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Opinion of the Court.

It is very apparent that Vaughan had, for a good purpose, parted with all his right to this property and vested it in his wife, so far as he could do so, by the acts done. Placing it upon record, which it is inferrible he did, was notice to all where the title was, and that fact was prima facie evidence of a delivery, on the authority of Himes vs. Keighblingher, 14 Ill., 469, and the possession of the deed by Mrs. Vaughan from the day it came to her hands or the hands of her attorney, affords still further evidence of a delivery. Canning vs. Pinkham, 1 N. Hamp. 357; Clark vs. Ray, 1 Harris and Johnson,

323.

These are all presumptions, and appellants contend they are sufficiently rebutted by the fact, that the deed was found among the papers of the grantor after his death, up to which time, the grantee, Mrs. Vaughan, had not seen it. But when it is considered Mrs. Vaughan knew a deed was to be made to her, and the papers delivered to her, and which had been in her possession all the time, the inference is a fair one, when taken in connection with the fact that she received the rents of the property, and authorized an agent to sell it for her, that the deed had been delivered to her and accepted by her—her assent must be presumed until her dissent is shown. This, appellant's counsel contends has been shown by her declarations when negotiations favorable to the company were in progress, she then declaring, according to the testimony of some of the witnesses, that she had no title to the lots-that they belonged to the children. It will be assumed in this connection that she nowhere and at no time declared she had no title because the deed was not delivered to her, but upon the want of power in a husband to convey land by deed to his wife. This was the idea of her attorney, and this must be assumed as the ground of her belief. That she did assent to this deed is shown, we think, very satisfactorily by all the facts.

The remaining point is, will equity sustain this deed so as to pass the title to Mrs. Vaughan?

The books furnish many cases where deeds and bonds not being valid in law have been sustained in equity. So long ago

Opinion of the Court.

as Lord Macclefield's time, it was held when a feme sole seized in fee of lands gave a bond to her intended husband, that in case of their marriage she would convey these lands to him and his heirs; that having married and the wife dying without issue and then the husband dying, that the bond, though void in law, yet was good evidence of the agreement in equity; and the heir of the husband could compel a specific performance against the heirs of the wife. The Lord Chancellor said, it would be unreasonable that the intermarriage, upon which alone the bond took effect, should itself be a destruction of the bond; that the foundation of the notion was, that in law the husband and wife being one person he could not, at law, sue his wife on this agreement; whereas, in equity, it is constant experience that the husband may sue the wife and the wife the husband; and he might sue her in this case upon this very agreement. Cunnel v. Buckler, 2 Willes, 249, (2 Eq. Cases abridged, 136.) We cite this case, and many others to the same effect could be referred to, as showing that a court of equity will sustain a contract void at law, and that the same reason is given in the case before us, why a deed from a husband to his wife is invalid; that is, that they are one person in law, as was given in the case cited.

It is no doubt true, as stated by Justice Story in his treatise on equity jurisprudence, that, in respect to gifts or grants of property by a husband to his wife after marriage, they are ordinarily, but not universally, void at law, yet courts of equity will uphold them in many cases, when it appears from the circumstances and nature of the gift or grant, whether it be expressed or implied, that they are such as to afford no ground to suspect fraud, and the same amounts only to a reasonable provision for the wife. Story's Eq. Juris. § 1,374.

e have examined the numerous authorities cited on both sides, and are satisfied with the views presented by Chancellor Kent in Shepard v. Shepard, 7 Johns. Ch. 57. In that case the husband, in consideration of love and affection, and to make a sure maintenance for his wife in case she should survive him, made to her an absolute deed of all his real estate during

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Opinion of the Court.

her widowhood. Entertaining the idea that this deed might be inoperative, he afterward made a deed of the same property to his son. After a full review of the authorities the chancellor held that the deed to the wife, in the light of the authorities, could be sustained, and decreed that she be put in possession of the premises, and all persons be enjoined from disturbing her.

The case of Jones v. Obensain, 10 Grattan (Vir.), 259, was a deed, the only consideration for which was love and affection for his wife, conveying his whole estate to her to the disinherison of his heir-at-law, and fully sustains the view we have taken of this case-the deed to the wife being upheld against the claim of the heir-at-law. Other cases are cited to the same effect, and among them Hunt v. Johnson, 44 New York, sustaining the opinion of Chancellor Kent in Shepard v. Shepard, supra. It is true, in the deed in question, the consideration is expressed to be one dollar, but the paramount consideration was, as proved, that out of the property his wife and children should have some means of support, small as they might be, and, although it was the whole of his estate, it was but a small competence.

It is in proof the price paid for the property by the company was all it was worth, and that the money received for it has gone to the support of his wife and children, as the grantor intended it should go. A proper case is made out for the interposition of a court of equity to uphold this deed.

This case is relieved from all suspicion of fraud, though the whole estate was conveyed-itself of small value-there being no creditors in the way, and that the justice of it demands the deed should be upheld we can not doubt. It would be inequitable and unjust, the property having sold for its value, and the proceeds gone to the support of the wife and children, that they should be restored to the land and the wife to her dower interest in it. We can not help believing, from the testimony in the cause, that the papers given by the husband to his wife, and the deed put on record by him, was equivalent to a delivery, and her assent to the transaction is

Opinion of the Court. Syllabus.

clearly evidenced by the receipt of rents and offering to sell the property. She exercised the same control over it every owner exercises over his property; and she believed it to be hers until an opportunity arrived when it was thought by disclaiming any right to it she and her children might derive a further benefit from it.

We are of opinion every consideration of right, justice, and equity requires that the decree of the Circuit Court should be affirmed, and it is accordingly affirmed.

LAWRENCE Ch. J., WALKER and MCALLISTER, J. J., dissent.

JOHN FAHEY

v.

PRESIDENT AND TRUSTEES OF THE TOWN OF HARVARD.

1. MUNICIPAL CORPORATION-liability for injury from excavation in street.— Where a party without the consent of the authorities of an incorporated town, dug and left open a large pit in the street, along the sidewalk, in front of land owned by him, without any warning to passers-by, and while the same was so left exposed a person in the night-time, while exercising due care, fell into the pit and was injured: Held, that the town was not liable unless it had actual notice of the nuisance, or it had remained a sufficient time for notice to be implied.

2. NUISANCE-case by town for damages paid for wrong of another--declaration. Where a town, when sued by a person for an injury received from falling into a pit dug by a party in the street, in front of his premises, settled the claim of the injured party by payment of $300 before any judg ment, and without any notice to the party creating the nuisance, and then brought an action on the case against such party to recover the sum so paid, the declaration containing no allegation that the town had any notice of the nuisance, or statement of any facts from which notice might have been inferred or implied: Held, that the declaration was bad on general demurrer.

3. In such a case, before the town is entitled to recover of the wrongdoer the sum so paid, it must show by the pleadings and proof that the town was legally liable to the injured party.

Opinion of the Court.

WRIT OF ERROR to the Circuit Court of McHenry County; the Hon. THEODORE D. MURPHY, Judge, presiding.

Defendants in error when sued by Lachner for the injury, before any trial was had, settled and compromised with him, and paid him $300 and paid the costs of suit, amounting to $43.05.

Mr. FRANK CROSBY, for the plaintiff in error.

Messrs. JOSLYN and SLAVIN, for the defendants in error.

PER CURIAM: This was a special action on the case brought by defendants in error against plaintiff in error to recover over of the latter, for a sum which the former had paid to one Lackner for damages sustained by him, by reason of having fallen into an excavation in the street made by plaintiff in error. The plaintiff in error, defendant below, demurred to the declaration. The court below overruled the demurrer, assessed damages, and gave judgment. The sufficiency of the declaration is the only question presented.

It appears, from the declaration, that defendants in error settled with Lackner before judgment and without any notice to plaintiff in error. In such case plaintiffs below would be required to show, by their declaration, and prove, that the town was legally liable to Lackner. The facts alleged show that it was the duty of the town to keep the streets in a safe condition, and that the street in question had been put in that condition; but that the defendant, without the consent of the town, did, on the 1st day of September, 1869, wrongfully dig in and upon the front of land owned by him on said street, on the line of the sidewalk, a large pit, and suffered it to remain open during the day and night time without any warning to passers by, and so exposed, one Louis Lackner in the night time, while exercising due care, etc., fell into the pit and was injured. Under this state of facts, the town would not be liable unless it had actual notice of the nuisance, or it remained a sufficient time for notice to be implied. There is no allegation in the declaration that defendants in error had ac

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