(dissenting). — Judges Brace,-Macearlane and myself do not agree to the opinion just filed, nor to the line of argument therein pursued. In our opinion, the judgment in this case should be reversed and the petition dismissed for want of equity, and our reasons therefor are set out in the following opinion heretofore-filed in Division One:
The plaintiff Belle Ilgenfritz is the wife of the defendant William D. Ilgenfritz. She brought this suit in equity against her husband and his brother Edward to set aside a deed made by her and her husband to Edward. The circuit court gave a decree according to the prayer of the petition, and the defendants appealed.
After the plaintiff and William D. Ilgenfritz, hereafter called the defendant, were married, he purchased three lots in the city of Sedalia and had the same conveyed to her by a deed dated in 1884, not as her separate estate as alleged in the petition, but as her general property. The money used in purchasing the lots and in erecting a dwelling thereon, amounting in all to about $5,000, came from his parents as an advancement to him! The plaintiff had no money or property of her own.
The plaintiff resided with defendant in this their home until the thirtieth of November, 1887, at which time she left him and went to her father’s home in the city of St. Louis. On the fifth of December, being about a week after she left, she and her' husband conveyed the house and lots to his brother Edward for the recited consideration of $5,000-. At the same time the *442defendant signed and delivered to her father, Mr. McNair, the following agreement:
“Whereas I and my wife, Belle McNair Ilgenfritz, have agreed to live separate for a time, she to remain at her father’s house; and whereas, she has this day signed a deed conveying to C. E. Ilgenfritz certain house and lots in Sedalia, Mo., the proceeds whereof have.been turned over to me, said house and lots having heretofore been paid for by me and the title to the same placed in her name. Now in consideration of the premises I agree to pay to Chas. A. McNair 'as trustee for my said wife, the sum of $30 per month, for each and every month during the time we may remain separated. The above is to become null and. void in case she ceases to live at her father’s house, or applies for a divorce.”
The defendant, with some delays, paid the $30 per month for a period of seven months, and then refused to make any further payments. She then commenced this suit in December, 1888, to set aside the deed so made by her and her husband to Edward. She states in her petition that she and defendant agreed to live separate “for a time;” that he represented to her that he had no property and was unable to support her and the children of their marriage from the small salary which he was receiving; that if she would convey the property to his brother Edward, the latter would convey to him a stock of goods-in Sedalia of the value of $5,000; that with the stock of goods he would be able to make her an allowance; that relying upon these representations and believing them to be true, she joined him in the deed to Edward; that the representations were false and fraudulent and a scheme devised by him and Edward to cheat her out of her property; and that Edward did not convey to her husband the stock of goods.
*443At and before the date of the deed, the defendant was in Ms brother’s employ in a hardware store in Sedalia. It appears the defendant and the plaintiff did not live in harmony and had had their differences for some time. She left him twice and went to her father’s in St. Louis, the last time on the thirtieth of November, 1887, taking with her one child about four years old, leaving the two younger children, one a babe, at Sedalia. She had declared some days before, her intention to leave him, but she says he did not know that she was going to leave on the day she left. She took the train without his knowledge or consent. In a day or so he followed her and endeavored to pursuade her to return to their home, but she refused. In the course of a week he returned to St. Louis with the deed now in question prepared and requested her to sign it. After one or two visits to the house, she, her sister and the defendant went to her father’s office. Mr. McNair relates what transpired there in substantially these words: “They all came to my office together. He wanted my daughter to sign the deed and she conferred with me about it. She declined making the deed, unless he gave her some consideration for it. He said his brother was going to sell out the hardware business and if he could get Belle to make the deed to his brother, he would be allowed $5,000 in the purchase of the store, and that would enable him to make money enough to support his wife and children; that he wanted to give her sufficient to support her while she remained in St. Louis. He suggested $50 per month, and I objected to that as being too much, and reduced the amount to $30 per month, because I believed that to be the rental value of the house. After that we went across the street to a notary’s office and my daughter signed the deed. I wrote the contract there in his presence and he signed it. In the following July 1 *444asked him if his brother had transferred to him the $5,000 interest in the store, and he said he had not, but would do so at any time. He had then neglected to make the payments when due.”
The plaintiff and her sister testified that defendant was at their house in St. Louis in April, 1888, when the plaintiff said to him “you tricked me nicely out of that property,” and he said “yes I did. I had to do it, or I could not get it. I was afraid you would mortgate it.” The defendant says the plaintiff accused him of swindling her out of the property, and he said “Belle, if you had kept the property in your name, you would have mortgaged it away from the children,” and that this was all he said; that it was useless to say more a,t that time and on that occasion.
The proof shows that defendant continued in the employ of his brother on a salary the same after as before the date of the deed; and that he continued to occupy the house, paying Edward no rent therefor, his mother keeping house for him. The proof is clear that he had and received no interest in the store until May, 1889, which was after the institution of this* suit. At the last named date the hardware stock and business were turned over to a corporation, and defendant received stock in the corporation to- the amount of $3,500. He says his family expenses had been in excess of his salary at the date of the deed and contract in question, and when he came to figure' up the accounts, he owed his brother Edward $1,500; that this sum was deducted from the $5,000 consideration specified in the deed and he. took stock for the remaining $3,500. At this date Edward conveyed the house and lots to his mother, to whom, it is alleged, he was indebted for money borrowed of her.
The deed and contract in question bear date the fifth of December, 1887, while this stock was not *445turned over to defendant until May, 1889. As to this the defendant testified: “When the deed was executed I thought we might live together. I could have had an interest in the store at any time from that date on, but I thought best to let the property stand, and if she came back I would have a home. I kept the.matter open by agreement, in hopes my wife would come back, until May, 1889.” Indeed, the defendant testified on the hearing of this case: “I think my mother would let me have the property back at any time that my wife consents to come back and live with me, and take care of the home. My mother takes care of the children and lives out at the house.”
As to the representations made at the execution of the deed and contract, the defendant testified: “I do not think I told them that I had any agreement made with my brother Edward, but I told them I could make an agreement.” Edward testified that the matter of his brother taking an interest in the store had been talked over before the plaintiff left her husband, and his evidence shows that he knew the deed had been made to him for the purpose of giving the defendant an interest in the store. He says the trade was consummated in May, 1889.
Nothing was said about the $1,500 due from defendant to Edward at the time the deed and contract were signed at Mr. McNair’s office. The proof shows that the plaintiff incurred $600 of this indebtedness for dresses and the like at the time she first left her husband. She concedes that she made bills to that amount for such purposes, but says she was not informed at the time she signed the deed that her husband owed Edward any larger amount.
The plaintiff says in her testimony that she formed the intention to remain away from her husband permanently after she reached St. Louis. She was asked *446on cross-examination what cause she had for leaving her husband, but her counsel interposed objections and the court excused her from answering the questions. She says she had money to pay her expenses on that, trip, but she declined to say wherp she got it. As this record now stands, there is nothing to show why she left her husband or that she had any cause for so doing. Such is in substance and effect the case now in hand.
It is to be observed at the outset that the facts as disclosed by the evidence are materially different in several respects from the facts as they are alleged in the petition. Thus the property was the general, not the separate estate of the plaintiff, and she therefore held it subject to the marital rights of her husband. 'Again, the plaintiff furnished no part of the money used in purchasing and improving the lots, though the contrary is alleged in the petition. . The petition disregards and ignores the contract whereby defendant agreed to pay Mr. McNair $30 per month for the use of the plaintiff.
The relation of husband and wife is one of great confidence and trust, and he is regarded as the stronger and the natural protector of the wife. This power and influence possessed by the husband gives him special opportunities to deal unfairly with her; and out of all this arises the rule that courts will closely scrutinize transactions by which he obtains the property of the wife. To avoidsuch a transaction, the improper influence need not proceed so far as it must where no such confidential relation exists. Bishop on Married Women, Chap. 35. As said in Witbeck v. Witbeck, 25 Mich., 439: “The law recognizes the fact that a married woman is easily subjected to a species of coercion, very much more effectual than any ordinary operation of fear or fraud from strangers. It has always been found necessary to examine jealously into all transactions whereby the husband gets an advantage over the wife, *447not plainly spontaneous on her part. Any undue advantage gained by the use of the marital relation is a legal fraud on the wife, which courts of equity will not allow to stand to her prejudice.” See also 1 Story Equity, sec. 218. This principle of law is so well established that it is deemed unnecessary to cite further authorities. But its application depends much upon the circumstances of the particular case.
In the case now in hand, the deed which the plaintiff seeks to set aside, and the contract to pay her the stipulated sum per month were both executed after she had left her husband, and while she was under the protection of her father and at his house. She says she had then formed the intention to remain permanently away from him. She called upon her father for and received his advice in the matter of signing the deed. It must be apparent that this case is quite unlike one where the husband induces the wife to join in a deed while she is under his roof and subject to his influence. "With these observations in mind, we proceed to the consideration of the alleged fraudulent representations.
Mr. McNair states in his evidence that his daughter, the plaintiff, refused to sign the deed, unless paid a consideration therefor. The defendant then said his brother, Edward, was going to sell his hardware business, that if Belle would join in the deed conveying t'he property to Edward, he would be allowed a $5,000 interest in the hardware store, and this would enable him to retain a position in the store and make enough money to support his wife and children, and he suggested an allowance to her of $50 per month. But the matter did not stop here. Mr. McNair prepared and defendant signed the agreement to pay for her use $30 per month. It is manifest that this agreement to pay the $30 per month constituted the real inducement for *448executing the deed. As a deceit, to be actionable, must relate to existing or past facts, the breach of a promise to pay in the future is not of itself a fraud. Cooley on Torts [2Ed.], p. 569. The fact, therefore, that defendant made breach of his agreement to pay the $30 per month does not of itself furnish any reason for setting aside the deed.
Prom the evidence of Mr. McNair we are unable to see a single representation as to an existing or past fact. The representations made by defendant all relate to what he could and would do in the future, if his wife joined him in the d,eed. They amount to nothing more than an expression of his intention to do certain things by which he would be able to make the promised payments. They are the statements of his intention, hope and expectation, coupled with the promise to pay the specific sums of money, and nothing more, as we view them. Now, it is well settled both at law and in equity that a misrepresentation must be an affirmative statement; and that a mere statement of an intention, hope or expectation cannot be a misrepresentation amounting to a fraud, for no one has a right to rely upon such a statement. 2 Pomeroy’s Equity Jurisprudence [2 Ed.], secs. 877, 891; Bispham’s Principles of Equity [4 Ed.], sec. 211.
The whole case, so far as the alleged misrepresentations are concerned, resolves itself into this, that the plaintiff executed the deed knowingly and under her father’s advice in consideration of the agreement of the defendant to make the stipulated monthly payments. He made the payments for seven months, and then refused to further comply with the terms of the contract. Had he continued the payments, this suit would not have been instituted. This is manifest. The case is, therefore, simply one of a breach of contract, and we have seen that a breach of promise *449furnishes no reason for setting aside a deed. The remedy is an action on the contract. We may add that a false promise is sometimes a device resorted to for the purpose of accomplishing a fraud, as in case of a purchase of goods with an intention not to pay for them. Courts will, of course, grant the proper relief in such cases. But the petition in this case is not framed on any such theory of fact or law.
We think it must be conceded from the evidence of the defendant himself that his brother Edward held this property for his use and benefit, and it maybe the mother so holds it at this day, but we do not see how this fact furnishes any ground for the relief asked here by the plaintiff. As we have said, she executed the deed because of and in consideration of the- agreement of defendant to pay for her use the stipulated monthly allowance, and the breach of that contract does not of itself make the whole transaction fraudulent.
But it is suggested that the consideration paid and agreed to be paid is so grossly inadequate as to be evidence of fraud and undue advantage obtained by the defendant over his wife. At first blush this point would seem to be well taken, but in disposing of this proposition we must look to all of the circumstances as they existed when the deed was made. The defendant purchased these lots and paid for them and had the house erected thereon out of his own means, and while this fact furnishes no excuse for any undue advantage obtained by him over her, still it is a fact worthy of notice, and it is a fact which found recognition in the contract prepared for him to sign and which he did sign. Again, this was her general property, in which he had his marital rights. She could not convey it without his consent; and though she left him, he had the right to occupy and enjoy the property. It is the duty of a *450wife to live with her husband and to make his home her home, and to give to him her society and services, unless she can show reasons which are valid in law, relieving her of these duties. Here the plaintiff: left her husband and the home which he had prepared for her, without his knowledge or consent, and she asserts that it is her purpose to remain permanently away from him. No reason whatever is assigned for such conduct. Whatever the real fact may be, we must take it as conceded by this record that she had no just reason whatever for leaving- her husband, and that she is guilty of an inexcusable breach of her marital duties. Under all these circumstances, we cannot say the consideration agreed to be paid to her is so inadequate as to be sufficient proof of a fraud perpetrated by him.
After all, we come back to the main proposition and that is this, that the plaintiff was ready and willing to join in the deed for the promises of her husband set forth in the contract signed by him, and on that contract she must stand.