46 Mo. 48 | Mo. | 1870
delivered the opinion of the court.
The defendant conveyed to a trustee, for the use of plaintiff’s intestate, by deed without covenants of seizure or warranty, Certain real estate in the city of St. Charles, and for a full consideration received, from her. After her death, her administrator prosecuted this suit against defendant for false and fraudulent representations in regard to. his title, made to her at the time of the purchase, and charges him with representing that a certain judgment had been by him paid and satisfied, and was not in the way of his passing a good title by said deed, when in fact he had himself, upon execution upon the same judgment, bid off a portion of the same land, and caused it to be conveyed by the sheriff to a third person, and thus had created a better legal title through said judgment than that conveyed to Mrs. Dugan’s use.
The petition shows that decedent paid the purchase money and received the deed, trusting to defendant’s representation; that she, during her life, and her administrator since her death, had been subjected to large expenses to disencumber the title of said encumbrance, and asks for compensation in damages for the ' sums so expended. The plaintiff obtained judgment, which was affirmed in the District Court, and defendant brings the case here, claiming that there was error in refusing proper, declarations of law, and in overruling the motion in arrest.
The defendant contends- — and sought to raise the question by declarations of law and by his motion — that the plaintiff had ho right to sue, inasmuch as his intestate was a femme covert at
It is claimed that an action for a wrong done the wife is a personal action, and that its subject-matter can not become a separate estate. This may be true in general, but an inspection of the petition shows that this suit is not brought for injury to her person, or to or in regard to any property or right in which the husband had an interest, but to recover back money expended by her and her administrator, to make good her title- to her separate property. Suppose a trespass had been committed, or irreparable damage was about to be done to this property, who but the wife, if living, would be interested in the remedy? Or, if sued, whose estate woqld suffer?
I assume that this property was conveyed to the separate use of the wife, and not to her use merely. I do this from the fact that it was purchased with funds not furnished by the husband; and by the terms of the deed under which she received it, the power of disposition was vested in her without the husband — thus
If this were simply the property of the wife, and not her separate property, whether conveyed to the trustee for her use or to her directly, the husband would have a marital interest of which he could not be divested without his consent; she could not even sell her interest but by joining with him. But in this case his interest is not recognized, and the fact that the wife and her trustee may convey the whole estate without him, plainly indicates that he had no marital rights, has nothing to convey himself, and has ho power to control the conveyance of his wife.
This is the only question it is necessary to consider, and the judgment of the District Court will be affirmed.
Counsel asked for ten per cent, damages upon the judgment below. This penalty has been usually confined to appeals for delay merely from judgments upon contracts — to collection cases; and we are not inclined to extend it to actions of this kind unless special reasons appear.