Johnson v. Johnson's Administrator

23 Mo. 561 | Mo. | 1856

LEONARD, Judge,

delivered the opinion of the court.

The ante-nuptial contract does not constitute a legal bar of dower within the provisions of our written law on this subject. No estate in things real or personal is thereby vested in the intended wife pursuant to the statute, so as to constitute it a legal jointure. The whole rests on agreement, giving the wife a right to demand the things stipulated for, but vesting in her no estate in them within the meaning of the lawgiver. There is no reason, however, for supposing that the statute extinguishes equitable jointures ; it was not intended, and can not be allowed to have that effect. The present agreement, therefore, assuming it to be such a one as a court of equity would specifically enforce, is for that reason an equitable jointure ; it bars the widow in equity, because such will.be the effect when it is there enforced. If, by the terms of the agreement, the things real and personal of the wife are to remain, in specie, her property beneficially, notwithstanding the coverture, such an agreement, constituting of itself a complete, perfect equitable ownership, may perhaps'be very well considered so far executed as to be at once, without any thing further, an equitable bar of dower, and to be pleaded as such. Where, however, the property consists in money, as in the present ease, to be restored by the husband in gross on the dissolution of the marriage — or in things consumable, to be restored in value and not in specie — something more than mere agreement is necessary to complete the equitable jointure. In such a case, equity will see that the wife has the effect of the agreement before it deprives her of the provision made by law for her support. The naked agreement can not be allowed to divest her in equity of her legal rights in favor of volunteers, however it might be in regard to a purchaser who had bought the land on the faith of the wife’s agreement to relinquish her dower in it.

In the present case, the plaintiff shows in her petition a legal title to dower, and then, for the purpose of procuring a decision upon what she supposes to be the defendant’s case, she states the marriage contract, accompanied with averments of its non-fulfilment on the part of the husband. Upon this the defendant demurs, and thereupon the judgment of the court is in effect that this unfulfilled agreement, under the circumstances stated in the petition, constitutes of itself, without any thing further, a bar of the wife’s dower in favor of mere volunteers.

We think otherwise, and therefore reverse the present judgment, and remand the cause. The defendant will then have an opportunity of stating his own case in his own way, accompanied with a tender of the money, to be restored to the wife according to the terms of the contract and the truth of the fact. And we refrain from expressing any further opinion as to the merits of the case until the facts shall be fully developed. The judgment is reversed, and the cause remanded.