This was an action' commenced by the appellants in the Lincoln Circuit Court, on October 3, 1899, to enjoin a sale, under a certain deed of trust, and to cancel and hold for naught said deed.
The petition contains substantially the following allegations: “1. Clemanda Gladney, the real plain
“Plaintiff Clemanda Gladney further stated that since May 25, 1897, to-wit, the 21st day of March, 1899, the title to said land had been conveyed to her through mesne conveyance from George W. Gladney; that she, Clemanda Gladney, was now the sole owner of said land; that the deed of trust given by George W. Gladney to George O. Hamilton, trustee, was, under the laws as they now exist in the State of Missouri, absolutely void; but that if Thomas G. Sydnor was permitted to sell and malee a deed thereto, it would .cast a cloud over her title to the land, and that the deed of trust itself made by George W. Gladney, then on record, cast a cloud over her title. She therefore prayed for a judgment and decree of the court enjoining
‘ ‘ This petition was filed in the circuit court of Lincoln county, Missouri, and the court not being in session, and no judge of the circuit court being in the county, a temporary injunction was issued on October 3, 1899, by the probate court of the county.
“In the circuit court, Ellen E. Wilson filed a separate answer, in substance as follows:
“Admitting that plaintiffs were husband and wife; admitting that George W. Gladney alone executed the deed of trust complained of on May 24, 1897, and admitting the record of the deed of trust as charged in the petition. Denied the use of the land as a homestead; denied that Clemanda Gladney had become the bonk fide owner of any portion of the land fjnce the execution of the deed of trust; charges that if Clemanda• Gladney had obtained the title to any portion of the land from George W. Gladney the same was without consideration, and the same was to defraud his creditors, and especially this defendant; admitted that defendant Sydnor was the sheriff of Lincoln county, Missouri, and had the land advertised for sale under the terms of said deed of trust, and denying each and every allegation in the petition; and further answering, alleging that the deed of trust complained of was made to secure an indebtedness created by George W. Gladney prior to June 21,1895, and alleging that up to the time of making said deed of trust George W. Gladney owned the land described therein, consisting of 173.74 acres, in his own right, which was then of the value of $4,000; alleged that Gladney owned the land prior to June 21,1895, and as such owner and head of a family had and possessed a vested right and power unrestricted by any act or deed or declaration of the said Clemanda Gladney, made or executed by her prior to the making of said-deed of trust, to convey, alienate or incumber the same,*324 ■whether said land, or any part thereof, was a homestead or not, and that in the exercise of said right George W. Gladney made said deed of trust.
“Defendant Sydnor answered, stating that he was-sheriff of Lincoln county, and at the request of defendant Ellen E. Wilson advertised the land for sale under the power of said deed of trust made by George W.. Gladney to George O. Hamilton, trustee, said Hamilton having refused to execute said trust; and further answering said he had no knowledge or information as to-the other allegations in plaintiffs’ petition.
“Plaintiffs’ reply to the separate answer of Ellen E. Wilson was a general denial of all new matter therein contained. Defendant then filed a motion to dissolve the temporary injunction granted by the probate court. ’r
Upon the trial of this cause, the court sustained the motion to dissolve the injunction and dismissed plaintiffs’ bill.. From this judgment, this cause is brought, here for review.
There is no dispute as to the testimony in this cause. It substantially appears from the evidence introduced that appellants were husband and wife and had for many years been occupying the land in dispute, and were residing upon it at the time of the execution of the-deed of trust, in May, 1897. All the land involved in this suit was procured by the appellant, George WGladney, prior to 1884, and he and his wife were occupying it continuously since 1884. Prior to June 21, 1895, George W. Gladney borrowed two sums of money from, the respondent, Ellen E. Wilson, giving her two notes therefor. On May 24, 1897, these two notes had not. been paid, and amounted to $428.67. George W. Gladney, on that day, May 24,1897, took up the two old notes and executed to Mrs. Wilson one note, including the aggregate amount of the old notes, and to secure the payment of the renewed note, executed the deed of trustwhieh is the subject of this suit. The appellant, demanda Gladney, wife of George W. Gladney, did not join with her husband in the execution of this deed of' trust. It further appears that subsequent to the execu
Under the well-settled law of this State, prior to the enactment of the statute of 1895, it is beyond dispute that the husband could sell or incumber the homestead, subject to the wife’s inchoate right of dower, without the wife joining with him, except where the wife had filed her claim as provided by section 5435, Revised Statutes 1889. This was clearly announced and determined in the cases of Greer v. Major,
If we concede that this was a homestead as contemplated by the statute, which the husband was debarred from and incapable of selling or incumbering, notwithstanding it far exceeded the value of the homestead defined by the statute, then there is only one question before us for determination, and that is, was the right of the husband prior to 1895, to sell and incumber the homestead without the wife joining with him, such a
Vested rights may be created either by the common law, by statute or by contract, and it makes no difference as to the method of their creation; they are entitled to the same protection. If, in this case, the right of appellant, George W. Gladney, to convey his homestead, prior to the Act of 1895, without his wife joining with him in such conveyance, was a vested right, it becomes so by the operation of law, and is entitled to the same protection under the Constitution and laws of the land, as though it had been created by contract. A vested right was defined in the case of Marshall v. King,
In view of this principle we are led to the conclusion that an additional question must be answered in this investigation. The first inquiry in this case is, was the right of George W. Gladney to convey or incumber his homestead without his wife joining in such conveyance, a vested right, and as such, could it be impaired by the Act of 1895 ?
The second inquiry is as to the Act of 1895. Is it to be construed simply as prospective in its operation, or if it is intended to be retrospective, then is it not in conflict with the Constitution of this State, as quoted herein?
It is clear that if George W. Gladney had a vested right in dealing with his homestead prior to 1895, then if the Act of 1895 is intended to impair that right, it would truly be retrospective in its operation.
As to the first proposition, we have reached the conclusion that the appellant George W. Gladney, had a vested right, in respect to conveying and incumbering his homestead, prior to the Act of 1895, and that act cannot impair such right. To us it seems as one of the highest privileges and dearest rights that can be bestowed upon the citizen. The law that creates the right to deal with your property without compelling you to have someone unite with you in the conveyance, truly confers an inestimable privilege. This land was his, and beyond question he had the right to convey it (subject to her inchoate right of dower) prior to the Act of 1895, without having his wife join with him in the deed. The fact that his wife could file her claim as provided in section 5435, Revised Statutes 1889, heretofore referred to, does not change the rule so far as being a
„ Does the Act of 1895, if construed as being retrospective in its operation (in other words, as being operative upon persons who were married and who had acquired the homestead before its passage) impair the vested right of the husband? It certainly does. Before the passage of the act, he could convey, himself. After the passage, he is not only barred, but the act says he “shall be incapable of conveying without his wife joins in the conveyance.” Impair means to make worse, to lessen the poiver, to weaken, to enfeeble, to deteriorate. This is as Webster defines it. Is not the power of the husband in respect to this homestead lessened, weakened and deteriorated by the Act 'of 1895, supra? As was said by the court in the celebrated case of Calder v. Bull, supra: “When I say that a right is vested in a citizen, I mean that he has the power to do certain ac
That able and illustrious jurist, Judge Story, very tersely places the test when he said in the case of Society v. Wheeler, supra, that “upon principle, every statute, which creates a new obligation, imposes a new duty, or attaches a new disability, must be deemed retrospective.” Apply this test to the case at bar. The statute of 1895, imposes upon the husband, the new duty, if he desires to convey, of having his wife join in the conveyance; it attaches a new disability, for the very words of the present statute are that the husband is incapable of alienating his property. It is ño answer to this question to say that his right to convey is not absolutely destroyed, that it is only partially so. In the ease of Bank v. Sharp,
The conclusions reached in this case that George W. Gladney had a vested right prior to the Act of 1895, and that such right can not be impaired by a subsequent statute and that if the Act of 1895 was intended to apply to him, it is retrospective in its operation and is in conflict with the organic law of this State, are supported by principles announced by this court, in analogous cases, and by conclusions reached in other States, in cases identical in principle with the one before us.
In the case of Arnold v. Willis,
In the case of Leete v. State Bank,
So we say in this case, that the Act of 1895 could only operate prospectively, and is not to be applied to husbands who had acquired homesteads prior to the passage of the act. George W. Gladney, prior to the enactment of this statute of 1895, had the right to convey his homestead without his wife joining him, and as was very appropriately said by the learned judge in the Leete case, “these were his rights; but, when he woke up on the morning the section mentioned went into
It is now the settled law of this State that an act of the Legislature “is to operate prospectively only, and not otherwise, unless upon the face of the act itself the exceptions to the prospective rule do plainly and unmistakably appear.” [Leete v. State Bank, supra.]
It may be argued that even though the right of George W. Gladney, prior to the present statute, was a vested one, yet as he had not availed himself of that right, the present law would be applicable and he could not exercise such right after the change in the statute. Perry on Trusts, a work of recognized authority, announced the doctrine upon a question identical in principle with the one before us. He says (vol. 2 [5 Ed.], sec. 676): “On principle, it would seem that the right to reduce the wife’s choses in action to possession vested in the husband at the time of the marriage, and could not be divested by a statute passed after the marriage, although the husband had not, at the time of the passage of the act, reduced the choses to possession; and so it has been ruled in several cases.”
This is a complete answer to that argument, fpr in the doctrine announced by Perry, as above quoted, the principle is the same; if the right existed, it makes no difference about the exercise of it before the passage of the subsequent statute that undertakes to divest it.
Hpon the question involved in this case, as to the right of George W. Gladney prior to the Act of 1895, being a vested right, we are of the opinion that the unbroken line of decisions of North Carolina upon a point which in principle is identical with the one at bar are decisive of this question. That we may fully appreciate the application of the cases to which we hereafter in this opinion direct attention, it would be well in a brief way to refer to the provisions of the Constitution and law of that State. In 1868, the State of North Carolina adopted and ratified its Constitution. The Constitution itself created a homestead defining the amount
In the case of Bruce v. Strickland, supra, the learned judge, after reviewing all the authorities upon the question as to the application of the enactment of subsequent statutes lessening the power of the husband under former statutes in respect to his lands, and reaching the conclusion that such subsequent acts do not affect rights secured under former laws, says: ££ These decisions rest upon the sanctity of vested rights under the protection of the Constitution, among which is embraced the ‘ jus disponendi/ or right of alienation. The principle is too deeply imbedded in the fundamental law of free government to require vindication.”
It may be said that these North Carolina cases are based upon the fact that prior to the adoption of the Constitution there was no homestead, and the land not being a homestead, could be alienated by the husband without the wife joining in the deed. That does not alter or change the principle announced as applicable to the case at bar, for in this case, the homestead prior to 1895, could be alienated by the husband alone, subject to her dower the same as the land mentioned in the Carolina cases, and it is apparent from an investigation of all those cases that they clearly announce the principle that the right of a husband to sell or incumber his land without his wife joining in the conveyance, is a vested right, which a subsequent statute which imposes upon bim a new disability and undertakes' to prevent him from performing this act alone, can not impair.
This brings us to the last contention of appellants. Appellants insist that the statute of 1895 did not impair any vested right of George W. Gladney; but that it simply changed the remedy or procedure of the wife in respect to the homestead. The statute of 1895 does not require a single step to be taken by the wife. She is not required to proceed in any way; but it simply imposes upon the husband a new disability, rendering him incapable of doing ah act which, under the prior law, he had a perfect right to do. If the statute had pro
We emphatically hold that this alteration and change in the statute is not simply a change in the remedy or procedure; but is, in the clearest terms possible, a deprivation of a right, which the husband had prior to the enactment of the statute. We may add that a law which, even if intended simply to change the remedy or procedure, if, in fact it impairs vested rights, is just as obnoxious to the constitutional inhibition as if it in the clearest terms violated the constitutional provision. We have examined the cases cited by the learned counsel for appellants upon this question and we are of the impression that they are not based upon similar grounds, and hence are insufficient to change the conclusions reached upon this contention.
Entertaining the views as herein expressed as to the vested rights of George W. Gladney, in respect to the land in controversy, we are of the opinion that the action of the trial court in sustaining the motion to dissolve the injunction and dismissing plaintiffs ’ bill, was correct, and it is ordered that the judgment be affirmed.