Hackett v. Moxley
| Decision Date | 27 December 1892 |
| Citation | 25 A. 898,65 Vt. 71 |
| Parties | CHARLOTTE W. HACKETT v. LORENZO C. MOXLEY |
| Court | Vermont Supreme Court |
GENERAL TERM, 1892
Bill in chancery. Heard upon general demurrer at the May term 1891, Windsor county. TAFT, chancellor, sustained the demurrer pro forma. The oratrix appeals.
The pro forma decree of the court of chancery is reversed; demurrer overruled; bill adjudged sufficient, and cause remanded.
C.P Tarbell for the oratrix.
This cause was heard on demurrer to the bill. The oratrix alleges that Abbie Hackett and her two sisters were the owners of a farm; that while they so owned it Abbie Hackett became the wife of the defendant; that afterwards, on the 4th day of May, 1871, the farm was sold at auction, and the defendant became the owner; that Abbie Moxley's share of the purchase money was five hundred and forty-seven dollars and forty-eight cents, for which the defendant gave her his note of that date, payable to her or bearer, in two years from its date, with interest annually; that the note was delivered to Abbie Moxley, and was by her kept as her own property, separate and apart from the property of the defendant, until she gave it to the oratrix; that the note was given in payment of the share or interest of said Abbie Moxley in the estate of her father, and that no part of the consideration thereof came from any other or different property or source; that the defendant made payments on the note from time to time, the sum of which is four hundred and forty-three dollars and thirty-seven cents; that the value of the farm is five hundred dollars; that said Abbie Moxley died November 27, 1890; that the oratrix is the niece of said Abbie Moxley; that said Abbie Moxley gave and delivered said note to the oratrix, subject to no limitations or qualifications except that said Abbie Moxley reserved the right to use such portion of the avails of the note as she might require during her lifetime; that she did not require any of the avails of the note, or in any way revoke or cancel said gift; and that since said gift was made the oratrix has held said note as her sole and absolute property.
It not appearing that the wife held the real estate to her sole and separate use, the defendant claims that it is inferable from the bill that he was entitled to the use of the estate, at least during the life of his wife, and that, to the extent of this interest, the note is without consideration, and cannot be enforced in a court of law or equity. By the conveyances the defendant became seized of the estate in his own right. He could sell and convey it, and if not conveyed by him it would descend to his heirs. A majority of the court are of the opinion that it is fairly inferable from the facts stated in the bill that the defendant promised to pay the five hundred dollars evidenced by the note in consideration of the additional rights acquired by the conveyance. Also, that the defendant could waive his marital rights in and to the estate, and that nothing appearing to the contrary, it may be inferred from the fact that he took an absolute conveyance of the estate, gave his note therefor, made payments thereon and treated the note as the separate estate of his wife, that he intended to do so. If the defendant intended, by taking the conveyance and giving his note therefor, to waive his marital rights in and to the estate, or made the promise evidenced by the note in consideration of rights acquired by the conveyance in addition to his marital rights, the promise is enforceable in a court of equity. Barron v. Barron et al., 24 Vt. 375; Cardell v. Ryder et al., 35 Vt. 47; Richardso...
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