
    Crooks et al. v. Crooks.
    1. A deed for the conveyance of land executed by a husband to his wife, without the intervention of a trustee, and intended as a suitable provision for her, though void at law, may be enforced in equity.
    '2. But such deed will not be enforced in equity to the prejudice of the rights of creditors or of children for whom no provision has been made.
    :3. Where a child complains against such provision for the wife, the burden of showing that no provision had been made in its favor rests upon the complainant,
    
      A. Where the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the grantee, the title passes to the grantee upon such last delivery, and, by relation, the deed takes effect as of the date of the first delivery.
    ■ Error to the District Court of Mahoning county.
    The original action was brought by plaintiffs in error, as heirs at law of James Crooks, Sr., against the defendant in ■error to recover the possession of twenty-five acres of land. They also prayed for the sale of the land as upon partition •among themselves, subject to the dower estate of the defendant, and that a certain deed from James Crooks, Sr., to the defendant, under which she claims title, should be ■declared void and of no effect.
    The defendant, by way of answer and cross-petition, set up the facts hereinafter stated as the findings of the district court, and prayed to be quieted in her possession, and that the claim of right and title in the plaintiffs should, under the order of the court, be released to her.
    
      Upon appeal to the district court, the cause was heard upon testimony, on consideration whereof the court found the following state of facts, to wit:
    That about the year 1827, Anthony Osborn, Jr., then husband of defendant, for $400 obtained from his father a ■deed of conveyance of fifty acres of land, which includes the twenty-five acres described in the petition; that half ■of the $400 remained unpaid; that Anthony, Jr., about two years after receiving said deed, died, leaving said defendant as his widow, and two minor daughters; that defendant, without taking out letters of administration on his estate, or having anything set off to her as widow, or for years support of herself and family, sold off the per.sonalty, and with the proceeds paid the remaining debt due for the land; that without applying to have her dower set off in said land, she continued with her young daughters, supporting herself and them in the possession of said land for a period of about seven (7) years, when she married James ■Crooks, Sr., the father of James Crooks, Jr., and others, plaintiffs herein; that said James Crooks, Sr., with his four minor children, went to live with said defendant (his wife) and her two minor daughters, on said fifty acres, and said James Crooks, Sr., and defendant occupied said fifty acres thenceforward and supported their two sets of children ; that said James Crooks, Jr., one of the plaintiffs, married one of said daughters of defendant, she being one of the heirs of Anthony Osborn, Jr., and entitled to half of said fifty acres, subject to the dower right of defendant, ■said daughter, without having had partition or possession ■of said fifty acres, died, leaving a daughter (grand-daughter ■of defendant), to whom, after her marriage with one Calvin Osborn, by amicable arrangement with said James Crooks, Sr., and defendant, the east half of said fifty acres was set off, leaving the west half of said fifty acres, where the homestead dwelling-house of defendant and James Crooks, Sr., was situated, being the twenty-five acres in ■dispute, still in the occupancy of said James Crooks, Sr., and his wife, said defendant; that said James Crooks, Sr., in further consideration of $255, received a quitclaim deedi from Mary Ann McMillin, wife of Charles McMillin,. daughter of defendant and heir of Anthony Osborn, Jr., of her interest in said land ; that said James Crooks, Sr.,, and defendant (husband and wife) continued to live in said homestead on said twenty-five acres, where she has lived ever since her first husband’s death, and until the death of James Crooks, Sr., which occurred April 13, 1871, and defendant has remained in possession ever since his death and is still in possession ; that previous to the death of said James he made, executed, and acknowledged in due-form of law, stamped and stamp canceled to said defendant as grantee, a warranty deed in fee simple of said homestead, twenty-five acres of land described in the petition, a copy of which deed is substantially given in the petition, the nominal consideration of which is stated therein at five dollars ; that the witnesses thereto, after the apparent date of the deed, in the fore part of March, 1871, at the request of said James Crooks, Sr., grantor, went to his house, and tñere, in his presence, witnessed said deed, and the same was then handed by grantor to defendant to take care of, but nothing was then paid by defendant to him, nor was it then acknowledged nor was any notary or officer present; that afterward, in a few days, Singleton King, the-notary, went to the house of Crooks and defendant and took the acknowledgment of said deed, and made and sealed his certificate; that when said deed was so completed, the same was then put by Crooks into the hands of said King to keep safely till needed; that said King kept the same till the death of said Crooks, and soon after, in a few days, defendant called on said King for said deed, and said King delivered the deed to defendant, and told her to-put the same on record, which she did accordingly on the 20th of April, 1871, and the same was recorded in the proper office and handed to her after record, and she still holds said deed.
    The court further finds that no actual consideration in money or property passed from said defendant to her said husband at the time of the making of said deed or the delivering to said King to keep. During said trial, said defendant, in her own behalf, was offered, sworn, and testified ■as a witness, and was inquired of as to matters occurring before her husband’s decease, in relation to said deed and the making thereof, to which plaintiffs objected. Said defendant testified that said James Crooks, Sr., in the presence of said King, handed said deed to King, and told him to keep it safely till it was needed — till the proper time ■came; that said James stated in the presence of a Mrs. Irwin and another that he intended to give his wife all he ■had; what little he had left; that she would need it; that ■he had no money to give her, and nothing to compensate •her for her care of him in his sickness, but this property; to which allowance to testify to said matters, and to which testimony as given by defendant, the plaintiffs excepted.
    The court finds that the facts as above stated, and natural love and affection, constituted the motives, and the only motives, which induced the said James Crooks, Sr., deoeased, to execute said deed to his said wife.
    The court further finds that said James Crooks, Sr., made said deed and delivered the same to said King to hold and keep till his decease, for the purpose of being delivered to •said defendant, by said King, after his decease; that he intended to give said property to the defendant; intended that she should have the same at his- decease, and took this mode of giving and transferring the same to her and investing her with title.
    The court find that said deed was delivered to her by said King, after the decease of said James, according to the intention, purpose, and direction of said James Crooks, the .-grantor, and was recorded as such, and that the deed so made, delivered, accepted by defendant, and recorded, was not void, but was and is valid and sufficient as a conveyance to said defendant. It is therefore considered, adjudged, and •ordered that said petition be dismissed; that said defendant be quieted in her title ; and that said plaintiffs pay the costs of this suit, to be taxed, and this cause is remanded to the court of common pleas for execution. To all which rulings, findings, decision, judgment, and order the plaintiffs-except.
    
      Thomas W. Sanderson, for plaintiffs in error:
    The grantor, at all times during his lifetime, had complete control over the deed. There was, then, no delivery of the deed, such as was necessary to pass title. Beevard v. Neely, 2 Sneed (Tenn.), 164; Cook v. Brown, 34 N. H. 460; Johnson v. Farley, 45 N. H. 505; Brown v. Austen, 35 Barb. 341; Prutsman v. Baker, 30 Wis. 644; Shirley v. Ayers, 14 Ohio, 310; 12 Wend. 105.
    The intention of the grantor that no present title should pass, but that it should remain in him till after his death,, withdraws the case from the effect of Foster v. Mansfield, 3. Met. 412, and cases following it.
    
      B. F. Hoffman, for defendant in error: u
    
    I. A conveyance made by a husband to his wife, without-the intervention of a third person or trustee, where suitable- and meritorious, and not in fraud of creditors, will be upheld in equity. Huber v. Huber, 10 Ohio, 373; Wood v. Warden, 20 Ohio, 518; 12 Ohio, 371; 3 P. Wms. 337; 3 Paige, 452; 15 Vt. 537; 44 Penn. St. 43; Story v. Marshall, 24 Tex. 305; Wells v. Wells, 35 Miss. 638; Barker v. Gone-man, 13 Cal. 9; 28 Miss. 717; Deming v. Williams, 26 Conn. 26; Dale v. Lincoln, 66 Ill. 24; 41 Ind. 339; 35 Ind. 181;. 39 Ind. 528; 44 N. Y. 27; 23 Ark. 507; 10 Minn. 50.
    II. The deed took full effect on delivery to Mary Crooks, and the title related back to the delivery to King. Morse v. Slosson, 13 Vt. 296; Belden v. Garter, 4 Bay, 66; Ruggles v. Lawson, 13 Johns. 285; 2 Mass. 447; 9 Mass. 307; 28 Conn. 446; 22 Ind. 36; 4 Abb. 315 ; 34 N. Y. 92; Demesney v. Gravelin, 56 Ill. 93.
   MoIlvaine, J.

In respect to contracts between husband' and wife, the doctrine of the common law, that the legal-existence of the wife is merged in that of the husband,. operates, with all its consequences, in this state, notwithstanding our statutes, which, to some extent, enlarges the capacity and rights of married women. Wherefore, a deed for the conveyance of land executed by a husband to his wife, without the intervention of a trustee, is void at law; nor can a court of equity regard it as effectual to transfer the legal title. And further, it may be said, that where such deed is intended as a pure gift, it is wholly invalid, even in equity, for the reason that equity will not complete an unexecuted gift, on the ground that, being unsupported by a consideration, it is devoid of equity.

But where such deed of conveyance is fouuded upon a good and sufficient consideration, a court of equity will enforce it according to the intention of the parties,'where the .same can be done without prejudice to the rights of others. Huber v. Huber, 10 Ohio, 371; Brookbank v. Kernard, 41 Ind. 339; Cardell v. Ryder, 35 Vt. 47; Tyler on Infancy and Coverture, § 357, et seq. And, in such eases, it is sufficient that the consideration be a meritorious one ; as, for instance, where the conveyance is in the nature of a settlement, and was intended to be a reasonable provision for the support of the wife. Wells v. Wells, 35 Miss. 664; Hunt v. Johnson, 44 N. Y. 27 ; Wilder v. Brooks, 10 Minn. 50 ; Hills v. Downton, 5 Vesey, Jr., 557; Shepard v. Shepard, 7 Johns. Oh. 57 ; Sims v. Rickets, 35 Ind. 181; Thompson v. Mills, 39 Ind. 528.

Upon such consideration, however, the conveyance will . not be perfected by a court of equity to the injury of creditors or to the prejudice of children for whom no provision has been made. But if any provision be made for a child, though by a stranger, and, if a daughter, by her marriage, it would seem that such child could not be heard to complain against the settlement.

In the case before us, some of the complainants are married daughters of the grantor, and all are well advanced in life — the youngest being more than thirty-five years of age at the death of the grantor — and, although unadvised as to their pecuniary circumstances, when the fact, that they were all maintained, and provided for, in infancy, upon the land in dispute, is considered in connection with the interest which the wife of the grantor had in the land before her marriage with the grantor, and the manner in which he acquired his title, we doubt whether the equities of the children, although unprovided for, are equal to those of the wife. But however that may be, a majority -of the court are satisfied that a child, who complains against such settlement on the wife, must show that he or she has not been provided for. And on this point, the record before us being silent, we can not assume that the grantor, in making this settlement upon his wife, failed in his duty toward any of his children.

The theory upon which courts of equity afford relief in ■cases of this kind is this : It being clearly shown that the husband intended to make a reasonable provision for his wife, as it was his duty to do, and having, as he believed, accomplished that purpose by executing and delivering the ■deed, equity will treat him as trustee of the legal title for the wife’s benefit; and, consequently, the heir upon whom such legal title may be cast by descent, must also be regarded as trustee upon the same trust.

It is also contended, on the part of plaintiffs in error, that, aside from the question of the incapacity of the parties by reason of the relation, of husband and wife, .the deed in dispute is void for want of delivery, end, being without a valuable consideration, as distinguished from a meritorious one, can not be enforced as a covenant to convey. The grantor, without reserving or intending to retain any control over the instrument, delivered it to a third person, to be by him delivered to the grantee at the death of the grantor. The depositary accepted the deed for the grantee, and at the death of the grantor delivered it to the grantee. "We think this was a good delivery to the grantee, whereby the title passed by relation, as of the date when the deed was delivered to the depositary. Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. (Mass.) 412; Hathaway v. Payne, 34 N. Y. 92; Morse v. Slason, 13 Vt. 297; Merrills v. Swift, 18 Conn. 257 ; Church v. Gilman, 15 Wend. 656.

While we do not approve of the form of the decree be low, vve do not find any error in the record for which it should be reversed.

Judgment affirmed.

Boynton, J., dissented from the third proposition of the .syllabus.  