Opinion
No. 4753.
Argued October 6, 1959.
Decided December 1, 1959.
1. Where the plaintiff purchased a house with his own funds and had the deed thereto placed in the names of himself and the defendant as joint tenants with the understanding that the defendant would live with him in a common-law husband-and-wife relationship, the plaintiff was not entitled in equity to an order that defendant execute a deed to the plaintiff of her interest therein.
BILL IN EQUITY, praying that the defendant be ordered to execute a deed of her interest as joint tenant in certain premises located on Prospect Street in Nashua, and in default of such conveyance, that said premises be decreed the sole property of the plaintiff. The plaintiff's exceptions to the rulings of law and decree, and to the denial of certain requests for findings of fact were reserved and transferred by Griffith, J.
The Court made the following findings of fact, rulings of law and decree:
"The petitioner, Albert Levesque, and petitionee first became acquainted sometime in 1923, at which time their acquaintance was apparently purely casual and platonic. On November 15, 1952, petitioner's wife died. He was at that time living on 27 Williams Street in Nashua. Petitionee was at the time of their more intimate acquaintance divorced, having become legally divorced from her husband in January of 1953. At the time of the trial, petitioner was sixty-one years old and petitionee fifty-seven years old. Sometime in 1953 petitioner and petitionee met socially and began to attend social affairs together. In early 1954 petitionee, who had been employed at a local shoe factory, at the request of the petitioner gave up her job in the shoe factory and began to keep house for the petitioner regularly at a salary of $25.00 or $30.00 a week. During this period petitioner would pick her up at her own house in the morning and take her home at night. Sometime during this period the relationship of the parties became more intimate than generally associated with employer and employee and they began to have intercourse which occurred at times on various trips and other convenient places. The house on Williams Street was limited in its bedroom accommodations to one bedroom. Petitioner and petitionee agreed that with this situation, if petitionee moved in with petitioner, that the neighbors might talk. Accordingly, a search was undertaken to locate a house with more than one bedroom in it. Such a house was located early in 1955 in a former rest home located on Prospect Street and the subject matter of this petition. Petitioner purchased this rest home in early 1955, paying $25,000.00 for it, of which $15,000.00 was paid in cash and a mortgage secured for the balance. In addition, prior to their taking possession in April, 1955, petitioner expended some $19,000.00 for repairs. Sometime prior to the purchase of the house, when petitioner and petitionee were on a trip to New York, petitioner purchased a diamond ring for petitionee at a cost of some four hundred dollars, which was in the nature of an engagement ring because of his declared intention to marry her in the event her divorced husband died.
"The house on Prospect Street was placed in the joint names of petitioner and petitionee at the time of purchase. The Court finds that it was so placed because of the mutual understanding of both petitioner and petitionee that they would live there as husband and wife without benefit of clergy. The parties in fact entered into a life at their new home which was marriage in every respect except its legality.
"The reason for the dissolution of this relationship is not too clear from either the testimony of petitioner or petitionee. Apparently, petitionee became ill in 1956 and in November of that year left for Canada for treatment. Petitionee failed to write petitioner regularly from Canada, and after a short time petitioner decided that their relationship had terminated. Petitioner then requested petitionee to convey any interest in the property to him, which she refused to do.
"The Court finds that the petitionee contributed nothing to the purchase of the joint property. The Court further finds that while the purchase of the property in joint tenancy was not founded upon any express promise of the petitionee to act as housekeeper for petitioner so long as he should live, neither was it intended as an outright gift but rather upon the promise that petitioner and petitionee should live out their lives in a common law husband and wife relationship.
"The Court rules that the creation of the joint tenancy relationship was based upon the meretricious relationship of the parties and that neither petitioner nor petitionee is entitled to enforce any rights in the property in a court of equity; therefore, the petition is dismissed."
Guertin Widener (Mr. Guertin orally), for the plaintiff.
Albert Terrien (by brief and orally), for the defendant.
The findings of fact in this case have not been impeached by either party. The defendant took no exception thereto and the plaintiff in challenging the correctness of the decree denying relief, accepts as true the facts found by the Trial Court. On the findings this is a case where the plaintiff transferred property in joint tenancy with the understanding that the defendant would live with him in a common-law husband-and-wife relationship. Transfers of property or money based on illicit sexual relations have fared badly in the courts. It "is well settled that where the consideration for the transfer of property or the payment of money by a man to a woman, or by a woman to a man, is future illicit sexual relations between them, or where the purpose of the transfer or payment of money is to encourage such relations, the party so paying money or transferring property cannot recover the same." Anno. 120 A.L.R. 475.
The cases in this jurisdiction support this rule. In White v. Hunter, 23 N.H. 128, the court refused to allow a son and heir to obtain a reconveyance of realty transferred by his father to a woman in consideration of illicit intercourse. In Harlow v. Leclair, 82 N.H. 506, a man gave a woman money to purchase an automobile, taking a mortgage to secure the payments, and then surrendered the mortgage and note in consideration of past and future illicit sexual relations. It was held that where the woman terminated such relations prior to the time agreed on, the man was not entitled to sue for the amount due on the mortgage thus surrendered to the woman. In Gauthier v. Laing, 96 N.H. 80, recovery was denied for services rendered a deceased where illicit cohabitation of the parties was an inseparable and indivisible part of the bargain.
Since the Court has found that the agreement between the parties did not contemplate that the defendant was to act as housekeeper for the plaintiff, it is impossible to employ the rule set forth in Crossett v. Brackett, 79 N.H. 102, 104, that a bargain for housekeeping services, otherwise valid, is not rendered illegal by the "fact that their illicit relations furnished the motive." Nor is it possible to find any separate or subsequent agreement between the parties which was distinct from the illegality of their relationship. Zytka v. Dmochowski, 302 Mass. 63; Restatement, Contracts, s. 589.
While the author of this opinion continues to have doubts and misgivings, as indicated in Gauthier v. Laing, 96 N.H. 80, 85, that the general rule employed in our cases is a deterrent to sin, a majority of the Court supports the general rule and the public policy which lies behind it. 6 Williston, Contracts (Rev. ed.) s. 1745. The ruling of the Trial Court denying relief to the plaintiff in this case is similar to and supported by the rationale of Harlow v. Leclair, 82 N.H. 506.
Exceptions overruled.
All concurred.