Opinion
No. 35747.
December 22, 1944.
1. DIVORCE.
Evidence sustained decree granting wife a divorce on ground of habitual drunkenness and cruel and inhuman treatment.
2. HOMESTEAD.
Deed whereby husband conveyed homestead to wife was valid on its face as between the parties, regardless of motive or consideration for its execution.
3. DIVORCE.
Where husband conveying homestead to wife executed agreement to vacate premises on breach of agreement to cease from drinking and becoming intoxicated, record sustained provision of divorce decree awarding title and right of possession of homestead to wife together with impounded rents therefrom.
4. DIVORCE.
Provision of divorce decree requiring sale of husband's automobile to satisfy a lien for money wife had paid thereon was irregular and unauthorized, especially where it directed the proceeds arbitrarily to be divided between husband and wife.
5. DIVORCE.
Where court found that certain personalty had been purchased partially with funds of wife and partially with funds of husband, and that wife was entitled to a lien thereon for purchase money paid by her, provision of divorce decree directing sale of property and division of proceeds on an arbitrary basis of one-half to each was unauthorized.
APPEAL from the chancery court of Amite county, HON. R.W. CUTRER, Chancellor.
Jackson, Young Phillips, of Jackson, and F.A. Anderson, Jr., of Gloster, for appellant.
It is the universal view and holding of the courts that the separation of the spouses and a wife's agreement to discontinue such separation is not a sufficient consideration for an agreement upon the part of the husband to pay her for so doing, for the simple reason that in returning to and living with him she only performs the duties contemplated by the marriage — an object sought by society and the public. It is a violation of public policy to hold such contracts valid and enforceable. This contract however goes further in contravening public policy in that it contemplates a future separation of the parties; as we have seen above, even antenuptial contracts and settlements which are generally valid are null and void if there is any indication of a contemplation of separation.
Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745; Green v. Brown, 159 Miss. 893, 133 So. 153; Mitchell v. Campbell, 111 Miss. 806, 72 So. 231; Doe ex dem. Caillaret v. Bernard, 7 Smedes M. (15 Miss.) 319; Barry v. Gulfport Building Loan Ass'n, 158 Miss. 163, 128 So. 569; Sorrells v. Alexander Bros., 165 Miss. 466, 144 So. 560; Merrill v. Peaslee et al., 146 Mass. 460, 16 N.E. 271; Kessler's Estate, 143 Pa. 386, 22 A. 892; Oppenheimer et al. v. Collins et al., 115 Wis. 283, 91 N.W. 690; Pereira v. Pereira, 156 Cal. 1, 103 P. 488; Sonicksen's Estate, 23 Cal.App.2d 475, 73 P.2d 643; Brooks v. Brooks, 48 Cal.App.2d 347, 119 P.2d 970; Lee v. Savannah Guano Co., 99 Ga. 572, 27 S.E. 159; Dempster Mill Manufacturing Co. v. Bundy, 64 Kan. 444, 67 P. 816; Michigan Trust Co. v. Chapin et al., 106 Mich. 384, 64 N.E. 334; Foxworthy v. Adams et al., 136 Ky. 403, 124 S.W. 381; Lewis v. Lewis, 196 Ky. 701, 245 S.W. 509; Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152; Larisa v. Tiffany,, 42 R.I. 148, 105 A. 739; Bohanan v. Maxwell (Iowa), 181 N.W. 682; Marlborough v. Marlborough, 1 Ch. (Eng.) 165; Whiting v. Whiting, 62 Cal.App. 157, 216 P. 92; Watson v. Watson, 37 Ind. App. 548, 77 N.E. 355; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783; Cocksedge v. Cocksedge, 60 Eng. Reprints 351; Neddo v. Neddo, 56 Kan. 507, 44 P. 1; Williams v. Williams, 29 Ariz. 538, 243 P. 402; Stratton v. Wilson, 170 Ky. 61, 185 S.W. 522; Loveren v. Loveren, 106 Cal. 509, 39 P. 801.
The lower court found outright that the agreement herein was ineffective and invalid, but held the deed of conveyance sufficient to vest title to the homestead in appellee regardless of the fact that all parties admitted the deed was not to go into effect praesenti, and that she receive no vested interest under the so-called deed simply by virtue of the provisions of that single instrument; that if she received any vested interest it was wholly by virtue of the breach of conditions contained in the alleged agreement. The conclusion from this is that there was no present interest vested in her at the time it was executed.
Williams v. Green, 128 Miss. 446, 91 So. 39.
That there was no consideration for quit-claim deed herein has already hereinabove been fully demonstrated and we believe this will be admitted by appellee.
McClellan v. McCauley, 158 Miss. 456, 130 So. 145; Woods v. Sturges, 116 Miss. 412, 77 So. 186; 12 Am. Jur. 582, Sec. 88, note 17, p. 590, Sec. 97, note 13.
Appellee cannot contend that this deed was valid as a gift for the reason that it was not placed entirely and absolutely beyond the control of the donor. Without performance of this condition he was entitled to retain the gift. This voids the transaction as a gift.
McClellan v. McCaulley, supra; Woods v. Sturges, supra.
Even if the agreement and so-called deed are held to be valid instruments, the decree of the lower court was in error because the condition of the agreement is not shown to have been breached.
The decree of the lower court was further in error in ordering issuance of writs of assistance to oust appellant from property which was his homestead.
Williams v. Green, supra.
The lower court was in error for entering decree without motion or petition for relief therein granted and without notice to, hearing or opportunity to be heard on part of appellant.
The action of the lower court in placing a lien on appellant's automobile and household furnishings because appellee said she paid some amount, she did not and could not say how much, on the purchase price thereof would be ludicrous, if it were not so serious.
J.T. Lowrey, of Gloster, for appellee.
It is strenuously insisted that said deed of quit-claim was without consideration. It is well established in our state that a person of sound mind and of full mental capacity may execute a deed for any consideration which he conceives of value or advantageous to him. One of sound mind may execute a deed from any motive, whether it be love, gratitude, partiality, prejudice, whim or caprice.
Longmire v. Marsh et al., 124 Miss. 77, 86 So. 753; Burnett et al. v. Smith, 93 Miss. 566, 47 So. 117; St. Louis v. United States, 92 U.S. 462, 23 L.Ed. 731; Bartlett v. Smith, 17 F. 668; Ramstead v. Otis, 52 Ill. 30; Jones v. Gatliff, 113 S.W. 436; Bergson v. Jacobson (Wis.), 102 N.W. 563.
The appellant contends that the quit-claim deed as made to his wife and the "agreement" are absolutely void and cites authorities in support of his contention. The Supreme Court of this state has never condemned an agreement of a nature of this now before the court. It has condemned a property settlement constituting a part of a collusive agreement between husband and wife for divorce because repugnant to public policy.
Gurley et al. v. Gorman, 137 Miss. 210, 102 So. 65.
The courts have universally condemned contracts the purpose of which was the securing of a divorce. This deed and contract do not come under that class of collusive agreements. It is an agreement the object of which was to continue the marriage relation between the parties to this cause and the courts have favored and upheld agreements of this nature.
Rodgers v. Rodgers, 229 N.Y. 255, 128 N.E. 117, 11 A.L.R. 274; Barbour v. Barbour, 49 N.J. Equity 429; Darcey v. Darcey, 29 R.I. 384; Phillips v. Meyers, 82 Ill. 67, 25 Am. Rep. 295; Polson v. Stewart, 167 Mass. 211; Fisher v. Koontz, 110 Iowa, 498.
A contract between husband and wife made when the spouses are separated for legal cause, and providing for the payment of the consideration for their reunion, is by the weight of authority enforceable by either spouse.
Kennedy v. Howell, 20 Conn. 349; Miller v. Miller, 78 Iowa, 177, 16 Am. St. Rep. 431, 35 N.W. 464, 42 N.W. 641; Hite v. Hite, 136 Ky. 529, 124 S.W. 815; Terkelsen v. Peterson, 216 Mass. 531, 104 N.E. 351; Duffy v. White, 115 Mich. 264, 73 N.W. 363; Howell v. Howell, 42 Okla. 286, 141 P. 412; Fisher v. Filbert, 6 Pa. 61; Compare Copeland v. Boaz, 9 Baxt. 223, 40 Am. Rep. 89; Roberts v. Frisby, 38 Tex. 219; McKay v. McKay (Tex.), 189 S.W. 520; Bolyard v. Bolyard, 79 W. Va. 554, 91 S.E. 529, L.R.A. 1917D, 440; Harrison v. Harrison, 1 K.B. 35, 79 L.J.K.B.N.S. 133, 101 L.T.N.S. 638, 26 Times L.R. 29; Vandergucht v. De Blaquiere, 5 Myl. C. 229, 41 Eng. Reprint 358, 3 Jur. 1116.
There is nothing in the public policy of the State of Mississippi that renders the contract and agreement, here presented, as void and unenforceable.
Burks v. Moody, 141 Miss. 370, 106 So. 528; Armstrong v. Armstrong, 32 Miss. 279; Code of 1942, Secs. 451, 452, 454.
A deed from the husband to the wife conveying the homestead is valid and binding, and it conveys the legal title of the land to the wife. It is sufficient, and the deed is binding, even though it was to his interest in the homestead.
Williams v. Green, 128 Miss. 446, 91 So. 39.
It is insisted by the appellant that the chancellor erred in decreeing that the household furnishings and equipment described in Exhibit A was the property of the appellee, and that described in Exhibit B was the property of the appellant, and that described in Exhibit C, with the family automobile, should be sold for the satisfaction of liens of the appellee for money paid by her on the purchase price thereof, and that the chancellor erred in awarding the appellee the rentals accrued on the property known as the home of the parties. The testimony on this issue is as full and complete as could be had due to the failure of the parties to keep receipts and bills respectively paid by them and a great deal of the testimony is from memory and conjecture, all of which the chancellor heard and rendered his decree thereon, and we submit that his finding is correct and should be affirmed.
The decision of the chancellor where the evidence is conflicting will not be disturbed on appeal, since he is better able to determine the truth of the matter than the appellate court. And this rule still holds true, although incompetent evidence has been admitted, if nevertheless there is enough competent evidence to sustain the decree.
Griffith's Mississippi Chancery Practice, p. 783, Sec. 674.
Appellee brought suit for divorce, and by amendment prayed for establishment of certain property rights, including title to the homestead and settlement of personal property interests. No point was made upon the procedure as being irregular, but the entire matter was heard by the chancellor upon the amended bill and answer, by agreement of counsel.
The bill charged habitual drunkenness and cruel and inhuman treatment, and we are not able to say the learned chancellor was not justified in finding that the charges were sustained by the testimony, and the decree for divorce is affirmed.
The amended bill alleges, and the evidence shows, that on November 11, 1942, appellant voluntarily executed to appellee the following deed to the homestead property, properly acknowledged:
"State of Mississippi "County of Amite
"For and in consideration of the sum of one dollar ($1.00) cash in hand paid, the receipt of which is hereby acknowledged, I hereby sell, convey, release, remise and forever quitclaim unto Rena Hemphill, my entire right, title and interest in and to the land described as follows, to wit:
"Lot No. 9, and 10 feet off the North part of Lot No. 8, and 10 feet off South part of Lot 10, in Block No. 17 in the town of Gloster, the property herein conveyed being situated between the former W.Y. Webb and T.J. Wilkinson properties in said town of Gloster, and being the same property acquired by purchase from Mrs. Rita Kidwell on October 7, 1937, as per deed recorded in Book 77, page 387 of the Conveyance Records of Amite County, Mississippi. Said property is situated in the town of Gloster, Amite County, Mississippi.
"Witness my signature, this the 11th day of November, 1942.
"(Signed) B.B. Hemphill "B.B. Hemphill"
At the time of execution of the deed, the following "agreement" was signed, acknowledged and delivered to appellee by appellant:
"State of Mississippi "County of Amite
"Know All Men by These Presents: That the undersigned, B.B. Hemphill of Gloster, Amite County, Mississippi, has this day executed to his wife, Rena Hemphill, a quitclaim deed for his interest in their home situated in the town of Gloster, Mississippi, and fully described in said quitclaim deed.
"The reason for executing said quitclaim deed is that his said wife, Rena Hemphill, left home on account of the drinking habits of the undersigned and has now returned home to live with him, on condition of the execution of said quit-claim deed and the execution of this agreement.
"It is hereby agreed and stipulated that the undersigned will totally cease from drinking and becoming intoxicated and that he has agreed to reform his habits in that respect entirely and not be overcome with drink any more; and that should he break the provisions of this agreement and become drunk or intoxicated after the signing hereof, that his wife, Rena Hemphill shall immediately call a police officer or sheriff to their home and if such officer shall pronounce the undersigned drunk or intoxicated and shall so state in writing over his signature, then in such event the undersigned B.B. Hemphill agrees to vacate the premises and surrender the same to his said wife free of all claims thereto and free of all right to live therein with or without her and to move away therefrom immediately, thereby vesting full possession of said property in his said wife.
"Witness my signature, this the 11th day of November, 1942.
"(Signed) B.B. Hemphill "B.B. Hemphill"
Since the deed on its face is valid as between these parties, regardless of the motive or consideration for its execution, Burnett v Smith, 93 Miss. 566, 47 So. 117, it is necessary to consider the accompanying agreement in order to appraise appellant's contention that both the consideration and the purpose therefor were against public policy and good morals, thus destroying its validity. We have examined the testimony and find that it is consistent with the letter of the "agreement" which relates solely to the appellant's right of continued occupancy. In this view, it is unnecessary to examine whether such an agreement would contravene public policy since the decree of divorce renders it unnecessary to consider either whether the unique condition therein was breached or whether the appellee could enforce this unilateral undertaking in the absence of the decree which confers all rights made conditional in the former. The decree, moreover, finds that the practices whose discontinuance was made a condition for the "agreement" had persisted, thereby establishing that appellee had foregone divorce despite ample grounds therefor, in a final though futile attempt to rehabilitate the home. That the present marriage relationship had been hopefully rebuilt with fragments of forgiveness and hope, salvaged from the wreckage of a prior divorce, impairs any argument that the deed was executed under circumstances that would invite in appellee a hope that its condition would be broken. Divorce was not the expressed forfeit for appellant's breach of the undertaking. A reunited home was the reward for compliance. There was no legal duty upon the wife to live with the husband who had given and was persisting in causes for divorce. It is in view of such considerations that we find the authorities cited by appellant without point.
The learned chancellor decreed the title to the homestead in the appellee, as well as the right of possession, and awarded to her its accumulated and impounded rents therefrom received since the date of the conveyance. We affirm this award.
The decree adjudged title to certain personalty consisting of household furniture set forth in an Exhibit A in appellee, and similar property described in an Exhibit B in appellant. The appeal makes no serious attack upon these awards and they are affirmed.
Certain personalty detailed in an Exhibit C was found by the trial court to have been "purchased partially with funds of the Complainant and partially with funds of the Defendant and that the Complainant is entitled to a lien thereon for the purchase money paid on said property by her and the Defendant is entitled to a lien thereon for the purchase money paid by him on said property and that said liens have not been satisfied and are outstanding and that the described personal property should be sold for the payment of said liens thereon; and the proceeds of sale equally divided between them." A similar finding was included with respect to an automobile bought in the name of appellant As to the latter, there is no testimony to support any view as to its ownership other than in the appellant. Appellee testified that she made "payments from the time," although this is denied by appellant. Such obligation, if any, as this may create inter se is not one enforceable under such a decree. We are of the opinion that insofar as the decree requires a sale of the automobile to satisfy a lien for "money she has paid thereon," it is irregular and unauthorized, especially since it directs the proceeds of such sale arbitrarily to be equally divided. A sale would not under such circumstances constitute the enforcement of a lien for a definite and redeemable liability, but a mere partition of personalty, the title to which is not shown to be joint.
We revert finally to the personalty described in the Exhibit C. Assuming but not deciding that mutual liens do or could exist against each other, there is no warrant for a sale in which the proceeds are to be divided upon, an arbitrary basis of one half to each.
The decree of the court granting divorce and adjudging title and right of possession to the homestead in appellee, together with the impounded rent therefrom, is affirmed, as are the awards of personalty in Exhibit A to appellee, and in Exhibit B to appellant. As to all other awards of personalty or interests therein, the cause is reversed and remanded for such other proceedings, consistent with our views, as the parties or either of them may be advised.
Affirmed in part, reversed in part, and remanded.