* 72

They must therefore be in writing in England, and in those of our States which have enacted this clause of the Statute of Frauds. And the celebration of the marriage is not such part performance of the contract as to take it out of the statute. (w) (xx) But the Court of Chancery has frequently interfered where there was a writing, and in some instances where there was none, to compel parties to carry into effect the intentions of such a contract, or the expectations justly raised by the conduct and declarations of relatives and friends. (x) But a mere representation concerning the property or prospects of a party about to be married, if made in good faith, will not bind a party to make it good, even in equity, although the representation be untrue in fact. (y) Letters from parents, or persons standing in loco parentis, promising provisions, if sufficiently specific and explicit, have been held to satisfy the requirements of the statute. (2)

Contracts or gifts by way of settlement upon a wife, after marriage, are valid if not in fraud of creditors. (zz) (yy) If the husband were insolvent at the time, they would be deemed fraudulent; but they would not be deemed necessarily fraudulent, if he were not insolvent, although he was indebted at the time; but a fraudulent intent might be shown and it would invalidate the settlement. (za) If those who were creditors at the time fail to receive

(w) Dundas v. Dutens, 1 Ves. Jr. 196; Montacute v. Maxwell, 1 P. Wms. 618; s. c. 1 Stra. 236. In Simmons v. Simmons, 6 Hare, 352, it is said that although a parol agreement by the husband, made before marriage, that the wife should possess certain chattels for her own use, is not binding upon him, yet if the parties voluntarily place the property under the dominion of trustees as part of the property under trust, the agreement may then be made effectual.

(x) Hunsden v. Cheyney, 2 Vern. 150; Beverley v. Beverley, id. 131.

(y) Mereweather v. Shaw, 2 Cox, 124.

(2) Bird v. Blosse, 2 Vent. 361; Seagood v. Meale, Prec. Ch. 561; Cookes v. Mascall, 2 Vern. 200; Moore v. Hart, 1 id. 110. In Wankford v. Fotherley, 2 id.

(xx) Hunt v. Hunt, 171 N. Y. 396, 64 N. E. 159.

(yy) Ante-nuptial contracts can be successfully assailed by existing creditors only when both the parties participated in the fraud, or had notice thereof. Boggess v. Richards, 39 W. Va. 567, 20 S. E. 599; Dent v. Pickens, 46 W. Va. 378, 391, 33 S. E. 303. See 1 Perry on Trusts (5th ed.), SS 104-111; 2 Kent Com. (4th ed.)

See

322, £3,000 were decreed to be paid on
the strength of a letter written by the
father's direction, wherein he offered to
give £3,000 portion with his daughter.
He was afterwards privy to the marriage,
and seemed to approve thereof.
Ayliffe v. Tracy, 2 P. Wms. 65. In
Douglas v. Vincent, 2 Vern. 201, an
uncle promised by letter to give his niece
£1,000, "but in the same letter dissuaded
her from marrying the plaintiff;" and
the court refused to decree payment, but
left the plaintiff to his action at law.

(2) Williams v. Avery, 38 Ala. 115; Belford v. Crane, 1 Green, 265; Woolston's appeal, 51 Penn. St. 452; Patrick v. Patrick, 77 Ill. 555; Lloyd v. Fulton, 91 U. S. 479.

(za) Larkin v. McMullin, 49 Penn. St.

p. 441 and notes. When husband and wife each convey their property to a trustee who at the same time reconveys to each separate portions of the property, the three deeds are a part of the same transaction, and are to be construed together. Sutton v. Beckwith, 68 Mich. 303, 36 N. W. 79, 13 Am. St. Rep. 344, 351 n.; Leach v. Rains, 149 Ind. 152, 48 N. E. 858.

their debts, this would go far to prove legal fraud; and hence it is said that a voluntary conveyance by a husband to or for his wife cannot be sustained against existing creditors. (zb)

73

Contracts have been frequently declared void, on the ground that they were in fraud of settlements and marriage portions, or promises thereof. As where a private bargain was made with the husband, or even with husband and wife, to pay back a part of the wife's portion; (a) or to return a part of an * annuity or other provision apparently given to a son to enable him to marry; (b) or to restore money given to impart to one an appearance of wealth by which he or she may induce another to marry him. (c) A note given fraudulently to induce a marriage contract is good against the maker. (d) So creditors who conceal or deny debts due to them from a man about to be married, that their debtor may get the consent of the woman or her parents to the marriage, are bound by such representations as effectually as by a release. (e) Any private agreement impairing or avoiding an open and public treaty of marriage, is considered fraudulent; and it is sometimes laid down as a principle, that whoever acts fraudulently in such cases shall not only not gain, but shall lose by his fraud.

How far a direct gift or transfer, without consideration, of land from husband to wife is valid,1 and in what way it may be made effectual, must depend in each State upon the present condition of the statute law in that State in relation to the rights and powers of husband and wife, and of the adjudication on this sub

29; Clayton v. Brown, 30 Ga. 490; Clawson v. Clawson, 25 Ind. 229; Moritz v. Hoffman, 35 Ill. 553.

(b) Sargent v. Chubbuck, 19 Iowa, 37. (a) Thurton v. Benson, 1 P. Wms. 496, s. c. 2 Vern. 764; Pitcairn v. Ogbourne, 2 Ves. Sen. 375. See also Jack son v. Duchaire, 3 T. R. 552.

(b) Peyton v. Bladwell, 1 Vern. 240; Palmer v. Neave, 11 Ves. 165; Morisone v. Arbuthnot, 8 Bro. P. C. 247.

(c) Scott v. Scott, 1 Cox, 357; Thomson v. Harrison, id. 344. In this last case,

1 Gifts or conveyances are, however, good as between the husband and wife themselves, Kitchen v. Bedford, 13 Wall. 413; Hunt v. Johnson, 44 N. Y. 27; Sims v. Rickets, 35 Ind. 181; such as choses in action, Campbell v. Galbreath, 12 Bush, 459; an assignment of a claim, Seymour v. Fellows, 77 N. Y. 178; a deposit in a savings bank to her account, Spelman v. Aldrich, 126 Mass. 113; see Way v. Peek, 47 Conn. 23; and rents and profits of land, Hutchison v. Mitchell, 39 Tex. 487. Neither a child, not dependent, Horder v. Horder, 23 Kan. 391, nor his heirs, can impeach such a gift or conveyance if reasonable. Crooks v. Crooks, 34 Ohio St. 610; Majors v. Everton, 89 Ill. 56. A wife may encumber or dispose of land so conveyed. McMillan v. Peacock, 57 Ala. 127; Myers v. James, 2 Lea, 159. - K.

VOL. II. - -6

81

ject. At common law, and now therefore wherever the common law is unchanged, such gift or transfer, unless through the medium of a trustee, would be void. Recent decisions have held, in Ohio, that the conveyance is void both in law and equity; (ee) in Arkansas, that it is void at law, but (being bonâ fide) will be sustained in equity; (ef) and in Michigan, that husband may make such conveyance at law. (eg) Although the husband be insolvent or bankrupt, he may give the wife whatever neither his creditors nor assignees could take. (eh)

SECTION III.

CONTRACTS IN RESTRAINT OF MARRIAGE.

These contracts are wholly void. It has been held, that a promise to a woman to marry no one but her was such a contract. (f) So a bond by a widow not to marry again. (g) So a wagering contract that the party would not marry within six years. (h) But a promise by one with whom a woman had cohabited, to pay her an annuity for life provided she remained single, was held to be good. (i)

as

*74 There are certain contracts spoken of in English books marriage brocage (or brokerage) contracts." They are contracts for payment of money, or some other compensation, for

(ee) Fowler v. Trebein, 16 Ohio, 493. (ef) Eddins v. Buck, 23 Ark. 507. (eg) Burdeno v. Amperse, 14 Mich. 91. (ch) Smith v. Allen, 39 Miss. 469. (f) Lowe v. Peers, 4 Burr. 2225. (g) Baker v. White, 2 Vern. 215. (h) Hartley v. Rice, 10 East, 22, cited ante, p. 64, note (g). In Sterling v. Sin

nickson, 2 Southard, 756, a bond to pay $1,000, if the obligee (the plaintiff) were not married within six months, was declared void.

(i) Gibson v. Dickie, 3 M. & Sel. 463. See also Lloyd v. Lloyd, 10 E. L. &. E. 139.

1 Thus a contract to pay a sum of money on condition that the payee do not marry within two years, and if he marries, to pay a certain sum for each day he remains single, is contrary to public policy and void, and money paid as the consideration cannot be recovered, the parties being in pari delicto. Chalfant v. Payton, 91 Ind. 202. So a condition attached to a gift or legacy that the donee or legatee remain unmarried is void, and if a condition precedent the gift or legacy never vests, if a condition subsequent the gift or legacy is never divested. Bellairs v. Bellairs, L. R. 18 Eq. 510. But such a condition may be attached to a gift or legacy to a widow or widower. Allen v. Jackson, 1 Ch. D. 399. Property may also be given, devised, or bequeathed to a single woman for her use so long as she remains unmarried, and on her marriage her interest in the property will cease, the object appearing to be not to restrain marriage but to make provision for the woman's support while unmarried. Jones v. Jones, 1 Q. B. D. 279; Arthur v. Cole, 56 Md. 100. A bequest to a married woman living with her husband "during such time as she may live apart from her husband, before my son attains the age of twenty-one years, the sum of £2 10s. per week for her maintenance whilst so living apart from her husband," is void. In re Moore, 39 Ch. D. 116. — W.

the procuring a marriage; and they are held to be void, both in law and equity, as against policy and morality. Courts in England are very hostile to any contract of this nature or effect; particularly if made with a guardian, or with a servant, or one to whose selfish and injurious influence the party would be much exposed. Such a contract is set aside, without reference to the propriety or expediency of the marriage. (j)

SECTION IV.

CONTRACT OF MARRIAGE.

The relation of marriage is founded upon the will of God, and the nature of man; and it is the foundation of all moral improvement, and all true happiness. No legal topic surpasses this in importance; and some of the questions which it suggests are of great difficulty.

The first which presents itself is, What constitutes a legal marriage? It is impossible that any question should be more important to any one in itself, or in the consequences which it involves, than whether he or she is or is not a husband, or a wife; and yet some uncertainty may often rest upon it, not merely from the peculiar facts of individual cases, but from a *want *75 of precision and certainty in the principles or rules which decide this question.

The Roman civil law declared, that " sufficit nudus consensus ad constituenda sponsalia." (k) Chancellor Kent quotes another passage from the Digest, "Nuptias, non concubitus, sed consensus facit," and adds: “This is the language equally of the common and canon law, and of common reason." (1) If this means that the consent of the parties is the essence of marriage, and that the

(j) Stribblehill v. Brett, 2 Vern. 445. In this case a lease was set aside, "upon surmise that the consideration of the lease was Col. Brett's (the lessee's) undertaking to procure a marriage to be had between Mr. Thynn (the lessor) and the Lady Ogle," although the lease was not made until six months after the marriage; as appears from the case as reported in 1 Bro. P. C. 57. See also, Hall v. Potter, 3 Lev. 411; s. c. Show. P. C. 76. This too arose from Mr. Thynn's desire to marry Lady Ogle. He gave an obligation to Mrs. Potter for £1,000, conditioned to pay £500 within three months after he should marry Lady Ogle. A bill was brought by Thynn's

executors for relief against the bond.
Their ground was, that Mrs. Potter only
advised Thynn to apply to Brett, so that
she did nothing to earn the money, and
next that such contracts were of danger-
ous consequence. The defence was, that
the "marriage was suitable in respect of
their estates," and "that Thynn's estate
was £10,000 a year, and he a gentleman
of a great family, though not of the no-
bility." But the bond was declared void
by the Lords, reversing the decree in
Chancery. See also Smith v. Bruning,
2 Vern. 392.

(k) Dig. lib. 23, tit. 1, § 4.
(4) 2 Kent Com. 87.

ceremonies of celebration are but its form, it is undoubtedly true. But it is said consent suffices for marriage, makes marriage; and if this be literally taken, we suppose it open to doubt whether this be law in any of the countries of Christendom, at this moment. Even the Roman civil law says, "justas autem nuptias inter se cives Romani contrahant, qui secundum præcepta legum count." (m) In Scotland it is, or was, the law that consent, manifested by declaration before witnesses, and followed by consummation, constituted a legal marriage. (n) Hence the practice of resorting by those in England who wished to escape the marriage laws of that country, to Gretna Green, which was the village in Scotland most accessible from England. But even this was consensus et concubitus;" not consensus non concubitus." In England the common law provided no special form or mode, but the whole matter was under the ecclesiastical or canon law; but the statutes of England are, and for some time have been, precise and stringent, if not, as some there have thought, severe. In all Christian countries of which we have any knowledge, and as we suppose in all civilized countries, certain ceremonies are prescribed for the celebration of marriage, either by express law, or by a usage which has the force of law. And the question is, whether a mere consent of the parties, even with mutual promises, but

without any use of or reference to any of these ceremonies, *76 is sufficient to constitute a valid marriage. In the case of

Milford v. Worcester, (o) the Supreme Court of Massachusetts give a somewhat elaborate statement of the reasons which led them to the conclusion that a marriage is not valid if it do not conform to the statutory requirements. In New Hampshire, in the case of Clark v. Clark, (p) the court say: "But in most governments the contract is held to be valid and binding, notwithstanding it is entered into with no rites or ceremonies." But they had said before "it is a contract and relation to be regulated not by the mere will of the parties, but by the general

(m) Inst. lib. 1, tit. 10.

(n) It is not quite certain that cohabitation was necessary by the Scotch law to constitute a legal marriage, if the contract were per verba de præsenti. For a very full and learned discussion of the law of Scotland concerning marriage, see Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, and the appendix to that volume.

(0) 7 Mass. 48. In Fenton v. Reed, 4 Johns. 54, the court say: "No formal solemnization of marriage is requisite. A contract of marriage made per verba de

præsenti amounts to an actual marriage, and is as valid as if made in facie ecclesia." The opinion was probably given by Mr. Chief Justice Kent, who uses the same language in the first edition of his Commentaries. But the remark is somewhat obiter, and perhaps did not receive the particular attention of the court; the case being decided on the ground that the cir cumstances of the case warranted an inference of actual marriage.

(p) 10 N. H. 383.