Baumgardner (the purchaser of the land from Shaner and wife,) with knowledge of the loan to or payment for them of the $850, does not aver his knowledge of the alleged agreement to mortgage or give a lien on the land to secure its re-payment. Nor does the proof establish such knowledge in him, and his answer expressly denies it. The witnesses ( and they were all produced on the part of the complainant, Six,) testify as to Baumgardner’s knowledge of the loan, but none of them prove that he knew of the alleged promise to give a lien. What was deposed to by Fuss and Merring conveys a mere suspicion of such knowledge on his part, while Shorb’s testimony proves the want of it. It is also to be noted .that none of the interrogatories to which the witnesses deposed, specifically elicited their knowledge on this particular point of the investigation. We do not think that any resulting trust is established by the facts or circumstances of this case. It does not fall within the general principle of a purchase by one for and with the money of another, or any of its exceptions. It is the case of a loan of a sum of money to a vendee in her own name and for her own purposes and use, to eke [445] out a "balance due on the purchase, with a promise or under the expectation of being secured. The mode in which he sought the security by a purchase of the land himself from the wife alone, under the circumstances adverted to in the proceedings, and his alleged refusal to accept a mortgage when tendered, do not place him in a favorable attitude in a Court of Equity. ( Decided March 5th, 1867.) The answers deny all fraud and combination charged in the bill against the several defendants, and there is no proof of any. The decree below simply dismissed the bill with costs, without noticing the several injunctions in the case. Those against Shaw and Baumgardner should he dissolved, but that against Jeremiah Shaner and Martha Ann Shaner to restrain them from assigning or transferring the four promissory notes for $500 each, given on the 10th day of ISTovember, 1857, by the appellant to said Martha Ann, as alleged in the bill, should be made perpetual, and the said notes should he decreed to he delivered to the said appellant to be cancelled. The appellees should however he allowed their costs. We will affirm the decree below dismissing the bill, except so far as it may affect the said injunction against Shaner and wife, and the relief prayed against them for the delivery up and cancellation of said notes. That should be made perpetual, and the bill retained for these purposes 5 the other injunctions to be dissolved. We will sign a decree accordingly. Decree affirmed in part, and reversed in park