Cereghino v. Einberg

• Decision Date: 19 June 1886
• Citation: 4 Utah 514,11 P. 568
• Court: Utah Supreme Court
• Parties: GIOVANNI CEREGHINO, RESPONDENT, v. HENRY WAGENER, INTERVENOR AND APPELLANT, IMPLEADED WITH FREDERICK EINBERG

11 P. 568

4 Utah 514

GIOVANNI CEREGHINO, RESPONDENT, v. HENRY WAGENER, INTERVENOR AND APPELLANT,

IMPLEADED WITH FREDERICK EINBERG

Supreme Court of Utah

June 19, 1886

APPEAL from a judgment of the district court of the third district. "Exhibit E" referred to in the opinion was the findings of fact of the trial court in the second suit for a divorce instituted by respondent against her husband as follows:

"This cause was tried before the court, and the court makes the following findings of fact and conclusions of law:

"1. That plaintiff and defendant were legally married October 19th, 1864, in the kingdom of Italy, and ever since then have been husband and wife.

"2. That there are now living issue of said marriage, viz.: Mary born July 10th, 1865, and John, born November 9th, 1867.

"3. That plaintiff and defendant are, and for more than one year past have been, residents of Utah Territory.

"4. That defendant has by acts of violence since January 23rd 1880, and prior to bringing this action, and by often, and almost continuously during said time, accusing plaintiff of committing adultery, and by using foul and abusive language towards her been guilty of such cruelty towards plaintiff as to cause her great mental distress.

"5. That he has continued his charges of adultery, against plaintiff in his answer herein, and has not made any proof of, nor any attempted proof of any such charges.

"6. That defendant has been guilty of such acts of cruelty as are charged in the complaint.

"7. That on the 23d day of January, 1880, defendant executed and delivered to plaintiff the two instruments in writing set forth in the complaint.

"8. That plaintiff did not violate the conditions in the instrument marked Exhibit "A," to be by her performed.

"9. That plaintiff demanded of defendant a deed in due form, for the premises described in Exhibit "A," prior to bringing this action, which defendant neglected to execute and deliver to her.

"10. That the material allegations in the plaintiff's complaint are true.

"11. That the material denials and allegations in defendant's answer are not true.

"Amended findings of fact, No. 12. That on the 20th day of January 1880, plaintiff brought an action of divorce against defendant, charging nearly the same causes of action contained in the present complaint that the said suit and causes of divorce therein contained were settled and forgiven on each side, on January 23d, 1880, the date of the deeds aforesaid."

A decree of divorce was rendered on these findings, but on motion made by C. a new trial was granted in said action on the ground that the evidence was insufficient to support the findings and decree; the order granting such new trial was offered in evidence by appellant in connection with "Exhibit E," and the entire record of said second suit for a divorce; all of said record was excluded by the court to which appellant excepted, and this ruling furnishes one of the assignments of error. The other facts sufficient appear in the opinion of the court.

Judgment affirmed, with costs.

Mr. Arthur Brown and Mr. E. B. Critchlow, for the appellant.

Is the instrument marked Exhibit "A," a deed of conveyance?

We contend that it must be held to be an agreement for a deed and not a deed.

1. In construing written instruments, effect is to be given to the instrument or writing as a whole, though single clauses taken alone would give a different construction: Chase v. Bradley, 26 Me. 531; Heywood v. Perrin, 10 Pick., 230; 2 Cruise Dig., R. P. 300; 2 Smith L. C., 516-7; Settle v. Winters, 10 P. 220.

2. The contract or writing will be so construed as to give force and validity to all the parts and to all the language used, where that is possible.

The only instances in which the court will suppress or ignore any parts of the writing, are those in which it becomes necessary, in order to sustain and enforce the contract according to the evident intention of the parties: 2 Parson's Cont., 505-6; McKinney v. Settles, 31 Mo. 541.

The intention of the parties, as gathered from an inspection of the whole instrument, will be carried out, provided the instrument contains the necessary words, and no violence is done to its language: 31 Mo. 351; Kenworth v. Tullis, 3 Ind., 99; Emigrant Co. v. Clark, 62 Ia. 182; Settle v. Winters, 10 P. 220.

Tested by the above rules, what is the character of this instrument? We contend that it advertises itself, both by matters recited and by its omissions, as being an agreement for a deed, and not as a conveyance.

a. It is called in the premises an agreement.

b. It recites that a deed in due form is not made, and gives the reason therefor.

c. It contains a promise to make a good and sufficient deed in the future.

d. It speaks of the deed to be made as said deed; whereas, had the intention been to convey the property by this writing in question, the expression would have been undoubtedly this deed.

e. It speaks of the estate contemplated in this writing, not as the estate hereby granted, but as the estate thereby granted, an expression inconsistent with the idea that this is a conveyance of the estate.

2. The second question raised is as to the validity of the instrument, assuming it to be a conveyance, in view of the fact that it purports to be a conveyance from the husband to the wife directly, without the aid of trustees.

It is admitted this could not be done at common law, but it is further contended that our statute has so far removed the disability of women as to permit them to take directly from the husband.

The statute (Comp. Laws, p. 342) is general in its terms, and being in derogation of the common law is not to be construed as removing any of the peculiar disabilities arising out of the marriage relation, unless specially enumerated or necessarily implied: 10 Nevada, 43; White v. Wager, 25 N.Y. 328. Approved, 32 N.Y. 423; Brown v. Fifield, 4 Mich., 322; Ransom v. Ransom, 30 Mich. 328; In connection with Const. Mich., 1 Howells, Stat., p. 67; Sims v. Rickets, 35 Ind. 181; Hileman v. Hileman, 85 Ind. 1.

Mr. C. S. Varian, for the respondent.

The instrument executed by Antonio Cereghino is a deed. It contains a description of the property, the names of the parties, and operative words of present grant, together with a statement of sufficient consideration. Nothing more is necessary. See: Washburn on Real Property, Vol. 3, p. 612, (top page 318), 621, (top pages 329, 330); Kent, Vol. 4. p. 461, 492; Coke on Littleton, 7, note "a;" Greenleaf's Cruise, 51; Kenworthy v. Trellis, 3 Ind., 98; Pierson v. Armstrong, 1 Iowa, 282; Chiles v. Conley, 2 Dana (Ky.) 23, 24; McKinney v. Settles, 31 Mo. 544; Lambert v. Smith, 9 Oregon, 193; Patterson v. Cornelius' Heirs, 3 A. K. Marshall, 621; American Emigrant Co. v. Clarke, 62 Iowa 187.

The description is made certain by reference to another deed: Washburn, 3 Vol. p. 367; Foss v. Crisp, 20 Pick., 124.

Under our law the wife can take directly from the husband: Comp. Laws, p. 342, sec. 1020; p. 262, sec. 647; p. 271, sec. 689; p. 253, sec. 616.

These statutes clearly indicate the legislative intent to do away with the useless and unnecessary distinctions of the past. In equity, conveyanccs between the spouses were upheld: Cummings v. Friedman, Wis., Albany Law Journal, March 20, '86, p. 229; Putnam v. Bicknell, 18 Wis. 351; Bishop's Married Women, vol. I, sec. 717.

Similar laws are so construed: Barker v. Koneman, 13 Cal. 10; Kohner v. Ashenaum 17 Cal. 578-581; Dow v. Gould, 31 Cal. 629; 31 Cal. 653; Herssey v. Castle, 41 Cal. 239; Woods v. Whitney, 42 Cal. 361; Higgins v. Higgins, 46 Cal. 263; Amperse v. Burdeno, 5 Am. L. Reg. 275 Mich.

BOREMAN, J. ZANE, C. J., and POWERS, J., concurred.

OPINION

BOREMAN, J.:

The respondent instituted suit against one Einberg for the possession of a certain tract of land described in the complaint. Einberg answered that personally he had no connection with the title to the property, and that he held possession of it as the tenant of Henry Wagener, and not otherwise. Wagener intervened, claiming the property under some deed, but from whom it does not appear. The cause was tried by the court without a jury, the same being waived, and judgment was entered for respondent, and thereupon the cause was appealed by said Wagener, the intervenor, to this court. The respondent claims title under an instrument in writing executed by her husband, Antonio Cereghino, which is in words and figures following, to-wit:

"This agreement, made this twenty-third day of January A. D. 1880, by and between Antonio Cereghino, of Bingham canyon, Salt Lake county, Utah, and Giovanni Cereghino, his wife, of the same place, witnesseth that, in consideration of the love and affection, and in recognition of how much her personal services have contributed to the acquisition of the following described property, said Antonio hereby gives and deeds to his said wife, Giovanni, the two lots in the Fifth ward, of Salt Lake City, Salt Lake county, Utah...