delivered the opinion of the court:
The errors assigned in this case bring before us for review the entire record, and we are called upon to ascertain whether the evidence, under the law applicable thereto, makes such a case as will sustain the decree .of the court below.
The question first presented for consideration is as to the character of the contract or deed upon which the relief is sought;—is it an executed or executory contract? Appellee contends that it is an executed contract, and cites in support thereof, Chilvers v. Race, 196 Ill. 71, and White v. Cannon, 125 id. 412. The cases cited are not in point and do not support the contention. In Chilvers v. Race, supra, a husband executed certain trust deeds for the benefit of his wife for life, and remainders to certain persons therein named. The person named as trustee was a party to and signed each of said deeds charging him with the trust, and the deeds were promptly recorded. The maker died and the deeds were found among his papers. The only question there was the sufficiency of the delivery of the deeds and acceptance by the trustee to carry the estate to the remainder-rrien. The second case cited was where a husband and wife conveyed to a third party lands of the husband, with a verbal agreement on the part of the grantee that he would pay off certain claims against the land and re-convey the same to the wife. The grantee paid off the indebtedness and was killed before making the conveyance to grantor’s wife. The question was-whether the heirs of White, the grantee, were entitled to be reimbursed for the money White had paid to take up the mortgage against the land. It was held that he was a volunteer .and was not entitled to subrogation, and that the money thus paid by him became an executed gift. Nor do we think any well grounded case can be found holding that where a deed is made intending to convey one tract of land but in fact conveys another not intended to be conveyed, it can be regarded as an executed conveyance of the tract intended to be conveyed but not in fact conveyed. An executed contract is one in which the.object of the contract is performed, and-if the object of the contract in question, which appellee in her bill says was the conveyance of certain land in section 29, had been performed, she would have had no occasion to bring her suit. She was in possession of her land and deed, and nobody was interfering with either. But the deed she had was not for the land she had possession of and for which she claims it ought to be.
We are not without authority, however, upon the proposition, if authority were needed. In German Mutual Ins. Co. v. Grim, 32 Ind. 249, (2 Am. Rep. 341,) the following language is used: “If, then, the deed had been made to Mrs. Grim as she claims it was intended to be, shé would have occupied the.position of a voluntary grantee, without a valuable consideration; but if the conveyance did not describe the premises intended to be conveyed it would still have been inoperative and for that reason would not have been an executed gift, and as the conveyance was merely voluntary it did not invest her with any- equity which she could have enforced.” When made for .a sufficient consideration such a deed is treated in equity as an agreement to convey-the land intended to be conveyed, and performance enforced. (Willey v. Hodge, 104 Wis. 81; 76 Am. St. Rep. 852.) There was no trust created and no power conferred by the deed in question, and cases involving such questions have no application to the case at bar.
We are unable to .see from the evidence in this case that there was a valuable consideration, or, in fact, that there "was a consideration of any kind other than love and affection and such consideration as prompted the husband to make gifts to his wife, and we think this a gift inter vivos which was attempted to be made by deed. The master did not find that a valuable consideration was paid. He did find there was no money paid as a consideration for the deed. He also found that the consideration “may be said to be a moral obligation, arising from an antecedent legal obligation to pay back money and property received from complainant, the enforcement of which obligation.had been suspended by the operation of some positive rule of law.” If this latter finding was supported by the evidence, there is abundant authority for holding such a consideration good. But we are unable to find in the evidence facts warranting the conclusion reached. The moral obligation sufficient to support the contract must have at some antecedent time been a legal one. (Hart v. Strong, 183 Ill. 349.) Complainant and the ‘donor were married in 1849, at which time she had $500 in'land and money. The land was disposed of within five years of the marriage. From the time of the marriage to the close of the war, along at irregular intervals, various sums of money, no one of which was fixed, but aggregating $2000, were received by appellee from her father’s and mother’s estates and turned over to her husband. All the money that was received by the husband from the wife prior to 1861 was the absolute property of the husband, and that which he received between 1861 and 1874 could not have been the subject of contract between them, as until that time their power to contract with each other was not recognized by law in this State. (Thomas v. Mueller, 106 Ill. 36.) There was not, then, at the time of the receipt of the money, or of .any part, by the donor from appellee, any existing legal obligation to pay it back, and there was therefore no antecedent legal obligation suspended by the operation of any positive law out of which the moral obligation could arise.
Nor does the evidence sufficiently show that the moral obligation to re-pay this money so advanced by appellee to the donor was recognized by him to the extent of forming the consideration, or any part of it, for the conveyance in question. Appellee was allowed to testify, and she does not state that this money was mentioned in any way at the time of or before this conveyance. This was not a mere oversight, as she was particularly inquire d of relating to the advancement of the money to her husband, and thus given the opportunity to say that although on the occasion of the making of the deed she did not pay him any money, this money previously had of her by him was talked over between them and it was agreed that it was to stand as the consideration, but, instead, appellee said that the intention of the donor was to give her the eighty acres of land of his own free will. This latter statement is supported by the deed itself, wherein the money consideration of one dollar is placed, coupled with love and affection, of which the latter would seem to have been the real consideration. It is hardly reasonable to suppose that if they had talked over the consideration from a money standpoint, an,d had agreed that he had received from her $2500 which he felt it his moral duty to pay and that he was going to make the deed in question for that purpose, they would not have related the matter to the attorney who drew the deed and seen that that sum appeared as the real consideration. It would rather appear that because she had given all to him he felt for her a greater and deeper affection than he might otherwise have felt, and that the increased love and affection for her were the inducing cause and consideration for the deed. This view is further sustained by the testimony of Wesley M.' Dickerson, a brother of the donor, with whom he talked a number of times about the transaction, and stated in connection with it the fact of having had money from his wife when they were married, and a similar conversation with his attorney, who was appellee’s attorney in this proceeding also, and with whom he talked about making the will, and in that connection told him that the homestead eighty had been deeded to appellee, and that he had land and property of her when they were married. But in norte of these conversations did he say that the re-payment of the money was the consideration for the deed. The deed being from the husband to the wife, the presumption is that it was intended as a gift or advancement, and the burden is upon the grantee to show the contrary. Lewis v. McGrath, 191 Ill. 401; Smith v. Smith, 144 id. 299.
The master further finds that a meritorious consideration, at least, was given, and in effect holds that this involves a voluntary settlement, and that such a settlement, when once made, is binding, unless there is clear, decisive proof that the donor never parted, or intended to part, with the legal or equitable title. Mo authority is cited in support of this holding, and is not relied upon by appellee, so far as we can learn by her brief and argument. The rule, as it seems to be established in this State, is, “that the court will not execute a voluntary contract, and that the principle of the court to withhold its assistance from a volunteer applies equally whether-he seeks to have the benefit of a contract, a covenant or a settlement.” (Wadhams v. Gay, 73 Ill. 415.) This rule is quoted from 1 Story’s Eq. Jur. sec. 433, where the question, after elaborate consideration, is thus resolved. In the early, case of Webb v. Alton Marine and Fire Ins. Co. 5 Gilm. 223, it was said (p. 226): “It is a stern rule of equity that it will not decree the specific execution of a contract unless it is based on some fair and valuable consideration.” And in the case of Preston v. Williams, 81 Ill. 176, which was a suit by the children to have the deed of the father corrected, after stating the rule as announced in Webb v. Alton Marine and Fire Ins. Co. supra, the court said: “Upon the same principle it may be said that a court of equity might refuse its aid to rectify a mistake in a contract that is voluntary and without any consideration to support it, when a bill is brought against the party who executed the instrument.” The above rule is further announced in McCartney v. Ridgway, 160 Ill. 129, and is.supported by the unquestioned weight of authority, as the following will show: 14 Am. & Eng. Ency. of Law, (2d ed.) 1046; Willey v. Hodge, supra; Stone v. King, 84 Am. Dec. 557; German Mutual Ins. Co. v. Grim, supra.
It is further urged by appellant, that as the deed in question, according to the contention of appellee, was to convey the homestead of the donor and appellee, and as appellee did not join in the conveyance or in the release of the homestead, the conveyance for that reason is void. By section 1 of chapter 52 of our statutes the estate of homestead to the value of §1000 is created and excepted “from the laws of conveyance, descent and devise, except as hereinafter provided.” (Hurd’s Stat. 1899, p. 867.) By section 4 of the same act it is provided: “No release, waiver or conveyance of the estate so exempted, shall be valid, unless the same is in writing, subscribed by said householder and his or her wife or husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged, or possession is abandoned or given pursuant to the conveyance.” In construing this act we have held that instead of being a mere exemption of an estate theretofore existing it is the creation of a new estate known as the estate of homestead, and where the homestead property does not exceed §1000 in value the homestead estate embraces the entire title and interest, and that a deed to property embracing the homestead in which the wife has not joined, leaves the homestead estate in the grantor precisely as though the deed had not been executed, and that such estate may be transferred by sufficient conveyance or it may descend to the heirs. (Gray v. Schofield, 175 Ill. 36.) In the same case we. also held that if the grantee in a deed claim the benefit of the deed, under the above statute, upon the ground that the grantor had abandoned possession of the granted premises pursuant to the deed, it must be made to appear from the evidence that such abandonment was for the express purpose of giving effect to the deed, and not simply^because another homestead had been secured to which the husband and wife transferred their home.
In the case at bar appellee did not join in the execution of the deed made by her husband, through which she claims title to the premises in question. The record is silent as to the value of the premises. It is not shown whether the land was worth more or less than $1000, and as the burden was upon appellee to bring herself within the provisions of the statute affecting such conveyance, she should have shown the value of the property. Nor is there any evidence in the record showing, or tending to show, an abandonment of the premises conveyed, for the purpose of giving effect to the conveyance, or “pursuant to the cbnveyance,” as the statute requires. All the evidence that shows anything upon the subject or has any bearing in that direction shows that the property in question was the homestead at the time of the conveyance. It is so designated in the bill. It is so referred to by every witness who speaks in regard to it, and the attorney who drew the will tells of visiting the donor at his homestead in the country, after the making of the deed and before the making of the will. No witness testified as to where the residence of the donor was at the time of his death or at any time after making the deed in question, or that he ever changed his residence from the premises now in controversy to any other place. The only evidence in the record upon that subject is the recitals in the will, made in 1893, and in the codicil, made in 1898, in the first of which the testator speaks of his residence property in Leroy, Illinois, “on which I now live,” and in the codicil speaks of the property in Leroy, Illinois, as “my present home.” This being all the evidence, if this mere recital can be considered by the court as any evidence at all of the fact of the removal of the donor from the premises claimed by appellee, it is apparent it falls far short of such an abandonment as could give effect to the deed under the requirements of our statute.
There is not sufficient evidence in this record to warrant the decree rendered. In fact, we think the decree is so contrary to the evidence that it is onr duty to reverse it, and it is accordingly reversed and the cause remanded to the circuit court of McLean county for such further proceedings as equity and justice may require.
Reversed and remanded.