Wells v. Stout. VI. If it should be held that the deed of separation was valid, and that the trust had been accepted, still the wife has no claim to the annuity, because the parties afterwards came together and were reconciled. In 2 Story's Equity, § 1428, the learned Commentator says: "In the next place, even in case of a deed for an immediate separation, if the parties come together again, there is an end to it with respect to any future as well as to the past separation." And cites numerous authorities in support of this doctrine. had It is in evidence, that Mrs. Stout, in the summer of 1852, a child while living with her sister at San Luis Obispo, in this State. There is no proof that her husband was out of the State. On the contrary, the witnesses all speak of him as living in this State, and he is believed to have lived here continuously until the present moment. We contend that the parties must be presumed to have come together. The law presumes access of the husband in case of the birth of a child, unless it be shown that access is impossible, or the presumption of access, (which has been laid down in all the law books as a very strong presumption,) is rebutted by evidence which outweighs. 1 Black. Com., 457. Fletcher M. Haight and Joseph G. Baldwin for Respondent. 1. A deed of separation acted upon will be upheld without any trustee. See Hill on Trustees, 426, and authorities cited; 2 Roper's Husband and Wife, 292. No covenant is necessary to support the deed against the husband himself. A deed of separation usually contains a covenant by trustees to indemnify the husband against support of wife, but the absence of such a covenant on the part of the trustees will not invalidate the deed, but it is binding on the husband himself, although for the want of a proper consideration it would not hold good against existing creditors. Hill on Trustees, 426, authorities cited; 2 Atkyns, 511; Frampton v. Frampton, 4 Beven, 287; Read v. Beagley, 1 Blackford, 98; Ross v. Willoughly, 10 Price, 2; Clough v. Lambert, 10 S. 174, E. C. R., vol. 16. Claims of creditors do not intervene; appellants are neither creditors nor representatives of creditors. If they were, it would not aid, as the deed of separation was made before any debt to Jacob W. Stout. The debt is stated in the declaration, and we have no evidence of its originating earlier than April 1, 1850. Deed, February preceding. Jacob W. Stout was a brother of William Stout, and a subscribing witness to the deed of separation. Green did assent and exercise the trust, and executed the covenant on his part. "A trustee can not defeat a trust-deed by refusing to accept the trust, and, if necessary, the Court will appoint a trustee in his place." Dawson v. Dawson, Rice Ch. Reports, 152. Wells v. Stout. "The absence of a trustee in a deed of trust, is not necessary to sustain the trust, and if he refuse to accept the trust, chancery will execute it." Field v. Arrowsmith, 3 Hump., 442. No formal acceptance on the part of the trustee named in the trust-deed is necessary to pass the title. Bixler v. Taylor, 3 B. Monroe, 362; Picket v. Johns., 1 Dev. Ch., 123. 2. A deed signed, sealed, delivered, and acknowledged, which is committed to a third person as the deed of the grantor, to be delivered over to the grantee on a future event, is the deed of the grantor, presently. Wheelright v. Wheelright, 2 Miss., 447; Hatch v. Hatch, 9 Miss., 309; 3 Met., 412. A deed may be delivered as such without any act of delivery. Mills v. Gore, 20 Pick., 28, 36. It is not necessary to the validity of a deed conveying land in trust, that the cestui que trust should execute it, or express an assent to it. His assent will be presumed until the contrary is shown. Wiscrall v. Ross, 4 Porter, 321, and cases. Nor is it necessary that the trustee should sign it. De Woods v. Holland, 1 St. & Porter, 9; Belden v. Carter, 4 Day, 66; Ruggles v. Lawson, 13 Johns., 285. 3. A deed of separation, through the intervention of a trustee, is valid and binding, and may be enforced in chancery, in respect to all collateral covenants. Carson v. Murray, 3 Paige, 500; opinion of Walworth, Chancellor. This matter is fully discussed in Bright's Husband and Wife, vol. 2, p. 305, book 4, chap. 1. An agreement between husband and wife, without the intervention of a trustee, can not be enforced; though where the agreement has been acted upon it has been upheld. 4 Paige, Rogers v. Rogers, 516; Hutton v. Day, 2 Barr, 100, for a case where an agreement for an immediate separation, acted upon, was supported. Hill on Trustees, 425; ed. by Wharton, and note of the American editor. The American authorities seem also to maintain the principle that a deed providing for a future separation is not valid, though cases are to be found in which this exception was disregarded. The principle is undeniable, that in a deed of separation by a trustee on the part of the wife, an immediate separation is contemplated, and if it actually takes place, all the covenants in the deed providing for the support and alimony of the wife will be maintained. They are good at law; much more are they available upon the doctrines of equitable jurisprudence. 2 Story's Equity, §§ 1427-8; Simson v. Simson, 4 Dana, 141. Since writing the above, the case of Wilson v. Wilson, 14 Simon's Rep., in 37th vol. of English Chan. Rep., 405, contains the whole of the law, and review of all the cases. See 14 Ohio Rep., 257; 3 Barr, 100; 8 Georgia, 341. In Hill on Trustees, marginal page 428, the author says: Wells v. Stout. "And where the wife is entitled to a provision by virtue of a contract, whether contained in marriage articles, or in a covenant, or deed of settlement, it is clearly settled that the trust may be enforced in her favor, notwithstanding her adultery, although she may be living apart from her husband; and a suit by the trustees against the husband, for that purpose, may be sustained." To these propositions the author cites Sidney v. Sidney, 3 Peere Wm., 270; Blout v. Winter, ibid., 270; Moore v. Moore, 1 Ark., 286; Seagrave v. Seagrave, 13 Vesey, 439. Bright's Husband and Wife, vol. 2, p. 87, and following $10, sums up the principle "That the wife's elopeas laid down by Roper in his treatise: ment only, or her elopement and adultery, do not deprive her of the power of enforcing any of her legal or equitable rights, with The right to dower is the exception of her right to dower.' forfeited by statute." On this see same author, on page 350, § 10. At common law, adultery did not prevent the wife from enforcing her civil claims; and before the statute of Westminster 2d, she was entitled to dower, and the exception of it, by a particular provision, proves that in other cases adultery was no bar to the wife enforcing any of her rights in Courts of Justice. 4. The next point of objection is, that, by the Mexican law in force at the date of this contract, it was a nullity; and it is assumed that upon this subject the Mexican law is the same as the civil law of Spain and France. What the Mexican law, as applied to California was, at the time of the execution of this contract, there is no evidence in the case, or in the brief of our opponents. On this point we answer: Admitting the law of Spain governs, it is in substance the common law, and to be administered by Ecclesiastical Courts. Civil Laws of Spain and Mexico, by Schmidt, p. 10; 1 White, 44. Separation from bed and board might be in an ecclesiastical foSuch is the English law, or rum, but not by consent of parties. at least the doubt has been whether articles of separation will be enforced to compel a separation in fact, though all collateral engagements might. A separation is not lawful, in the strict sense of the term, now in England, unless by a decree of Consistorial Court. Separation from bed and board, to have all its legal attributes, must be by the consistorial, which answers to the Spanish Ecclesiastical Court. All this does not begin to prove that even under the civil law the husband might not be bound to pay an annuity, in consideration of being indemnified against the support and debts of the wife. In the case cited from Merlin there was no consideration. It was a mere engagement between husband and wife, without consideration, and void under any system of law, as an execuTo make a valid agreement, consideration is tory agreement. as necessary under the civil as the common law. The subject of donations inter vivos has no application to this matter. Wells v. Stout. We do not claim under a donation, but a contract. For this matter, see same author as above cited, p. 255, Schmidt Civil Laws of Spain; White, vol. 1, p. 56, and following. 5. We come now to the defendants' case. They claim under a judgment and execution against William Stout, rendered nineteenth April, 1850. The origin of the debt, as appears on the record, is subsequent to the deed of separation. The debt did not exist at date of deed. As against this judgment being for a debt subsequent to the deed, the provision for the wife was not fraudulent. Whatever may be the English decisions in former times, under our statute, as now expounded, a provision for wife or family is valid against subsequent creditors. The only test is, was the husband solvent when he made the deed. But as defendants claim under judgment, execution, sheriff's sale, and deeds duly registered, it becomes necessary to see whether these proceedings were effectual to pass any title in William Stout. To these proceedings there are several objections. Laws of 1850, p. 443. First-There was no judgment until the record was signed by the Judge, which might be done after four days. No execution could issue until after judgment signed; judgment seems to be entered nineteenth of April, but not signed until eighth of June, 1850. Execution issued twenty-sixth of April, 1850-of course, before it could issue-it was, therefore, a nullity. Second-The sale took place twenty-seventh of May, before any judgment was signed, and before any execution could issue. The whole proceeding is a nullity. It is not a case of mere irregularity; the proceeding was null and void. Common law was introduced nineteenth of April, 1850. By the common law no execntion could issue until judgment signed. Barrie v. Dana, 20 John., 307. See authorities as to common law of England, by Kirkland, arguendo. If issued before judgment signed, execution is a nullity. Practice Act was passed April 22d, 1850. The enactment requiring a record to be signed before execution, was according to the practice at common law; but we are not left here. The act entitled "An Act to organize the District Courts of the State of California," was passed March 16th, 1850; and by the thirty-first section of that act (page 96 of Laws of 1850,) no process could issue on judgment until the record was signed. Until signed it was of no validity, and the omission to sign was not amendable. See Butler v. Lewis, 10 Wendell's Rep., 542. The Court say, as to a judgment not signed, it was mere blank paper, so far as the judgment was concerned. The execution was issued after the passage of the Practice Act. The judgment and execution were after the act of sixteenth of March, 1850. The sale was the twenty-seventh of May, before any judgment, it not being signed until eighth of June. The execution was void. Wells v. Stout. 6. The point is made that Mrs. Stout, having had a child after the separation, and while living apart from her husband, is evidence of a reconciliation, which will avoid the deed of separation. A class of authorities are invoked on this point relating to the legitimacy of a child claiming as heir, and the strong legal presumption which obtains in that case in favor of legitimacy, is sought to be applied to the case at bar. On this subject it may be well to inquire what this reconciliation is, which avoids the deed, and the reason why it does so? In Bright's Husband and Wife, p. 349, it is said: "If after separation the husband and wife be reconciled and live together, that circumstance will avoid the deed or articles." In the case at bar, the evidence is, and such is the finding of the Court, that they continued to live separately, and had never lived together since the deed of separation. The reason of the principle is this, that the object, nature, and consideration of the deed is to provide a maintenance for the wife while living separately from the husband, but if they are reconciled, and live together without any new arrangement, the husband being bound under such circumstances to provide for the wife, and the law compelling him so to do, the consideration of the deed of separation fails-its object is at an end, and the former relations between the parties are resumed. It is obvious that, upon principle, the reconciliation, to avoid a deed of separation, must be a permanent reconciliation, and a living together in the restored relation of husband and wife. Even a casual intercourse, and repeated declarations of a desire to return to their former state, will not answer. The case of Hyer v. Burger, 1 Hoffman's Chan. Rep., p. 1, is an illustration of the principle. The only testimony on this subject was that of one witness, who stated that in November, A. D. 1852, he returned here from the Atlantic States, and then heard that Mrs. Stout had a child during that summer. She was living at San Luis Obispo with her brother, at the time. The witness also gave the name of the reputed father of the child. Now, the complaint was filed on the twenty-fourth of October, A. D. 1851. On the twenty-seventh of December, A. D. 1852, a decree pro confesso was taken against William Stout. The answer of such of the defendants as answered, was filed on the fourteenth of July, A. d. 1854. The answer does not pretend to set up the fact of reconciliation in avoidance of the deed, (even if the defendants could set up this defence in the face of the implied recognition of the deed by William Stout, the only party who stands in such a position as to enable him to contest it on this ground.) The rule invoked, and the authorities cited, apply only to cases of heirship. They have no application to the relations of the parties. It is a peculiar rule made by the law, in order to save |