134 Mo. App. 340 | Mo. Ct. App. | 1908
Mary Strom, deceased, and Joseph Strom, the appellant, were married in 1888 and had one child, a daughter, Florence, who is still living. On May 10, 1897, Mary Williams conveyed by an ordinary warranty deed to Mary Strom and Joseph Strom, husband and wife, a dwelling-house and lot in St. Louis, to-wit, No. 2708 Thomas street. In September, 1900, the Stroms separated and never thereafter lived together, though they were not divorced. Mrs. Strom brought an action for divorce and her husband filed a cross-bill, but both were dismissed by the court at the hearing. Afterwards Joseph Strom instituted a suit for divorce, which was likewise dismissed. Strom conducted a grocery store, and in arranging as to the pecuniary affairs of the family while the proceedings for divorce were pending or threatened, he and his wife entered into an agreement under date of September 28, 1901, by which he sold and relinquished to her for the sum of $800, all his right, title and interest in and to. the aforesaid lot, and also his stock of merchandise, subject to an incumbrance of $300. The contract recited that whereas the interest of Joseph Strom in the property was far in excess of eight hundred dollars, his wife' Mary, in consideration of the transfer of the property, acknowledged the same to be in full satisfac
“To have and to hold the premises aforesaid, with all and singular the rights and privileges, appurtenances, immunities and improvements thereto belonging,- or in any wise appertaining unto the said party of the second part, and unto her heirs and assigns forever ; the said James B. Austin hereby covenanting that he will warrant and defend the title to the said premises unto the said party of the second part and unto her heirs and assigns forever, against the lawful claims and demands of all persons whomsoever, except as to first deed of trust for $1,200, dated September 28th, 1901.
“In Witness Whereof the said party of the first part has hereunto set his hand and seal the day and year first above written.
(Seal)
Signed, sealed and delivered in the presence of us:
“James B. Austin,
“Ernest C. Dodge.”
The circuit court refused to declare Strom was tenant by the curtesy of the premises in question, or that the deed of Austin to Mary Strom, dated September 29, 1902, vested the title to the lot in her, subject to an estate by the curtesy in her husband; or that the instruments, agreements and deed of trust offered in evidence, and relating to the transactions between Strom and his wife at the time of the separation, on a true interpretation, contained no covenant or agreement which estop-ped Strom from claiming his curtesy in the property in controversy; but the said papers and transactions were intended to settle the question of suit money and alimony in the divorce proceeding then in contemplation, and not to waive Strom’s curtesy; refused also to declare the order of the probate court directing the executor to take charge of the property on Thomas street and collect the rents, of which order Strom had no notice, violated section 30, article II of the Constitution of the State, which provides that no person shall be deprived of life, liberty or property without due process of law, and also violated the Federal Constitution to the same effect.
In considering the question of where jurisdiction of this appeal lay, the Supreme Court held the matter disposed of in the probate court was merely a motion to have revoked a previous order directing the executor to take charge of the real estate in dispute and apply the rents accruing therefrom, to the payment of the debts of the deceased, and that the title to the property had to be noticed only incidentally in disposing of the motion. The opinion declared probate courts have no jurisdiction to determine the title to real estate, either in an equity suit or an action in ejectment; or to determine the liability of an executor for rents of the decedent’s realty which are claimed by a third party; but
By the common law and without constitutional guaranties, a citizen is protected against deprivation of his property without due process in law; that is to say, it can only be taken from him in proceedings conforming to the law of the land; a phrase equivalent to due process of law. [Hunt v. Searcy, 167 Mo. 158, 179.]
Another reason for our conclusion is this: if granted a hearing, appellant could only ask that the order be so entered in favor of the executor as to make it apparent the statement in the application about his curtesy,
The judgment is affirmed.