The parties were formerly husband and wife; during that relation the defendant gave to the plaintiff an automobile, which, unknown to plaintiff, was subject to a mortgage given by the husband to the party of whom he purchased the car. After the marriage relation had been terminated by decree of divorce, the mortgagee took the car from the possession of plaintiff and began foreclosure proceedings; she then paid him $981.36 to redeem the car. This action of assumpsit was brought to recover the sum so paid, with interest. At the conclusion of the plaintiff’s case the presiding Justice directed the jury to return a verdict for defendant. The case is before us upon exceptions to this ruling.
The ruling was clearly right. As between the parties the car was a gift from the husband to the wife. There was no implied warranty that the car was free from encumbrance.
The defendant’s liability, if any, must rest upon some contract between the parties. The only contract between them, from which an undertaking on his part could arise that the car would be free of incumbrance, is thus stated by the plaintiff: “If I should marry him, it (the car) was mine and he would give it to me, and he agreed that if I would marry him that he would give me the car as mine, for me to go and come with as I wanted to.” This agreement was made in January 1920; the parties were married February 7, 1920. The car was purchased in May following.
The agreement was unquestionably made in consideration of marriage, and not being in writing, was void under R. S., Chap. 114, See. 1, Par. III. Lloyd v. Fulton, 91 U. S., 479. Law. Ed. Book 23, Page 363. In re Willoughby, 11 Paige Ch. 257.
Exceptions overruled.