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grantor to defraud his creditors, the fact that she becomes aware of such fraudulent intent before she complies with her contract of marriage is not sufficient to avoid the deed, since the consideration for the deed is the agreeinent to marry, and not its actual cousummation. ACTION to set aside a deed. The opinion states the case. Tustin, Gearin, and Crews, for the appellant Brady and Schaefer, for the respondents.

Hoyt, J. This action was brought by appellant to set aside a deed made by the respondent L. P. Daussat to the other respondent. It is conceded that the grantee had no knowledge that the grantor was indebted to any one until long after the execution and recording of the deed, and that the deed in her hands, if otherwise supported, cannot be affected by any fraudulent intent which may have moved the grantor to the making of the same. Appellant, however, attacks the deed upon two grounds: 1. That it was never delive ered to the grantee; and 2. That it was purely voluntary, being supported by no consideration whatever.

As to the first question, the conceded facts show that in accordance with a prior arrangement with the grantor, the grantee caused the deed to be prepared, and sent to the grantor with instructions for him to execute the same and have it recorded immediately. Under these circumstances, was the delivery to the auditor for record a delivery to the grantee ? Many cases have been cited by the appellant to show that a delivery to a third person without the knowledge or direction of the grantee is not a good delivery, and for the purposes of this case this may be conceded to be the law. We have ex. amined all the cases cited by the appellant, and fail to find a single one among them that goes further than we have above indicated. In the case at bar, however, there was not only a delivery by the grantor to the auditor under such circumstances as clearly showed his intent to give the instrument force, but such delivery was in compliance with the prior instructions of the grantee, and under these circumstances, for the purposes of such delivery, the auditor became the agent of the grantee, and a delivery to him gave the deed full force.

As to the next question, the facts shown by the record are, that long prior to the making of the deed in question, negotiations had been in progress between the parties thereto, looking to a marriage between them. More than a year before such execution, the grantor in said deed had asked of the grantee her hand in marriage, but the grantee had refused at that time to enter into a contract in relation thereto, on account of the want of visible means of support for a family in the hands of the grantor. Some time after this, by reason of the death of a relative, the grantor became the prospective owner of property including that in question, and upon his suggestion of this fact to grantee, and an agreement on his part that as soon as his title to the land in question was perfected he would deed it to her, she consented to enter into a contract of marriage with him, and did enter into such contract. Some time after this, the grantor's title having been perfected, he wrote the grantee to that effect, and inclosed to her the probate proceedings showing title in him. Whereupon she at once took the papers to her attorney, and caused to be prepared a draught of a deed, which she sent the grantor, with instructions for the execution and delivery as hereinbefore stated. At that time, as we have seen by the conceded facts above stated, the grantee in said deed had no knowledge whatever of any circumstances which would make the execution of such deed on the part of the grantor fraudulent as to him; and the sole question is as to whether or not, as between the parties thereto, there was any consideration for the execution of said deed. That the contract of marriage is a good consideration for a deed made on account thereof is unquestioned. Such a contract has been held not only to be a good consideration, but a valuable consideration of the highest nature. Two objections, however, are raised by appellant as against this marriage contract as a consideration for the deed: 1. That it was not in writing, and therefore void under the statute of frauds; and 2. That before the marriage relation was entered into in pursuance of said contract, knowledge of the fraudulent intent of the grantor was brought home to the grantee.

As to the first objection, we may concede it to be as contended for by appellant, and yet, as we view the facts, the circumstances of this case do not bring it within the objection urged. As we view it, this contract of marriage was in fact reduced to writing. It is true that it was not so reduced as to bring it strictly within the rule for the execution of such contracts, but we think it came substantially within such rule; for while it is true that there was no memoranduin of agreement signed by the party to be charged, yet we think there was sufficient recital of such contract in the deed to show a written contract; and that under the circumstances under which said deed was prepared and sent by the grantee to the grantor for execution, she became bound by such recital. This, we think, would be true if the provision in relation to such contract was a recital pure and simple, as, under the circumstances above stated, we think a court should hold the grantee bound by all the recitals in the deed. But the statement relating to said contract in this deed is more than a simple recital: it is stated as a part of the consideration for the deed, and is substantially as follows: "For and in consideration of the love and affection which the said party of the first part has and bears unto the said party of the second part, as also for the better maintenance, support, protection, and livelihood of the said party of the second part, and in consideration of the promise of the said party of the second part to marry him, said party of the first part does by these presents give."

That this memorandum clearly evidenced an agreement of marriage on her part, in consideration of making the deed on his part, is beyond question. And if such memorandum had been signed by her, there could be no doubt but that the state ute of frauds had been complied with. And as we have seen that her relations to such statement were such as to make it equally binding upon her as though she had signed it, it follows that there is a sufficient statement of the consideration for said deed. When this deed was delivered, then, it was supported by sufficient consideration, and was binding, not only as between the parties thereto, but as to all the world.

Was the fact that the grantee therein became aware of the fraudulent intent of the grantor before she had actually complied with her contract of marriage by the consummation thereof sufficient to avoid the deed ? No case has been cited going to this extent; on the contrary, several cases have been cited which seem clearly to establish a contrary doctrine. See Smith v. Allen, 5 Allen, 456, 81 Am. Dec. 758, in which it was decided that though the marriage was prevented by the death of the grantor, yet the deed remained good in the hands of the grantee. What is the consideration for a deed made under such circumstances? We think it is the agreement to marry, and that if the agreement is entered into in good faith, and under such circumstances as to bind the party, and the deed is executed in consideration thereof, the transaction is complete, and the deed will be unaffected by anything that may happen thereafter. If the grantee refuse to carry out her contract, the grantor has his remedy the same as he would for the violation of any other executory agree ment. It would not do to hold that the grantee should, without fault on her part, be deprived of the benefits of her contract. For some months, and in principle it may as well have been for some years, the grantee had been bound by her agreement to marry, entered into in perfect good faith, and for a valuable and proper consideration. To hold that because she afterwards learned of some fact that showed a fraudulent intent on the part of the grantor, she should be deprived of the benefits of a contract which, during its existence, if she at all observed the proprieties of the relation thereby established, practically prevented her from taking any steps looking to the formation of a marriage relation as between herself and any other party, would, to our minds, be unjust in the highest degree. Naturally, during the continuance of this contract, the associations between the parties were very intimate, and the affections may have become so involved that to break off the relation would destroy the happiness and perhaps the health of the parties thereto. If the argument of appellant were to prevail, the innocent party must refuse to carry out a contract upon which her heart has become fixed, or enter into the same without any such safeguard as her prudence had thought it necessary to provide for. It is impossible to place the parties in the condition they were in before the execution of the deed, and as the innocent party cannot be put in statu quo, she cannot be compelled to surrender the fruits of her bargain. But it is not necessary to enlarge upon the question. As we view the law, it is the contract to marry, and not the marriage itself, which is the consideration which supports the deed, and this being so, if at the time the deed is made the contract to marry for which it is given is a binding one between the parties, and executed with the solemnities required by the statute for that purpose, an indefeasible title vests in the grantee.

It follows that the decree of the court below must be af. firmed.

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DEEDS – DELIVERY BY RECORDING. — The grantor's recording a deed ex. pressing the receipt of the purchase-money is prima facie a valid delivery: Burke v. Adams, 80 Mo. 504; 50 Am. Rep. 510, and note; Blight v. Schenck, 10 Pa. St. 283; 51 Am. Dec. 478, and note. The acknowledgment of a deed for the purpose of registration is delivery: Newlin v. Osborne, 4 Jones, 157; 67 Am. Dec. 269, and note. The delivery of a deed to the recording



oficer for the grantees, and as their deed, is a sufficient delivery, where the grantees agree to accept the deed before its execution: Hoffman v. Mackall, 5 Ohio St. 124; 64 Am. Dec. 637, and note with cases collected; Boody v. Daris, 20 N. H. 140; 51 Am. Dec. 210, and note. Whether there has been a delivery is dependent upon the intent of the grantor; and if his intent is apparent, delivery for record, though not known to the grantee, if followed by his assent, is a good delivery: Lee v. Fletcher, 46 Minn. 49; and such de. livery may be gond, even though the grantee was ignorant of the oxistence of the deed: Sheffield Land etc. Co. v. Neill, 87 Ala. 158. See also note to Hockenhull v. Oliver, 12 Am. St. Rep. 238, where all the recent cases on this sub. ject are collected.

Deeds — CONSIDERATION MARRIAGE. Marria ze is a raluable consid. eration: Verplank v. Sterry, 12 Johns. 536; 7 Am. Dec. 348, and extended note; Cohen v. Knox, 90 Cal. 266. A promise by a woman to marry the grantor is a good consideration for a deed, and she will be entitled to hold the land against his creditors, although the marriage is prevented by his death: Smith v. Allen, 5 Allen, 454; 81 Am. Dec. 758.



married woman cannot make a contract of partnership with her hus. band.

Tae facts are stated in the opinion.

Slade, Hadley, and Hadley, and Bruce and Brown, for the appellant.

Dorr and Finch, Strudwick, Peters, and Van Wyck, Fairchild and Rawson, and Allen and Powell, for the respondents.

STILES, J. These were four cases, the trials of which were consolidated. In two of the cases the theory of the complaints was that appellant and her husband were actual partners in the mercantile business under the firm name of J. P. Hayden & Co. In the other two, the theory was that the community composed of the husband and wife was carrying on business, and that the husband and wife were its agents. The evidence did not tend to support either theory as pleaded, but was die rected wholly to an effort to show that J. P. Hayden was doing business under the name of J. P. Hayden & Co., and that appellant made herself liable as a partner by “holding out." The real object in making appellant a party, and taking judgment against her, was to subject certain real estate which she claims &s her separate property to the payment of debts incurred by

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