Central Law Journal. ST. LOUIS, MO., JUNE 11, 1920. FAILURE OF "LOVE AND AFFECTION" Twelve months after the marriage of "A," a bachelor, to "B," a spinster, he conveyed to her the residence in which they then lived and in which he had maintained his bachelor home for many years. It was not an ante-nuptial agreement, but the consideration named in the deed was "love and affection." The wife had no maiden property whatever. She did not waive her dower right to other property of "A." Twelve months later the wife left the common home and obtained a domicile and a divorce in the state of Nevada. Upon returning to her native state immediately after the divorce, she instituted proceedings to oust the husband as a stranger and to recover sole possession of the residence. Is there a consideration to support the deed so as to justify "B"'s actions? Let us see what arguments may be presented in the negative. The effect in "B"'s home state of the Nevada divorce will not now be considered. There will be put to one side also the theory that the transaction may be impressed with a trust. The question to be discussed thereby becomes one of failure of consideration. It should be said that, at the time. the deed was prepared the husband declared his object to be to provide a joint home for the pair free from the effect of any future adversity on his part. The fact thereby becomes established that the grantor did not intend to surrender the house as his home, but, on the contrary, meant to permanently assure one for himself as well as his wife. There is no question either of the promise of the wife of continued consortium. Manifestly there was fulsome assurance of her continued society, companionship, conjugal affection, fellowship and assistance as a wife. 33 L. R. A. (N. S.) 1042, Ann. Cases 1912 B. 1120; 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291. This becomes important in the light of the common law right of the husband to consortium and its civil law meaning and importance, for, in the latter, it finds its origin. Its loss is an element of damage distinct from all other injury inflicted upon the husband through the loss of conjugal fellowship. N. Y. Co. v. Yarside, 85 C. C. A. 285. It thereby becomes a valuable consideration. The question of procedure presents no obstacles since both parties may show "by extrinsic evidence the actual consideration paid and that it is other than that recited in the deed, or to contradict the recital in the deed that the consideration had been paid." 2 Minor Real Prop., Sec. 1158. McKee v. Bunting Co., 114 Va. 639, 645, 77 S. E. 515. Two phases might then occur. Upon it appearing from extrinsic evidence that the actual consideration in the deed was the promise of continued consortium, the exhibition of a certified copy of the divorce decree obtained by the wife through substituted service in another state would satisfactorily establish a total failure of consideration in that respect. Secondly, if the wife ground her claim upon the consideration mentioned in the deed of "love and affection" alone, then the Court would be called upon to supply a measure of it between man and wife, mindful of the reservation by the state that the marital contract may be wholly severed and the parties become again entire strangers before the law. Certainly there is both a personal and a legal ending of this particular consideration in the second aspect of the case. That the consortium was in contemplation of life is sufficiently supported by the mutual promises at the altar, apart from tradition and custom. That the actual consideration has not been performed as promised is undisputed. That there was an abandonment and repudiation of the under taking is conceded. It appears most strongly that the repudiator must depend solely upon part performance. But, will that prove of help when confronted by her abandonment and repudiation and present hostility. The solution of the issue of law cannot be aided by romance, for romance never existed or is dead; nor by ecclesiastical rules, for the promises made at the altar have been repudiated and the rules violated. The marriage relation before the law is but a contract and can be both consummated and severed without the aid of either romance or church. These elements, voluntarily assumed, add no binding force in law. Therefore they should have no influence in the determination of the issue. It would appear to be a simple matter of a broken and repudiated contract-a total failure of consideration. THOMAS W. SHELTON. NOTES OF IMPORTANT DECISIONS RIGHT OF LIFE TENANT TO COMPEL A SALE OF PART OF THE PROPERTY TO MAKE IMPROVEMENTS ON THE REMAINDER.-Life tenants are not infrequently deprived of all the benefits of their estate by the fact that the property is unimproved or the improvements in such bad repair as to make the estate a burden rather than a benefit. Such was the case in the life estate of Mary Middleton, of Durham, N. C., the subject of the decision in the recent case of Middleton v. Rigsbee, 102 S. E. Rep. 780. In this case the plaintiff owned a life estate in a number of lots in the City of Durham, several of which were improved (sic) by a few delapitated houses. The rental was $70.00 per month and the repairs and taxes about consumed this amount. To make matters worse the City of Durham issued an order requir ing plaintiff to place sewers in each of the houses and to connect them with the main sewer; otherwise the property would prac tically be condemned as residence property The plaintiff's predicament was increased by the fact that the remaindermen were her minor children and these children took only on condition that they survived their mother. Plaintiff brought suit in equity alleging the condition of the property and her inability to meet the special and general taxes or to make the improvements necessary to put the property in a condition which would make it produce an income. She also alleged that she had an opportunity to sell one of the lots for $4,000, which was a good price for the lot, and prayed for an order of sale and the right to use the proceeds to improve the remaining lots. A demurrer was interposed which was overruled by the trial court. In sustaining the judgment upon the demurrer the Supreme Court said: "As appertaining to the facts of this record, the decided cases on the subject hold that courts in the exercise of general equitable jurisdiction may decree a sale of property for reinvestment, where it is shown that such a course is required for the preservation of the estate and the protection of its owners; and the position may in proper instances be extended to a sale of a portion of the property for the protection and preservation of the remainder. "The principle adverted to has been not infrequently applied in the proper administration of charitable and other trusts, and the exercise of the power has been justified and upheld, notwithstanding limitations in the lease or deed creating the estate which ap parently imposed restrictions on the powers of the trustees in this respect, when it is properly established that a sale is required by the necessities of the case and the suc cessful carrying out of the dominant purposes of the trust. Trust Co. v. Nicholson, 162 N. C. 257, 78 S. E 152; Grace Church v. Ange, 161 N. C. 315, 77 S. E. 239; Jones v. Habersham, 107 U. S. 174, 2 Sup. Ct. 336, 27 L Ed. 401; Stanley v. Colt, 72 U. S. (5 Wall.) 119-169, 18 L. Ed. 502; Weld v. Weld, 23 R. I. 311, 50 Atl. 490." In the case of Gavin v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776, the equitable rule referred to by the court was applied to the case of a life tenant and ulterior remainderman on contingency of a common-law estate, where it was made to appear that a piece of property in the city of Chicago, valuable but unproductive, by reason of accumulating taxes and charges upon it, would be entirely lost to the owners unless a sale could be made; the principal ruling in the case being stated as follows: "Upon a bill by a life tenant, equity may appoint trustees to take the fee in the prop erty, sell the same, and reinvest the proceeds for the benefit of the life tenant and the remainderman, where it appears that unless equity interferes the property will be lost to both life tenant and remainderman." STATE CANNOT PROHIBIT ACTIONS ON JUDGMENTS RECOVERED IN SISTER STATE.-Illinois has sought, for some reason consistent with a strange policy of exclusion, to bar actions in Illinois for damages occasioned by death occurring in another State, in consequence of wrongful conduct. The Illinois courts attempted to apply this statute to suits on judgments for death by wrongful act obtained in other States, but the Supreme Court has held recently that no State law can prohibit the enforcement of judgments of the courts of another State. Kenny v. Supreme Lodge, 40 Sup. Ct. 371. The Supreme Court of Illinois held that, as by the terms of the statute, the original action could not have been brought there, the Illinois courts had no jurisdiction of a suit upon the judgment. (258 Ill. 188.) They relied on Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 373, 24 Sup. Ct. 92 and Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. 1370. In answer to this contention the Supreme Court says: "In Fauntleroy v. Lum (210 U. S. 230, 28 Sup. Ct. 641) it was held that the courts of Mississippi were bound to enforce a judg ment rendered in Missouri upon a cause of action arising in Mississippi and illegal and void there. The policy of Mississippi was more actively contravened in that case than the policy of Illinois is in this. Therefore, the fact that here the original cause of action could not have been maintained in Illinois is not an answer to a suit upon the judgment (see Christmas v. Russell, 5 Wall. 290; Converse v. Hamilton, 224 U. S. 243, 32 Sup. Ct. 415). But this being true, it is plain that a State cannot escape its constitutional obligations by the simple device of denying jurisdiction in such cases to courts otherwise competent. The assumption that it could not do so was the basis of the decision in International Text Book Co. v. Pigg (217 U. S. 91, 111, 112, 30 Sup. Ct. 481, and the same principle was foreshadowed in General Oil Co. v. Crain (209 U. S. 211, 216, 220, 228, 28 Sup. Ct. 475) and in Fauntleroy v. Lum (210 U. S. 230, 235, 236, 28 Sup. Ct. 641). Whether the Illinois statute should be construed as the Mississippi act was construed in Fauntleroy v. Lum was for the Supreme Court of the State to decide, but read as that court read it, it attempted to achieve a result that the Constitution of the United States forbade." THE EARLY ADMINISTRATION OF EQUITY IN THIS COUNTRY.* For both as a province, and afterwards. as a state, New Jersey has had the experience of a continuing recognized separation between the courts of law and equity. The ordinance of Governor William Franklin in 1770 accurately records: "That there has always been a court of chancery held in the Province of New Jersey." Certainly since 1695 the only difference and fluctuations have been of administration; that is, whether the office of chancellor could be performed by the governor alone, or if he should act with the assistance of his council. In 1695 the New Jersey general assembly enacted that the judges of the Court of Common Right should not be judges of the High Court of Chancery, whose chancery powers ceased before 1698. Between 1698 and 1705 chancery powers were only in the governor and council.1 Hence, I am justified in saying that in New Jersey a court of chancery has been separately. maintained in an unbroken succession for two hundred and twenty years. The plight of their colonial neighbors. marks a great contrast. And this is the more curious, since in the beginning, the provinces of New York and New Jersey were under the single administration of the same governor. Both were early molded and directed by the genius of Lord Cornbury, to whom we in New York owe so much. The early hostility to chancery and the jealousy it encountered in colonial times left a deep and lasting impression on the states after the revolution, or the source of that feeling may come out of simpler things. Those who like to set small events *This article is a revision of an address by Justice Putnam of the Supreme Court of New York, before the New Jersey Bar Association, June 15, 1918. It is delightfully discursive and at the same time filled with much valuable information.-Editor. (1) The Provincial Courts of New Jersey, by Richard S. Field, p. 113. (Coll. N. J. Hist. Soc., Vol. III.) as leading to great consequences are not without illustrations that some might regard as fanciful in accounting for the disappearance of distinct chancery courts in the adjoining states of Pennsylvania and New York. In Pennsylvania repeated efforts had been made by local legislation to unite chancery powers with those of the common law courts, always to be frustrated by the paramount authority of the British government, which naturally was jealous of its prerogative. Thus in 1684 a court consisting of five judges was constituted "to try all criminals, and titles of land, and to be a court of equity to decide all differences upon appeals from the county courts." But this did not receive approval of the Crown. In 1693 county courts had jurisdiction in equity in amounts up to £10 stg. In 1701 in an act "for establishing courts of judicature in this province and counties. annexed" we find a provision that the judges of the several courts of common pleas should have full power "to hear and decree all such matters and causes of equity as shall come before them in said. courts; wherein the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts. and proper in these parts; with power also in said justices to force obedience to their decrees in equity as the case may require." By same act the Supreme Court could hear and determine appeals in equity causes, and make such decrees thereon as should be agreeable to equity and justice. This act of the assembly of Pennsylvania also was annulled by the Queen in Council in 1703. Another like act passed in 1710 met that fate in England in 1713. Two years after a further attempt was made to set up a supreme or provincial court of law and equity for this province, which was rejected in England in 1719. the people early invested the Great and General Court with chancery powers and endeavored to extend that jurisdiction to county magistrates. After Andros and the colonial governors asserted like powers, public hostility arose, to which the later opposition as a state to chancery courts is attributed.2 As the reader may recall, the sweep of Democracy in New York abolished the office of chancellor and his court by the Constitution of 1846. The changes of public sentiment at that time might explain sufficiently this step. Public opinion then swung strongly against the power of all officials, and sought to fill judicial offices. by frequent elections, instead of through appointment, and naturally was against retaining an office with the associations of chancellor. A prominent man of later times, Henry L. Clinton, surveying the past from memories gathered in a wide legal acquaintance, does not hesitate to ascribe this overthrow of the court of chancery to the personal traits of Reuben H. Walworth, the last chancellor. And this was not on account of his decisions, but because of his inveterate habit of interrupting counsel in argument. In our old Court of Errors the chancellor presided. Walworth, when sitting as chancellor, was accustomed to ask many questions to assure himself that he had before him all the necessary parties. And as he presided in the Court of Errors he became still more talkative. Clinton, who must have referred to the closing years of Walworth's office, says: "It was almost impossible for counsel to deliver a continuous argument before him, so constant and persistent were his interruptions." Clinton was himself a listener to the argument of Webster in Lawrence v. The Mayor, in 1845, where an attempt was made to induce the court to reconsider its view of the city's non-liability for build (2) A like situation occurred in Massachusetts. Under the proprietary government (3) Washburn, Jud. Hist. of Mass., p. 167. Extraordinary Cases, p. 14 (N. Y. 1896). J ings demolished to stop the fire in 1835. Mr. Webster was retained to argue the point, closing a series of arguments that had lasted three or four days. At the end of the first hour, Clinton says the chancellor broke in with an interruption that seemed not to have much point. Mr. Webster paused, looked at the chancellor, and with a few calm and dignified sentences, froze him into silence, which was not broken during the rest of the argument. Without accepting Clinton's estimate of such far reaching effect of Walworth's peculiarities, we cannot fail to mark how much the value and influence of judicial office depends on the manner and demeanor of its high occupant. In setting forth this steady, uniform growth of chancery in New Jersey, I must not overlook Delaware, where since the Constitution of Delaware in 1792, equity powers have also been vested in a chancellor. But in the colonial time during the governorship of Patrick Gordon, such powers were vested in the Courts of Common Pleas. This legislation was presumably drawn by Andrew Hamilton, that eminent lawyer whose influence is felt in the provinces of Maryland, Pennsylvania and Delaware, and who then was speaker of the Delaware Assembly. Equity powers given to such a court not by the governor's prerogative, but by local enactment, seems to be the only instance that escaped the annulling action of the Privy Council. This statute is not dated, but must have been before 1737 and perhaps before 1730. In New York, we note that the courts, even with trials by jury, were subjected to the oversight of a chancery power vested in the governor with the members of his Assizes. The Court of Assize, besides the governor, was made up from three of his (4) This may have been for the reason that Delaware was not recognized as a separate Province by the British Government. (Dickerson, Am. Colonial Government, p. 236. Cleveland, 1912.) council, the mayor of New York, the high sheriff, four justices of the peace of the West Riding and two justices of the North Riding, constituting a somewhat unwieldly court of twelve. This court remained from 1665 to 1683. It thus started almost immediately after the Dutch capitulation of 1664. After Richard Smith, the patentee of Smithtown, Long Island, had lost two verdicts in his boundary dispute with the town of Huntington, he appealed to Governor Lovelace by petition on September 6, 1671, in which he set forth: "That, whereas, the town of Huntington claimeth the sole propriety of all the land between Cow harbour and the Nesagunk River, with all the benefits thereof by virtue of two verdicts lately passed as they say. Your petitioner humbly conceives this to be an over rigorous construction and inconsistent with righteousness and the established law and therefore humbly requests your Honor to grant him the liberty of appeal to the Court of Assizes." Huntington answered denying any fraud or foul practice. The council granted leave to appeal followed by rehearing, and declared that it would give such further determination as would "be consonant to law and good conscience." After many delays Smith gained the suit in 1674, and later clinched this title by a confirmatory grant from Governor Andros in 1677. Thus, under the form of an appeal, the governor with his Assize really exercised chancery powers of a bill of review. The governors in New York had acted. as chancellors under the authority of the patent to the Duke of York before 1683, when the legislature provided for chancery powers in the governor and council. In 1691 the assembly assumed to limit this court to a term of only seven years. But after 1698 the Crown asserted its prerogative, and continued the chancery power by ordinance or executive order, resisting all limitations by local legislation. This as |