39 Mo. App. 672 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This a proceeding in equity to subject the real estate, now held by the defendant Emeline Cohick to her separate use, to a charge or lien alleged to have been created by her by a contract for legal services, rendered to her at a fixed compensation. Upon trial of the cause the plaintiffs had a decree, as prayed for. The defendants, appealing, assign for error that the court illegally admitted oral evidence of the contract; that the decree is opposed to the weight of evidence, and that it is unwarranted upon the plaintiff’s own evidence, as such evidence fails to show any separate estate in Emeline Cohick at the date of the alleged contract, on which such contract could operate.
The first assignment of error is disposed of by the ruling in Miller v. Brown, 47 Mo. 504. That case pointedly decides that a married woman may in this state charge her separate real estate by an oral contract.
Touching the second objection, we may say that where all the witnesses to the contract are parties interested on one side or the other, and testify in opposition to each other, the question as to which side is entitled to credence depends largely on surrounding circumstances, and the manner in which witnesses give their testimony. In the case at bar the plaintiffs testified to the contract, and the members of the Cohick family testified against it. The plaintiffs’ evidence, though lacking somewhat in defining the precise terms of the contract, was clear and consistent, while that adduced by the defendants was vague and contradictory. If, therefore, plaintiffs’ recovery would depend on the question alone, whether the alleged contract for their compensation was made by Emeline Cohick, we would not feel warranted to disturb the decree rendered.
The defendants’ third assignment of error, however, is well taken. Neither the evidence adduced by the
We had occasion in Boatmen's Savings Bank v. McMenamy, 35 Mo. App. 204, to fully discuss the
Such being the unquestioned law in this state, it unavoidably results that the promise of a married woman, invalid in its inception for want of any separate estate in prcesenti on, which it can operate, cannot obtain validity or vitality by the subsequent acquisition-, of a separate estate by her. The fact that the services,, to compensate which the promise was made, consisted in securing to her the future acquisition of a separate-estate, is wholly immaterial. There is nothing in Crawford v. Love, 10 Mo. App. 583, which, in any way,, is opposed to this holding, since there the legal services-were rendered in the protection of an existing separate estate.
The plaintiffs have unquestionably rendered services of value and should not be debarred from recovery, if they can obtain it by making fuller proof. They may possibly be enabled to show, on a retrial of the cause, that the anterior claim of the defendant Emeline was of such a character as to constitute her separate estate,, under the legal definition of such an estate in this state, and that the estate sought to be charged is a mere substitution therefor. While we are bound to reverse the judgment, we will remand the cause for further proceedings. So ordered.