248 Mo. 576 | Mo. | 1913
OPINION.
I.
The equitable defense set out in the answer, cou
11.
The common law doctrine on this subject and its origin and basis are discussed with clearness and logic as declared in the American decisions, in a work of much authority. [Rawle on Covenants for Title (5 Ed.), chap. 11, and especially sections 264 and 265.] In Missouri, however, the law governing this subject is embodied in statutes and our interpretative decisions. The general applicatory statute is, to-wit:
“Where a grantor, by the terms of his deed, undertakes to convey, to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” [R. S. 1909, sec. 2871, Gr. S. 1865, p. 442, sec. 3, as amend*584 ed from R. S. 1855, p. 355, sec. 3; Hendricks v. Musgrove, 183 Mo. l. c. 309; Wilson v. Fisher, 172 Mo. l. c. 15 et seq.; Ford v. Unity Church Society, 120 Mo. 498; Brawford v. Wolfe, 103 Mo. 391; State National Bank of St. Joseph v. Robidoux, 57 Mo. l. c. 450.]
The foregoing decisions except from the operation of the above statute all deeds not strictly within its terms. In the first case, supra, it was held that a married woman’s deed purporting to convey the fee and executed prior to the passage of the Married Woman’s Act of 1889 would not transfer property acquired by her subsequent to the'making of the deed — this being the fact in that case.
In the second case cited, it was ruled that a sheriff’s deed will not pass an after-acquired title of the defendant in the execution, since such a deed is only a conduit of the interest and estate of the defendant' at the time of the execution sale.
In the third case cited above, it was ruled that the foregoing statute would not operate to transfer a subsequently-acquired fee simple title of the grantor to a voluntary grantee, where it was shown the grantor made a second conveyance to a purchaser without actual notice, although the first deed appeared of record. That case contained a review of the antecedent cases construing the above statute and held arguendo that neither under that statute nor at common law could the doctrine of inurement be applied to the deed of a married woman, which it was held only operated to pass all her existing right, title and.interest; and cited in support of this statement the other cases cited above.
In the fourth case cited above, the widow of an intestate, who died childless, remarried, and with her second husband executed a deed of general warranty to the lands left by her first husband. At the time of the making of this deed no dower had been assigned the widow. For some reason administration
In the case last cited above the same construe
Under the authority of these cases and the statute in force at the time of the execution of the trust deed by appellant and her husband, our conclusion is that no other estate or interest in the land in question passed than that vested in her at the time; and as she did not then have any right or interest in the land described in said trust deed, nothing passed thereunder, and that the estate which she acquired four years thereafter was not divested when it came into being under the doctrine of inurement, either at common law or our statute declaratory thereof. [Supra.]
Whatever may be the powers of a married woman under the Act of 1889, they were not such as to create a liability against her contrary to the express provisions of the statute (R. S. 1899, sec. 901) in existence at the time of the Married Woman’s Act.
We are not'impressed with the argument of counsel for respondent, that the act giving married women many of the rights of femme sole was intended to take away from her the protection as to covenants in the conveyances of her land afforded by the former statute (R. S. 1899, sec. 901) prior to its repeal in 1905.
It follows that so much of the judgment of the trial court as undertook to establish and enforce the lien of the alleged deed of trust on the land described in this record was erroneous, and must be vacated.
HI.
The judgment in this case is reversed and the cause remanded for disposition according to this opinion.