Bohannon v. Combs

97 Mo. 446 | Mo. | 1888

Sherwood, J.

This is an equitable proceeding whereby it is sought to set aside as fraudulent certain deeds and a judgment which placed the title to certain land in Pettis county, formerly belonging to Wm. E. Combs, in defendant Pigg, as trustee for Mrs. Combs, and vest it in the plaintiffs, as heirs of their father, •Chas. E. Bohannon, who had bought the land at execution sale on a judgment against Wm. E. Combs, who was a party defendant when this cause was here before, but who has since died.

On a former occasion, we held the transactions mentioned as fraudulent, reversed the judgment and remanded the cause. 79 Mo. 305. On the return to the lower court of this cause, it was again heard, and the evidence the same as before, so far as concerns the main issues in the cause, resulting in a decree in favor of plaintiffs declaring the deeds, judgments, etc., fraudulent and void, as against plaintiffs, etc. But the lower court also decided that the title of the lands thus decreed to be in plaintiffs be held by them subject to the dower of Nancy H. Combs, widow of the decedent, Wm. E. Combs, and commissioners were appointed who assigned and set apart the dower interest of said widow, in said lands. There was abundant evidence to sustain that portion of the decree which declared the transaction therein mentioned as fraudulent and void; and though there was evidence of a contrary effect, the decree on that point, coinciding as it does with the former adjudication of this court, will not be disturbed, but will be affirmed.

Now, in relation to the residue of the decree: Although there are authorities to the contrary, the better opinion is that when a conveyance of the husband in which the wife joins is set aside as being fraudulent as to creditors, this will result in reviving the wife’s right of dower; for that the deed of the husband being void, there is no estate left in the grantee upon which the relinquishment of dower can operate ; hence, the wife is restored to her former rights. Robinson v. Bates, 3 Met. 40; Malloney v. Horon, 49 N. Y. 111; Dugan v. Massey, 6 Bush, 81; Blanton v. Taylor, Gilmer, 209; Belford v. Crane, 16 N. J. Eq. 265; Wyman v. Fox, 59 Me. 100; Stinson v. Sumner, 9 Mass. 143; Humes v. Scruggs, 64 Ala. 40; Richardson v. Wyman, 62 Me. 280; Hinchcliff v. Shea, 103 N. Y. 153; Summers v. Babb, 13 Ill. 483; Woodworth v. Paige, 5 Ohio St. 70. The doctrine announced and supported by the foregoing authorities has received the approval of an eminent author. 1 Wash. Real. Prop. [5 Ed.] 261.

From these considerations it follows that it becomes wholly immaterial whether Mrs. Combs made any contract with her husband to relinquish her dower in the land granted to Heard and Trigg, as trustees, in consideration of receiving whatever residue of the land there might be after the satisfaction of the debts mentioned in said deed; because that deed, having been overthrown and for naught held on account of its fraudulent character, the grant of the inchoate right of dower fell with it, as it was not the alienation of an estate, but the mere incident of the principal thing, the conveyance of the fee by the husband, and of course perished with its principal, because there was no estate left to support it, and because there was no one in whom the bare relinquishment of dower could vest. Moore v. Harris, 91 Mo. 616.

We therefore affirm that portion of the decree, also, which assigned dower to Mrs. Combs.

All concur.