spondent to refuse to execute the agreement on discovering it, and it would be grossly inequitable and unjust to compel him to perform it."

The analogy between that case and this is very striking, and the principle which the court there applied seems directly applicable to the facts here.

It is said that the complaint alleges no request to reconvey; that such a request was a condition precedent to the plaintiff's right to a reconveyance; that it should have been alleged, and because it was not, no evidence to prove it was admissible; and that to the admission of such evidence objection was duly made.

Ordinarily, such an allegation would be necessary; but it appears that Mrs. Haussman was willing, and attempted to make, and supposed she had made, a proper conveyance. If no request was made, there was such an attempted performance by her, by acts which, in their order, were subsequent to a request that she must be held to have waived it, and the waiver will have the same operation and effect against those who stand in her place as against herself. The defendants are claiming the property by inheritance from her, and under no other title. The promise to reconvey was made by her, and she held the property subject to a request at any time to make the reconveyance. That liability and duty constituted an equity which attached to it in her hands, and the defendants took and now hold it subject to the same equity, which can be enforced against them in the same manner and to the same extent that it might have been against her if she were living.

That a request to reconvey was in fact made by Mr. Haussman is found by the court, but under the circumstances we consider it entirely immaterial.

It is further said that the husband did not offer to join with his wife in a reconveyance. This is true, and in his non-joinder consists the mistake sought to be relieved against. He was willing to join, and would have done so, but for the erroneous legal advice by his attorney, in whom he confided, and on whose judgment he was justified in relying. If the nonjoinder and the mistake which occasioned it can be remedied, we think the omission of the offer to join too technical and unimportant to be allowed to prevent the court from doing equity when it is clearly demanded, and should be done unless there are substantial reasons to the contrary.

It is also urged that the agreement between the parties contradicts, or is inconsistent with, the deed from Mr. Haussman, because it is alleged in the complaint that the consideration was the promise of Mrs. Haussman to reconvey, whereas in the deed it was stated to be of a pecuniary character.

It has been often decided by this court, and is as well settled by its repeated adjudications as any question can be, that when the real consideration for a conveyance is different from that expressed in the deed, it may be shown by parol, and the variance does not impair the validity or change the effect of the conveyance.

The contract, which was the consideration for the deed, was not intended to be reduced to writing or incorporated in the deed, and the deed was only given in pursuance and part execution of the contract: Crocker v. Higgins, 7 Conn. 342; Collins v. Tillou, 26 Conn. 368; 68 Am. Dec. 398; Galpin v. Atwater, 29 Conn. 99; Clarke v. Tappin, 32 Conn. 67, 68; Purcell ▼. Burns, 39 Conn. 429; Post v. Gilbert, 44 Conn. 10; Schindler v. Muhlheiser, 45 Conn. 154; Hubbard v. Ensign, 46 Conn. 585; McFarland v. Sikes, 54 Conn. 252; 1 Am. St. Rep. 111.

It is said also that the agreement to reconvey is inconsistent with the life estate reserved in the deed. The promise of Mrs. Haussman to reconvey the estate was simply an agreement to reconvey what had been previously conveyed to her. She could have done nothing more, and it is obvious that nothing else was contemplated or promised, or understood by the parties to be promised.

It is also said that it is inconsistent with the use and behoof, and the covenant of non-claim, contained in the deed. These are objections of a similar character with the last, and like that, rest on no substantial foundation. The use and behoof of the grantee, and the non-claim by the grantor, relate only to the quantity and character of the estate conveyed, and have no connection with or reference to any interest in the premises which was reserved.

The further claim is made that the deed from Mrs. Haussman was a voluntary conveyance, and for that reason a court of equity will not relieve. There was a good and valuable consideration for the deed in the title to and use of the property she received from Mr. Haussman under the agreement. She does not appear to have been indebted, no creditors were defrauded or prejudiced, and the claim that it was voluntary is wholly unsupported.

It is also insisted that no judgment can be rendered against the defendant Erwin Larens, because he is a non-resident of the state, and no service of the complaint was made on him.

He appeared by counsel, and without interposing any objection to the jurisdiction of the court, pleaded to the merits of the case. He waived service by voluntarily submitting to the jurisdiction, and as the property involved in this issue is situated in this state, and within the jurisdiction of its courts, there is no reason for this claim: Payne v. Farmers' and Citizens' Bank, 29 Conn. 415.

It is claimed further that the deed by Mrs. Haussman was void, and that a court of equity has no power to give it vitality and force. This may be so, but the court may look through the deed to the contract back of it, and enforce that, provided it is valid: Goodman v. Randall, 44 Conn. 321.

Some remarks in the opinion of the court, in the case of Dickinson v. Glenney, 27 Conn. 104, on which the defendants rely, at first sight appear to be at variance with that doctrine. The court was dealing in that case with a deed which was purely voluntary, and wholly without consideration, and which failed of having been properly executed by the mere ignorance of the parties with respect to the necessary legal formalities, and which had no valid contract behind it which could have been enforced. The parties had not the excuse of having been misled by the mistaken judgment of a legal adviser in whom they properly trusted, and the accident or mistake consisted wholly in their ignorance of the law, which they took no pains to prevent.

Toward the close of the opinion, the court, by Storrs, C. J., say, on page 112: "It sometimes happens that where equity is compelled to yield to the absolute requirements of law restraining its efficacy in reforming agreements, some other agreement behind the defective contract may exist of which equity can lay hold, and thus indirectly, though in strict conformity with established principles, afford a remedy for the deficiency. A defective deed is sometimes treated practically as an executory contract for the sale of lands, and its execution is decreed. We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but rather belongs to the branch of equity jurisprudence which relates to the specific performance of contracts, to the performance of contracts of which the defective instrument is the evidence or memorandum. In the present case the prin

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ciple will not avail the petitioners. If they resort to an agreement lying back of the deed, they will bring to light only a contract legally void. For it is not to be denied that the executory agreement of a married woman concerning her real estate, though assented to by her husband, is absolutely a nullity, a proposition which, as we have already stated, is true of all the contracts of married women other than those which the statute expressly validates."

That case was decided prior to the statute of 1872 giving a remedy at law against married women upon contracts made by them for the benefit of themselves or their estates, and before the many judicial decisions and statutory provisions which have since greatly enlarged the capacity of married women with respect to their property and rights, and extended their remedies and liabilities upon their contracts. This has necessarily carried with it a corresponding enlargement of the jurisdiction of courts, both of law and equity, with respect to them and their estates. The reasoning of the opinion was well adapted to the facts of that case and the law as it then existed. But we think we may now well hold, without modifying that opinion except so far as the difference in the facts and the changes in the law necessarily produce that effect, that the defendants are not equitably entitled to retain the estate, and that such relief should be granted as it is competent for a court of equity to give.

In the view we have taken of the case, it seems entirely unimportant whether the deed from Mr. Haussman raised a trust of any kind for the benefit of himself or his heirs; and we discover nothing in the conduct of Mrs. Haussman, or in the relations of the parties, which we think tends to establish actual or constructive fraud. We think the arm of equity is long enough to reach the injustice we are endeavoring to prevent, and that it can be done without violence to established principles.

As the complaint is framed, however, and as the record now stands, we think there are serious difficulties in the way of advising the superior court to render a judgment for the plaintiff. We do not see how, since the decease of Mr. Haussman, we can properly advise that the deed from Mrs. Haussman to the attorney be reformed so as to join Mr. Haussman as a grantor with his wife, and permit and direct him to execute the same; nor that the alleged cloud be removed from the plaintiff's title by a decree commanding the defendants to con

vey to Mr. Haussman such title or interest in the property as they may have.

The heirs at law of Mr. Haussman are now the only parties properly entitled to relief. They have not since his death been made parties to the action, and are not regularly before the court or legally asking for relief. It is true that the death of Mr. Haussman has been suggested on the record, and that his administrator has entered to prosecute the action. We do not see how he is entitled in his representative character to relief, or to a judgment for the benefit of the heirs. If it was an action at law to recover the possession of the estate under General Statutes, section 1012, there might be no difficulty; but the statute is in express terms limited to an action of disseisin, and we do not feel justified in extending it by analogy, though the object sought to be obtained in this case is similar to that provided for in the statute.

We think the case should be remanded to the superior court, where the plaintiff can ask liberty to file a supplemental complaint showing the interest of the heirs of Mr. Haussman in the subject-matter, and making them parties, and by such additional averments as may be pertinent and proper, demand for them appropriate relief.

ANDREWS, C. J., dissented from the opinion delivered by the majority of the court, and stated as to the plaintiff's first claim for relief, namely, that the deed from Mary Haussman to the attorney be so reformed as to join Jacob Haussman as a grantor therein, that because of his death after the institution of the suit it was impossible to grant this prayer, but that treating the case as though he was still living, the rule ought to prevail that where a deed or other written instrument is defective in some particular required by statute, it cannot be reformed; citing Story's Eq. Jur., sec. 177; Brightv. Boyd, 1 Story, 478; Hibbert v. Rolleston, 3 Brown Ch. 571; Dickin son v. Glenney, 27 Conn. 104, referred to at length in the foregoing opinion. Judge Andrews said of the latter case: "That case is conclusive of the present one in respect to the first claim for relief. The reformation of any written contract implies that the agreement between the parties is executed. It is the correction of an executed agreement, and not the performance of an executory one. But if we regard the promise of Mrs. Haussman as an executory one on her part to convey her land, the difficulty is only increased, for the executory contract of a married woman to convey land is wholly void. No court can give effect to such an agreement by decreeing its fulfillment: Gore v. Carl, 47 Conn. 291; Annan v. Merritt, 13 Conn. 478; Dickinson v. Glenney, 27 Conn. 104; Martin v. Dwelly, 6 Wend. 9; 21 Am. Dec. 245; Pur cell v. Goshorn, 17 Ohio, 105; Carr v. Williams, 10 Ohio, 305."

As to the plaintiff's claim to recover because of a trust, Judge Andrews says, in effect, that if it be granted that Mrs. Haussman was able notwithstanding her coverture to make contracts concerning land, still it must be conceded