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A treatise on the validity of verbal agreements, as affected by the legislative enactments in England and the United States, commonly called the Statute of frauds (Volume 1) online

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class of agreements, except that perhaps the courts are
inclined to extend the doctrine somewhat further, where
the fraud has resulted in the party' s being drawn into a
marriage, than in other cases.

§ 727. The case of CooTces v. Mascall, 2 Yernon, 200,
A. D. 1690, is supposed to have proceeded on this
ground. (A) After the terms of a treaty of marriage be-
tween Cookes and Mascall's daughter, had been agreed
upon, to the effect that Cookes' s father and Mascall would

(/i) Atherly on Marriage Settlements, 87 ; Peachey on Marriage Settle-
ments, 83 ; Browne on the Statute of Frauds, § 443. Mr. Roberts seems to
be unable to account for the decision. Roberts on Frauds, 194. The case
is also reported, more raeagerly, in 1 Equity Cases Abridged, 22.



Art. I ] Antenuptial Agreements. 71 o

each make a settlement of certain property, the two
fathers and one Baker, an attorney, had a meeting in
order to complete the agreement. Baker, liaving dis-
coursed with the two fathers, proceeded to di-aw the
agreement for the settlement ; but before it was ready,
they disagreed ; and jVIascall swore tliat he refused to
proceed any further, assigning his reasons for the refusal.
"But," the report adds, " Cookes put up what Baker had
wrote into liis pocket, and so they parted, and had no
further meeting or treaty ; but old Cookes swore, that
after the articles were drawn, they were read over and
agreed to ; and that Mascall promised to meet at another
time to execute." After this, young Cookes was permit-
ted to go to Mascair s house, and two months afterwards
married the daughter, Mascall being privy to the mar-
riage, setting them forward in the morning, and entertain-
ing them upon their return. The action was brought by
the younger Cookes and his wife, against the two fathers ;
and, the report says, the elder Cookes having offered
in his answer to perform the agreement on his part, the
court "thought fit to decree" that Mascall should per-
form, according to the writing drawn by Baker, (i)

§ 728. So in Mallett v. Halfpenny^ 1 Equity Cases
Abridged, 20, A. D. 1699, (y) the defendant had given to

(i) Bui in 2 Vernon, 34, there is a report of the hearing, upon a bill filed
two years earlier, which was apparently brought by the husband alone
against his father-in-law only. There it is said, that the plaintiff relied upon
a letter written to him by the defendant; and that his counsel contended that
the agreement prefiared by Baker, was the game in effect as the letter, but
drawn more formally; on the other hand, the defendant's counsel insisted
that they were essentially different, and that the evidence showed that the
parties never came to any definite agreement upon the contents of the letter.
The report says, that the "court inclined to dismiss the bill; but at the
instance of the plaintiff's counsel, gave him a twelvemonth's time to try it
at law, whether there was an agreement so fixt." In the notes to the second
edition of Vernon, it is said that these are two reports of the same case ; but
whether this is true or not, it is probable that tlie letter influenced the final
decision of the controversy.

{j) S. C. differently reported, 2 Vernon, 373 ; but in Bawdes v. Amhurst
Precedents in Chancery, 402, Lord Cowper stated the case, as in the text,
from his own memory.



716 Antenuptial Agheements. [Cli. xx.

the plaintiff a writing, promising a portion with his
daughter, and afterwards, designing to elude the force
thereof, he "ordered his daughter to put on a good humor
and get the plaintiff to deliver up that writing, and then
to marry him," which she did; and "the plaintiff was
relieved by the Master of the Rolls on the point of fraud,
which was proved. "(/J:)



ARTICLE II.

Whether a verbal antenuptial promise will support a postnuptial settlement in accordance
therewith, or a postnuptial written agreement to make such a settlement!

§ 729. It seems to be now generally conceded, in England
and in the United States, as a consequence of the rule that
marriage alone is not such, a performance, as will entitle
the complainant to a specific execution of a verbal agree-
ment, made in consideration thereof, that such an agree-
ment will not suffice to protect a postnuptial conveyance
of property against the attacks of creditors ; and a fortiori
that a recital in the conveyance of the existence of such a
verbal agreement is immaterial. There are some authori-
ties in the English reports to the contrary ; but they must
be regarded as having been overruled in that country by
more recent well considered cases, (a) In Batter shee v

{k) These cases are referred to, and the general principle Avhich they
establish is recognized, in 1 Story's Equity Jurisprudence, 8th ed., § 768;
Atherly on Marriage Settlements, 86-88; Peachey on Marriage Settlements,
81, 82. Also in Browne on the Statute of Frauds, §§ 441-445 a, where
several analogous ..ases are cited, arising upon agreements for the purchase
of land.

(a) Lord Chancellor Macclesfield, according to the report in 1 Strange, 237,
of Montacute v. Maxwell, said that it had been " frequently determined" that
an antenuptial verbal promise would support a settlement after marriage.
According to the report in 2 Cox's Chancery, 235, of- Dundas v. Dutens.
decided in 1790, Lord Thurlow's judgment proceeded upon that very ground.
He is represented as having said that "he could not conceive that a settle-
ment made after marriage, in pursuance of an agreement before marriage,
though only parol, could ever be reckoned a fraudulent settlement," and
that " he was therefore clearly of opinion that the settlement" (in the case at
bar) " was in itself valid." Accordingly he dismissed with costs a bill ir favor



Art. II.] A"NTENUPTIAL AGREEMENTS. 717

Farrincjton, 1 Swanston, 106, A. D. 1818, (&) Sir Thomas
Plumer, Master of the Rolls, expressed liis dissatisfaction
with those early authorities. The only point decided
by him was, that future creditors could not impeach a
voluntary settlement; but, in pronouncing judgment, he
said "that against all persons claiming under the settlor,
the recital is conclusive ; but it would be difficult to main-
tain that a recital, in a postnuptial settlement, of ante-
nuptial articles, of the existence of which there is no dis-
tinct proof, would be binding on creditors. Such a doc- .
trine would give to every trader a power of excluding his
creditors, by a recital in a deed to which they are not
parties."

§ 730. The same opinion had been previously expressed
by Lord Northington, with respect to conveyances of real
estate, (although apparently without the knowledge of the
Master of the Rolls), in Spurgeon^. Collier, 1 Eden, 55, (c)
A. D. 1758. There an absolute conveyance of an estate had
been made to the defendant Collier, who executed to the
grantor a defeasance of even date, on the payment of cer-
tain moneys ; the grantor subsequently conveyed the prop-
erty to his son ; but Collier prevailed upon the latter to
give up to him the defeasance. The grantor and his son
having died, the heirs of the son brought this bill to redeem.
The defendants Alston and wife insisted that the estate

of creditors, to set aside a postnuptial settlement, reciting that it was made
in pursuance of an antenuptial parol agreement. In 1 Vesey, 19G, the same
case is reported quite differently ; but there it is also stated that he expressed
an opinion to the same effect, although the decision is represented to have
been chiefly placed upon another ground. But in Shaw v. Jakeman, 4
East, 201, A. D. 1803, before Mr. Cox's volume was published. Lord Ellen-
borough stated that the point liad been decided in Dundas r. Dutens. On
the other hand, in Randall v. Morgan, 12 Vesey, 67, A. D. 1805, Sir Wil-
liam Grant, Master of the Rolls, classed this remark of Lord Thurlow, with
other obiter dicta (see page 74) ; but he found it unnecessary to express any
opinion upon the point, as he thought that, in the case before him, a verbal
promise before marriage had not been sufficiently proved.

{h) S. C, Wilson's Chancery, 88.

(c) This volume was not published until 1818.



718 Antenuptial Agreements. [Cli. xx.

had been settled several years previously by Collier, upon
their marriage ; and consequently that they were pur-
chasers for value ; and Alston said in his answer that he
had no notice of the defeasance, till two years after the mar-
riage. Tlie proof was that Collier had conveyed the prop-
erty to them about a month after they were married, by
deed reciting the marriage as the consideration ; and they
endeavored to show a parol agreement before marriage to
settle it, and that the marriage had taken place before
actual settlement, because the writings could not be finished
in season. Lord IS'orthington decreed a redemption against
all the defendants, saying that the parol agreement was
not proved ; but that, if it had been proved, the case would
not be altered ; that it was admitted that since the statute,
although the promise was made, Alston could have no
remedy ; that the settlement was therefore voluntary,
because it could not be compelled. And he added : "But,
if such a parol agreement were to be allowed to give effect to
a subsequent settlement, it would be the most dangerous
breach of the statute, and a violent blow to credit ; for any
man, on the marriage of a relation, might make such prom-
ise, of which an execution never could be compelled against
the promisor; and the moment his circumstances failed,
he would execute a settlement pursuant to his promise,
and defraud all his creditors." Although the plaintiff in
this case did not seek relief as a creditor, the decision is
justly regarded as settling the rule, that all postnuptial
conveyances of real estate, in consideration only of an ante
nuptial agreement, are voluntary.

§ 731. And whatever doubt may have remained, whether
the same ruling would apply to conveyances and transfers
of personalty, has apparently been dispelled by Lord
Cran worth's judgment, in Warden v. Jones, 2 De Gex and
Jones, 76, A. D. 1857, {d), affirming the decree of the Mas-
ter of the Rolls, (Sir John Romilly), as leported in 23
Beavan, 487. (e) There it appeared that on the 16tli day

(d) S. C, 27 Law Journal, N. S., Chancery, 190; and 4 Jurist, N. S., 269.

(e) Also in 26 Law Journal, N. S., Chancery, 427; and 3 Jurist, N. S., 456.



Art. II.] Antenuptial Agreements. 719

of June, 1855, the defendant Barnett, being considerably
indebted to the plaintiff and others, married a Miss Jones,
who was the registered proprietor of certain railway shares;
that on the 6th of July, 1855, a deed of settlement was
made, (not reciting any antenuptial agreement), whereby
the shares were to be sold, and 5001. of the proceeds set-
tled upon Mrs. Barnett and her issue ; and that the same
day the shares were sold, and the 5001. invested upon the
trusts of the settlement ; Barnett having applied to his own
use the residue of the proceeds, after discharging an incuin-
brance upon the shares. This bill was filed to set aside
the settlement, as fraudulent against creditors, and to reach
the 5001. The defences interposed by the wife were, first,
that the case was taken out of the statute of frauds by a
parol antenuptial promise to settle the property ; sec-
ondly, that she had been drawn in to be married without
a settlement, by her husband' s fraudulent conduct ; with
other defences, which are not material here. The evi-
dence tended to show that before the marriage, Barnett
had made several promises to her and to her father, that
all her property should be settled upon her ; that the
father' s consent to the marriage was given only upon con-
dition that it should be so settled ; that Barnett induced
her to marry him, without the knowledge of her father or
her famil}^, upon a promise to make a settlement ; that a
few days before they were married, they went to the office
of a solicitor, to have a settlement prepared, but he could
not get it ready in time for the wedding ; and that Barnett
said that the marriage would make no difference, and the
settlement would be equally good if made afterwards.

§ 732. The Master of the Rolls made a decree for the
plaintiff ;(/) and an appeal from this decree was dismissed

■ (/) After saying that but for the express words of the statute, equity
would sustain the settlement, on the ground that the marriage was a per-
formance of the verbal agreement, his Honor examined several of the cases in
detail; concluding that Dundas v. Dutens was overruled by later decisions,
and expressing the opinion that the cases where a representation was held
to be binding, (a question fully examined in article iii of this chapter), pro-



720 Antenuptial Agreements. [Cli. xx.

by the Chancellor. His Lordship said that the argument
that the settlement conld not be fraudulent, because there
was a moral obligation to perform it, was conclusively
answered by Lord Northington' s remarks in Spurgeon v.
Collier ; and that there was no proof that what was said
to the wife, respecting the validity of a postnuptial settle-
ment, was said fraudulently. He added that where there
had been part performance by something more than a mar-
riage, as in Hammer sley v. De Biel,{g) equity would
relieve, but not otherwise ; apparently ignoring a distinc-
tion taken by Sir John Romilly in the court below, that
in the cases where that question arose, the promise was
not made between husband and wife. Next he referred
to the fact, that here there was no recital in the settlement
of an antenuptial agreement ; but he said that if the dis-
tinction taken thereupon, by Lord Thurlow, in Dundas v.
Dutens, is correct, the whole policy of the statute is de-
feated. ' ' It cannot be enough, ' ' said his Lordship, ' ' merely
to say in writing, that there was a previous parol agree"

ceeded on the ground, not only that there was some distinct act of perform-
ance in addition to the marriage, but also that the transaction was between
a third person and the husband; and, for the latter reason, they were not
applicable where it was between husband and wife. And he summed up his
conclusions upon this part of the case as follows: "I therefore hold, that
where a man enters into a parol a£?reement with his intended wife, and noth-
ing follows but the marriage, the marriage cannot be treated as part per-
formance of the parol contract ; and that the carrying into effect the parol
contract after the marriage, by a deed, amounts to no more than a voluntary
settlement." Then, after saying that the fraud charged upon the husband
consisted merely in misstating the law, as to which the wife, having em-
ployed a solicitor, "must be held to have known the contrary, or, if not, to
have trusted entirely to her husband's honor," as in Montacute v. Maxwell;
he referred to the argument, which had been pressed upon him, that if a suit
had been instituted by the wife against the husband, and he had not pleaded
the statute of frauds, a decree would have been made. He declined to con-
sider what would have been the effect of such a decree upon creditors, as
the question did not arise, saying that the husband was no doubt bound by
the arrangement ; but whether the creditors were boi:nd, was an entirely
different question : and. after disposing of the other objections, and express-
ing his regret at his inability to relieve the wife, he granted a decree.
ig) Post, §§ 744-747.



Art. II.] Antenuptial Agreements. 721

ment. It must be proved tliat there was such an agree-
ment ; and to let in such proof, is precisely what the statute
meant to forbid." These remarks, his lordsliip continued,
were made lest it might be thought that this case was
decided, merely on the ground that it was distinguishable
from Dwidas v. Dutens. "I incline to think," he pro-
ceeded, "that even if this settlement had contained a
statement, that it was made in pursuance of a previous ante-
nuptial parol agreement, I should still have considered it,
as I now consider it, void against creditors. "(^)

§ 733. The same general doctrine, that a verbal ante-
nuptial contract will not sustain a postnuptial settlement,
as against creditors, was again asserted to be law by Sir
John Romilly, in Goldicutt v. Townsend, 28 Beavan, 445,
A. D. 1860, which is, we believe, the latest English case
upon the point. Tliere his Honor held that a bond for
6,000Z., given after the marriage, by the husband's father,
for the benefit of his son, in pursuance of a promise to that
effect, made before the marriage, could not be allowed as a
claim against his estate, after his decease, to the prejudice
of creditors for value ; although it would be good against
the surplus, after paying such creditors. But the case is
not a very important authority upon this question, as the
view, which the court took of the other questions, would
have led to the same result, even if the law upon this point
had been adjudged otherwise.

§ 734. The American authorities uphold with entire una-
nimity, the general doctrine of these cases ; although in
most of the United States, the English rule, as to the right
of a creditor to attack a voluntary conveyance, has been
restricted by legislative modifications of the statute of the
13th Elizabeth, or a different construction of its provisions.



(h) Although the reasoning in this case, upon the points mentioned in the
text, appears to be unanswerable ; it is not so clear that the defence, that the
wife had an equity to a settlement, independent of the antenuptial parol
agreement, was property overruled.
91



723 Antenuptial Agreements. [Ch. xx.

In Reade v. Livingston, 3 Johnson' s Clianceiy (New York),
481, A. D. 1818, Chancellor Kent, after a full and able dis-
cussion of the question upon principle and authority, held
that a settlement after marriage, in pursuance of an ante-
nuptial verbal agreement, is not valid against an antecedent
creditor of the grantor. In that case there was no recital
in the conveyance of the previous agreement, and the evi-
dence that it was ever made was very loose and unsatis-
factory ; but the Chancellor expressed a decided opinion
that if the facts had been otherwise, the decision must
have been the same. The doctrine, asserted by him, that a
voluntary conveyance is necessarily void as against exist-
ing creditors, is no longer law in New York ;(/) but the
principle that a conveyance of that character cannot be
supported, as against creditors who are entitled to impeach
it, by proof of an antenuptial verbal agreement, even
though such an agreement may be recited in the convey-
ance, has been recognized by numerous American authori-
ties, and may now be considered as settled in our juris-
prudence, (y)

§ 735. It would seem to follow, from the course of rea-
soning and authority upon the question just discussed,
that a postnuptial settlement, made in pursuance of an
antenuptial verbal agreement, and without any additional
consideration, is also voluntary, as between the parties
and their privies. It has been said, however, that a set-



(i) Jackson v. Post, 15 Wendell, 588 ; Babcock v. Eckler, 24 New York,
623 ; Dygert v. Remerschnider, 32 New York, 629, ante § 711.

(y) Andrews v. Jones, 10 Alabama, 400 ; Izard v. Izard, Bailey's Equity
(South Carolina), 228; Borst v. Corey, 16 Barbour (New York), 136; Wood
V. Savage, 2 Douglass (Michigan), 316; Satterthwaite v. Emley, 3 Green's
Chancery (New Jersey), 489 ; Smith v. Greer, 3 Humphreys (Tennessee),
118 ; Saunders v. Ferrill, 1 Iredell (North Carolina), 97 ; Bayard v. Hoffman, 4
Johnson's Chancery (New York), 450 ; Blow v. Maynard, 2 Leigh (Virginia),
29; Jones v. Henry, 3 Littell (Kentucky), 427; Albert v. Winn, 5 Maryland,
66; Kinnard v. Daniel, 13 B. Monroe (Kentucky), 496; Dygert v. Remer-
schnider, 32 New York, 629 ; Davidson v. Graves, Riley's Chancery (South
Carolina), 219.



Art. II.] Antenuptial Agreements. 723

tiement, made for the benefit of the wife or children of the
settlor, may be sustained as founded upon a valuable con-
sideration, on the ground that it is the duty of every man
thus to provide for his family. (/i) But this doctrine has
since been overruled ; and it would seem, upon principle,
that such a settlement can derive no additional force from
the fact that it was made in pursuance of an antenuptial
verbal agreement. There are, however, some dicta to the



(k) Lord St. Leonards says upon this question : "A settlement after mar-
riage upon a wife or children, without any previous agreement, is upon good
although not valuable consideration. It is a performance of a moral obliga-
tion. The mere agreement by parol, before marriage, to make such, a set-
tlement, does not place the case higher. The settlement is still only a
performance of a moral obligation, for the parol pro.Tnise is rendered unavail-
able by the statute of frauds. In each case the consideration is a good one,
but it is a duty of imperfect obligation on the party to make the settlement.
The past consideration of marriage vs^ill not support the settlement, and the
previous parol promise is not binding ; therefore the settlement is merely
voluntary." Sugden on Powers, eighth edition, p. G49. Lord St. Leonards,
while chancellor of Ireland, decided that a written promise by a father to
his son-in-law, to secure an annuity to the daughter of the promisor and
wife of the promisee, would be specifically enforced, upon a bill filed by the
husband and wife ; on the ground that although the consideration was not
valuable, it was meritorious, and that equity would interfere in cases where
the consideration was of that character. Ellis v. Nimmo, Lloyd and Goold,
temp. Sugden, 333, A. D. 1835; where the former authorities are cited and
discussed at length. But is said that his successor affirmed the decree upon
other grounds. And Lord Chancellor Cottenham, although in deciding Dil-
lon V. Coppin, 4 Mylne and Craig, G49, A. D. 1837, where the point arose,
he made no express mention of Ellis v. Nimmo, explicitly disapproved of the
latter in Jefierys v. Jefiferys, Craig and Phillips, 138, A. D. 1841, and refused
to make a decree under similar circumstances. Vice Chancellor Shadwell
also disapproved of the doctrine of Ellis v. Nimmo, in Holloway v. Heading-
ton, 8 Simons, 324, A. D. 1837. And in Moore v. Crofton, 3 Jones and
LaTouche, 438, A. D. 184G, Lord St. Leonards said, that although he thought
Ellis V. Nimmo was decided upon sound principles of equity, he was aware
that the opinion of the profession was otherwise; and he added (page 443) :
" I consider that decision to be overruled by the current of opinion and au-
thority, and I have no desire to support it again^!t the general opinion."
These observations are quoted substSntially to the same effect, although his
Lordship's concession is not made quite so graceful, in S. C, 9 Irish Equity
Reports, 347, 348.



724 Antenuptial Agreements. [Ch. xx.

contrary, and it has even been said that a recital in the
conveyance of such an agreement is conclusive evidence
of its existence, as against the settlor and those claiming
under him.(Z) In what manner, or for what purpose, the
recital is thus conclusive, the cases do not very clearly
point out. Perhaps it may be regarded as the written
memorandum, which the statute requires ; the sufficiency
of which will be the subject of discussion hereafter.

§ 736. We suppose that the case of ArgeTibrigM v.
Campbell, 3 Hening and Munford (Virginia), 144, A. D.
1808, must have proceeded upon the ground that the set-
tlor was concluded by such a recital, if indeed the decision
can be supported. There the plaintiffs founded their title
to relief upon a verbal promise, made by a father to his
daughter' s intended husband, to the effect that if he mar-
ried the daughter, he would leave her his land by his will.
The case is exceedingly voluminous, and the testimony
was very conflicting ; but the facts upon which the major-
ity of the court proceeded, in determining this question,
appear to have been briefly as follows. The father had
made his will, before the engagement, whereby he had de-
vised his land to this daughter (Rebecca), subject to the
payment of 50^. to another daughter (Hannah). After the
engagement was formed, he expressed his satisfaction with
the intended marriage to the daughter' s suitor, and prom-
ised the latter, that if it took place, "he should have the
plantation he then lived on, provided he complied with the
terms of the will ; and then repeated the contents thereof."
The marriage took place ; and afterwards, the father mani-



Online LibraryMontgomery H. (Montgomery Hunt) ThroopA treatise on the validity of verbal agreements, as affected by the legislative enactments in England and the United States, commonly called the Statute of frauds (Volume 1) → online text (page 67 of 74)