18 Mo. 22 | Mo. | 1853
delivered the opinion of the court.
1. Under the statute concerning marriage contracts, it is not necessary that a nuptial agreement should be acknowledged or proved and recorded, in order to make it binding between the parties thereto. The object of recording such instruments is, to impart notice to purchasers and creditors, and if they are not affected by an omission to record them, those who form them cannot object to their validity, that they have not been acknowledged and recorded. Notwithstanding the generality of the first section of the act, the sections which follow clearly indicate the purpose of the legislature in requiring marriage contracts to be recorded, and show that, as between the parties to them, they are binding, although they are not acknowledged or proved, and recorded. The justice of the peace who took the acknowledgment of the contract under consideration had no authority to do so, yet, as he was examined as a witness, his testimony clearly proved the execution of the instrument, and, as between the parties, that was all that was necessary to make it evidence.
2. Two maxims of the common law rendered it impossible to bar a widow of her dower by any conveyance of lands, either before or during the marriage. The first of these maxims was, that no right could be released until it accrued ; the other was, that no right or title to an estate of freehold could be barred by a collateral satisfaction. When the statute of uses, 27 Henry YHI. transferred the legal estate to those who were entitled to the use of the lands, all women then married, would have become dowable of such lands as had been held to the use of their husbands ; to prevent this, as well as for the future to
The fourteenth section of.the act concerning dower enacts, that when any deed, contract or agreement for jointure, in lieu
3. Influenced by the doctrine of courts of equity, in relation to this subject, and by the departure of our statute from the English law of jointures, we are warranted in indulging a liberal construction in support of settlements made as a substitute for dower. Disregarding forms, the aim should be to protect the rights of dower, and if that object is attained by the agreement, the law is satisfied, without any nice discrimi-nations between legal and equitable jointures. By the marriage, all the personalty of Mrs. Logan was immediately vested in her husband, and the ante-nuptial contract impliedly created a trust, which secured it for her future use. The contract conferred the entire property on the wife, and the provision allowing her to dispose of it by will was introduced in conformity to the requirement of the statute of wills, as otherwise being a married woman, during her coverture, she would have had no power of disposition. This power shows that the entire estate was in her. Judging from the estate of the deceased husband, as set forth in the petition, the provision made by the contract was, under the statute, a good and sufficient join-ture to bar the complainant’s right to dower. The other judges concurring, the judgment of the count below will be affirmed.