144 Mo. 681 | Mo. | 1898
This proceeding in equity was instituted by plaintiffs to divest out of defendants the title to a certain improved farm of one hundred and sixty acres. The result of the proceeding was the granting of the prayer of the petition.
The case turns on the point as to what party, whether John Miller or his first wife, furnished the money which bought the litigated land. She had been a Mrs. Flanders, and John Miller a hired hand on the farm during her husband’s lifetime. About three years after the death of Flanders, she, then being about forty, led John Miller to the altar, he then being about twenty-three. This was in 1846 as to date, and Ohio as to State. Of the children born of the marriage of Jane F. Sebring and John M. Flanders, all died in
Mrs. Miller, it appears, was a thrifty, money-saving, business-like woman. She received from her first husband’s- estate'$491.39, and to each of the three surviving children there was also distributed the sum of $163.79 of the personal estate appraised. There was also the sum of $1,200 which came into her hands, this sum being the product of the sale of a tract of which John M. Flanders, her first husband, sold about a year before to one Grunn. This sum was not inventoried by her nor her co-administrator, but remained in her possession after close of the administration of her first husband’s estate. With the aggregated shares of the three surviving children she bought the Fisher place, a little farm of sixty acres for the children, situate on Dogwood Ridge, and on this the family lived. Subsequently to this purchase Mrs. Miller bought, sold and exchanged property; buying in her own name and selling or exchanging in the same way, going at one time to Massae county, Illinois, with a relative, and buying a piece of land there. Miller, it seems, at that time had no means of his own, and in 1849 with means furnished him by his wife, he went to California, and subsequently twice returned to Missouri and California, and in 1858 or 1859 returned to the latter State for the last time. In 1854, John and Jane Flanders Miller, who had become the joint purchasers of the Fisher
In 1856 Mrs. Miller went on a visit to Missouri, and while there she bought two hundred acres of land, one hundred and sixty acres of which constitutes the property in controversy. For this she paid $500, and received a title bond from Noell, conditioned that on payment of the residue of the purchase price, $500, he would make her a conveyance. Having secured this title-bond, Mrs. Miller left it with Judge Boynton, her son-in-law. In 1857, Mrs. Miller sent the balance of the purchase money to Noell by Boynton, and thereupon Noell executed and delivered to Boynton a deed for his mother-in-law Mrs. Miller. A few days thereafter Boynton, at the request of Miller, and on his representation that Mrs. Miller wanted it that way, procured Noell, without Mrs. Miller’s knowledge or consent, to execute the deed to Miller, and thereupon the old deed was destroyed, and the title-bond delivered to Noell. In 1861, Mrs. Miller and child, Cora V., went to California, remaining there until 1870, when they removed to Sullivan county, Missouri, and settled on the property in dispute. Miller, thereupon proceeded to improve the property, expending thereon some $2,000 or $3,000; seemed to be prosperous, and several hundred acres were added to the farm. Mrs. Miller died in 1885. In 1892 it seems Miller married again, and after this marriage a child was born, named Ruth Miller, one of defendants in this cause. In 1893 Miller made a will whereby he devised and bequeathed his property íeal and personal to his widow, Cora V. Quint and Ruth Miller in équal parts. But this will gave nothing to Elizabeth Boynton.
It may be conceded that the money of the wife would pass by the marriage to the husband at the common law, and that the common law prevailed in Ohio at the time of the occurrences heretofore mentioned; still with this concession, that principle would not apply except to the wife’s own money, not to that which she held as trustee, and in this capacity she certainly held the $1,200 and its increase, in trust for her Flanders children, of whom Elizabeth Boynton is the sole survivor. And as every one is presumed to perform his obligations and his duty, Lenox v. Harrison, 88 Mo. 491, and cases cited, it will therefore be presumed that Mrs. Miller properly acquitted herself of her obligations and her duty in regard to her daughter Elizabeth.
Another view conduces to the same result, and that is there is sufficient evidence in this record that the husband Miller, in this instance, waived whatever marital rights he may have had over his wife’s personal property by permitting her to buy and sell and deal as she would with what had originally belonged to her and its increase. And this waiver a husband may make, as shown by the following authorities. Botts v. Gooch, 97 Mo. 88; White v. Clasby, 101 Mo. 162; Roberts v. Walker, Ib. 597; Abbott, Tr. Ev. 171; 1 Cord, Mar. Worn. [2 Ed.], secs. 380, 383, 384.
And if the land in litigation was indeed the property of the wife though through machinations of Miller she only had an equitable estate therein, he as
Nor does the statute of limitations constitute a bar in this case. This proceeding was instituted in 1893, the wife having died, as before stated, in 1885. Both husband and wife occupied the premises together; there was no adverse possession and consequently the statute could not run, and the declarations of John Miller made from time to time show that he did not claim adversely to his wife.
Holding these views, we affirm the decree.
