Baxter v. Wilburn

• Decision Date: 17 March 1937
• Docket Number: 41.
• Parties: BAXTER v. WILBURN.
• Court: Maryland Court of Appeals

190 A. 773

172 Md. 160

BAXTER v. WILBURN.

No. 41.

Court of Appeals of Maryland

March 17, 1937

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Bill by William M. Baxter against Ruby Wilburn. From a decree dismissing the bill, complainant appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Thomas M. Jenifer, of Towson (Jenifer & Jenifer and Walter R. Haile all of Towson, on the brief), for appellant.

George M. Berry, of Towson (John D. C. Duncan, of Towson, on the brief), for appellee.

BOND Chief Judge.

The appellant, in about the year 1928, while he had a wife living, began an illicit relationship with the appellee, then a widow, and continued in it for about seven years, the two living together during most of that period. His wife died in about the year 1933. Three years after the relationship with the appellee began, or in 1931, she expressed a wish for a home in the country, one that she could have when she grew old, and the appellant bought one which she selected, and had it conveyed according to an arrangement designed to save the property from his wife's conjugal rights, and also to save it to himself in case the appellee should die before he did. The deed of conveyance, duly recorded, was taken in the name of the woman alone, and at the same time a mortgage was executed by her to him, but withheld from record, the parties agreeing that it should be recorded only in case of her death first, and that she should be the custodian of it meanwhile. She destroyed it, and, the parties having since quarreled and separated, he has brought his bill, praying that she discover what she has done with the mortgage, that, if it has been destroyed, the amount of it may be declared a lien on the property in his favor, that trustees be appointed to sell and satisfy the claim, and that meanwhile she be restrained from selling or incumbering the property. The chancellor considered the transaction to be one in promotion of the illicit relation, and therefore one upon which no relief should be granted in equity, and dismissed the bill.

It appears that at the time of the purchase there was no discussion of a continuation of the illicit relation, no mention of it at all. The complainant testified that its continuation was not dependent on the purchase, but also testified that he would not have put up ten cents if he had not thought the woman was going to live with him as man and wife, "because I am not that kind of man. I am not a man to run around and fall in love with her," and that the money was put up for the purchase in expectation and agreement between them that they would continue to live together as man and wife until death separated them.

"Contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulating for such future intercourse, or in any manner promoting or furnishing opportunity for unlawful cohabitation," are void and unenforceable in equity. Pomeroy, Equity Jurisprudence, § 936; Gotwalt v. Neal, 25 Md. 434, 449; Lester v Howard Bank, 33 Md. 558, 563, 3 Am.Rep. 211; Harrison v. Harrison, 160 Md. 378, 384, 153 A. 58. But the mere fact that a man and a woman are living together in an unlawful relation does not disable them from making an enforceable contract with each other if it has no reference to continuation of the relation, or is only incidentally connected with it, and may be supported independently of it. A loan to the woman to buy herself clothes would be lawful and upon the same reasoning a loan to buy real property not for the furtherance of the immoral relation would be enforceable. McDonald v. Fleming, 12 B.Mon. (Ky.) 285; Williston, Contracts, § 1752.

The bill of complaint here describes the mortgage as a purchase-money mortgage given without reservation as to recording and giving it effect, and without reference to the relationship...