
    Oldham vs Sale et al.
    
    Chancery. Case 27.
    Error to tiie Louisville Chancery Court.
    
      November 1.
    
      Bower, Parol contracts. Femes covert. Void and voidable contracts.
    
    The case stated,
   Chief Justice Robertson

delivered the Opinion of the Court.

Some time in the year 1803 or 1804, Richard Oldham, then about seventeen or eighteen years of age, being entitled to one undivided third part of lot No. 13, in the' town (now city) of Louisville, owned jointly by himself and his brother, John P. Oldham, and sister, Abigail Churchill, made a verbal sale of his interest therein to Samuel Churchill, his brother-in-law, for the price of £50 then paid to him; and shortly after his marriage with the plaintiff in error, that is, in the year 1809, after he had attained majority, he and his said wife, she then being in her minority, made to the said & Churchill a conveyance of his legal interest in the said lot — the dé'ed reciting and confirming his former unwritten sale.

■ In 1805, Samuel Churchill, considering himself and wife entitled to two-thirds of the lot, sold that interest to Wm. G. Galt, who thereupon took possession thereof, and to whom (John P. Oldham having also sold his third to him,) the said Churchill and wife, in 1817, conveyed their two-thirds. (

Galt, and those claiming under him, having occupied the lot ever since the year 1805, the widow of Richard Oldham, who died in the year 1837, shortly after his death, to-wit: in November, 1837, filed a bill in chan, eery against the proprietors of the Galt Rouse, which had been previously built on the said lot No. 13, asserting a claim to dower therein, on three grounds — 1st. Because, being a minor when she acknowledged the conveyance to Churchill, her acknowledgment was voidable. 2dly. Because, as she insisted, her husband being also an infant when he made the verbal. sale, his confirmation of that voidable contract, after,their intermarriage, did not preelude her from avoiding it so far as her legal right to dower is concerned. 3dly, Because, as she also insists, she has still the right to avoid the verbal sale by relying on the statute of frauds and perjuries, her initiate right to dower not being divested by her husband’s confirmation of that sale after she had become his wife.

Decision of the Chancellor.

A relinquishment of dower by s-feme covert, infant, is an act in pais, and may be avoided on arrival at full age.

Theaeinowledgment of/ernes covert is entitled to no higher consideration than if made by a feme sole.

Widow is not entitled to dower in lands of which the husband was not beneficially seized during the e o vertur e — If there be a Bale by a parol executory contract of sale of land, by husband during infancy & before marriage, falter marriage, at full age, such sale be confirmed by a conveyance, the widow is not entitled to dower.

The Circuit Court having dismissed her bill she prosecutes this writ of error.

If Mrs. Oldham could ever have avoided her acknowledgment, made before and properly certified by the clerk of Jefferson, she did not come too late with her bill in this case, because it was filed within only a few months after she ceased to labor under the disability of cover* ture.

Nor are we permitted to doubt her right of avoidance on the ground of her own infancy. This right was first recognized by this Court in the case of Philips vs Green, 3 Mar. 7, and was sanctioned and confirmed by the subsequent case of Prewit vs Graves el al. (5 J. J. Mar. 120,) and had there been no such judicial recognition, we should be clearly of the opinion that such an acknowledgment, by an infant feme covert, may be avoided by hen in consequence of her infancy, for it being well settled, as decided in Milner vs Turner’s heirs, (4 Mon. 245,) that the acknowledgment of a deed before a clerk is a ministerial act in pais, and therefore may be avoided by a male cognisor who labored under no other disability than that of infancy, there could be no good reason for denying the same just privilege to a female, to whose infancy the disability of coverture was also superaded; and the statute of conveyancing of 1785, followed in this respect by all subsequent enactments on the same subject, declares that a feme’s acknowledgment shall be (only) as effectual as it would have been had she been sole.

But notwithstanding Mrs. Oldham’s right to avoid her relinquishment of dower, we are of the opinion that she has no equitable right to the dower as sought by her bill; for it is well settled that, in this state, a surviving widow is not equitably entitled to dower in any estate of which her husband was not beneficially seized during her coverture; and we are of the opinion that, the verbal sale by Richard Oldham not being void but voidable only, he alone had a right to avoid or confirm it during his life, and having confirmed it by the conveyance of 1809, his wife never had any equitable interest of which she could not have been divested without her own concurrence.

Parol executory contracts forland are not void, but voidable only.

The infancy of Richard Oldham, when he first sold his interest to Churchill, did not render that executory agreement void, but voidable only. Nor did the want of a written memorial of that contract have any other effect under the established construction of the statute for preventing frauds and perjuries, which only provides that no such unwritten agreement for the sale of land shall be enforced by suit, but leaves all such agreements, in all other respects, as effectual as if no such enactment had ever been made. And as a cor\ollary of the doctrine that a verbal contract for the sale of land is not void, and that the only effect of the statute is that such an agreement cannot be enforced in iivoitum against either party by suit, courts have determined that there may even be a decree for the specific execution of it, unless the complainant shall have alleged that it was unwritten, or unless the defendant, by either denying the sale or pleading the statute, shall have squeezed out the fact that there was no such memorial in writing, as that prescribed by law, and have also decided that a court of equity will not help either party to avoid such a contract, if the other party had, in good faith, performed or%e> able and willing to perform his undertaking, and had been guilty of no injurious or unreasonable delinquency, and also that a conveyance made in execution of a verbal sale of land will, in equity, overreach and render unavailing an intermediate executory sale to a stranger, though evidenced by writing. Thesé doctrines are so well settled and understood as to render either argument or reference to adjudged cases in support of them, not only superfluous but ostentatious, and therefore unjudicial.

Consequently, as the verbal sale by Oldham was valid until avoided, the fact that there was no written memorial of it, had no other effect on it than the other fact of Ijis infancy at the date of it, and which only furnished ground for avoiding it if he elected to do so before a confirmation of it.

widow cannot |outmyPcontract jy infancy, where of full age during ^^[bYcónUact and execute a suchX^ofconbyyathe\usband afte^ marriage, confirmatory of the parol contract of sale made before marriage and during infancy willhave relation back to the date of the executory agreement, and overreach the initiate right of the wife to dower.

Then, considering this case, just as it should be considered, had Mrs. Oldham never united with her husband in the conveyance of 1809, the simple question is, whether she can now, in a court of conscience, avoid the executory sale made by him before their intermarriage, notwithstanding his confirmation of it by deed executed during the subsistence of the marriage; and, as already intimated, we are of the opinion that she cannot do so.

Her potential right to dower was, at the date of that conveyance, not only purely technical but initiate only; and springing, as it did, from his title, and depending thereon as a mere contingent incident, it can never have become consummate and available,'because, when she. married him, another person was beneficially seized ofl the lot, under a contract which, though voidable by him, l he w^as under no sort of obligation to her to avoid, but \ had a clear right to confirm and was morally bound to j effectuate in good faith. Her marital interests were sub- j ject to his election on that subject. She had no right to require him to avoid his contract, nor could she avoid it for him or for herself. And, in this respect, he has been only passive by letting that stand' which ought to have stood, and ratifying that which he had, for a valuable consideration, long received and enjoyed, imperfectly done before she became his wife. He has done nothing which he had not a perfect right to do, or which she had any authority to gainsay or defeat.

And therefore, as he, in good faith, only executed after his marriage, an anti-nuptial contract, transferring his beneficial interest in the lot, and which contract he could not either honorably or justly have avoided, his deed of conveyance had relation to the date of that ex-ecutory agreement and overreached or rather extinguished her initiate right to dower.

Had her husband given a sufficient bond for a conveyance whilst he was an infant, and before Iris marriage, and which he afterwards fulfilled by the deed after ° . J marriage, surely she could not successfully assert an equitable claim to clovver merely because, as in this case, on some technical ground, he might have avoided a specific execution. That case and this are pariallel in principle.

Owsley and Wheatley for plaintiff; Crittenden for defendants.

But were we not sustained by principle, to the fuil extent of this conclusion, still, we could not, we apprehend, hazard anything in affirming that a court of equity should never, under such circumstances as those characterizing this case, if indeed under any that could exist, aid a widow to avoid such a fair contract of her husband, confirmed by himself for a valuable consideration. His contract having been confirmed by himself, as it ought to have been, a court of equity will not help her now to avoid its full effect by pleading his infancy or the statute of frauds and perjuries, which he had elected to waive. This is an obvious deduction from well established principles, sanctioned by undeviating practice in analagous cases.

Wherefore, the decree of the chancellor is approved and affirmed.  