
    John Henry v. Mary E. Henry and Abraham T. Bennett.
    1. An ante-nuptial contract, in parol, whereby B. M. K., then a feme sole, and being the owner in fee of certain lands, agreed with J. H., in consideration that he would marry her, and would enter upon and make valuable improvements upon said lands, she would convey to him by deed duly executed in fee-simple the same, is “ an agreement upon consideration of marriage,” and is void under the fifth section of the statute of frauds and perjuries, not being in writing and signed by the parties sought to be charged.
    2. Such contract is an entire one, and the additional consideration named therein, of entering upon and making improvements upon the land, in no manner changes the character of the agreement so as to take it out of the statute.
    8. The marriage under such contract of the parties is not such a part performance as takes the case out of the statute.
    
      4. Nov is the marriage and subsequent entry on the lands, and making valuable improvements thereon, such part performance as takes the case out of the statute, — such acts being as well referable to his character as husband as that of vendee.
    5. A deed defectively executed by the wife, in the attempted performance of such contract, will not be perfected in the absence of a clear case for a specific performance of a parol contract.
    Error to the District Court of Putnam, county.
    
      Isaiah Pilliars, with whom was Pugh Day, for plaintiff in error:
    Did the agreement to convey stand wholly upon the consideration of marriage, a court of equity would go a great way to enforce the contract.
    Marriage is a consideration regarded both in law and equity of the very highest character. Steiy v. Arden, 1 Johns. Ch. 271; Tyler on Coverture, sec. 324, especially; also Tyler on Cov. 460, 466; 2 Hill’s Ch. 3; 7 Peters, 348; 6 Barb. 492; 3 DeG. M. & G. 571; 17 Eng. Law and Eq. 212, especially.
    
    Thus, from the authorities, there would be high equitable reasons for demanding a decree, if the agreement to convey stood wholly on the ground of marriage,
    
      But we are not left to rest upon this. The petitioner avers a further agreement upon the part of the petitioner, to wit: To move upon and make valuable improvements upon the premises; and it also avers the performance of this agreement to move upon, improve, etc.
    I therefore submit to the court with great confidence, that, on the principle of part performance, the contract to convey has been taken clearly out of the statute of frauds, and that the petitioner is entitled to a decree for specific performance. Parsons on Contracts, 394, 395, and note; Malins v. Brown, 4 Com. 403; Fry on Specific Per., sec. 409, especially; 3 DeG. M. & G. 571; Fry on Specific Per., secs. 410, 411, and 380, especially, and note; also 1 Story’s Eq., sec. 754, especially; 14 Ves. 386; 18 Ves. 328; 1 Ves. Sr. 221; 1 S. & G. 184; 19 Eng. L. & Eq. 546; 31 Eng. L. & Eq. 475, 492; 4 Eds. Ch. 67; 14 Johns. 15; 4 Md. 1, P. Wm. 616.
    III. But it will be objected that the acts of part performance were also postnuptial, and were therefore without any validity, because she, being a feme covert, had no power to consent to or authorize the taking possession of and making improvements in pursuance with the agreement.
    I answer : 1. Her consent was not necessary. It was but carrying out the contract on the part of John Henry. 2. If her consent and directions were necessary to give the acts of part performance any validity, I submit that she had full power as a feme covert to thus assent to the performance of the contract.
    It was a postnuptial execution of an antenuptial contract with regard to her separate estate.
    I think I will be sustained by the weight of authority in saying that, independent of any .statutory enactment, a feme covert, so far as equity is concerned, stands as a feme sole as to her separate estate, and with regard to it may contract about, dispose of, and control the same. Tyler on Cov., secs. 291, 306, 307, 309, 313, and sec. 314, especially, with notes and authorities cited; also pp. 442, 443, 444, 447, 450; also sec. 322; Cruger v. Cruger, 5 Barb. 225; Strong v. Skinner, 4 Barb. 546, especially; 2 Story’s Eq., secs. 1368, 1370, 1372, 1373, 1394, 1994, 1995, 1996, especially; 50 Penn. St. 382; 17 Johns. R. 548; 1 White & Tudor’s Lead. Cases in Eq., top p. 509; Tyler on Infancy and Cov., sec. 314 ; Schouler on Domestic Relations, 219; Hardy v. Van Harlinger, 7 Ohio St. 208; Machir v. Burroughs, 14 Ohio St. 519; Logan v. Thrift, 20 Ohio St. 67; Phillips v. Graves, 20 Ohio St. 378; S. & C. 493; 58 Ohio L. 54, act of 1861; S. & S. 391.
    IV. Again I submit, with great confidence, that in view of the terms of the antenuptial contract set forth in the petition, and its full and complete performance on the part of John Henry, the petitioner, with the full assent and concurrence of the said Rebecca M., that the attempt upon her part to convey the fee-simple to the petitioner, her husband, by the deed to Abraham T. Bennett, was not wholly without force and void.
    I submit that it had the force in equity to evidence in writing the antenuptial agreement to convey the premises. It was not, both in law and in equity, void for all purposes. And I have no doubt that if the deed to Bennett was the sole ground upon which relief could be granted to the petitioner, the court would not hesitate to make it the basis of the action, and decree a conveyance. Eor, in the language of Judge Story, “ equity will not suffer the intention of the parties to be defeated by the very act which is designed to effect the contract.” Story’s Eq., sec. 1370, and authorities there cited; Ery on Specific Per., sec. 370, and authorities there cited.
    
      Swan ‡ Moore, for defendants in error:
    The contract, as set forth in the plaintiff’s petition, was void, because in contravention of the statute of frauds and perjuries.
    1. A contract for the sale of land must be in writing, and signed by the party charged therewith.
    2. A contract to charge any person upon any agreement made upon cousideratiou of marriage must be in writing, and signed by the party sought to be charged. S. & C. 660.
    The petition alleges that the contract was verbal, a,nd no possession taken of the premises until long after the marriage. .Henee no claim is made on the part of the plaintiff that the contract could have been enforced against Rebecca M. Knop while a feme sole.
    
    There was nothing done prior to the marriage of the parties to take the case out of the operation of the statute of frauds and perjuries. Up to the time of the marriage, the contract, by virtue of the statute, was not binding on either party.
    The question then to be determined is as to the effect the marriage and subsequent acts of the parties would have to take the case out of the operation of the statute of frauds and perjuries.
    1. The marriage itself is not sufficient. 3 Parsons on Con. 396; Finch v. Finch, 10 Ohio St. 501; Reeves’ Dom. Rel. 215; Redding v. Wilkes, 3 Brown’s Ch. 400; Dundas v. Dutins, 1 Ves. Jr. 196; Story’s Eq., sec. 1522; Fry on Specific Per. 263.
    2. Possession to take the case out of the operation of the statute of frauds and perjuries must be by the mutual acts and free consent of the parties in pursuance of the contract. Has a feme covert the power to give such consent, especially to the husband ? Or, in other words, could the husband, this plaintiff, have enforced the contract against the wife ? If not against the wife, he can not against her representative.
    At the time the land was taken possession of the wife was under the disability of coverture ; was at the time unable to contract, and hence unable to consent to the taking possession of the real estate. “ Consent without delivery, or without the intention and consent of the owner, is not sufficient.” 3 Parsons on Cont. 393. And under this head see Phillips v. Thompson, 1 Johns. Ch. 131; Byrone v. Romaine, 2 Edw. 445; Wolfe v. Frost, 4 Sandf. Ch. 72; Hill. on Vendors, 147.
    
      Hence by the authorities cited we find these two principles well established : 1. That the possession must be directly and unequivocally referable to the agreement. -2. The possession must be taken with the consent of the owner. Applying these two principles to the case at bar, what is the result ?
    1. As we have before stated, the possession was not taken until some time after the marriage, and the taking possession was more likely to have been in consideration of the marital relation which subsisted between the parties than to any contract made before marriage. With that relation existing, it could not be said that the possession was unequivocally, directly, and solely referable to the antenuptial contract.
    2. The possession must be had with the consent of the vendor. A married woman has no power to give that consent. In order that the taking possession of the premises be such as to take the case out of the statute, both parties must be competent to contract. If either is incompetent at the time to make a contract, the mutuality of assent to the act does not exist, and no part performance, such as the law requires, has been or can he had. Story’s Legal Eq. Rights of Married Women, 209 ; 8, & C. 458, 462.
    The plaintiff could not have enforced the specific performance of the written contract against his wife. Goshorn v. Purcell, 11 Ohio St. 646; Miller v. Hine, 18 Ohio St. 565.
   Whitman, J.

This cause comes by reservation from the District Court of Putnam county, ordered at the August term, 1871.

The case stands upon a general demurrer, filed below by the defendants in error to the following petition filed be'low by the plaintiff in error. The Court of Common Pleas sustained the demurrer, and dismissed the case at the costs of the plaintiff'. Exceptions were taken to this ruling and judgment, and the cause was appealed to the District Court.

The petition is as follows:

“ Your petitioner, the said John Henry, respectfully represents that on the 11th day of July, A. D. 1861, often before and many times thereafter, one Rebecca M. Enop, then an unmarried woman, agreed with and promised to your petitioner by verbal contract, that, in consideration that your petitioner would marry the said Rebecca M. Enop, and enter upon and make valuable improvements on the real estate hereinafter described, that the said Rebecca M. Enop would convey by.deed duly executed in fee-simple to your said petitioner the following described premises, to wit: The east half of the southeast quarter of section three, township two north, of range seven east, in Putnam county, Ohio — she, the said Rebecca M. Enop, being then the owner in fee-simple of said premises. Your petitioner further represents that under and by virtue of said contract your petitioner and the said Rebecca M. Enop, on the 11th day of October, a. d. 1861, were joined in lawful marriage as husband and wife. ,

“ That on or about the fifteenth (15th) day of April, a. d. 1862, your petitioner and his said wife, the said Rebecca M. Enop, together and under said contract moved, upon said lands; that your petitioner, under and by virtue of said contract, has made lasting and valuable improvements upon said premises, and that he has fully and faithfully complied with the terms of said contract upon his part; that on said 15th day of April, 1862, under said contract, and by and with the voluntary consent, and at the special instance and request of said Rebecca M. Enop, your petitioner took possession of said premises ; that he is now and has ever since been in the possession of the same, and has made lasting and valuable improvements thereon as aforesaid; that on the 13th day of June, 1864, said Rebecca M. Enop, the said wife of your petitioner, desirous of and anxious to carry out the provisions, and to more fully comply with the terms of said contract upon her part, by conveying said premises to your petitioner, did voluntarily execute and deliver to the said Abraham T. Bennett, in trust for the benefit of your petitioner, an instrument in writing purporting and intended by her to be a cleecl of conveyance in fee-simple of said lands to the said Abraham T. Bennett, as trustee for the purpose and with intent that the said Bennett should convey said promises in fee-simple to your petitioner, and that thereby the provisions of said contract should be carried out as aforesaid ou her part.

“ That your petitioner did join with his said wife, the said Rebecca M. Knop, in the execution of said instrument of writing made by her in her said effort to convey said premises to the said Bennett, trustee, as aforesaid, for the purpose aforesaid, your petitioner and the said Rebecca M. Knop, his said wife, being at the time ignorant of the legal necessity of such joining, and were advised, at the time of so making such instrument, that it was not necessary for said petitioner to join with his said wife in said instrument of conveyance.

“Your petitioner further represents that the said Abraham T. Bennett, at the voluntary and special instance and request of the said Rebecca M. Knop, and as said trustee, and for the purpose and with the intent aforesaid, did on said 18th day of June, 1864, execute and deliver to your petitioner an instrument of writing pui’porting and intended to be a deed of conveyance in fee-simple of said lands to your petitioner ; that on the 28th day of October, 1864, said instrument of writing was duly recorded in the recorder’s office of Putnam county, Ohio; that the said respondent, Mary E. Henry, is a minor, of the age of seven years, and the legitimate child of your petitioner and the said Rebecca M. Knop, being the sole issue of said marriage.

“ That on the 30th day of September, 1869, the said Rebecca M. Knop departed this life, leaving the said Mary E. Henry her sole heir. Your petitioner, therefore, prays that' a writ of subpena may issue against the said Abraham T. Bennett and Mary E. Henry, minor heirs of said Rebecca M. Knop, deceased, and that they may be made party defendants heret®; that a guardian acl litem for the said Mary E. Henry may be appointed herein; and that upon the final heaving of this action, the fee-simple in the premises aforesaid may be adjudged and decreed in the said petitioner ; that the said contract for the conveyance of said premises to the said petitioner may be specifically performed, and for such other and further relief as equity may require.”

The errors assigned are as follows :

I. Because said court erred in sustaining the demurrer to said petition of said plaintiff'.

II. Because said court erred in dismissing said petition.

III. Because said court erred in rendering judgment against the said plaintiff for costs.

Upon the facts as alleged in the petition, it is insisted by •the plaintiff in error that he is entitled to have a specific performance of the verbal antenuptial contract.

This contract, however, when examined, is simply an “ agreement made upon consideration of marriage.” If so, it is void under section 5 of the statute of frauds and perjuries, S. & C. 660, because it was verbal.

It is, however, sought to avoid the effect of the statute by a denial of the fact that it was “ an agreement made upon consideration of marriage; ” and in support of such denial the plaintiff in error relies upon the'fact that, in addition to his promise to marry, he bound himself to move upon and improve the premises. But the contract is an entire one, and the intended marriage entered into and 'formed a part of the whole consideration. The one consideration can not be separated from the other; both depend on the same fact, and but for the intended marriage no contract whatever would have been made.

The Supreme Court has decided this question in the case of Finch v. Finch, 10 Ohio St.

The court says, on page 505 : “ The antenuptial agreement set forth in the second defense alleged in the answer was clearly an agreement upon consideration of marriage. It is true, marriage was not the sole consideration for the agreement, on the part of the intended wife, that she would not demand dower in case she survived her intended husbaud; his agreement not to exercise the rights, in respect to her property, which the marriage would confer, constituted an additional consideration for the agreement on her part; but the agreement was entire; the intended^ marriage entered into, and formed a part of the entire consideration on both sides, and without it, the agreement would never have been made.”

It is evident that the additional considerations in the antenuptial contract in the above case are more potent and more easily distinguishable from the consideration of the agreement of marriage, than is the supposed additional consideration in the case before us. And yet the Supreme Court holds the contract clearly to be an entire one, and, in law, based upon a contract or agreement in consideration of marriage only.

But it is further contended by the plaintiff in error that he was bound by the agreement to enter upon the land, and make valuable improvements thereon ; and that on the 15th day of April, 1862, he, in company with the said Eebecca M. (then his wife), under and by virtue of said contract, moved upon said lands, and that he, with the knowledge and consent of the said Eebecca M., and at her instance and request, took possession of said premises, and is now, and hath ever since been, in the possession of the same, and has made lasting and valuable improvements thereon, and that he has fully complied with the terms of the agreement on his part.

And that by reason thereof there has been part performance of the contract, and so the contract to convey has been taken out of the statute of frauds.

We are unable to perceive any legal ground for such conclusion. The act of 1861 (now repealed) and the act of 1866 as to the separate property of married women has no bearing upon the question involved in this case. And the law is well settled that the marriage itself in the absence of actual fraud is not such a performance as will take the contract out of the statute, for the plain reason, as said by our Supreme Court in the before-cited case, page 506, “ otherwise, the statute would be wholly nugatory; for, so far as the fact of marriage is concerned, such agreements are always performed before they become the subjects of judicial consideration, and no case would ever be within the statute.”

The only remaining ground on which beside the fact of the marriage it is claimed that a part performance has been made is the entry upon the lands, and the continued possession thereof and the erection of lasting and valuable improvements. There is no pretense that by reason of this any fraud has been committed upon the plaintiff in error. He, with his wife, simply took possession by her consent of her land, and he as her husband made improvements, for the common use and benefit of both. Those improvements he has the legal right to have the use and benefit of, together with the land during his life, as tenant by the curtesy.

These improvements were not made on his land for his ■own use alone, no*r can he be dejDrived of them, as in cases whereby defect of title or superior equities sometimes happens ; in such cases, a court of equity interferes on the ground that unless the party be paid for his improvements, or allowed their use, a fraud will be committed upon him. But in the case before us no fraud is possible, and there ■is no apparent equity in favor of the plaintiff’ in error, as against the minor child as heir at law of his deceased mother. Nor in our opinion does any equity arise, as coun■sel seem to suppose, because the said Rebecca M., after marriage, generously determined to convey the premises in ■fee through Bennett, as trustee, to her husband in fulfillment of the antenuptial contract; nor because by her ignorance of law and of improper legal advice, that generous intention was frustrated, and her deed was a nullity for want of her husband having joined in the samé as co-grantor. The antenuptial agreement was, as we have .said, uttterly void, not being in writing; and also was an -entire contract. So that from this void contract neither party acquired any rights whatever as to the land in dispute, either legal or equitable. The marriage did not revive the contract, and the parties to it when married were in no manner in law or equity benefited or inj ured thereby. They stood just as if it had never existed.

Now, this being so, what postnuptial ground of equity in favor of the plaintiff is there ? The wife attempted to eouvey the land to her husband, but she wholly failed in such attempt. Her deed was void, and upon such void act there can not be based either legal or equitable rights to have a perfect act clone, or conveyance or decree to effect what she had thus illegally tried to do in favor of her husband. He could not have the deed corrected ; it was not a case embraced in the statute. It was not such an instrument as a court of equity could cause to be perfected, for it is not such a contract or agreement touching her separate property that for any purpose whatever a court is permitted to aid. Besides, it was simply an attempt by her to sell and convey in fee her real estate. She could- not do this without her husband joining with her. Had it been a contract by her to lease her land under the statute, and the lease had been imperfect, a court could have compelled its correction and perfection. What is left, then, to rest the equity claimed by the plaintiff in error upon ? Merely the fact that the husband while living with his wife, on her land, chose to place lasting improvements thereon, as much for his own benefit as hers, and -which during his life he has the use of. He having no legal claim to the land as owner, except as tenant by the curtesy, can found no right on any absolute ownership of the land. Surely the right to live upon, use, and receive the profits of his wife’s lands, and also of all his improvements,. during his life, ought in equity to be held as equal in benefit and value to the cost of such improvements. And to attempt to superadd an alleged equity by reason pf such improvements, which can be by decree made to give the entire property to the husband, seems to us to do violence to every principle of law and equity.

We are of opinion that there was no error in the court below, and that the demurrer was properly sustained.

The judgment of the Court of Common Pleas is affirmed with costs.

Scott, Chief Judge, Weight, Johnson, JJ., concurred. ■ Day, J., did not sit in the case.  