I dissent from the conclusion reached by WALKER, J., in this case. *Page 947
I. I do not think the contract set out is without consideration as held in the opinion. It purports to be a settlement of differences which existed before between theConsideration. parties. The opinion holds that those differences were only marital disagreements and failure to live together as husband and wife. The Court of Appeals held that the Circuit Court of Scotland County in the previous case had exceeded its jurisdiction in appointing the husband as receiver of the wife's property; so the difficulties referred to were difficulties about property.
It is true that the husband was lawfully obliged to support his family, but he was not obliged to take care of his wife's property. She had sole and exclusive control of it, and the management of the property was not one of his duties. That management was a part of the consideration of the agreement. Further, while he was obliged to support his family he was not obliged to devote what he earned from the property to that purpose. He could support them in any way he saw fit and devote his earnings there to any purpose he pleased. Nor was he obliged to make improvements on the property as one of his marital duties.
While the contract fails to describe the hundred acres of land, so as to bring it within the Statute of Frauds, possession in such cases is always sufficient part performance to take a contract of that kind out of the operation of the Statute of Frauds. If the contract is somewhat vague in some of its terms, it is to be interpreted by the way the parties understood it and acted upon it. There is no reason to declare it wholly void.
II. But suppose that the contract is of no force or effect. Take it out of the way entirely. The parties were living there with their children on the wife's land. ApparentlyRight to she left the place, not because she was dissatisfiedEjectment. with her husband's management of it, but because she did not want to live with him. She could not recover in ejectment in such case unless she could allege and prove that he withheld possession from her. As I gather it, he did nothing of the kind; she had a right to possession of the property and that right was not denied. If she was dissatisfied with his management and was under no obligation to him under the contract, her remedy would be to deprive him of that management and assume the management herself. She could not just go away from home, voluntarily leave her husband and children, and then sue for possession and put him out. He had a right to live there with his family.
For these reasons I dissent from the conclusion reached. *Page 948