North Platte Milling & Elevator Co. v. Price

• Decision Date: 02 August 1893
• Citation: North Platte Milling & Elevator Co. v. Price, 4 Wyo. 293, 33 P. 664 (Wyo. 1893)
• Parties: NORTH PLATTE MILLING & ELEVATOR CO. ET AL. v. PRICE ET AL
• Court: Wyoming Supreme Court

33 P. 664

4 Wyo. 293

NORTH PLATTE MILLING & ELEVATOR CO. ET AL. v. PRICE ET AL

Supreme Court of Wyoming

August 2, 1893

ERROR to District Court of Albany County. HON. M. C. SAUFLEY Judge.

The North Platte Milling & Elevator Co., a corporation, and the Wyoming National Bank instituted certain actions in the district court of Albany County attacking as fraudulent and void a conveyance of real estate from Barnard J. Price to his wife, May E. Price, through the intervention of a third party, Jesse Converse, each of whom was made a party defendant. The plaintiffs were judgment creditors of Barnard J. Price. The actions were consolidated and finally heard and determined as one action upon pleadings, wherein both creditors were joined as plaintiffs. The date of the commencement of the original actions does not appear, but the joint petition was filed August 29, 1889. Judgment for defendants was rendered May 22, 1890, the case being tried to the court. Executions had been issued upon the respective judgments of plaintiffs and returned nulla bona; and it was sought to subject the property which had been conveyed to the wife to the payment of the judgments. It was admitted there was no pecuniary consideration for the deeds, although they recited a consideration of $ 3,500, but it was claimed by defendants that they had been executed in fulfillment of an ante-nuptial contract, to establish which two letters were produced, one each to mother and daughter; the letter to the mother appears in full in the opinion, the one to the daughter, who became the wife of the writer Bernard J. Price contained these words: "As it is so near our wedding day I may as well tell you what I intend giving you for a wedding present, it shall be my house and lots as well as the ponies of which latter you seem to be so fond. I mentioned this to mamma some time ago and asked her not to say anything to you about it, but I could not keep it any longer to myself and had to tell you." The mother did communicate to the daughter, so it was testified, the contents of the letter received by her. Mrs. Price testified that she had not finally consented to the marriage, until her mother's consent was obtained. Mrs. Gavitt, the mother, was allowed to testify over objection that after she received the letter from Price she told him that when her daughter married she wanted her better provided for than she could do herself that she wanted her to have a home of her own, and that Mr Price then told her that he was prosperous in business, that he had a home, and would deed it to her daughter when they were married. She further testified that before the marriage she informed her daughter that she had given her consent to the marriage on condition that the house would be deeded to her. Her testimony as to the respective conversations was corroborated by Bernard J. Price and his wife. The marriage occurred June 18, 1888. It seems that a portion of the vacant lots were subsequently sold by Price to another party. The conveyance to the wife was not executed until December 14 1888, at which time the mother learning of such neglect, and being very sick, requested that it be done without further delay. The Wyoming National Bank was a creditor of the husband and grantor before that date. The other plaintiff became a creditor subsequent thereto. Such other facts as may be material are set forth in the opinion.

Judgment affirmed.

Nellis E. Corthell and Brown & Arnold, for plaintiffs in error.

The first question presented involves the existence and validity of the alleged ante-nuptial contract; and this resolves itself into two propositions: First, did B. J. Price enter into a contract with Mary E. Gavitt, his present wife, whereby he promised to convey to her the property in question in consideration of her promise then made that she would marry him? The letters from Price to the mother and daughter, even when supplemented with the oral conversations improperly admitted in evidence, are wholly insufficient to establish a valid contract made in consideration of marriage. The expressions do not reach the dignity of a promise. The fact that he requests the mother not to mention his intention to the daughter shows that he did not intend it as a promise. The letter written to the daughter was after the engagement had taken place, and also proves conclusively that they entered into that relation uninfluenced by any agreement about the property. Mrs. Gavitt's consent to the marriage was unnecessary as the marriage occurred after the daughter was of age. The act of Price in selling part of the property in February, 1888, is inconsistent with the theory of an antenuptial contract. After the marriage he retained the legal title, engaged in hazardous business ventures, contracted the debts which he owes one of the plaintiffs and reaped the benefit which the ownership of property gives to the borrower of funds. The deeds reciting a consideration of $ 3,500 disclosed a different kind of consideration than that set up in the answer. Second, there was no competent evidence to establish a valid ante-nuptial contract under the statute of frauds. (Rev. Stat., Sec. 1249; 3 Parsons on Cont., Sec. 30; Reed Stat. Frauds, Sec. 398, et seq.; Banks v. Harris Mnfg. Co., 20 F. 667; Whick v. Corlies, 46 N.Y. 467; Oakman v. Rogers, 120 Mass. 214; Brown St. Frauds, Sec. 371, et seq.; Shoulers Husb. & W., Sec. 353; Randall v. Morgan, 12 Vas., 67; Usher v. Flood, 17 S. W., 132; White v. Bigelow, 28 N. E., 904.) An intention is not a promise. There must have been a written memorandum showing a promise to his intended wife and no other, in consideration of the marriage. The letter to May E. Gavitt was incompetent. It clearly shows, however, that there had been no promise. (Reed v. Livingston, 3 Johns, Ch. 481; Borst v. Corey, 16 Barb., 136; Wait on Fraud. Conv., Sec. 311.) Words of gift are not sufficient. A gift to take effect at a future time is void. (Grangiac v. Arden, 10 Johns, 293; 1 Pars. Cont., Sec. 234.) Parol evidence is inadmissible to establish the contract. The admission of the conversations between the parties violated this principle. (2 Kents Com., 511; Abeel v. Radcliff, 3 Johns, Ch. 297; 3 Pars. Cont., Sec. 13; Salmon Falls M. Co. v. Goddard, 14 How., 446; Waine v. Warlters, 5 East, 10; Brown St. Frauds, Sec. 371, et seq.; Lee v. Hills, 66 Ind. 474; Re Willoughby, 11 Paige, Ch. 257; Lloyd v. Fueton, 91 U.S. 479.) Third, the contract was a secret one. The wife should not be permitted to hold her husband out as the owner of the premises, contract debts upon the credit thereof, and then by taking title to herself, defeat the claims of these judgment debtors. (Wait on Fr. Conv., Sec. 305; City Nat. Bk. v. Hamilton, 34 N.J. Eq. 162; Besson v. Eveland, 26 N. J., Eq., 471.)

Lacey & Van Devanter, for defendants in error.

All of the assignments of error which were grounds for a new trial cannot be considered here except as they are included in the motion for new trial. (Rule 13; U. S. v. Trabing, 3 Wyo. 144; Wolcott v. Bachman, 3 Wyo. 335; Wyo L. & T. Co. v. Holliday, 3 Wyo. 657.) The only question to be discussed is whether the court erred in overruling plaintiff's motion for new trial. The letter to Mrs. Gavitt names the parties, the subject matter to be conveyed, and the consideration for the conveyance. It has every element of a sufficient and binding contract, excepting the acceptance of the other party. The subject matter is not described in detail, but parol evidence was competent to apply the description given to the thing itself. (Hurley v. Brown, 98 Mass. 545; Scanlan v. Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413.) The proposal contained in the letter is one which would become mutually binding upon the parties upon its acceptance. (Boston, etc., R. R. v. Bartlett, 3 Cush., 224; Wheaton v. Rampacher, 3 Wyo. 441.) The second letter shows that Price recognizes his obligation, and the two letters were competent evidence as a written memorandum of the promise, the marriage being a sufficient consideration. (Kinnard v. Daniel, 13 B. Mon., 496; Wright v. Wright, 54 N.Y. 437.) The statute is satisfied by a letter written to a third party. (Moore v. Mountcastle, 61 Mo. 424; Moss v. Atkinson, 44 Cal. 3.) There was no error in admitting the parol evidence relating to the ante-nuptial contract, and the purpose of the conveyance by Price to his wife. (Sanborne v. Flagler, 9 Allen, 474; Smith & Fleck's App., 69 Pa. 474; Swisshelm v. Swissvale Laundry Co., 95 Pa. 367; Thayer v. Luce, 22 O. St., 62.) To explain the meaning of the terms used in the letter, the relation of the parties, etc. (De Wolf v. Rabaud, 1 Pet., 476; Mead v. Parker, 115 Mass. 413.) It was competent to negative actual fraud. The motion for new trial was rightly denied. A subsequent creditor, even if the conveyance was voluntary, there being no actual fraud, cannot avoid it. (Dygert v. Rennerschueider, 32 N.Y. 629; Monroe v. Smith, 79 Pa., St., 459; Shepard v. Thomas, 24 Kan. 780; Lehmberg v. Biberstein, 51 Tex. 457; Sledge v. Obenchain, 58 Miss. 670; Kirksey v. Snedeeor, 60 Ala. 192; Williams v. Banks, 11 Md. 198-249; Kane v. Roberts, 40 Md. 590; Pepper v. Carter, 11 Mo. 540; Payne v. Stanton, 59 Mo. 158; Miller v. Miller, 23 Me. 22; Quinby v. Dill, 40 Me. 528.) The motion was therefore rightly denied as to the elevator company, because even if the Price letters and the parol evidence had been excluded, that company, being a subsequent creditor, was not entitled to assail the conveyance in question. The motion was a joint one. Unless it was good as to all, it should have been overruled. (Miller v. Adamson, 45 Minn. 99; Dutcher v. State, 16 Neb. 30; Real v. Hollister, 17 Neb. 661; Boldt v. Budwig, 19 Neb. 739; Wigginhorn v. Kointz, 23 Neb. 690; ...