The law gives you a little of everything. Sometimes in the same case. You don’t really expect the subject of sex to turn up in a contractual deed merger case. But you never know. (“Where two parties have made a simple contract for any purpose, and afterwards have entered into an identical engagement by deed, the simple contract is merged in the deed and becomes extinct.”)
The Indiana Court of Appeals entered an order in the case of Hemingway v. Scott (pdf) affirming a trial court decision requiring an unfaithful girlfriend to quitclaim her part of certain real estate to her former boyfriend.
In 2001, Scott inherited a ten-acre parcel of land (“the Property”) from his father. In 2004, Hemingway and Scott began a relationship, and Hemingway moved in with Scott. The couple broke up for a time, and Hemingway moved out. On February 17, 2012, the couple executed a handwritten contract, penned by Hemingway and signed by both, pursuant to which Scott promised to convey the Property from himself to himself and Hemingway. The contract included a list of conditions that would constitute a breach, including “cheating” by either party.
Scott executed a deed conveying the Property to himself and Hemingway as joint tenants. About two months later, Hemingway became pregnant by another man. (As the Court of Appeals put it, “Hemingway wasted little time in breaching the contract.”) The trial court rejected Hemingway’s argument that “she was merely Scott’s live-in housekeeper, she was not sexually intimate with him, and “cheating” probably referred to a potential lawsuit involving Walmart.” That being a factual argument and not the sort of thing that a Court of Appeals usually reverses a trial court for, Hemingway advanced the legal arguments that: a) the contract “merged” with the deed upon execution and, therefore, the fidelity requirement (which wasn’t in the deed) was nullified; and b) that the contract was “unenforceable as against public policy prohibiting contracts in consideration of meretricious sexual services.”
The Court of Appeals rejected both arguments.
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