Luntz v. Greve

• Court: Indiana Supreme Court
• Writing for the Court: Elliott, J.
• Citation: Luntz v. Greve, 102 Ind. 173, 26 N.E. 128 (Ind. 1885)
• Decision Date: 26 June 1885
• Docket Number: 11,964
• Parties: Luntz v. Greve et al

26 N.E. 128

102 Ind. 173

Luntz v. Greve et al

No. 11,964

Supreme Court of Indiana

June 26, 1885

[Copyrighted Material Omitted]

Original Opinion of March 17, 1885, Reported at: 102 Ind 173.

OPINION

Elliott, J.

A very ingenious argument has been filed by appellant's counsel on the petition for a rehearing, but able as it is, it is based upon a false foundation. It is tacitly assumed that for the conveyance made by Ann Helen Greve to her husband, in 1850, he paid such a consideration as entitles the deed to be protected in equity. This assumption is not warranted by the finding, for it reads thus: "That in April, 1850, the said Ann Helen Greve executed a deed in the usual form, purporting to convey to her husband directly the land in controversy, for the consideration, as expressed in the deed, of love and affection and the sum of five dollars." There is here no valuable consideration, for it is too plain for controversy that the money consideration named is a mere formal and nominal one.

Many cases are cited by counsel to the effect that a deed from the husband to the wife, although void at law, may be protected in equity; but the difference between these cases and the present is very great; the husband is not under any disability; the wife is. The question is not as to the power of alienation of a person free from disability, but the question is as to the power of alienation of a person disabled by coverture. There is, as stated in Hunt v. Johnson, 44 N.Y. 27 (4 Am. R. 631) another reason why a distinction is made between the two classes of cases, and that is this, the husband is under a legal duty to support his wife, but no obligation rests upon her to support her husband. Counsel have not cited any case where equity interposed to protect a husband, who paid no consideration for a conveyance to him of the lands of the wife, against the claims of her children, and we have seen none in the course of our investigation. Conceding that there are cases in which equity would protect the deed of the wife to the husband under our statutes, either of 1843 or 1852, still, the husband who claims under a mere voluntary conveyance is not entitled to invoke the exercise of the power of a court of conscience in his behalf. But we think that this concession is not warranted, for, as our cases uniformly declare, it has always been the law of this State that a married woman could only convey her property in a...