Charles Ridgeley, Jr., vs. James H. Crandall, and Elizabeth, his wife, 4 Md. 435

Mason, J., delivered the opinion of this court. The appellees instituted this action to recover the difference in value alleged to be due the plaintiffs, in the division of the real estate of Jeremiah Mullikin, the father of plaintiff’s wife, between the portion of the said realty allotted to the plaintiff’s wife, and the portion thereof allotted to the appellee’s wife, by commissioners appointed by them and a certain Jeremiah Mullikin, who was entitled to an equal share with his said two sisters, in said real estate, under the will of their said father.

The declaration contains the usual money counts, and the plaintiffs also filed with it an account stating their cause of action.

The proof incorporated in the first bill of exceptions shows, that Jeremiah Mullikin, the testator, died in August 1850, and by his last will devised to his said three children certain real estate, consisting of houses and lots in the village of Upper Marlborough, and that the said devisees, and the said Ridgeley and Crandall agreed to have the same divided by certain commissioners, who made a division thereof, and also awarded to the said plaintiffs, to be paid by the said appellant, the sum of money claimed in this suit for the difference in the value between the portions allotted to the wdves of the said Ridgeley and Crandall; that the wife of said appeL lant was under the age of twenty-one years at the time of said division, and that the said Ridgeley stated at the time of the said partition, that he never would pay the said sum, unless he was indemnified against the claim of a Mrs.

Mullikin to a part of the lot awarded to him. The record also shows, that after the division of the said property was made, deeds were executed by the said parties for their respective portions; the said Jeremiah Mullikin, and the said Crandall and wife, and Ridgeley and wife, uniting in said conveyances, all of which bear date 9th October 1850. The record further shows, that the defendant offered to show in evidence that Mullikin, one of the devisees, had before the execution of the deeds applied for and obtained a discharge under the insolvent laws.

Upon this state of facts the defendant offered several prayers, all of which were rejected by the court below, except the first, which was granted by consent. The first question which we are called upon to decide, arises out of the refusal of the court below to grant the defendant’s second prayer.

This prayer avers, “that the plaintiffs were not entitled to recover in this action, their declaration being defective in this, that they do not set out the special agreement above mentioned, and aver the performance of the said condition precedent on their part.” The execution and delivery of the deeds of partition or division, made in pursuance of the award of the commissioners appointed by the agreement to divide the property, was a consummation or execution of the contract by the plaintiffs.

The stipulated price due under a special contract not under seal, where the contract has been executed, as in this case, so that only the payment of the money remains, can be recovered under the indebitatus assumpsit count, and it is not necessary in such case to declare upon or set out the special agreement. 11 Wheat., 237, Perkins vs. Hart. 4 Cowen, 564. Coursey vs. Covington, 5 H. & J., 45. Baker vs. Corey, 19 Pick., 496. Bank of Columbia vs. Patterson, 7 Cranch, 299. 9 Peters’ S. C. Rep., 541. Peltier vs. Sewall, 12 Wend., 386, This prayer, we think, was properly rejected.

The third prayer seeks to shelter the defendant from his liability growing out of the contract, because his wife, whom he had himself sought to make a party to it, was an infant at the time the deeds were executed. Such a proposition is wholly untenable. It virtually sets up the defendant’s own fraud as a protection to him. What may be the effect of this agreement upon the rights of the wife, or how far she may be enabled now or hereafter to avoid it, are questions about which we desire to intimate no opinion.

But we are clear that it does not lie in the defendant, in the present proceeding, to take advantage of his wife’s infancy to avoid his own contract. This prayer is defective upon another ground, and that is, it assumes that the deeds made under the contract, to which the wife was a party, were absolutely void, if she was an infant at the time they were executed. As a general legal proposition this is not true. Unless this court can see from the contract itself that it would be to the prejudice of the infant, it will not be pronounced void, but voidable only.

The inclinations of our courts are, to treat the deeds and contracts of infants as merely voidable, and not as absolutely void, and this prayer is vicious in treating them all as void without qualification. Fridge vs. The State, 3 Gill and, Johns., 115. Key vs. Davis, 1 Md. Rep., 42. The defendant’s fourth prayer, which presents the question of the propriety of joining' the wife in the present suit, we think ought to have been granted. The husband and wife were improperly joined.

The pleadings nowhere disclose such a meritorious cause of action in the wife as would warrant a suit in the joint names of the husband and wife. In this respect this case is unlike the case of Higdon vs. Thomas, 1 H. & G., 139, which was mainly relied upon by the plaintiffs in support of the regularity of this proceeding.

The report of that case states that “the declaration counted upon the contract recited in the bond.” The bond expressly recites that the land sold by Higdon, for the purchase money of which the suit was brought, “was held by virtue of his intermarriage with Armetesia, (his wife,) daughter and devisee of Sarah Briscoe.” The consideration in that case being the inheritance of the wife, the implied promise was, by the court, made to enure to the wife jointly with the husband, and on which implied promise the husband could sue either in his own name, or in the name of himself and wife.

In the case we are now considering, the declaration shows no cause of action in the wife, but it is contended that the account filed with the declaration is a part of the pleadings, and that it discloses sufficient grounds to support this proceeding. Admitting it to be a part of the pleadings, still it does not show that the money sued for was part of the wife’s inheritance. It is true it states that it was “the difference in value of property divided among the devisees of J.

Mullikin, deceased, and which sum was awarded by the commissioners to be paid by you, (defendant,) to us, (plaintiffs,) in full of said difference,” but still it does not appear whether the -wife or the husband was the devisee. The interest of the wife should be stated in the declaration distinctly and affirmatively, before the court can raise an implied promise to the wife, as in the case of Higdon vs. Thomas. It was supposed that that case carried this doctrine fully as far as general principles would warrant, and we do not feel at liberty to extend it any further. See Staley vs. Barbrite, 2 Caine’s Rep., 221.

Philliskirk vs. Pluckwell, 2 Maule and Selw., 393. Bidgood vs. Way, 2 Wm. Blackstone, 1236. 1 Chitty’s Plead., 30. For the same reasons, we think, the plaintiffs’ prayer, which was granted by the court, ought to have been denied. It assumed, among other things, that the husband and wife were properly joined in this action. The second exception, we think, presents no error. It relates to the admissibility of the proceedings in the matter of the insolvency of J. Mullikin, Jr. Under the circumstances of this case this testimony was clearly inadmissible. There is no analogy between this and the case of Bayne vs.

Suit, 1 Md. Rep., 80. In the latter case the existence or pendency of the replevin suit was directly in issue, and the record of the proceedings was admitted as the best evidence of the fact. Here the insolvency of Mullikin is not in issue. It is a circumstance which we deem wholly collateral and immaterial to the main issue, and therefore the evidence offered to establish it was properly rejected.

It may be observed in this connection, that if the defendant intended to take advantage of either the infancy of his wife, or the insolvency of Mullikin, to defeat the agreement for the partition, he ought to have done so, at least, before he united with the other parties in the conveyance made in pursuance of that agreement. After he had consummated the arrangement as far as he was able, and received the plaintiffs’ deed in the face of the insolvency and infancy of the tv?o devisees, it is now too late for him to set them up in avoidance of his obligations to the plaintiffs.

Judgment reversed and procedendo awarded.