Willey v. Hodge

BaRdeest, J. Following in line with the decision of the court below, the view we have taken of this case renders it unnecessary to determine whether, under the testimony, there has been a legal delivery of the deed under which plaintiff claims. Upon that question we express no opinion. The deed in question was not made pursuant to any agreement or contract of settlement. It was a purely voluntary conveyance, founded upon natural love and affection, and was made without any prior consultation or agreement with the grantee. A family settlement is an agreement made between a father and his son or children, or between brothers, to dispose of property in a different manner from that which would otherwise take place. 12 Am. & Eng. Ency. of Law (2d ed.), 875; Baker v. Pyatt, 108 Ind. 61. It being considered that the transaction in question does not possess the essential elements of a family settlement, it is quite evident that the law regarding such settlements can have no application to this case. It is true, as argued by the appel [85] lant, that equity will sometimes interfere in such cases, and correct errors, and enforce contracts, where the transaction is founded only upon a ■meritorious consideration. Oases illustrating this principle may be found in the notes, 12 Am. & Eng. Ency. of Law (2d ed.), 877. But in speaking of the disposition of a court of equity to interfere in cases of a voluntary contract, Judge Story says: “It has been said that there are exceptions, and that they stand upon special grounds; such as the interference of courts of equity in favor of settlements upon a wife and children for whom the party is under a natural and moral obligation to provide. But although the doctrine in favor of such exceptions has been maintained by highly respectable authority, yet it must now be deemed entirely overthrown by the weight of more recent adjudications in which it has been declared that the court will not execute a voluntary contract, and that the principle of the court to withhold its assistance from a volunteer applies equally whether he seeks to have the benefit of a contract, a covenant, or a settlement.” 1 Story, Eq.' Jur. § 433. See 2 Story, Eq. Jur. (13th ed.), § 7935. Nor can we apply to this case the same doctrine of equity jurisprudence as is applied to the defective execution of powers. Quoting again from 2 Story, Eq. Jur. § 7935: “There may be a clear if not a satisfactory line of distinction drawn between cases of voluntary contracts, covenants, and settlements, where there has been a defective conveyance or exe-' cution thereof, and cases of a defective execution of a power. In the latter cases the donee of the power designs to carry into effect, not merely his own objects and interests but those of other persons, by executing the power in favor of persons who stand as volunteers upon a meritorious consideration, and for whom he is under a natural and moral obligation to provide; and his own defective execution of the power, by mistake or otherwise, not only defeats his own positive intention and moral obligation and duty to execute [86] the trust reposed in him, but it would, if not aided, also defeat the very objects for which the power was created by third persons, whether it was created as a bounty, or upon a valuable consideration passing between the donor and donee of the power.” No such considerations exist in this case, and the freedom of equity intervention in cases of defective execution of powers cannot be invoked to aid the plaintiff in his dilemma. There can be no doubt of the m-tentAon of the father to convey this tract of land to the plaintiff. His deed, however, fails to describe it. The rule is quite familiar that a defective deed may be treated in equity as an. agreement to convey, and performance enforced. But the rule is equally well understood that, when it appears that the deed was voluntary, equity will not carry it into effect or reform it. Eaton v. Eaton, 15 Wis. 259; Hanson v. Michelson, 19 Wis. 498; Petesch v. Hambach, 48 Wis. 443. It is suggested that, as the deed in question is based upon what is called in the books a “ meritorious consideration,” the right to a reformation ought to be upheld. All the cases I have been able to find in which such a consideration has been upheld as warranting the intervention of a court of equity rest upon the fact of the defective execution of a power, or upon some matter of contract, such as an agreement for a family settlement, or the result of negotiation and agreement. These elements are entirely wanting in this case. The grantee in the deed knew nothing of its execution until after the father’s death. The son was an adult person in no way dependent upon the bounty of the parent. He has no claim upon his father at all, superior to his sisters, against whom he seeks relief. While recognizing the principle that in certain cases the performance of a moral duty will justify the intervention of equity, Pomeroy, in his work on Equity Jurisprudence, says that it is only effective within very narrow limits, and will only “ enforce the promise thus imperfectly performed, as against a third person claiming [87] merely by operation of law, wbo has no equally meritorious foundation for bis claim.” Sec. 588. No case bas been found that carries tbe rule to tbe limit sought in this case. On tbe -contrary, modern decisions are the other way. Story, Eq. Jur. § 987, repeats tbe doctrine before quoted, and says tbe ^ court will not interfere, although tbe parties stand in the relation of wife or child. A recent cáse in Michigan, cited ■by the trial court, fully sustains his conclusions. Shears v. Westover, 110 Mich. 505. The transaction under consideration was, in a general .sense, a testamentary disposition of property. The doctrine being established in this state that equity will not reform a will, the plaintiff is left without remedy. Sherwood v. Sherwood, 45 Wis. 357. By the Court.— Judgment of the circuit court is affirmed.