
    Murdock et al. v. Lantz et al.
    1. Where a married woman, seized in fee of an ancestral estate, joins with' her husband in a written agreement to exchange her estate for other-property, and dies before the execution of deeds of conveyance, leaving her husband and brothers and sisters, but no children, surviving: her, the ancestral estate will pass to, and vest in, the brothers and sisters, subject to the life estate of the husband.
    2. In such case the surviving husband succeeds to no interest or estate im the property that was agreed to be conveyed to the wife in exchange-for her ancestral estate, which his creditors can subject to the payment of his debts.
    3. The mere fact that during the lifetime of the wife, the possession of the-property was exchanged in accordance with such agreement, did not prevent the descent of the ancestral estate according to the statute in such ease made and provided.
    4. Proceedings, instituted under section 5 of the act to provide for the execution of real contracts in certain cases (S. & 0. 260), to obtain an order authorizing the administrator to convey lands in execution of a written agreement signed by the intestate while under coverture, are-unauthorized and void for want of jurisdiction.
    6. Such proceedings do not, as matters in pais, estop the parties thereto, who acted under a mutual mistake as to their rights, from claiming-their inheritances under the statute of descents.
    Error to tbe District Court of Vinton county.
    ' The original action, which was in the nature of a creditor’s bill, was brought by defendants in error, against plaintiffs in error, to subject certain real estate, being two-tracts of land, containing, in the aggregate, forty-five and a half acres, alleged to be the property of Owen T. Gunning, to the payment of a judgment against said Gunning- and others. The judgment sought to be thus satisfied was rendered in favor of one Charles Traphagen, and against said Gunning and one Henry S. Hamilton, as principal debtors, and against the defendants in error as sureties-only. The sureties having paid the judgment creditor took an assignment of the judgment, and, being thus subrogated to the rights of Traphagen, prosecuted the original action for reimbursement.
    The sole issue, in the case related to the title and interest of Gunning to and in the forty-five and a half acres ■of land.
    Wesley Pierce and wife, also judgment creditors of ■Gunning, were made parties, and sought like relief.
    On appeal to the district court, the case was submitted upon the pleadings, an agreed statement of facts and certain exhibits, and a decree was rendered in favor of the judgment creditors.
    The following is the agreed statement of facts:
    
      “First. It is agreed that the plaintiffs, as the securities ■of O. T. Gunning and Henry S. Hamilton, deceased, paid ■oil' the judgment in the amended petition mentioned, and that no part of the same, so paid by them, has been refunded by the said Gunning,' or Hamilton, or any one for them, or for either of them, and that the amount so paid -by plaintiffs, as such securities of said Gunning, upon said judgment was, and there is now due plaintiffs, the sum of $2,261.56, and interest from January 20, 1869, and .$28.24 costs of suit, and that said judgment has been assigned to plaintiffs, and is in full force.
    
      “Second. That Wesley Pierce and wife recovered a judgment in Yinton county Common Pleas, October 18, 1866, for the sum of $656.70, and costs amounting, with increase costs, to $32.14, which said judgment remains in full force, and is wholly unpaid.
    “ Third. That said Hamilton’s estate is insolvent, and was so at the time of the recovery of said judgments; that said ■Gunning was also, at the time of the recovery of said judgments, insolvent, and had no goods or chattels, lands or tenements, whereon to levy and make such judgments, or either of them, or any part thereof, and has so remained ■insolvent to this time, unless as the heir of his wife, upon her death, as hereinafter stated, he became the owner of ■certain real estate.
    
      “Fourth. At the time of the recovery of said judgments, the said Gunning was married to Martha A. Gunning, and ■continued to be her husband until her death, on the 26th •day of July, 1870.
    
      “Fifth. On April 5, 1870, said Martha A. Gunning, in her own right, was the owner by deed of gift, from her father, Patrick Murdock, Sr., of the one hundred and thirty-two and a half acres of land mentioned in the amended petition of plaintiffs, and the defendant, Patrick Murdock (son of Patrick Murdock, Sr.), was then the ■owner of the forty acre tract, and the five and a half acre tract mentioned in said petition, subject' to the life estate of Mary Murdock therein, and on the 5th day of April, 1870, the said Gunning and his wife, Martha, entered into an agreement, in writing, with the said defendant, Patrick Murdock, for the exchange of her said one hundred and thirty-two and a half acres of land for the interest of said defendant, Patrick Murdock, in the forty, and five and a half acre tracts, a true copy of said contract is attached to and made part of the said amended petition, and marked “A,” and that said Patrick was immediately, after the execution of said contract, and before the death of said Martha, put into possession of said one hundred and thirty-two and a half acre tract, and that he and his assigns have ever since held such possession.
    
      “Sixth. That on July 26, 1870, Martha A. Gunning died intestate, and without issue,.leaving her husband, Owen T. Gunning, surviving her, and leaving also surviving her, her brother, defendant, Patrick Murdock, and her sister, Sarah Grattan — her only brother and sister. That up to said July 26,1870, no conveyance or deed had been made by said Gunning and wife, or either of them, or by said Patrick Murdock, for said real estate mentioned in said petition.
    
      “Seventh. That on July 26, 1870, after the death of the ■said Martha, the plaintiffs caused an execution to be issued on said judgment, and the same was levied upon said forty, and five and a half acre tracts of land as the property of said Owen T. Gunning, but said five and a half acre tract not being correctly described in such levy, an alias execution was issued-June 2, 1874, and levied upon said tracts,, properly describing them. That on July 28, 1870, an execution was issued on said judgment of said Pierce and ■wife, and levied on said forty, and five and a half acre tracts’ of laud as the property of O. T. Gunning, but said five and a half acre tract not being properly described therein, on June 2,1874, an alias execution was issued, and levied upon both of said tracts, properly describing them. At the time of the said levies, Mary Murdock was in the possession of said two tracts of land so levied upon, and held the same-under her said life estate therein.
    “Eighth. Shortly after the decease of Martha A. Gunning, one George Craig was appointed administrator of her estate, who thereupon filed a petition in the probate-court of said Yinton county, Ohio, asking for authority to-convey said one hundred and thirty-two and a half acres of land to the said defendant, Patrick Murdock, according' to the terms of such written agreement, and such proceedings were had in said suit, that on April 29, 1871, said probate court granted the prayer of said petition, and ordered that said administrator, of said Martha A. Gunning, be authorized to complete said contract, and to deliver to; the said Patrick Murdock a quitclaim deed for said one-hundred and thirty-two and a half acres of land; and, in accordance, with said decree, said administrator executed and delivered to said Patrick Murdock, defendant, a quitclaim deed for said one hundred and thirty-two and a half acre tract, and said deed was accepted by him; and that he, the said Patrick, has since sold said lands, and conveyed' them by deed of general warranty, and converted the proceeds to his own' use. Said proceedings of the pi’obate court are fully stated in the record of the said court, a copy of which is hereto attached, marked ‘ A,’ and made part hereof. That thirty-two days after the delivery of said deed, from said George Craig, administrator, etc., to-said Patrick Murdock, said Patrick sold and conveyed said one hundred and thirty-two and a half acre tract to one T. M. Bay, who held a mortgage upon the same, made to him h}*- said Gunning and wife. Copies of said deeds, from said George Craig, administrator, to said Patrick Murdock, and from said Patrick Murdock to T. M. Bay, are hereto attached and made part hereof, respectively marked ‘ B ’ and ‘ C.’
    “ Ninth. No conveyance of said forty, and five and a half acre tracts was made to Owen T. Gunniug by the said Patrick Murdock, but the undivided one-half thereof was conveyed by him to his sister, the said Sarah Grattan, and subsequently, in the adjustment of some unsettled business between the said Patrick Murdock and his sister, Sarah Grattan, legatees of the estate of their father, Patrick Murdock, Sr., the said Sarah and her husband conveyed to the said Patrick, both said forty, and five and a half acre tracts entire; said deed, from Patrick to Sarah, was dated April 29, 1871, and was a deed of quitclaim; said deed, from said Sarah and her husband to Patrick, was dated October 3, 1872.
    “ Tenth. The costs of said proceedings in the probate court was paid by said Patrick Murdock, at whose instance said administrator was appointed, and said proceedings for the completion of said contract was instituted; and, that aside from the filing of said petition, and procuring the completion of said contract, nothing else was done by said administrator, save to file his account for the-settlement of said estate, which was done and confirmed.
    “ All the foregoing facts are admitted for the purposes of this case only.
    “ It is agreed that this case shall be submitted to the court for final determination upon the pleadings, and the foregoing, and the exhibits hereto attached, as the agreed statement of facts in the case, and such a decree rendered in respect to all the parties in the ease, including Nelson, Richmond, and Brooks, Fahenstoek & Co., who have filed cross-petitions herein, as is legal and right upon such said pleading and facts. “ W. A. Hutchins,
    “ J. M. McGillivray,
    “ Counsel for Plaintiffs.
    
    
      “ O. E. Moore,
    “ Levi Dungan,
    “ Counsel for Defendant, Murdock.”
    The following is a copy of the agreement referred to .in the agreed statement of facts:
    “ Agreement between Patrick Murdock and 0. T. Gunning and Martha A. Gunning. The parties agree to exchange property, as follows: Patrick Murdock to give a quitclaim deed to Martha A. Gunning for the land formerly owned by Wm. Iioffhines, situate in Clinton township, Vinton county, Ohio, being the part of section 4, township 10, and range 17, containing forty acres, more or less, and for the brick house and lot in which now live Mary Murdock and said Gunnings. And said O. T. Gunniug and Martha A. Gunning agree, in consideration of above, to give to said Patrick Murdock a quitclaim deed to the land in Clinton township, Vinton county, Ohio, sitúate in section 9, township 10, range 17, containing one hundred and thirty-two and a half acres, more or less, being a paid of the old “ Craig farm,” and now owned by said Martha A. Gunning. Patrick Murdock agrees, further, to pay a mortgage on said one hundred and thrrty-two and a half acres, of $1,200, given to T. M. Bay. Gunning agrees to pay interest on same, due 26th April, 1870, being $120. Patrick Murdock and O. T. Gunning also agree, among themselves, to cancel and settle herein all claims that each may have against the other, arising from their being partners in the firm of Gunning & Murdock, but the balance now owed by said firm to be paid by both equally, share and share alike. It is understood that the deeds above be made as soon as possible hereafter.
    “ The above agreement entered into this 5th day of April, 1870.
    
      [U. S. Rev. “ O. T. Gunning,
    
      Stamp. “ Martha Gunning,
    25 cts. canceled.] “ Patrick Murdock.”
    
      The pleadings and other exhibits do not affect the case as above stated. It is now alleged, for error, that the decree below should have been in favor of the plaintiffs in error.
    
      DeSteiguer, Jewett, ‡ Slattery, for plaintiffs in error:
    The agreement, being that of a married woman, was void both in law and equity. 1 Parsons on Contracts, 345-6; 15 East. 607; Littlefield v. Shee, 2 B. & Ad. 811; Meyer v. Haworth, 8 A. & E. 467; Eastwood v. Kenyon, 11 Id. 438; Watkins v. Halstead, 2 Sandf. 311; Waters v. Bean, 15 Geo. 358 ; Needles v. Needles, 7 Ohio St. 432; Phillips et al. v. Graves wife, 20 Ohio St. 371; Dunlap v. Mitchell, 10 Ohio 117; Swasey § Co. v. Antram § Co. 24 Ohio St. 87; Edwards v. Edwards, 24 Ohio St. 413; 1 Parsons on Contracts, 366; Butler v. Buckingham, 5 Day, 492; Watrous v. Chalker, 7 Conn. 224; Bressler v. Kent, 61 Ill. 426 (14 & 224); Draper v. Stouvenel, 35 N. Y. 512; Kidd v. Conway, 65 Barb. 158; 3 Leading Cases in Equity, 90; Slater v. New, 49 Miss. 307; Young v. Paul, 2 Stockton Ch. 402; Clark v. Reins, 12 Grattan, 98; Evans v. Kingsbury, 2 Randolph 120; Watts v. Kinney, 3 Leigh, 272; Brush v. Kingsley, 14 Ohio, 20 ; 13 Ohio St. 131.
    
      W. A. Hutchins and J. M. McGillivray, for defendants in error:
    I. The making of the contract of exchange, the placing the plaintiff in error in possession of the one hundred and thirty-two and a half acres, and the other acts of said par-ties in relation to said contract, created in said Martha A. Gunning an equity in said forty, and five and a half acres, and said equity, upon her death, descends to her heir O. T. Gunning. Lessee of Avery v. Dufrees, 9 Ohio, 147; Livingston v. Newkirk, 3 Johns C. 316; S. & S. Stat. 304, § 1.
    II. As to mutuality.
    1. Mrs. Gunning was bound in equity. The distinction between a wife’s “ general estate,” and her “ separate estate,” no longer exist. Phillips v. Graves, 20 Ohio St. 372; 
      Levi v. Lari, 30 Ohio St. 147. 2. And specific performance at the time of Mrs. Gunning’s death would have been decreed even as against her. Bain v. Bickett, 1 C. S. C. R. 164; Salisbury v. Hotch, 2 Y. & C., chap. 62 ; Hout v. Hout, 20 Ohio St. 119; Farley v. Palmer, 20 Ohio St. 223; Hostetter v. Grant, 18 Ohio St. 126; Shoenbergerv. Zook, 34 Pa. St. 24; Parsons on Contracts, 412; Edwards v. Edwards, 24 Ohio St. 414.
    III. The probate court had jurisdiction. 1 S. & C. 260, § 5. It is a court of record and its findings and decrees import absolute verity. 3 Ohio St. 498; 16 Ohio St. 456; 13 Ohio St. 446.
    IY. The doctrine of estoppel applies. 2 Story’s Eq. Jur., •§ 1546; 11 How. 326; 2 Ohio. St. 559; 5 Ohio St. 318; 13 Ohio, 400; 22 Ohio St. 584; 3 Lansing, 14; 22 Ohio St. 190; 15 Ohio St. 64; 8 Ohio, 529; 54 N. H. 398; 52 Ga. 183; 5 Ohio, 195 ; Id. 452 ; 7 Ohio, part 1, 228; 11 Ohio, 478; 8 Ohio, 107 ; 12 Ohio St. 240.
   McIlvaine, J.

The claim of the plaintiffs below was, that Mrs. Gunning died seized of an equitable fee in remainder to the forty, and five and a half acres of land, which vested in her husband upon her death, and thus became subject to the payment of his debts.

It is not disputed, that if Mrs. Gunning died possessed of any estate in the forty, and five and a half acre tracts, the same, being non-ancestral property, passed to and vested in the husband absolutely at her death. Nor is it disputed, on the other hand, that if she died seized of any beneficial interest in the one hundred aud thirty-two and a half acre tract, that it, being an ancestral estate, passed to and vested in her brother and sister upon her death, subject, however, to the life estate of her husband.

It is a conceded fact, that prior to the 5th day of April, 1870, Mrs. Gunning was seized as of an estate in fee simple of the one hundred and thirty-two and a half acre tract, and had no interest, legal or equitable, in the forty, and five and a half acre tracts. The question, then, is, how were her relations to these several parcels of land affected by the written agreement .entered into on that day for an exchange? There can be but one answer to this question, namely: That, by reason of her coverture, the agreement, as to her, was absolutely void. In respect to such agreements, as the one under consideration, the disability of a married woman has in nowise been removed by our legislation. The contract being void, she did not thereby part with any interest in the one hundred and thirty-two and a half acre tract, or acquire any in the forty, and five and a half acre tracts. Nor did the possession taken by her brother, Patrick Murdock, at all affect her estate in the one hundred and thirty-two and a half acres, either in law or in equity; so that, at her death, the title to this tract of land passed to and vested in her brother and sister, subject to the life estate of her husband; and the brother and sister, as heirs of Mrs. Gunning, were no more obligated by this agreement than ■was Mrs. Gunning in her life-time. This possession, being without right, was subject to be determined at the will of Mrs. Gunning, or her heirs after her death.

Nor do we find anything in the record, occurring after the death of Mrs. Gunning, which has vested in Owen T. Gunning any interest in the forty, and five and a half acre tracts. The proceeding in the probate court had no relation to these parcels, and as to the one hundred and thirty-two and a half acre tract, the action of the court, as well as the action of the administrator under its orders, were wholly ineffectual to transfer the title, for the want of jurisdiction in the court to entertain the proceeding. That court, no doubt, assumed jurisdiction under section 5 of the act of June 1, 1831, entitled “ an act to provide for the execution of real contracts in certain cases ” (Swan & Critchfield, 260), in connection with section 3 of the Probate Court Act (Swan & Critchfield, 1213). The subject matter of the proceeding authorized by these statutes is a “ contract in writing,” which implies that it must be entered into by a person capable of binding him or herself by contract, and does not embrace an agreement, although in writing, of one whose agreement is void for want of capacity to contract.

We think the question arising here is one of jurisdiction, and not of mere irregularity; but, were it otherwise, the proceeding is intended to operate alone upon the legal title, and, if the jurisdiction of the court were conceded, it appears in this ease that the legal title to the one hundred and thirty-two and a half acres was not transferred, at all, as the deed which the administrator of Mrs. Gunning assumed to execute, under the order of the probate court, was not attested by two witnesses, as the statute in such case made and provided requires.

Inasmuch, therefore, as the heirs of Mrs. Gunning are not estopped from claiming the one hundred and thirty-two and a half acres, either by the record or the deed, neither are they estopped in equity by matter in pais ; for the simple reason that whatever acts have been done by them in respect to her estate or her supposed contract for the exchange of lands, the same were done under a mutual mistake as to their rights ; and as the creditors of Owen T. Gunning have not in any wise been prejudiced thereby, equity can find no footing for the enforcement of an estoppel.

And, again, it is quite clear that the creditors of Gunning may not claim an equity as against Murdock, which Gunning himself could not enforce. Now, as between Murdock and Gunning, it would seem clear enough that the former, not having performed the contract on his part, could not enforce performance on the part of the latter; and it would also seem that if performance on the part of Murdock were tendered, still, on the grounds of public policy, equity would not compel specific performance of a husband’s contract for the conveyance of his wife’s land, even to the extent of his own interest therein. Slater v. New, 49 Miss. 307 ; Young v. Paul, 2 Stock. Oh. 402 ; Clark v. Reins, 12 Grattan, 98; Evans v. Kingsbury, 2 Randolph, 120; Watts v. Kinney, 3 Leigh, 272 ; 3 Lead. Cases in Eq. 90. But however that may be, Gunning has not performed the contract on his part. The title to the one hundred and thirty-two and a half acres has not been conveyed to Murdock, or tendered — not even to the extent of Gunning’s life estate ; and the legal or equitable estate to the remainder is not in him or under his control. lie could not, if he were willing, perform the agréement of himself and wife to Murdock. And, surely, in this state of the case, Gunning would have no standing in equity against Murdock to enforce the conveyance of the forty, and the five and a half acres to him. And if not, his creditors have not.

Judgment reversed, and cause remanded to the district court for such further proceedings as may be authorized.  