276 Mo. 471 | Mo. | 1918
On February 19, 1915, plaintiff filed in the circuit court of Lincoln County, Missouri, her petition for the assignment of dower in the lands of her husband, Wm. N. Crenshaw, described in the petition. The petition alleges, and the separate answer of Joel Y. Crenshaw, executor of the estate of Wm. N. Crenshaw, et ah, admits, that plaintiff and said Wm. N. Crenshaw were married in Lincoln County, Missouri, on
The separate answer of Joel V. Crenshaw, executor, et al., after admitting the allegations of the petition, as heretofore stated, denies the truth of every other allegation therein contained. Said answer then alleges, by way of affirmative defense, that at the time of the divorce proceedings aforesaid, and after a decree of divorce had been granted to plaintiff, and on the same day it was granted, the plaintiff herein executed, acknowledged and delivered to said Wm. N. Crenshaw a deed to the lands mentioned in the petition, whereby she released all her dower, interest and estate of every kind to all lands that might be subsequently acquired by said Wm. N. Crenshaw, and that the consideration expressed in said deed was the sum of fifteen hundred dollars. Respondents deny that she has any dower in said lands and aver that plaintiff is estopped by her said deed of conveyance and by her conduct from, now claiming dower in said lands, etc.
Frank Howell, who had been appointed guard:an ad litem for the minors, Lucy M. Magruder and Eldridge J. B. Crenshaw, stated, in an answer for them, that he had no knowledge or information of the matters stated in the petition sufficient to form a belief, and therefore called for strict proof.
The reply of plaintiff is a general denial and it further states that no consideration for the alleged deed moved from the grantee therein to • the plaintiff. It denies that said grantee, or any person for him, or in his behalf, paid, as consideration for said deed, to the plaintiff, the sum of fifteen hundred dollars, as expressed in said deed, or any other sum.
The defendants assumed the burden of proof, and read in evidence the deed mentioned in the separate answer aforesaid. It is a quitclaim deed, dated March
Defendants then rested in chief.
Plaintiff introduced in evidence the divorce decree, heretofore mentioned. The decree recites that defendant failed to appear to the action, and that the court found she was the innocent and injured party in entering said decree. It gave the care and custody of their infant child, named Eldridge J. B. Crenshaw, to plaintiff and relieved the husband from any further support and maintenance of said child. It decreed that defendant, by way of alimony and for the support and maintenance of said child, should pay said plaintiff the sum of fifteen hundred dollars, in equal installments of five hundred dollars each. The first five hundred was to be paid within one year from the date of said decree; the second five hundred dollars, in two years, and the third five hundred dollars, in three years. Each of said sums was to bear interest at the rate of six per cent per annum from the date of said decree. The defendant was given the privilege of paying said sums, or any part thereof, at an earlier date if he desired to do so.
Plaintiff introduced the record entry in the divorce case, showing that on October 23, 1897, there was allowed said plaintiff as alimony pendente lite for twenty-eight weeks board, $84; for attorney’s fee, $250; for clothing for plaintiff and said infant, $40; for taking
Mr. O. H. Avery, who had been attorney for plaintiff in the divorce case, testified that the $1500 mentioned in the decree was not paid in cash, but was settled by defendant therein, giving three notes of $500 each; that aside from the $499, the above sum of $1500 was all that defendant paid in connection with the divorce suit. On cross-examination, he said there was a settlement between the parties to the divorce case; that plaintiff and defendant were present, as well as counsel representing them respectively. He gave it as his remembrance that defendant had formerly filed an answer in the divorce case, which was withdrawn; thereupon plaintiff was to sign a deed conveying all of her right to defendant’s property, both real and personal; that said agreement was carried out; that defendant Crenshaw had been arrested for assault, and that was included in the settlement. He said that he talked with plaintiff and tried to persuade her not to make the settlement, as he could do better for her. He said her father was there and advised a settlement. Avery further testified, as follows:
“Q. Was this deed the result of that settlement? A. That deed was the result of that settlement.
“Q. And your understanding was from your talk with her and with her father who was there talking to her that you were making a settlement of all her property rights, real and personal? A. Yes, sir.
“Q. What was she to receive? A. She was to receive fifteen hundred dollars in addition to what she had received, five hundred dollars..
“The Court: For suit money and alimony pending the suit, and support money for the children? A Four hundred and ninety dollars; I called it five hundred dollars; I though it was five hundred, but 1 notice it is $499, and she was to relinquish all interest that she had in his property, both real and personal; that
He further testified as follows:
“Q. That settlement was closed up and the decree rendered and the deed made? A. The decree was rendered here in court and the deed itself was signed in the circuit clerk’s office, a few minutes after that; I was present; I was with her.
“Q. Where was this settlement made you have reference to? A. That settlement was made in the, office that you now occupy.
“Q. Who was there and represented Mrs. Crenshaw? A. You and her father; my recollection is that her father was there; I was in the front room.
“Q. This deed was made there in consequence of that settlement and that payment of fifteen hundred dollars? A. Yes, sir; and immediately after the consummation of that ag'reement she came up here and I remember the decree was rendered and approved, and we went down into the circuit clerk’s office and the deed was signed in the circuit clerk’s office and acknowledged by Mr. Sitton, who was then circuit clerk.
“Q. That was after the decree had been rendered? A. Yes, sir.
‘1Q. The decree was rendered and approved ? A. Mrs. Crenshaw testified, and I don’t know,. I think perhaps her father testified; Mrs. Crenshaw testified, of course.”
Mr. R. H. Norton was sworn as a witness and testified, in regard to above settlement, as follows:
“A. The suit was brought by Mrs. Crenshaw for divorce aeninst W. N. Crenshaw and resulted in considerable litigation and exceeding bitterness; there was a fight and a hard fight for the allowance of ailmony, and it being apparent that these parties couldn’t live together, there was some attempt to settle the entire matter, between the parties of the differences; a conference took place in my office between Mr. and Mrs, Crenshaw, Mr. True, Mr. Dunn, who represented Mr.
“The Court: Was this additional amount paid too, $499? A. That was paid before that.”
J. V. Crenshaw was sworn as a witness. He testified that his father, Wm. N. Crenshaw, died April 5, 1915; that he owned at that time something like 526 acres of land in Lincoln County; that he owned all these lands at the time his second wife obtained her divorce; • that in his opinion the above land was worth about $60 per acre; that the reasonable annual rental value of same was $4 or $5 per acre.
The evidence clearly shows that defendant in the divoi’ce case paid the costs, the $499, the $1500 heretofore mentioned, and that he paid xxothing more.
The foregoing covers substantially all the evidence Introduced at the trial.
I. There is substantially no controversy as to the facts in this case, as shown by the preceding statement. ■ Section 359, Revised Statutes 1909, provides, that:
Unless, therefore, the plaintiff released to her former husband her inchoate right of dower in the lands described in petition, she is'entitled to have her dower interest in said lands assigned in this proceeding.
There is no fraud charged or shown in respect to the above agreement. On the contrary, it was entered into by plaintiff voluntarily and contrary to the advice of her counsel at the time. The defendant’s answer was then on file, which put in issue the allegations of her petition in regard to the grounds of divorce as well as the question of alimony and other issues which mig’ht have arisen in the case. While of course they had no right by collusion to have a decree of divorce entered in her behalf, they did have the legal right to agree upon alimony and the release of plaintiff’s inchoate right of dower to her husband, who was then the terre tenant, as well as the owner of the lands described in petition, if said agreement was based upon a valid consideration.
Mrs. Crenshaw was not acting under the Married Woman’s Act when she executed and delivered to her former husband the quitclaim deed aforesaid. She was divorced prior to the execution of said instrument, and had the right to convey her inhcoate right of dower to the former husband as the terre tenant and owner
The quitclaim deed, after describing the grantor and grantee, recites:
‘ ‘ That the said party of the First Part in consideration of the sum of Fifteen Hundred Dollars, to her paid by the said party of the Second Part, the receipt of which is hereby acknowledged, does by these presents, relinquish her dower in, remise, release and forever quitclaim unto the said party of the second part the following described lots, tracts or parcels of land.” [Here follows a description of the lands as described in petition.] . . . “And said Mary J. Crenshaw hereby relinquishes all of her interest whether of dower or otherwise in all property, real or personal owned by said Wm. N. Crenshaw, ■ whether described correctly herein or not. . . .
“So that neither the said party of the first part nor her heirs nor any other person or persons for her or in her name or behalf, shall or will hereafter claim
This deed was filed for record on the day of its execution.
There is neither fraud nor mistake charged or shown in the case. While the consideration of a deed is open to investigation and explanation for some purposes, yet, the want of consideration cannot be shown in view of the foregoing recitals, for the purpose of defeating the operative words of said quitclaim, deed. [Bobb v. Bobb, 89 Mo. l. c. 419; Strong v. Whybark, 204 Mo. l. c. 348; Weissenfels v. Cable, 208 Mo. l. c. 534; Chambers v. Chambers, 227 Mo. l. c. 287-8; Anderson v. Cole, 234 Mo. l. c. 4; Harrison v. Moore, 199 S. W. (Mo.) 190-1; Russell v. Robbins, 247 Ill. 510; Burleigh v. Coffin, 22 N. H. 118.]
We are of the opinion that the facts in each of said cases distinguish them from the one at bar. In the Egger case, the wife was old, unfamiliar with business and dealing with her husband, with whom she was living at the. time, in the execution of the agreement relating to their property rights. Valliant, J., upon page 139, in discussing this subject, said; “Under the circumstances of this case why should not the law
In the case at bar, the parties were dealing at arms-length, with a divorce proceeding pending them at the time. The plaintiff was represented by able counsel and her own father, when the settlement was made. It was the desire of both plaintiff and defendant to get rid of a law suit and settle their property rights outside of court. The plaintiff received the full consideration of $1500 agreed upon, and both parties formally carried out their agreement. In the Egger ease, the husband was to make a will giving her $75 per month out of his estate during her life, and was to set apart in his will $20,000 for that purpose.
Judge Vaixiant, upon pages 143-4, in considering the question as to whether there was a valid consideration to support the agreement, said:
“If she knew at the death of her husband she would be entitled to dower in real estate of the value of $100,000 and one-sixth of personal property to the value of nearly $200, 000, and that her husband could not by his will deprive her of it, and yet agreed that if he would make a will giving her $75 a month during her life she would take that in lieu of the large share of the estate which the law gave her, it was a mere nudum pactum. There was nothing given her at the time; there was only a promise to give her out of his estate by will at his death something very much less than what would have been her own by right under the law.
“If instead of a mere promise to make a will the contract had provided for the then transference to a trustee of mortgage notes to the amount of $20,000, to secure her the monthly sum of $75 for life to guard against possible vicissitudes of fortune, a different ease would be presented, as to which we say nothing. Here we have a mere promise to make a will giving her less than she would be entitled to if there was no will. ’ ’
In other words, if Mr. Egger had outlived his wife, she would have received nothing under the contract,
The Spratt-Lawson case supra, in principle, is like the Egger case.
We are of the opinion, that the facts in both the above cases are so totally different from those in the case before us, that they cannot be considered as authority in support of the contention that the settlement was not based upon a valid consideration.
VIII. We are not advised as to the merits of the controversy between plaintiff and her former husband, nor is it necessary for us to consider the same in de-' ciding this case. It is possible that she may have been entitled, in the settlement,- to more than she received, but that was a question for her to consider, while conferring with her counsel and father in respect to this matter. Against the protest of her counsel and with the assurance from him that she could get more by litigation, she voluntarily settled with Wm. N. Crenshaw, upon the terms heretofore mentioned, and rereived the full consideration contracted for in said settlement, with the understanding that she had released to her former husband as the owner and terre tenant of said lands, her inchoate right of dower therein.
Upon a full consideration of all'the questions presented herein, we are of the opinion, that the judgment below was for the right parties. It is accordingly affirmed.
PER CURIAM: — The foregoing opinion of Railey, C., is adopted as the opinion of the court.