Moayon v. Moayon

• Decision Date: 13 February 1903
• Citation: 114 Ky. 85,72 S.W. 33
• Parties: MOAYON et al. v. MOAYON.
• Court: Kentucky Court of Appeals

72 S.W. 33

114 Ky. 85

MOAYON et al. v. MOAYON.

Court of Appeals of Kentucky.

February 13, 1903

Appeal from circuit court, Christian county.

"To be officially reported."

Action by Beatrice Moayon and others against Max Moayon. Judgment for defendant. Plaintiffs appeal. Reversed.

Barker & Woods, Kohn, Baird & Spindle, and Hunter Wood & Son, for appellants.

Landes & Allensworth, Jno. C. Duffy, Jno. Feland, Jr., Jno. Phelps and Hazelrigg & Chenault, for appellee.

O'REAR J.

Appellant Birdie Moayon and appellee, Max Moayon, are husband and wife. They have two children, who are infants. The Fidelity Trust &amp Safety Vault Company is the guardian of these children. Prior to December 4, 1900, there was a separation of these parties on a ground, as is alleged, which entitled the wife to a divorce a vinculo. It is not material to this decision as to the nature of this cause. The wife had retained counsel, who had prepared for filing a petition for divorce from appellee. On the 4th of December 1900, at the instance of appellee, the parties treated for a settlement of their differences, resulting in a contract in writing between them, which we copy in full, as follows:

"This agreement, made and entered into this fourth day of December, 1900, by and between Max J. Moayon and his wife, Birdie Moayon, and the Fidelity Trust & Safety Vault Company, trustee for Beatrice and Jessamine, children of the said Max and Birdie Moayon, witnesseth: That whereas, the said Max and Birdie are now, and have been for some months past, living separate and apart from each other; and whereas, the said parties have this day agreed mutually to forego their differences, and to be reconciled, and live with each other as husband and wife, after the full execution of this agreement: Now, and in view of the fact that the parties have agreed that a settlement is to be made upon the said children by the said Max Moayon, in order to insure a sufficient estate for them and for their maintenance, education, and support, and future welfare, now, in consideration of the love and affection which the said Max Moayon bears the said children, Beatrice and Jessamine, and in consideration of one dollar cash in hand paid, the receipt of which is hereby acknowledged, and in consideration of the acceptance of the trust by said Fidelity Trust & Safety Vault Company under this agreement, the said Max Moayon hereby agrees to convey, transfer, and deliver in fee simple to the Fidelity Trust and Safety Vault Company, as trustee, for the use and benefit of the said Beatrice and Jessamine Moayon, his children, one-third (1/3) of all of his estate, real, personal, or mixed, of whatever kind or nature, belonging to him in his own right, which he acquired under the will of Hannah Moayon, his mother, as well as all the other estate otherwise acquired or now owned by him; the said personal property to be delivered according to the rules of law, and the real estate to be conveyed by deed properly acknowledged and recorded as soon as the deeds can be prepared. The absolute estate is to be conveyed to said trustee for the use and benefit of the said children, and in the event of the death of either of said children the estate of such child shall go to and belong to said Birdie Moayon, for her own sole and separate use forever. Said trustee shall have the authority to collect all income from said estate so conveyed, and pay the same over to the said Birdie Moayon for the use and benefit of the said children's care and education. She shall not be required to render any account of the moneys thus received by her, but her receipt shall be an absolute acquittance of the trustee. Said trustee shall be authorized to convey, sell, exchange, or dispose of any part of the estate so conveyed, and transfer a fee-simple title, whenever the said trustee deems it proper to do so; and conveyance by the said trustee shall convey the fee-simple title, and the said trustee shall hold the proceeds received from any such conveyance for the same use, purposes, and to the same extent and in the same manner as the original estate is held under this agreement. It is agreed between the parties that within ten days a full inventory of all the estate of the said Moayon shall be delivered to the said Birdie Moayon and said Fidelity Trust & Safety Vault Company, and the deeds executed in accordance with this agreement, and the transfers of personalty made in accordance with the terms of this agreement and to carry into full effect the same. Witness the hands of the parties this 4th day of December, 1900, at Louisville, Kentucky. Max J. Moayon. Birdie Meyers Moayon.

"The Fidelity Trust & Safety Vault Company joins in the foregoing arrangement for the purpose of signifying its acceptance of the trust to be created by the deed of conveyance contemplated by its terms. Fidelity Trust & Safety Vault Company, by John W. Barr, Vice President."

The foregoing facts are gathered from appellant's petition filed in this case seeking a specific performance of the above contract, it being also alleged that in pursuance thereto appellant Birdie had forgiven the wrongs of appellee, and had returned to his home, and resumed her relations as a dutiful wife; and from the date of this contract, and in performance of her part thereof, had continued to live with appellee as his wife, and was yet doing so. It was also averred that appellee had wholly failed to comply with his part of the agreement, the one above copied, and that he refused to do so. A full description of his property, alleged to be that intended by the parties to be and that was embraced in the terms of the written contract, was given in the petition. It shows a number of pieces of real estate in Christian county, this state, and personal property of the value of about $20,000. Appellee interposed a demurrer to the petition, which was sustained, and the petition dismissed.

In support of the judgment it is argued that the contract is unenforceable for the following reasons: (1) That it is not founded upon a valuable consideration, and that it is disfavored upon principles of sound public policy; (2) that it is indefinite and uncertain, and inequitable and unreasonable; (3) that it is lacking in mutuality of obligation and remedy on the part of the wife; (4) that the description of the property to be conveyed is not sufficiently certain, nor is it sufficiently identified to satisfy the statute of frauds; (5) that the wife cannot contract with her husband concerning her property rights, nor can she sue him therefor, other than in an action for divorce and alimony. As a determination for appellee of any one of the questions just outlined must result in an affirmance of the judgment, we will take them up and discuss and dispose of them in the order stated.

1. It is conceded by the demurrer that Mrs. Moayon had legal grounds for her separation and divorce; that she and her husband were then living apart because of those grounds; and that she had retained counsel to prepare, and he had prepared, a suit for her seeking a divorce from her husband. She, at her husband's solicitation, forgave his wrong, resumed a relation which he, by his conduct, had forfeited, and had no legal right to longer claim, and saved to him the costs of the threatened litigation. Also, under the facts admitted, she was certainly entitled to recover from him substantial alimony, including maintenance for herself and children pending the action, and including a sum sufficient to enable her to employ counsel and defray the costs of her suit against him. As between other persons, where one has a cause of action against the other, and is about to begin a suit on it, its abandonment and satisfaction will constitute a consideration to support a contract based upon that fact. Clarke v. McFarland's Ex'rs, 5 Dana, 48; Brown v. Buford, 3 B. Mon. 508, 39 Am.Dec. 477; 6 Am. & Eng. Ency. of Law (2d Ed.) 947, and cases. Nor is it even necessary that the party sought to be charged shall have been benefited by the abandonment of the suit. If the other party has thereby been put to an irretrievable disadvantage, that fact will equally constitute what is termed a valuable consideration. Ford v. Crenshaw, 1 Litt. 70; Gaines v. Scott, 3 Ky. Law Rep. 418. Becoming reconciled to the husband, with full knowledge of his actionable offense, will be a bar, as a condonement, to the suit of the wife for divorce, based upon the original facts. Independent of the question whether the fact of the reconciliation was not of as much value to the wife as to the husband, and that a mere claim or right to a divorce is of no legal value, yet her right to a settlement upon herself and children as alimony and maintenance was a right possessing money value. When she abandoned and obliterated her cause for divorce in this case, it likewise nullified her right to sue for and recover alimony.

It is argued, though, that it is the duty of the wife, no less than of the husband, to maintain in good faith the marital relation; that a promise of one to pay money to the other to continue the married relation is at best but an agreement to pay for the performance of a duty already undertaken for a sufficient consideration (to wit, the mutual undertaking to live together in the married state); and that, therefore there is nothing upon which to rest the new promise. Were it the fact that there was no cause for the separation, this argument of appellee would be good. The other side of this proposition-- that is, an agreement between husband and wife by which the former undertook to pay the latter a stipend in consideration of their living apart--has been before this court frequently. In all those cases it was shown that the marital relations had become...