Peek v. Peek

Hayne, C. Ejectment, with a cross-complaint by defendant praying for a conveyance of the legal’title. The facts are as follows: —

One L. R. Peek orally promised the defendant that if she would marry him he would, on or before the marriage, convey to her the property in controversy. She relied upon this promise, and married him “for no other reason or consideration.” The conveyance was not made. He put it off by excuses and protestations, and on the morning of the marriage, without the knowledge of defendant, conveyed, the property to his son by a former marriage, who was then a boy about ten years old. The marriage with defendant did not prove a happy one, and after a year’s residence upon the property* Peek deserted [108]the defendant, and the son, Lee Peek, brought the present action to recover possession of the property. The court below gave judgment for the plaintiff, and the defendant appeals.

The foundation of the defendant’s claim being the promise of L. R. Peek, the first question to be considered is whether such promise was of any validity. It is clear that it was within the statute of frauds. But it is contended that there was such part performance and fraud as would induce a court of equity to give relief, notwithstanding the statute.

We think that if the actual fraud of L. R. Peek be left out of view, there was no such part performance as would take the case out of the statute. There may undoubtedly be cases of a part performance of oral antenuptial agreements sufficient to warrant their enforcement in equity. (See Neale v. Neales, 9 Wall. 1.) But it seems to be generally agreed that the marriage alone does not amount to such part performance. (See Atherly on Marriage, p. 90; Browne on Statute of Frauds, 4th ed., sec. 459; Henry v. Henry, 27 Ohio St. 121.) With reference to this subject, Story says: “The subsequent marriage is not deemed a part performance, taking the case out of the statute, contrary to the rule which prevails in other cases of contract. In this respect it is always treated as a peculiar case standing on its own grounds.” (1 Story’s Eq. Jur., sec. 768.) Nor does the fact that the defendant resided with her husband upon the property make any difference. The reason assigned for holding possession to be part performance is,.that unless validity be given to the agreement the vendee would be a trespasser. But it is manifest that this reason would not apply where the vendor was the husband, and the vendee the wife, living with him upon the property. The possession which is referred to by the cases which hold it to be sufficient part performance is a possession exclusive of the vendor. (Browne on Statute of Frauds, 4th ed., sec. 474.)