57 Mo. 552 | Mo. | 1874
delivered the opinion of the court.
This was a suit for the assignment of dower under the statute. The petition averred that the- plaintiff was the wife of Felix Fontaine, who died in 1849, and, that during the cover-ture the said Felix was seized in fee of the premises described, and that she was entitled to dower therein.
The answer denied that the said Felix was ever seized of such an estate in said premises as to entitle plaintiff, as his wife, to dower.
On the trial in the Circuit Court the defendant admitted that one Louis Provenchere was seized in fee of the premises on the 10th day of July, 1835. Plaintiff then read in evidence a deed executed by Provenchere and Catharine, his wife, dated July 10th, 1835, conveying the premises to Felix Fontaine, for the expressed consideration of $2,000. This deed was acknowledged before Iiough, a justice of the peace, on the 11th day of July, 1835, and recorded on the same day.
Plaintiff further read in evidence, a deed executed by Felix Fontaine alone, conveying the premises to one Francois Dero-nin in trust, for the sole use of Catharine Provenchere, the wife of Louis, and the heirs of her body. The consideration in this deed was stated to be twenty-five dollars, and it was dated and acknowledged before the same officer, and recorded July 11, 1835.' Defendant admitted that plaintiff was the wife of Felix Fontaine on the 11th day of July, 1835, and that he died in 1849, and that it claimed title by intermediate conveyances under Louis Provenchere.
Defendant then offered in evidence the deposition of plaintiff and the statement of Babcock, an examiner of titles, to both of which the plaintiff objected, but the court admitted
This was the onl y business transaction the Bradys ever had with McGowan. The court held that the giving of th-e deed and taking of the mortgage were one transaction, and that the two conveyances were to be considered as executed at the same time, within the spirit and intent of the law, and that, consequently, the plaintiff, as the widow of McGowan, was not entitled to dower in the premises. It will be observed that the acknowledgments in the case just cited were taken on different days, and the instruments were filed for record at different times, but there could be no question in fact as to their all relating to the same transaction, and in contemplation of law, McGowan’s seizure was merely transitory. In the case of Cunningham vs. Knight (1 Barb., 399), it was held that where, upon the purchase of land, a deed is executed by the vendor, and a mortgage upon the land purchased is executed by the purchaser, and both conveyances are acknowledged and recorded at the same time, the presumption is that they were executed simultaneously. The facts as to dates in this last case are practically the same as in the case at bar. The deed was dated on the 2nd of May, acknowledged on the 3rd. and it was recorded on the 5th. The mortgage was dated on the 3rd of May, acknowledged on the same day and recorded on the 5th. In the case we are now considering, the deed from Provenchere to Fontaine was dated July 10, 1835, and acknowledged and recorded on the succeeding day, the 11th of the same month. The deed by which Fontaine conveyed the land to Deronin, in trust for Mrs. Provenchere, was dated, acknowledged and recorded on the 11th day of July, 1835, the same day on which the acknowledgment and recording of the first deed took place. Both acknowledgments were taken before the same officer, and the natural and necessary presumption is that they were
Whilst it is true that parol evidence will not be admissible to vary the effect of the deed, we do not understand that the deposition of the plaintiff was offered for that purpose. It was simply to show the circumstances and condition of the parties at the time it was executed, and rebut the idea that the consideration expressed in it was ever paid, and for these objects it was properly admitted. The consideration clause in a deed has only the force and character of a receipt, and is always open to explanation and contradiction. The plaintiff states in her deposition that no relationship whatever existed between her husband and Provenchere, and it is unaccountable that he should have paid $2,000 for the property and immediately deeded it back for Mrs. Provenchere’s benefit for the mere nominal consideration of $25. Moreover, from her own statements, she shows that her husband was a poor man, supporting his family by his daily labor, and that she never knew of his having any money sufficient to purchase the property, and that she knew of no other transaction that ever took place or was had between the parties.
Babcock’s statement shows that there is no record in St.' Louis that Fontaine was ever interested in any other piece of real estate. The conclusion from these facts follows irresistibly that Fontaine, in the transaction, was a mere conduit employed by Provenchere to pass the title in a third person for the use of his wife, and that his seizure was transitory and not beneficial, and, therefore, the plaintiff, as his widow, is not entitled to dower in the premises. The result is that the judgment must be affirmed ;