144 Mo. 376 | Mo. | 1898
Ejectment suit for certain land in De Kalb county, begun in 1895. In January, 1886, Otto Mayr bought the land from Wills and wife, paying therefor with money received from the father of Mary Mayr, his wife, and taking the deed in ordinary general warranty form without more.
After admitting possession, the answer consisted of a general denial. The evidence on behalf of plaintiffs was to the effect that Mr. Clay bought the land from Mrs. Mayr and paid her for it; that Mrs. Mayr executed and acknowledged and delivered the deed to Mrs. Clay, but that Mr. Mayr not being present Mrs. Clay took the deed to the town where Mr. Mayr was, and he executed and acknowledged it before a notary, but it was never delivered to Mrs. Clay, but left with the notary without any directions from Mr. Mayr to the notary respecting it; that Mrs. Clay went out of the notary’s office on some errand and never returned for the deed; on the same evening, however, she met Mrs. Mayr who had the deed in her possession, but refused to deliver it to Mrs. Clay on the ground that more money was due her on the land; that Mrs. Clay then returned to St. Joseph and on her arrival there, her attorney wrote to the notary at Stewartsville, Mr. Clark, about the deed, who replied that he had it in his possession but that Mrs. Mayr claimed that there
In an ejectment suit plaintiff can not prevail unless having the legal title. In this case at the time the deed was made to Mrs. Mayr the husband was entitled to the possession of the land during coverture as tenant by the curtesy initiate, and in order to pass the title to the land it was requisite that both husband and wife should unite in the execution and acknowledgment of the deed. Mueller v. Kaessmann, 84 Mo. 318, and cases cited; Flesh v Lindsay, 115 Mo. 1.
But in this case the title never passed to Mrs. Clay, because the deed was never formally or inferentially delivered by Mr. Mayr to the grantee therein named. At the time Mrs. Mayr became the recipient of title to the property in question the statute in existence did not make the land of a married woman her separate property; this was not done until the revision of 1889. But of course this statute could not under our Constitution affect the status of Mayr to his wife’s land as it existed in 1886, because this would render the statute as amended in 1889 retrospective in its operation, something which our organic law forbids. Leete v. Bank, 115 Mo. 184; Bartlett v. Ball, 142 Mo. 28, and other cases. What remedy equity, if any, would .afford plaintiffs, provided the full amount of purchase money has been paid, it is unnecessary for us to determine upon the present record. It is sufficient for us to say that the lower court was correct in its declaration of law. Therefore ju dgment affirmed.
