Gambar halaman
PDF
ePub

OF THE STATUTE

OF FRAUDS.

REQUIREMENTS it. I am aware that in Randall v. Morgan (r), Sir William Grant suggests a doubt whether a written promise after marriage to perform a parole agreement made before, could be enforced; but in Hodgson v. Hutchenson (s), Taylor v. Beech(t), and Montacute v. Maxwell (u), it was held that such a subsequent written promise would be binding within the statute. It was argued that the two brothers had no authority to enter into this arrangement. But what is conclusive on this point is the letter of the father himself, who, not disputing the authority under which the engagement was made, says, the whole question depends on its construction.

Upon looking into the case of Randall v. Morgan, before Sir William Grant, it seems tolerably apparent that the inclination of that great judge's mind was to hold a written acknowledgment after marriage of a parole promise before marriage, binding. And this appears to be the opinion of Lord Cottenham. So that the point may now be regarded as decided; since the mischiefs which the statute was intended to avert cannot in such case arise; for if a man will deliberately, after a marriage, admit by a writing under his hand, that he made a parole promise before the marriage, upon which the parties have acted, it is contrary to every principle of justice that he should be allowed to resist its performance. And even as against creditors, a settlement made in pursuance of it would not be reckoned fraudulent (v).

(r) 12 Ves. 67. See p. 73.
(s) 5 Vin. Abr. 522.

(t) 1 Ves. 297.

(u) 1 Str. 236.

(v) Dundass v. Dutens, 2 Cox, 235. See also 1 Str. 237; 4 East, 207.

SECTION III.

THE AGREEMENT BINDING ON ONE SIDE THOUGH NOT COVENANTS INPERFORMED ON THE OTHER.

[merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

DEPENDENT OF

EACH OTHER.

Marriage agree

ments different

from all others.

THERE is this difference between promises and agreements in consideration of marriage and all other promises and agreements, namely, that where the promise and agreement is in consideration of marriage, a breach of obligations by one party is not a sufficient excuse for nonperformance by the other; and the reason is that a contract in consideration of marriage is made not merely on behalf of the parties to the contract, but also on behalf of the issue that may spring from the marriage (a). The children Rights of issue. are, in fact, regarded as purchasers (b).

Thus in the case of Harvey v. Ashley (c), Lord Hard

wicke, speaking of agreements in consideration of marriage,

says,

Hardwicke.

These agreements differ from all others; for as soon as the marriage Remarks of Lord is had, the estate and capacities of the parties are altered. The children born of the marriage are equally purchasers, under both father and mother. Though either of the relations of the husband or of the wife should fail in the performance of their part, yet the children may compel a performance. If the wife's father hath agreed to give a portion, and the husband's father hath agreed to make a settlement, though the wife's father do not give the portion, yet the children may compel the settlement: for non-performance on one part shall be no impediment to the children receiving the full benefit of the settlement. So if there

(a) It must be observed, however, that as against the defaulting party, his non-performance would be a good defence. For, as Lord Redesdale says, in Crofton v. Ormsby, 2 Sch. & Lef. 602,"Where the performance is

sought by the defaulting party, he
cannot enforce it against the person
injured by his default."

(b) Cole v. Bateman, 1 P. Wms.
145; Seale v. Seale, 1 P. Wms. 290.
(c) 3 Atk. 610.

S

COVENANTS IN- be a failure on the part of the husband's relations it is the same; for DEPENDENT OF the children considered as purchasers, are entitled to all the benefit of the uses under the settlement, notwithstanding there has been a failure on one side.

EACH OTHER.

Remarks of Lord
Eldon.

Remarks of Lord
Redesdale.

Lloyd v. Lloyd.

Marriage articles recited.

In Rancliffe v. Parkyns (d), Lord Eldon said,—

The consideration of marriage is not like the consideration in other contracts. In a contract between A. and B., if A. does not make it good on the one hand, B. is not bound on the other. But not so in the case of marriage: for if the mutual issue are purchasers, though it is not made good by one of the parties, the issue have a right to say, "You shall each of you do what you can do, and we must not be disappointed."

And in Crofton v. Ormsby (e), Lord Chancellor Redesdale thus expresses himself:

The failure in payment on the one part never vitiates a marriage settlement. If a woman, on her marriage, contracts for the settlement of her estate in a certain way by which the husband is to gain benefit, and he contracts to make a settlement; and she appears not to have the estate she contracted to settle; the object of that contract being to give a larger settlement to her; that might be a case in which the wife should not be allowed to have the benefit of the husband's contract. But that would not affect the children. They must have the estate. This has been over and over again decided in marriage contract cases.

So strong is this rule, that, in a late case, where there were at least plausible grounds for maintaining that the covenants were intended to be dependent on each other, and where default was made on one side, the Court, nevertheless, gave effect to the claims of the children. The case I am referring to is that of Lloyd v. Lloyd (f), of which the following is a summary :

The father of the intended husband had agreed, in case the marriage should be had, to pay 2007., and also to settle certain lands in the manner therein mentioned; and, on the other hand, that the father of

(d) 6 Dow. 209.

(e) 2 Sch. & Lef. 602.

(f) 2 Myl. & Cr. 192.

DEPENDENT OF

EACH OTHER.

the intended wife, who was an infant, had agreed to convey other lands COVENANTS INin the manner therein mentioned, and also to pay to the intended husband 100%. upon the marriage. It was then covenanted by the husband's father, that in case the marriage should be had, and in case the wife's father should, as soon as she came of age, settle his lands to the uses therein expressed, he (the husband's father) would settle his lands to his own use until the marriage, and from and after the marriage, to his own use for life, with remainder upon certain trusts for the benefit of the husband and wife, and issue of the marriage. The marriage was solemnised, and the wife came of age, but her father failed to settle the lands he had agreed to settle. Lord Cottenham held, nevertheless, that the husband's father was bound to perform the covenant on his part; his lordship remarking, that "with respect to marriage contracts there could be no resistance on the part of one contracting party because another contracting party had failed to perform his part of the agreement; and the obvious reason was, that the parties to the contract were not the only persons having an interest in the subject; but the contract was made by them on behalf of the issue of the marriage."

Where it is really meant that the covenants shall be conditional, the terms employed must be distinct and unequivocal. For doubtless when the intention is plain, the Court will give effect to it. In the case last cited, Lord Cottenham said,

Cottenham.

Unquestionably, however, even in the case of a marriage settlement Remarks of Lord the covenants may be so framed as to be mutually dependent; and if it be clear on the face of the settlement that such was the intention, that intention must prevail.

Thus in Pyke v. Pyke (g), upon an ante-nuptial agreement by a husband to settle lands on his wife, it being stipulated that her fortune should remain in the hands of trustees till such settlement should be made, the husband dying insolvent without performing his covenant, the wife's fortune was held to have survived to her for her own benefit, and the issue were declared not entitled to claim it from her.

(g) 12 Ves. 67.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][merged small][ocr errors]

PROMISES and agreements in consideration of marriage, in order to be binding, must be positive and unqualified. Randall v. Mor- Thus, in Randall v. Morgan (a), it appeared that previous to the marriage of Phillip Godfrey with Mary Crooke, her father wrote to him as follows:

gan.

"You have already my sentiments in the letter I wrote you from St. Kitts; and nothing has arisen since that period to induce me to alter my opinion. The addition of 1000%., 3 per cents. stocks, is not sufficient to induce me to enter into a deed of settlement. Whether Mary remains single or marries, I shall allow her the interest of 20007., at 4 per cent. If the latter, I may bind myself to do it, and pay the principal at my decease to her and her heirs."

The marriage took place; and soon after it the father wrote a letter to his daughter, which contained the following passage:

"Mr Godfrey may draw immediately for 40%., the half year's interest due on my bond for 20007., which became dueon the 1st of this month."

The father had, in fact, promised to execute a bond for the 20007., but it did not appear that he ever did execute it.

Sir William Grant disposed of the case in his usual brief and masterly way,-simply saying,—

"The father professes indeed a resolution-a determination on which he means to act; but it is one which he keeps in his own power, the execution of which is to depend entirely upon himself. If the

(a) 1 Ves. Sen. 376.

« SebelumnyaLanjutkan »