Girault v. Adams

• Decision Date: 13 December 1883
• Citation: 61 Md. 1
• Parties: JOSEPH B. GIRAULT and Elizabeth F. Girault, His Wife v. LORENZO J. ADAMS and Annie W. Adams, His Wife. Lorenzo J. Adams and Annie W. Adams, His Wife v. Joseph B. Girault and Elizabeth F. Girault, His Wife.
• Court: Maryland Court of Appeals

61 Md. 1

JOSEPH B. GIRAULT and Elizabeth F. Girault, His Wife v. LORENZO J. ADAMS and Annie W. Adams, His Wife.

Lorenzo J. Adams and Annie W. Adams, His Wife v. Joseph B. Girault and Elizabeth F. Girault, His Wife.

Court of Appeals of Maryland

December 13, 1883

The cause was argued before Alvey, Stone, Irving, and Ritchie JJ.

S Thos. McCullough and William H. Tuck, for Girault and wife.

This being a bill for specific performance, to entitle the complainants to a decree, the contract should be clearly stated in the pleading and as clearly proved. The evidence fails to show an agreement for a mortgage on the part of the husband; and even if he had made such an agreement, his wife would not be bound unless she assented, and of this there is no proof. Semmes v. Worthington, 38 Md. 298; Six v. Shaner, 26 Md. 415, 442; Billingslea v Ward, 33 Md. 48; Small v. Owings, 1 Md. Ch 363; Smith v. Crandall, 20 Md. 482.

But if the wife had verbally agreed to secure this loan to her husband, by a mortgage on her property, would such an agreement be enforced against her? A married woman may be bound by her contracts, in respect to her separate estate, but this property is held by Mrs. Girault by no such title as that. She holds the legal estate in fee, and the doctrines in equity, under which such persons are sometimes held to be liable, do not apply to such estates. All contracts made by a married woman are void at law and in equity, unless in writing since the Act of 1872, and then the husband must join; or unless they have reference to her separate property. If she makes a contract that cannot be enforced against her, and it is executed by her, she cannot avoid what she has done. The Statute of Frauds does not apply to such a case, nor, as we suppose, does the law in relation to the acts of married women. Six v. Shaner, 26 Md. 415.

It is said to be a hard thing, that she should not be secured, or the money paid. There are two sides to that question, and it can be fairly solved only by consideration of all the circumstances, then and now. If the defendants did not intend, at the time the money was borrowed, to give this mortgage, that is, if it was no part of the agreement for the loan, they ought not to be made to do it. That would be making a contract by the court, into which the parties never entered--making the defendants do something for the complainant that they never intended, and she never expected. Besides, if Mr. Girault borrowed the money under the belief and agreement, with his sister, that it was to be paid or settled by some equivalent other than money, or by something, or in some way, less than a full equivalent, and she has, by marriage, and changing her will, put it out of his power to comply in that way, would it not be unfair to compel him to a mode of settlement more onerous and grievous than that in their minds at the time?

Under the circumstances of the parties at this time, it is no more inequitable to deny to the lender of the money the benefit of the lien claimed, than it would be unjust and unreasonable to take the wife's property to pay his debt. She lent it to the husband, and not to him and his wife; the liability was his, and not hers, and she ought not to be held responsible in any way. If loss must fall on Mrs. Adams, it will be attributed to her dealing with her brother, as she did, even according to her own showing, without reducing the agreement to writing, and informing Mrs. Girault that she expected her property to be bound for the debt. If she confided in her brother to have carried into effect a proposition concerning the wife's property, of which the wife had no knowledge, and that expectation has been disappointed, the law places the loss on the one who could have prevented it, for she might have refused to treat with the one, and ought to have insisted on making an agreement with both.

The Statute of Frauds is relied on in the answer. That defense is conclusive, even if an agreement not in writing was proved. As to the wife there has been no part performance, because no agreement of any kind is proved as to her. As to the husband, the agreement alleged is denied and is not proved. There can be no avoidance of the statute in such case, on the ground of part performance. Alexander v. Ghiselin, 5 Gill, 138, appears to be conclusive on the point. There the money had been advanced on the promise of a mortgage on land and negroes; but relief was denied as to the lien on the land, though enforced against the personalty, because, as to that the statute did not apply. Claubaugh v. Byerly, 7 Gill, 354.

The claim, on cross-appeal, that the complainant is entitled to more than the sum actually advanced, would be inequitable. The defendant, Mr. Girault, has been paying seven per cent. on $3325. Now, there can be no reason for demanding a mortgage for that amount, when he only received $2965, except on the theory that he promised his sister she should lose nothing by selling the New Jersey mortgage; but that was based on an agreement that he should not repay more than $1000, and the complainants cannot claim the benefit of the arrangement, without yielding what was favorable to the defendants, as testified to by Mr. Girault.

R. E. Wright and Frank H. Stockett, for Adams and wife.

The testimony and circumstances of this cause, as shown in the record, clearly establish the right of the complainants, and a contract by the defendants founded upon proper consideration, to require the defendants to execute a mortgage of the separate estate of the defendant, Elizabeth, to secure the money appropriated and advanced by the complainant, Annie, as disclosed in the case, or on their failure to do so, to a decree for a sale of the property to repay the money, and such relief will be recognized and enforced by a court of equity. Jackson v. West, 22 Md. 71, 83; Hall v. Eccleston, 37 Md. 510, 519-20; Cole v. Cole, 41 Md. 301; Wilson v. Jones, 46 Md. 409; Build. Asso. v. Hamill, 55 Md. 301; Alexander v. Ghiselin, 5 Gill, 139; Yale v. Dederer, 22 N.Y. 450; Caswell v. Hill, 47 N.H. 407.

Where no particular time for the payment of a mortgage is limited by the agreement, it is to be paid in a reasonable time. Farrell v. Bean, 10 Md. 217; Triebert v. Burgess, 11 Md. 452.

The case of Six v. Shaner, 26 Md. 416, on which much reliance was placed by the defendants in the argument in the court below, differs essentially from this. In that case, the decision was under the law as it stood prior to the Code, in reference to the estates of married women, and there she had no sole or separate estate in the property in controversy. Now under the operation of the Code, Art. 45, sec. 2, all property acquired as this was, is held by a feme covert as her sole and separate estate, as explained by Judge Bartol in his opinion, in 37 Md. 510, and as was again decided in 55 Md. 315.

The Statute of Frauds can furnish no defense or obstacle to the relief asked for, for the complainant Annie had performed all of her part of the contract or agreement. Alex. Brit. Statutes, 515, and the authorities there cited; Alexander v. Ghiselin, 5 Gill, 139; Hamilton v. Jones, 3 G. & J. 127; Md. Sav. Inst. v. Schroeder, 8 G. & J. 93; Moale v. Buchanan, 11 G. & J. 314; Artz v. Grove, 21 Md. 456.

If one party performs as much of a contract as to incur loss, he is entitled to have the contract specifically performed, if he is in no default for non-performance of the residue. Hence it is, that courts decree the specific performance of parol contracts, the part performance by one taking the case out of the statute, and the refusal to perform on the other side being a fraud. That statute was enacted to provide, as far as possible, against the perpetration of frauds, and the courts will not permit the statute designed to prevent fraud, to be made an engine of fraud. Cole v. Cole, 41 Md. 304.

The proof shows, and it is conceded, that the complainant, Annie, appropriated her security for $3325, to the use and benefit of the defendants, and the sacrifice which she made at the instance of her brother, was entirely for his accommodation, and on the agreement that she should have a security for the full amount, and at the same interest--seven per cent.--which she was receiving. By this means, she lost the entire debt, $3325. The fact that the whole amount did not go into the hands of her brother, and that only $2965 was actually applied to the improvement of his wife's property, can make no difference in her right to recover. She was injured to that extent, and performed fully and in good faith her part of the contract and agreement made with her brother, and by this agreement the wife was bound.

Irving J., delivered the opinion of the court.

The undisputed facts of this case are as follows: Joseph B Girault, a professor in the Naval Academy at Annapolis, in August, 1877, purchased a vacant lot of ground, in Annapolis, for $800, which he paid for with his own money, and caused to be conveyed to his wife, Elizabeth F. Girault. Mrs. Girault had no property of her own before her marriage and had acquired none after marriage, except what she has received from her husband; who now has none, because he has given all he had to his wife. Desiring to build a house on the vacant lot, in the spring or summer of 1879, by the authority of his wife, Mr. Girault negotiated with a building association for the loan of money to build with, agreeing to mortgage the property in security for the loan. Finding he could secure the money from an unmarried sister, who was living with him, the negotiations with the building association were dropped. The sister had a mortgage of $3325 upon property in New Jersey, which was not due, and which was paying her seven per cent. interest. ...