150 Mo. 352 | Mo. | 1899
This suit was instituted in the circuit court of Jasper county by plaintiffs against the defendant, for the purpose of having corrected a deed executed by defendant and her husband Joel Grubb, in his lifetime, to Jacob Grubb, by which they attempted to convey to him a certain tract of land in said county, to wit, twenty-six and one-half acres a part of the northeast quarter of the southeast quarter of section nine in township twenty-seven, and the northwest quarter of the southeast quarter of section seventeen in township twenty-seven of range thirty-one, except three-fourths of an acre in the southwest cornex*, but by
The deed was executed on the 9th day of March, 1877. Joel Grubb died in October, 1889. Plaintiffs claim title under Jacob Grubb.
The trial resulted in a judgment and decree in favor of plaintiffs correcting the mistake in the deed. After unsuccessful motion for new trial and in arrest, defendant appeals.
Joel Grubb was married three times. By his first wife he had five children, viz., America 'MeEeynolds, Sarah A. Montague, John Grubb and Y. H. Grubb, and one by his last wife, the defendant, all of whom were living in March, 1877. At that time he was the owner in fee of the northwest quarter of the southwest quarter of section ten, township twenty-seven, range thirty-one, except two and one-half acres thereof. This was the homestead. He also owned twenty-six and one-half acres a part of the northwest quarter of the southeast quarter of section nine in township twenty-seven of range thirty-one. Joel Grubb and the defendant were -the owners of, and had the legal title to the northwest quarter of the southeast quarter of section seventeen, township twenty-seven, of range thirty-one, except three-fourths of an acre in the southwest corner thereof, as tenants in common, Joel Grubb owning three-fourths thereof, and the defendant one-fourth.
In March, 1877 Joel Grubb made an arrangement with defendant, by which it was agreed that- they would deed all the land he owned and the land he and she owned to Jacob Grubb, and that said Jacob Grubb should immediately deed
After the death of Joel Grubb in October, 1889, the five children of the first wife of Joel Grubb went to his residence where the defendant lived, and there talked over the property of the estate and the manner of dividing the same. At that time John Grubb had a chattel mortgage on
“1. That defendant, Ehoda Grubb, owned an interest in the tract of land in controversy -as her separate property.
“2. That it was the intention of Joel Grubb and Ehoda Grubb to convey the northwest quarter of the southeast quarter, except three-fourths of an acre in the southwest corner, instead of the northeast quarter of the southeast quarter, except as described in the deed.
“3. That defendant, Ehoda Grubb, after the death of Joel Grubb, ratified the deed -as intended to have been made by the said Joel Grubb, by her acts and transactions with the children of Joel Grubb by his first wife, and is bound by such ratification.”
At the request of defendant the court found the fact to be, as follows:
“1st. That at the time the deed in controversy was made, Joel Grubb and Ehoda 0. Grubb (this defendant) were husband ¡and wife; that Joel Grubb died in October, 1889.”
And refused to find:
“2d. That Joel Grubb and Ehoda C. Grubb were the owners of the west half of the southeast quarter by judgment in partition.
“3. That the eighty acres were partitioned by parol between Ehoda C. Grubb and Joel Grubb; that afterwards Joel Grubb traded the south forty (his share) with John Warden for 'the northeast quarter of the southeast quarter. Warden had deeded it direct to Jacob Grubb and also made Jacob Grubb a deed for the northeast quarter of the southeast quarter, including twenty acres of other land, said Jacob Grubb paying him the difference in value in the two forty acres of land, and that there is no evidence showing a mistake made by the parties to the deed.
*361 “4th. That tbis forty acres was not her separate estate, and there was no agreement made with her to .convey this forty acres of land, nor any interest she bad in it whatsoever.
“5th. That said deed was a gratuitous grant, and was never delivered to nor accepted by said Jacob Grubb, under whom plaintiffs claim.
“6th. That the land claimed was not her separate property under E. S. 1819, section 8296, which was the law governing the rights of the parties in this ease.
“7th. The defendant occupied said northwest quarter of the southeast quarter until nineteen days after his death, October 2d, 1889, to October 21st, 1889, at which time (October 21st, 1889), plaintiffs took possession of said land against the wish and protest of the defendant.
“8th. The court finds from the evidence, that Ehoda C. Grubb (the defendant), was one of the daughters of Matthew Payne; that Matthew Payne departed this life intestate prior to 1872; that the defendant was one of ten heirs of'said Payne; that this defendant, at that time, inherited her interest in the forty acres in controversy; that by the partition papers offered in evidence the defendant’s said interest and her husband’s interest which-he.has purchased to wit, two shares 'and two-thirds of one share in said estate, were set off in one tract, it being eighty acres, the west half of the southeast quarter of section seventeen, township twenty-seven, range thirty-one, Jasper county, Missouri; and said interest of the said Ehoda C. Grubb was not her separate estate, but was her legal estate inherited as aforesaid.”
It is first insisted by defendant that the petition fails to state a cause of action, in that it does not aver that the deed in question was delivered to Jacob Grubb, and is bad for the further reason that it shows upon its face that plaintiff was a married woman at the time the deed was made in March, 1877.
The next question presented is the vital one in this case, and upon its solution depends the result. Defendant having acquired her interest in the land which it is claimed by plaintiffs was intended to be conveyed by the deed in question by inheritance after her marriage with Joel Grubb, which was prior to the adoption of section 6864, Revised Statutes 1889, it was not her separate property, and could only have been conveyed by her and her husband jointly, and then only by deed signed and acknowledged by them as provided by section 2, p. 984, Revised Statutes 1872. Therefore as the deed does not describe the land intended to be conveyed, as to Mrs. Grubb it passed no title either legal or equitable. But plaintiffs insist that as defendant received in consideration for the land which was- intended to be conveyed to Jacob Grubb for the benefit of Joel Grubb’s five children by his first wife, a deed to the home place of her and her husband Joel Grubb, and still retains the same, that in equity and good conscience the deed in question should be corrected so as to conform to the intent of the grantors. As the land intended to be conveyed by defendant and her husband by the deed in question, was not her separate property and she could only have conveyed her interest therein in the manner
Such proceeding can only be maintained against a party competent to contract and the defendant herein possessed no such power at the time of the execution of the deed.
In Shroyer v. Nickell, 55 Mo. 264, Shebwood, J., speaking for the court said: “The reformation of deeds and of contracts, whether sealed or otherwise, executed or merely executory, is one of the most familiar doctrines pertaining to equity jurisprudence. But it is to be observed of this pow.er of reforming instruments, that it always has for its basis the fact that the parties thereto are capable of making a valid contract. This capability can not be, in general, affirmed of a married woman. The only exception to this rule of incapacity, so far at least as it concerns her individual rights, is where a feme eovert contráete with regard to her separate estate; for in respect to that, she is held a feme sole by courts of equity. But beyond this, the original inability to make a binding contract still exists in all its ancient vigor, save where modified by statute. It was one of the fundamentals of common law, that the contract of a feme covert was absolutely void, except where she made a conveyance of her estate by deed duly acknowledged, or by some matter of record; and this could only be done after private examination as to whether such conveyance was voluntarily made; and our statutory mode, whereby the deed of a married woman is executed and acknowledged, is but substitu-tionary of the common law method in this regard. This is the only change that our statute has wrought.” [Whiteley v. Stewart, 63 Mo. 360; Pearl v. Hervey, 70 Mo. loc. cit. 167; Dameron v. Jameson, 71 Mo. 97; Rush v. Brown, 101 Mo. 586; Brown v. Dressler, 125 Mo. 589.]
In Price v. Hart, 29 Mo. 171, it was in effect said: If such a deed can be adopted or set up by a mere parol declaration, made by a married woman after the removal of her disability of coverture, it would seem to let in all the evils which the statute was designed to guard against.
While these observations, and the authorities cited are more particularly with respect to the defective acknowledgment of deeds executed by married women than the misde-scription of lands intended to be conveyed by them, the same rule applies with equal if not greater force to the latter class, that is, that a court of equity has no power to correct the mistake.
In Martin v. Hargardine, 46 Ill. loc. cit. 324, it was said: “Even if the certificate of acknowledgment had been correct in point of form, the court had power to■ apply it to any other lands than these described in the deed. The difference between correcting a deed as to the husband, or, if he is dead, as to the heirs, and to the wife or widow, is this: as to the husband, the deed is made in execution of a contract between the grantor and grantee, and if it does not properly express the contract as really made, either as to the description of the lands or otherwise, it can be corrected by a c'ourt of chancery on the making of satisfactory proof. So if the contract is executed on the part of his purchaser, by the payment or tender of the purchase money in compliance with its terms,
It follows that the court was without authority to make the decree which it rendered. _
It may be in an action of ejectment by defendant for the possession of the land (which if she does not bring voluntarily she may be compelled to do under the statute or be debarred from ever setting up or claiming title thereto) that by reason of the fact that she received from her husband the agreed consideration for her interest in the land, and having settled with the Grubb heirs upon that theory, and then having stood by and seen them making lasting and
She is certainly not however entitled to recover possession of the land in this suit.
Eor these considerations we reverse the judgment.