
    Hall v. Hall.
    1. A husband, surviving his wife, has a vested estate by courtesy in the separate property of his wife, of which she died seized.
    2. Where it appears that a deceased wife, at the time of her death, owned land in her own right, and no state of facts then existed that would bar the surviving husband’s right to the courtesy therein, and the land is in the possession of another, the surviving husband has a right of action to recover the possession thereof.
    3. One claiming the benefit of the rule that a court of equitable jurisdiction will consider as executed that which in equity should have been executed, must show either that he has performed, has offered to perform, or has been at all times ready, willing, and able to perform on his part.
    4. Where the conduct of the parties in relation to a contract has been such as to show a mutual abandonment thereof, or where it has been so treated by them that neither of them could successfully invoke the aid of a court of equitable jurisdiction to enforce a specific performance, the rulo that equity will consider that done which should have been done will not operate as an estoppel to the assertion of a clear legal right..
    
      Error to the District Court of Portage county.
    The action was brought by Smith Hall against Joseph N. Hall to recover possession of of forty-five acres of land, with the rents and profits since September 2, 1870.
    The case was submitted by the parties to the court without the intervention of a jury. The court made a special finding of facts, and from this finding determined the law in favor of plaintiff" below, entering up a judgment in his favor for possession of the land, and two hundred and fifty dollars as the rents and profits. To this judgment the defendant below excepted, took the case, on the facts found by the court of common pleas, by petition in error, to the district court, where the judgment of the lower court was affirmed. The case is prosecuted here on the finding of facts, and errors assigned to the judgment of the court as to the law of the case, to have the judgments below reversed.
    On the trial, the court found from the pleadings and proofs the following facts :
    “ 1. In a. d. 1866, the plaintiff was seized of one hundred and ninety-seven acres of land, of which the lands in question here are a part, and was the husband of Angeline M. Hall, whom he married about 1822, and so continued her husband until her death. And being so seized, he conveyed said lands by deed, properly executed, and also some personal property, to Julia A. Clark, his daughter; his wife, Angeline M. Hall, not executing said deed. The sole consideration of said conveyance was that said Julia A. Clark and her husband, Charles Clark, agreed and bound themselves to maintain and support said Smith Hall, and his wife, Angeline M. Hall, during their lives, and support the survivors of them during life. And said Clarks entered into possession of said lands, and took said personal property, under said agreement, and supported said Hall and wife until the subsequent arrangement with defendant.
    “2. In October, 1866, while said lands aud property were ■thus owned and held, the above arrangement with the Clarks, not proving satisfactory to the parties interested, they entered into' a new agreement with the defendant,. Joseph N. Hall, by which the said Smith Hall agreed to convey and cause to be conveyed, in fee simple, said one-hundred and ninety-seven acres to said Joseph N. Hall,, and give him said personal property, if said Joseph N. Hall would sell his farm in Ashtabula county, and move with, his family upon the said one hundred and ninety-seven, acres of land, and take said land and personal property and support and maintain said Smith Hall and his wife, Angeline M., for life. At this time said Angeline M. Hall was' living with said Joseph N. Hall, at Ashtabula county; and as an inducement to Joseph to make said agreement, and to assume said support, she promised him to join in said conveyance, of said one hundred and ninety-seven acres, to Mm, and to convey any interest which she had in said lands to him, and which was a part of the aforesaid agreement with said Smith Hall, and said Smith Hall knew, at the time, that his said wife so agreed-and promised.
    “ 3. Thereupon said _ Joseph N. Hall, induced by said promises of Smith Hall and Angeline M. Hall, accepted said proposals, and agreed and bound himself, solely upon said consideration, to take said conveyance and property, and sell his land in Ashtabula county, and remove with his-family upon said one hundred and ninety-seven acres, and to so support and maintain said Smith Hall and Angeline M. Hall, for life; possession of said lands to be given -at once, except as to the house thereon, which was then occupied by the Clarks, and possession of that to be given early in the spring of a. d. 1867.
    “ 4. And then and there said Joseph N. Hall, in pursuance-of said agreement, and induced as aforesaid, sold his said farm in Ashtabula county, and removed, with his family, as aforesaid, and took possession of said one hundred and ninety-seven acres, with the exception of said house, occupied by said Clarks — took said personal property, so far as it was given to him, and occupied and used said property, except as aforesaid, until the same was sold, as hereinafter stated, and supported and maintained said Smith Hall until January 20, 1870, and said Angeline M. Hall until her death in September, 1870.
    “ 5. And to all of which agreements and acts, the said Julia A. Clark and her husband were parties and consented,, and abandoned and gaye up possession of said lands to said Joseph N. Hall, under said agreements, and the said Joseph N. Hall became and was entitled to a conveyance of said one hundred and ninety-seven acres, from said Smith Hall and Angeline M. Hall, in the fall of 1866, but no conveyance was ever made to him.
    “ At the time of making said agreement with defendants, said Smith Hall was indebted to various persons, about - $4,000, and said creditors, having afterward obtained judgments thereon against him, in the winter of 1866-7, commenced an action in this court, against him, said Julia A. Clark- and her husband making parties thereto the said Angeline M. Hall and this defendant, and seeking thereby to set aside said conveyance from Smith Hall to Julia A. Clark, and to subject said cine hundred and ninety-seven acres to the payment of said judgments and claims; and such proceedings were duly and legally had in said court-that at the-term, 1868, of said court, it was duly and regularly adjudged and decreed by said court, that said conveyance be set aside, so far as said creditors were concerned, and that said lands, except as hereinafter stated, be sold by the sheriff for the payment of said debts.
    “ 6. In which action said Joseph N. Hall filed an answer, but in which he did not make any claim to said land under-said contract. And the court further found and adjudged therein that, as to forty-five acres of said land, being the land mentioned in the petition herein, the same were purchased and paid for with the separate money and means of the said Angeline M. Hall, before contracting said debts by said Smith Hall, and was the sole and separate property and estate of the said Angeline M. Hall, and that the title thereto was held by said Smith Hall, in trust for her; and the court ordered him to convey the same to her, and that,. in default thereof said judgment should operate as such ■conveyance; but no conveyance was ever made.
    “ 7. Under said judgment, all of said lands, except said forty-five acres, were duly sold and conveyed by the sherifF, and, at the next term of said court, in 1868, said sale was duly and legally approved and confirmed by said court, and the proceeds applied upon the debts of said Smith Hall.
    “ 8. Upon said forty-five acres, and a part of it, was the dwelling-house occupied by said Joseph N. Hall, under said agreement, and where he resided with his family, after getting possession, in the spring of 1867, and where said Smith ■and Angeline M. Hall lived with, and were supported and maintained by, Joseph, and where said Joseph N. Hall still lives, and where he continued to support and'maintain said Smith Hall and Angeline M., as aforesaid — Smith Hall, until he left, January 20, 1870, and Angeline M., until her death in September 1870, both receiving such support, with full knowledge of the aforesaid facts; and the said Angeline M. Hall at no time, after said agreement was entered ■into, dissented from said agreement, but was at all times willing, so far as she was personally concerned, and so far as her own interest in said forty-five acres of land was concerned,-that the said contract should be carried out; and ■always, from the time of her making said original contract, to the time of her death, intended that said Joseph should have said forty-five acres; and before her death, for the reason that said Joseph had lost the residue of said lands, as aforesaid, and for the reason that she wanted the original. contract carried out, so far as it could be done, on the -day of--,1870, made and executed her last will and testament, which was on the-day of-- 1870, duly proven, and admitted to probate in said county of Portage; in and by which will, she legally devised said forty-five acres of land to said Joseph N. Hall and his heirs, in fee simple.
    “ 9. On January 20, 1870, said Smith Hall left said Joseph N. Hall, and said support, upon the ground, as claimed by him, that said Joseph had, since said sale of said laud, violated said agreement to support said Smith Hall, and had not furnished said support and maintenance, as agreed upon,, as aforesaid; and on January 28,1870, he commenced an action in this court, against said Joseph N. Hall, which action was, at the September term, 1871, of this court, finally tried and disposed of, upon the petition of said Smith Hall, and the answer of said Joseph N. Hall, the reply of Smith Hall; which pleadiugs are in the following words-to-wit: ”
    The pleadings thus made part of the court’s finding of fact are lengthy, and as but a small portion of them are necessary and material to the case, as understood by us, we will extract therefrom such portions as appear to have a bearing’ upon the issues in this case.
    In the petition Smith Hall charges that in October 14, 1866, he caused personal property of the value of $1,265, to be transferred to his son, Joseph N., and the possession of the one hundred and ninety-seven acres of land, in consideration of which defendant, agreed, undertook, and promised to furnish and provide a home for plaintiff' and his wife upon, said farm, and to support and maintain them, and to provide them with such suitable and proper comforts and necessaries as were suitable to their age and situation in life.
    And then charges that, from said 14th day of October, 1866, and until about the 20th day of January, 1870, plaintiff lived with defendant and received from him a partial support, when said defendant, without any good cause or reason therefor, unjustly, wrongfully, and wantonly caused plaintiff to be arrested on a charge of insanity, and endeavored to have him sent to an insane asylum, since -which last date the defendant has unjustly, and without good cause or excuse, entirely failed, neglected, and refused to furnish for plaintiff a home, or to provide him in any manner with support or maintenance, or with proper care, comfort, or necessaries, suitable for his age and station, by reason of which plaintiff, since that date, has been compelled to furnish himself a home, and to provide for his own support,, maintenance, care, and comfort.
    
      That defendant failed and refused to fulfill and comply with his agreement, or return to plaintiff the personal property that plaintiff had caused to be transferred, and claims that he was damaged three thousand dollars, etc.
    Joseph N. Hall denies these allegations, and sets up a -counterclaim, by reason of the premises, and loss of the land by reason of its sale to pay the debts of plaintiff of ..$5,500.
    In his answer proper he states that—
    “ By reason of the premises, the defendant was no longer bound to perform his part of said contract, and of which he notified plaintiff previous to said January 20, 1870.
    “And defendant says that what he has done for said plaintiff- and his wife, in the way of providing a home for them, supporting, caring for, and maintaining them, was more than equal in value to all that he has received from plaintiff. And he further says that while he has done and performed, upon his part, all that he was bound to do, in -his contract, yet the plaintiff has refused aud failed to perform his, in other respects, to wit, that he, during the time .aforesaid, and down to January 20, 1870, conducted and • demeaned himself toward defendant and his family by violent aud outrageous language and conduct, in such manner as to fully justify defendant in refusing to longer continue to perform said contract on his part, even if he had otherwise been bound to do so.”
    In his reply plaintiff admits defendant furnished a home ■and support to his wife until her death, and supported the plaintiff in partial compliance with the agreement up to .January, 1870, when defendant left. He left iu compliance with the notice -given him by Joseph N. that he was not bound to comply with the contract of 1866.
    Plaintiff' recovered in the action $500, the jury finding .all the issues in the case in his favor.' Joseph paid the judgment and retained the personal property, and lived ■ upon the land with his mother and his own family until the death of his mother. After her death this action was ■commenced.
    
      F. E. Hutchins, for plaintiff in error.
    J. D. Horton, for defendant in error.
   Ashburn, J.

On the death of his wife, Smith Hall, defendant in error, commenced his action to recover possession of the forty-live acres of land in controversy. He ■claims to derive his right to recover as tenant by curtesy.

It is couceded.by plaintiff in error that, by virtue of the judgment of the court in the creditors’ action, obtained in 1868, wherein it was determined that Angeline M. Hall, wife of Smith Hall, had a separate estate in and to the land in controversy, plaintiff below had an estate by •curtesy, unless defeated by the contract of October, 1866, and the acts of the parties. And this would be the result whether the effect of the judgment, in the action of the ■creditors of Smith Hall against him, was to convey a fee simple title to Angeline M. Hall for the forty-five acres, or raise a trust estate in Julia A. Clark for her.

Counsel have discussed several legal questions with marked ability. As we view the case, its merits can be clearly ascertained, and the rights of the parties be easily determined.

Angeline did not unite with her husband in the deed, conveying the one hundred and ninety-seven acres to Julia A. Clark. But afterward, when the agreement was made that Joseph should undertake the support and maintenance of Smith Hall and his wife, and have a conveyance for the land, she agreed to unite in the conveyance to Joseph. No conveyance, however, was ever made to him, for the reason that, soon after this agreement, the creditors of Smith Hall commenced their action against all the parties connected with the various transactions, charging that the deed to Julia A. Clark was made to hinder and delay the creditors of Smith Hall, and in fraud of their rights. The creditors obtained a judgment, in their favor, and caused all the land to be sold in satisfaction of their claims, except the land in' contest. In that proceeding the court “ found and ad-2 udged therein as to the forty-five acres of said land, being the land mentioned in the petition herein, that the same were purchased and paid for with the separate money and means •of the said Angeline M. Hall,” etc.; and that the title thereto was held by said Smith Hall in trust for her; and the court ordered him to convey the same to her, and that, in default thereof, said judgment should operate as such conveyance. No conveyance was made. In this way this land was saved to her from the wreck of her husband’s estate, and the land freed in her hands from all contracts against him. Joseph, however, carried out the understanding between himself and his mother, and in consideration thereof she devised to him the forty-five acres, of which he-retained the possession.

Plaintiff in error claims tbat whatever estate Smith Hall had in the land, whether in his personal or marital right, he was obligated, in equity, by the contract of 1866, to convey to Joseph N. Hall; that as this equitable obligation rested upon him at all times thereafter, equity will hold that as done which in good conscience he should have done; and that the transaction should be now treated as so far executed as to bar him from a recovei’y based on the uon-exccution of that which ought to have been executed. Practically, it is claimed, the court has found that Joseph N. was entitled to have a deed for the land from Smith Hall in 1866; that the equitable obligation existed at the time-this action was commenced, and operates as an equitable estoppel.

As we understand the controlling facts in this case,, plaintiff in error is not entitled to the benefit of this rule of equity. He who invokes its aid must be free, in relation to the transaction, from serious fault — must have performed on his part, or satisfy the court that he was at all times ready, willing, and able to perform the agreement on-his part. This consideration requires that we should consider and apply some of the facts of the case.

Joseph N. Hall, in his answer and counterclaim to the petition of Smith Hall for damages, states that prior to January 20,1870, by reason of the “violent and outrageous language and conduct” of Smith Hall “toward defendant and his family,” he was fully justified “ in refusing to longer perform” the contract of supporting Smith Hall, on his part, even if he had otherwise been bound to do so.” He further states “ that by reason of the pi-emises, the defendant was no longer bound to perform his part of said contract, and of which he notified plaintiff previous to said January 20, 1870.” At this date Smith Hall left the house of Joseph N. Hall; treated the contract between them as at an end, by each failing to perform, and each claiming the other had failed to perform. Soon thereafter the plaintiff commenced an action against defendant for damages arising out of the alleged breaches of the contract on the part of defendant. In that action all questions that could arise as to the rights and liabilities of the parties, growing out of the contract of 1866, were put in issue, and determined in favor' of the plaintiff. To us the conclusion seems inevitable from the facts, that about January 20, 1870, the contract was mutually abandoned. Erom that date on, until the commencement of this’action, the parties treated the contract as rescinded, and occupied toward each other such a relation that, in equity, neither could have enforced a specific performance of the contract. Hence no equitable bar interposed to defeat plaintiff’s right to assert his estate by the curtesy.

Judgment affirmed.  