Arnegaard v. Arnegaard

• Decision Date: 11 May 1898
• Citation: 75 N.W. 797,7 N.D. 475
• Court: North Dakota Supreme Court

75 N.W. 797

7 N.D. 475

MARIA ARNEGAARD v. KNUDT O. ARNEGAARD, et al

Supreme Court of North Dakota

May 11, 1898

Appeal from District Court, Traill County; Pollock, J.

Action by Maria Arnegaard against Knudt O. Arnegaard, Ole O Arnegaard, Martinus O. Arnegaard, and Maria O. Lee, heirs and H. J. Nyhus, special guardian of Albert O. Arnegaard Annetta Arnegaard, Andrew Arnegaard, Oscar Arnegaard, Emma Arnegaard and Mabel Arnegaard, heirs and minor children of Ole O. Arnegaard, deceased, to have deeds of certain lands declared void as to her. Defendants had judgment, and plaintiff appeals.

Modified.

Judgment modified and appellant recovered costs.

Swenson & Norman, and John F. Selby, for appellant.

The deed was never delivered to or accepted by the grantee, hence never became operative. Prutsman v. Baker, 30 Wis. 644; Bank v. Balihouse, 4 P. 106; Hibberd v. Smith, 4 P. 473, 8 Pa. 46; Fisher v. Hall, 41 N.Y. 416; Fain v. Smith, 12 P. 365; Fitch v. Bunch, 30 Cal. 208; 5 Enc. L. 445; Hathaway v. Payne, 34 N.Y. 106; Comer v. Baldwin, 16 Minn. 172. The deed must be delivered during the lifetime of the grantor. Parrott v. Avery, 159 Mass. 594; Reichert v. Wilhelm, 50 N.W. 19; Young v. Guilbean, 3 Wal. 636; Jackson v. Phipps, 12 Johns 418; Heyes v. Boylang, 141 Ill. 400; Bemison v. Aiken, 102 Ill. 284; Parmelee v. Simpson, 5 Wall. 86. Placing a deed in the hands of a third person is not a good delivery unless the grantor parts with his dominion over the deed. If the grantor continues till his death to have the right to recall the deed from the depository, there is no delivery. Baker v. Haskell, 47 N.H. 479; O'Connor v. O'Connor, 69 N.W. 676. The assent of the grantee is necessary to a good delivery. Section 3520, Revised Codes. This is copied from California. Section 1059, Civil Code of Cal.; Hibbard v. Smith, 4 P. 478. If the grantor reserves the right to recall or retake the deed, there is no delivery. Stinson v. Anderson, 96 Ill. 373; Porter v. Woodhouse, 59 Conn. 568; Weisinger v. Cock, 67 Miss. 511; Wilson v. Wilson, 158 Ill. 567; Tyler v. Hall, 106 Mo. 313; Bury v. Young, 98 Ill. 446; Schuffert v. Grote, 88 Mich. 650; Bovee v. Hinde, 135 Ill. 137; Fain v. Smith, 14 Or. 82; Lang v. Smith, 37 W.Va. 725. The deed in controversy was in possession of the deceased at his death, this puts the burden of proving delivery upon the grantee. Tyler v. Hall, 106 Mo. 313. The presumption is that the deed was placed in Hyde's possession as the agent for the grantor. Hale v Joslin, 134 Mass. 310; Ball v. Foreman, 37 Ohio St. 132. The deed to Knudt O. Arnegaard of the homestead was fraudulent as to the homestead rights of the plaintiff. Such transfers after the agreement to marry without the consent of the prospective husband or wife are void. Petty v. Petty, 4 B. Monroe, 215; Swaine v. Perine, 5 Johns. Ch. 482; Cranson v. Cranson, 4 Mich. 230; Pomeroy v. Pomeroy, 54 How. Pr. 228; Killinger v. Reidenhauer, 6 Serg. and R. 534; Green v. Green, 34 Kan. 740; Hall v. Carmichael, 8 Baxt. 211; Freeman v. Hartman, 45 Ill. 57; Posten v. Gillispie, 5 Jones, Eq. 258; Tucker v. Anderson, 13 Me. 124; Baker v. Jordan, 73 N.C. 145.

Carmody & Leslie, and Cochrane & Feetham, for respondents.

The delivery of the deed to Mr. Hyde passed the title, and the fact that the grantor in his life time regained possession of the deed does not defeat the title already passed. Bury v. Young, 33 P. 339; Whittenbrock v. Cass, 42 P. 300; Crabtree v. Crabtree, 42 N.E. 487; Brown v. Westerfield, 66 N.W. 439; Denzler v. Reckholl, 66 N.W. 147; Trask v. Trask, 57 N.W. 841; Gish v. Brown, 33 At. Rep. 60; Crooks v. Crooks, 34 Ohio St. 610; Hatch v. Hatch, 6 Am. Dec. 67; Wallace v. Harris, 32 Mich. 481; Hatheway v. Payne, 34 N.Y. 92; Brown v. Brown, 4 Fed. Cases, No. 1994. At common law a voluntary conveyance by either party to a marriage contract of his or her entire property, without the knowledge of the other and just prior to the marriage was a fraud, this is not the law today. Butler v. Butler, 21 Kan. 521, 30 Am. Rep. 441; Green v. Green, 10 P. 156; Hamilton v. Smith, 10 N.Y. 276; Small v. Small, 42 P. 327.

OPINION

CORLISS, C. J.

Plaintiff is seeking a decree adjudging void as to her a certain deed of real property executed by Ole O. Arnegaard to his son Knudt O. Arnegaard without any other consideration than the natural love of a father for his own offspring. The validity of the deed is assailed on two grounds: Plaintiff claims that it was never delivered, and that it was in fraud of her rights as the prospective wife of the grantor. At the time this conveyance was executed, the grantor, who was a widower with a large family of children, was engaged to the plaintiff, and their marriage took place a couple of months later. The grantee in the deed is one of the grantor's children by his former wife. Assuming, for the purpose of discussing the question of fraud, that there was in fact a delivery of the deed, we are confronted with the inquiry whether there is anything in the circumstances of this case which takes it out of the general rule that the owner of property can make an honest disposition thereof to whomsoever he pleases. As before stated, it is urged by counsel for the plaintiff that the transfer of the land to the son was a fraud upon her rights, and that the deed is void in his hands because he is not a purchaser for value, but merely the object of his father's bounty. The basis of this claim is that upon marrying the grantor she would have secured a homestead right in this land, had it not been conveyed to the son before her marriage with the grantor, and that this conveyance made after her engagement to the grantor (the fact of such conveyance being concealed from her) must consequently be deemed to have been made for the purpose of defeating her rights, and therefore, in law, a fraudulent conveyance, with respect to her homestead right.

It must be admitted that there has grown up a peculiar doctrine with reference to transfers of property by husband or wife after engagement. In its original form, this doctrine was not obnoxious to criticism. But it has, in its late developments, seriously encroached upon settled legal principles. It was not anomalous for a court to hold that a secret transfer by the wife before marriage was, in law, a fraud upon the husband's rights, because by marriage he was compelled to shoulder the burden of her debts. He might well insist that the wife, who had unloaded upon him the weight of her obligations, should not be permitted by a secret transfer to devest herself of the property out of which such debts ought in fairness to be paid. An agreement for marriage at common law was, in effect, an agreement for a sale by the prospective wife to the prospective husband of all her personal property, and the transfer to him of her right to possession of all her real estate, on condition of the assumption by him of all her debts. Liability for her debts being inescapable, it was rightly deemed fraudulent for the woman, after engagement, secretly to devest herself of the very property which should pass to the husband as an equivalent for the obligations he was forced to assume. See Chandler v. Hollingsworth, 3 Del.Ch. 99. The chancellor says, at page 106: "Let us consider the first question. The English court of chancery has, from the earliest times, protected the marital rights of the husband against a fraudulent settlement by the wife pending a treaty of marriage. It is considered that he becomes a purchaser of the wife's property, in consideration of the charge he assumes, of her maintenance and the payment of her debts that this is a right upon which fraud may be committed, and which ought to be protected. Lord Thurlow, in Strathmore v. Bowes, 1 Ves. Jr. 22. This view has commanded universal consent from the beginning." In Butler v. Butler, 21 Kan. 521, Judge Brewer says: "Now, at common law, the husband, by marriage, assumed responsibility for all his wife's debts, became also the owner of her personal property, and entitled to the use, rents, and profits of her real estate. Marriage therefore contemplated, on his part, both the assumption of responsibility and the acquisition of property." In Strathmore v. Bowes, 1 Ves. Jr. 22, Lord Thurlow says: "The law conveys the marital rights to the husband, because it charges him with all the burdens which are the consideration he pays for them; and therefore it is a right upon which fraud may be committed, and out of this right arises the rule of law that the husband shall not be cheated on account of his consideration." But when this rule was made applicable to the case of a conveyance of land by the man contemplating marriage, without any reference to the question of actual fraud, the courts appear to have taken a somewhat radical step. It is obvious, however, that the peculiar favor with which the right of dower was regarded by the common law accounts for this extension of the doctrine. Of course, we are not now considering the case of an actual fraud upon the wife, as when she is induced to marry, relying upon the husband's representation that he is the owner of particular property, which he has in fact conveyed to another. Under such circumstances a case of actual fraud would be established. We are dealing with the broad doctrine that, without any reference to the knowledge of the wife that the husband was the owner of the property conveyed, she can overthrow his deed thereof (the grantee not having paid value) by showing that it was made after their engagement, and that she was ignorant thereof at the time of the marriage. Whatever view may have formerly been held, it has become settled law in these later days that the purpose to deceive and defraud the other prospective spouse is imputed...