Randall v. Randall

• Decision Date: 01 November 1877
• Citation: 37 Mich. 563
• Court: Michigan Supreme Court
• Parties: Esther A. Randall v. George C. Randall

37 Mich. 563

Esther A. Randall v. George C. Randall

Supreme Court of Michigan

November 1, 1877

Argued October 19, 1877 [Syllabus Material]

Case made from Oakland. (Baldwin, J.)

Assumpsit. Plaintiff had judgment below. Judgment modified.

Judgment reduced the sum of one thousand dollars, with interest from the time this suit commenced. Defendant entitled to the costs of this Court, and the plaintiff to the costs of the circuit court.

R. A Parker and C. I. Walker for plaintiff. Evidence of the yearly value of a woman's support is proper in an action by her for the breach of the covenants in a deed to her from her husband in consideration of her relinquishment of her right to support, McIntyre v. N. Y. C. R. R. Co. 47 Barb. 515; How v. How 48 Me. 428; McHenry v. Yokum 27 Ill. 160. In an action based upon the surrender of her dower right to a third party for her husband's benefit, she could give evidence of its value, Sykes v. Chadwick 18 Wal. 141. If a husband and wife agree to separate, the husband's agreement to provide for her support will be sustained when made through the intervention of a trustee, and when there is a covenant to indemnify the husband against the wife's debts, Wilson v. Wilson 1 H. L. Cas. 572, S. C. 5 Id. 50; 2 Story's Eq. Jur. § 1428; 2 Roper's Husb. & Wife 267-9; 1 Bish. Mar. & Div. §§ 636, 641-2, 650, 652, 656; Schouler's Dom. Rel. 294; 1 Pars. Cont. 357-8; and in equity, without a trustee; where the consideration is a separate interest of the wife, given up for the husband's benefit, and is reasonable and just, Legard v. Johnson 3 Ves. 352; Guth v. Guth 3 Bro. C. C. 614; Thomas v. Brown 10 Ohio St. 247; Miller v. Miller 16 Ohio St. 527; Dutton v. Dutton 30 Ind. 452; Livingston v. Livingston 2 Johns. Ch. 539, and a covenant against the wife's debts is unnecessary when the contract is made directly with the wife, Baker v. Barney 8 Johns. 72; Mizen v. Pick 3 M. & W. 481. Where a separation has taken place or is about to, a conveyance by the husband to the wife making provision for her maintenance is valid and enforceable either at law or in equity, Fox v. Davis 113 Mass. 257; Calkins v. Long 22 Barb. 97; Wallace v. Bassett 41 Barb. 92; Griffin v. Banks 37 N.Y. 621; Lehr v. Beaver 8 W. & S. 102; Reed v. Beazley 1 Blackf. 97; Bettle v. Wilson 14 Ohio 257; Goddard v. Beebe 4 Greene (Ia.) 126. It has been sometimes held that such conveyances can be made only through trustees, Marshall v. Rutlon 8 Term 545; Bogget v. Frier 11 East 301; Lewis v. Lee 3 B. & C. 291; Beach v. Beach 2 Hill 260; Simpson v. Simpson 4 Dana 141, but there is high authority the other way, More v. Ellis (1725) Bunb. 205; Robertson v. Robertson 25 Ia. 350; Hiram v. Griffin 8 Bush 262; Innell v. Newman 4 B. & Ald. 419, and such a conveyance is valid in Michigan, Burdeno v. Amperse 14 Mich. 91. It may be shown in order to affect the damages in an action on a covenant of warranty, that the real consideration is greater or less than the amount named in the deed, Bingham v. Weiderwax 1 Comst. 514; Belden v. Seymour 8 Conn. 304; Bullard v. Briggs 7 Pick. 533.

Aug. C. Baldwin for defendant. A contract for separation and support, or for division of property, between husband and wife, is void, Scarborough v. Watkins 9 B. Mon. 545; Ingham v. White 4 Allen 412; Carley v. Green 12 Allen 104; Chapman v. Kellogg 102 Mass. 246; Bassett v. Bassett 112 Mass. 99. A husband and wife cannot contract with each other without the intervention of a trustee, Resor v. Resor 9 Ind. 349; Jackson v. Parks 10 Cush. 550; Sweat v. Hall 8 Vt. 187; 1 Cooley's Bl. Com. 441 and notes. The Michigan Married Woman's Act does not take from the husband his marital rights except as they pertain to property, nor relieve him from responsibility except as to his wife's contracts and debts; he must support her and is entitled to her services. Snyder v. People 26 Mich. 106.

Cooley, C. J. Campbell and Graves, JJ. concurred: Marston, J. did not sit in this case.

OPINION

Cooley, C. J.

This is an action for the breach of a covenant against encumbrances contained in a conveyance of lands. The parties are husband and wife. The declaration contains two counts, the first of which avers that on the eighteenth day of March, 1871, the plaintiff was the lawful wife of the defendant, and as such was living with him upon a homestead owned and occupied by them; that the defendant at that time desired that the plaintiff should for the future live wholly separate and apart from the defendant, and declared to the plaintiff that he would not thereafter live with her as her husband, and the plaintiff having theretofore agreed to live separate and apart from the defendant, thereupon, in consideration that the plaintiff relinquished and gave up all her rights to be supported and maintained by the defendant, and also then and there executed and delivered to the defendant warranty deeds of the homestead and of other real estate, which homestead and other real estate was of the value of $ 8000, he, the defendant, executed and delivered to her the conveyance in question. The second count is similar to the first except that it omits the relinquishment of the right to support in stating the consideration of the conveyance. Breach, that the land conveyed was not free from encumbrances, as covenanted, but was subject to a mortgage to one Elijah Lee for one thousand five hundred dollars and interest, which the plaintiff had been compelled to pay.

The cause was tried by the circuit judge without a jury, and the following is his finding of facts:

In this case the following facts are found by the court:

1st. That the parties are husband and wife, and were married in March, 1841, and cohabited together until about March 18th, 1871.

2d. That the defendant owned a farm of eighty-two acres near the village of Birmingham, Oakland county, Mich., which the parties occupied as a homestead, and also about seven acres of land in Southfield, and a brick store and lot in said village of Birmingham, said store and lot being the land in question.

3d. That the plaintiff had no interest in the said real estate, except as the wife of the defendant, and the occupancy of said farm of eighty-two acres as their homestead.

4th. That on the eighteenth day of March, 1871, the defendant executed to the plaintiff a warranty deed with full covenants of said store and lot in Birmingham, with a consideration named therein of one thousand dollars, copy of which deed is annexed and made part of this finding, and upon which deed this suit is brought. Also another warranty deed of seven acres of land in Southfield, and assigned to plaintiff a claim against Horace Randall of one hundred and sixteen dollars.

5th. Said plaintiff executed to said defendant two warranty deeds, which two warranty deeds embrace the farm of eighty-two acres aforesaid.

6th. That all said deeds were drawn by O W. Hewett, a notary, at the request of said defendant, and subsequently delivered by said Hewett to said defendant, and the deeds from said defendant to said plaintiff were found duly recorded, and were produced by plaintiff on the trial. I therefore find that said deeds were delivered to said plaintiff by said defendant.

7th. That prior to the making of said deeds, said defendant went to Hewett, a scrivener or notary public, with four deeds, and instructed him to draft the aforesaid deeds, and told Hewett that he and his wife had agreed to separate, and were going to divide the property. I therefore find as a fact that a short time prior to the eighteenth day of March, 1871, the parties agreed to separate and live apart.

8th. That after the execution of the said deeds, on Saturday, the eighteenth day of March, 1871, all the conversation between the parties was this: The plaintiff on that day asked the defendant if she could remain in the house upon the farm where the parties lived until the following Monday, and he replied that she could, and she did so remain.

9th. That on Monday, the 20th day of March, 1871, the plaintiff left the residence of defendant aforesaid, and since that time has lived separate from him, the defendant; and the defendant has since contributed nothing for the support of the plaintiff.

10th. That at the time of the execution of said deeds, the said brick store and lot were subject to a mortgage executed by William Lowes and his wife, to Elijah Lee, for one thousand five hundred dollars, with interest at seven per cent., and the same was due January 16, 1873. Said mortgage provided that should any default be made in the payment of said mortgage, the said party of the second part was empowered and authorized to sell and convey said premises, with appurtenances thereto belonging, at public vendue, pursuant to the statute in such case made and provided. And said mortgage contained a further condition that, should any proceedings be taken to foreclose it, an attorney fee of twenty-five dollars should be paid, in addition to all other legal costs.

11th. That the said defendant on the first day of March, 1871, made a contract with one Albert Putnam for a sale of a portion of the lot included in defendant's said deed to the plaintiff; which said contract was afterwards, on the 18th day of March, 1871, assigned to plaintiff by said defendant, and she received the proceeds from said contract by payment on said mortgage.

12th. That the said plaintiff paid said mortgage, as follows:

1st. December 16, 1871, payment of money received on the said Putnam contract, seven hundred and thirty-eight dollars and seventy-nine cents. And also on the same day paid two hundred dollars, making a sum total paid December 16, 1871, of nine hundred and thirty-eight dollars and seventy-nine cents.

2d. That on the 23d day of January, 1873, the...