Ridgeley v. Crandall

Mason, J., delivered the opinion of this court. The appellees instituted this action to recover the difference in value alleged to be due the plaintiffs, in the division of the real estate of Jeremiah Mullikin, the father of plaintiff’s wife, between the portion of the said realty allotted to the plaintiff’s wife, and the portion thereof allotted to the appellee’s wife, by commissioners appointed by them and a certain Jeremiah Mullikin, who was entitled to an equal share with his said ⁴⁴⁰ two sisters, in said real estate, under the will of their said father. The declaration contains the usual money counts, and the plaintiffs also filed with it an account stating their cause of action. The proof incorporated in the first bill of exceptions shows, that Jeremiah Mullikin, the testator, died in August 1850, and by his last will devised to his said three children certain real estate, consisting of houses and lots in the village of Upper Marlborough, and that the said devisees, and the said Ridgeley and Crandall agreed to have the same divided by certain commissioners, who made a division thereof, and also awarded to the said plaintiffs, to be paid by the said appellant, the sum of money claimed in this suit for the difference in the value between the portions allotted to the wdves of the said Ridgeley and Crandall; that the wife of said appeL lant was under the age of twenty-one years at the time of said division, and that the said Ridgeley stated at the time of the said partition, that he never would pay the said sum, unless he was indemnified against the claim of a Mrs. Mullikin to a part of the lot awarded to him.

The record also shows, that after the division of the said property was made, deeds were executed by the said parties for their respective portions; the said Jeremiah Mullikin, and the said Crandall and wife, and Ridgeley and wife, uniting in said conveyances, all of which bear date 9th October 1850. The record further shows, that the defendant offered to show in evidence that Mullikin, one of the devisees, had before the execution of the deeds applied for and obtained a discharge under the insolvent laws. Upon this state of facts the defendant offered several prayers, all of which were rejected by the court below, except the first, which was granted by consent. The first question which we are called upon to decide, arises out of the refusal of the court below to grant the defendant’s second prayer.

This prayer avers, “that the plaintiffs were not entitled to recover in this action, their declaration being defective in this, that they do not set out the special agreement above mentioned, and aver the performance of the said condition precedent on their part.” ⁴⁴¹ The execution and delivery of the deeds of partition or division, made in pursuance of the award of the commissioners appointed by the agreement to divide the property, was a consummation or execution of the contract by the plaintiffs. The stipulated price due under a special contract not under seal, where the contract has been executed, as in this case, so that only the payment of the money remains, can be recovered under the indebitatus assumpsit count, and it is not necessary in such case to declare upon or set out the special agreement. 11 Wheat., 237 , Perkins vs. Hart. 4 Cowen, 564. Coursey vs. Covington, 5 H. & J., 45 . Baker vs. Corey, 19 Pick., 496 .

Bank of Columbia vs. Patterson, 7 Cranch, 299 . 9 Peters’ S. C. Rep., 541. Peltier vs. Sewall, 12 Wend., 386 , This prayer, we think, was properly rejected. The third prayer seeks to shelter the defendant from his liability growing out of the contract, because his wife, whom he had himself sought to make a party to it, was an infant at the time the deeds were executed. Such a proposition is wholly untenable.

It virtually sets up the defendant’s own fraud as a protection to him. What may be the effect of this agreement upon the rights of the wife, or how far she may be enabled now or hereafter to avoid it, are questions about which we desire to intimate no opinion. But we are clear that it does not lie in the defendant, in the present proceeding, to take advantage of his wife’s infancy to avoid his own contract. This prayer is defective upon another ground, and that is, it assumes that the deeds made under the contract, to which the wife was a party, were absolutely void, if she was an