Gilliland v. Gilliland, 96 Mo. 522

96 Mo. 522 | Mo. | 1888

Shtsewoot), J.

The defendant is the widow and relict of W. K. Gilliland, who departed this life May 20, 1885. In February, 1870, the decedent purchased with his own means one hundred and sixty acres of land in Vernon county, and had the title conveyed to his wife, by deed in ordinary form, which was recorded in May next thereafter. At that time the husband was not indebted, and had, after paying for the land, some seventeen hundred dollars in cash and some five hundred dollars in personal property, and there is an entire absence of any intention on his part to defraud subsequent creditors. In October, 1874, the husband executed a note for two hundred and eighty-five dollars to plaintiff, upon which judgment was obtained in February, 1885, and the next month this proceeding was instituted, having for its object the subjection of one hundred and twenty acres of land in Johnson county, the legal title whereof was in the wife, to the payment of the debt aforesaid. This one hundred and twenty acres was bought by the wife with the greater portion of the proceeds of the sale of the one hundred and sixty acres of the Vernon county land, and the conveyance was made to the wife, and two hundred dollars of money arising from the sale of the Vernon county land, as well as one hundred dollars of the wife’s money, were applied in part payment of the purchase money of sixty acres of land bought at the same time from Farnsworth, who deeded the sixty acres to the husband, and took a deed of trust on the same to secure the residue of the purchase price. This transaction occurred in August, 1883, and the respective deeds were duly recorded. Upon these facts, thus briefly outlined, the court below found and gave judgment for defendant, and plaintiff appeals.

The purchase money being furnished by the husband for the purchase of the Yernon county land, and the conveyance being made to the wife at his instance, the transaction is prima facie an advancement, and rebuts the resulting trust that would otherwise arise in favor of him who pays the money. 1 Perry on Trusts, sec. 143 ; 2 Story Eq. Jur., sec. 1201; Barrier v. Barrier, 58 Mo. 222. The deed, then, to the wife of the Yernon county land establishes all that is necessary in her behalf, so far as that tract is concerned.

Then we come to the proceeds of the tract, after-wards invested in the tract in controversy. The effect of the first deed was to give the wife a title under the married woman’s act. The sale of that tract did not give the husband any right to the proceeds of such sale or any interest therein. He had no jus mariti in those proceeds by reason of the operation of that act. Whenever that act operates, the rights of the husband at common law in the property of his wife, except to the extent preserved by sections 3295 and 3296, Revised Statutes 1879, forthwith perish. The distinction between the rights of the husband at common law, in equity and under the married woman’s act, as to his wife’s real and personal property, has been very frequently pointed out by this court. Silvey v. Sumner, 61 Mo. 253; Rodgers v. Bank, 69 Mo. 560; Mueller v. Kaessman, 84 Mo. 318 ; Blair v. Railroad, 89 Mo. 383; Wilson v. Albert, 89 Mo. 537.

It results from these statutory provisions and authorities, that the reception by the -husband of the proceeds of his wife’s land in Yernon county, and the placing them in the bank in Ms own name before transferring them to Párnsworth, from whom the wife had bought the one hundred and twenty acres, had not the slightest effect in conferring on the husband any interest in such proceeds. The only way that the husband could acquire any interest in such proceeds was by the method prescribed in the sections above mentioned. As it was, he was to be regarded in the same light as any stranger whom the wife might have employed to transact her business for her; and inasmuch as he could not have appropriated the funds arising from the sale of his wife’s land, his creditors could not do more than he could.

Judgment affirmed.

All concur; Ray, J., absent.