84 Mo. 318 | Mo. | 1884
Rehearing
On Rehearing.
This cause has been re-argued. Two points are urged why a different result should have been reached in the original opinion. They are, first, that
I. Mrs. Mueller was seized of the land in fee in the ordinary way, no separate estate being created by the deed conferring title upon her. To her title, therefore,, section3395 of the statute applies: “The rents, issues, and products of the real estate of any married woman, and all money and obligations arising from the sale of such real estate and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant,, devise, or inheritance during coverture, shall, during coverture, be exempt from attachment, or levy of execution for the sole debts of her husband; and no conveyance made during coverture by such husband of such rents, issues, and products, or of any interest in such real estate shall be valid, unless the same be by deed executed by the wife jointly with her husband and acknowledged by her in the manner now provided by law in the case of conveyance by husband and wife of the real estate of the wife.” This statutory language would appear to be too plain to admit of and support but one meaning: that by its express terms the husband during coverture is cut off, deprived, disabled, and foreclosed from the exercise of his common law rights in his wife’s land; and this. I propose to verify.
What were the rights of the husband at common law in the land of the wife? These: he was jointly seized with her of that land; had, jure uxor is, the exclusive right to the possession of that land, its rents and profits ; could make a tenant to the principe; could lease or mortgage the land by his own deed alone, or, by his deed, without joining his wife with him, convey his marital interest in the land, which conveyance would be good during their joint Eves, and his free
In McBeth v. Trabue, supra, it was ruled that where the wife was seized in fee of the land and conveyed it in 1873, the prior sole conveyance by the husband of a portion of the land for the purpose of dedicating it as a public road, would be utterly inoperative against such subsequent deed notwithstanding the county court and the public as well as the husband, wife, and children had accepted and used the road as a public road, and that the
This review of other cases brings me to that of Kanaga v. R. R., 76 Mo. 207, upon which defendants, with all confidence, rely. In that case it was ruled that the', husband and wife’s consenting that a railroad company should enter upon the land of the wife, and construct its road, would prevent the husband and wife from subsequently maintaining ejectment against such company,, and that the estoppel of the husband, by his conduct in the premises, would prevent either husband or wife, or both of them, from recovering possession of the land during the existence of the marriage relation. The cases of Bartlett v. O’ Donoghue, and of McBeth v. Trabue, supra, were pressed upon our attention both in argument, and in brief in Kanaga’s ease, but passed unnoticed, or, if considered by this court at all, were evidently considered as having no bearing on the question then at issue. So that the rulings of this court on this subject, when
I am unable to see why his act in pais can cut a wider swath than his solemnly executed deed. Speaking on this point an eminent author says: “The importance of fixing as far as may be, by proper limits, the doctrine of estoppel in pais, in its application to titles of real estate, seems to require some additional illustrations to what has already been said. And, in the first place, an estoppel in pais, where it applies, is as effectual as a deed, Tout no more so. So that, if the party doing the act could not have made a deed of the land in question, his act cannot create an estate by estoppel in the same.” 3 Washburn on Real Prop. 77. The principle thus enunciated seems so obviously correct, so self-evident, that it should command the immediate' assent of every legal mind. If its correctness be conceded, then Kanaga’ s case was improperly decided, in that it empowers the
If, as already stated, the statute under .consideration is a disabling statute, one whereby a husband is shorn of his common law marital interest in his wife’s land, so far as any disposition of it is concerned, it must needs follow that his situation toward his wife’s land is precisely the same as hers towards his land, the statute enabling her to convey her interest in his land by complying with certain conditions; and the statute disabling him from conveying his interest in her lands unless upon compliance with similar conditions. In a word, under the act in question, the husband as well as the wife, labors under the disabilities of coverture, and can do no more than could the wife in similar circumstances. Speaking on this subject of a married woman’s disability
Another reason occurs why there can be no estoppel in pais in this case, and that is, that the deed which conveyed the land in controversy to Mrs. Mueller in fee, was on record, and notice to all the world of just where the title was. The doctrine of estoppel cannot be successfully invoked where everything is equally well known to both parties, or where, though ignorant of the true state of the title at the time of the occurrence of the act which is claimed as an estoppel, the party making such claim had the means of ascertaining the truth of the matter, by reference to the records. 3 Washburn on Real Prop. 74; Hill v. Epley, 7 Casey 331; Brant v. Virginia, &c. Co., 3 Otto 326.
II. I come now to consider whether the wife was a proper party plaintiff, and if not a proper party, the effect of such misjoinder on the judgment recovered in the lower court. Section 3515, Eevised Statutes, designates seven causes of demurrer, the last being: £ £ That a party plaintiff, or defendant, is not a necessary party to a complete determination of the action.” And sec
At common law it was necessary for the husband to join his wife with him in an action to recover the real estate of the wife. 1 Chitty’s Plead. 84; Weller v. Baker, 2 Wilson 414; Thacher v. Phinney, 7 Allen 146; 1 Bulst. 21. And, certainly, under our code, which permits that all parties in interest may be made plaintiffs (sec. 3464), and which requires that actions be prosecuted in the name of the real party in interest (sec. 3462), it would seem that the joinder of the wife with the husband in an action for the possession of her realty, would be unobjectionable, as she is the meritorious cause; and if the common law rule has not been abrogated by our code it would seem that she must be joined. It has, however, been otherwise decided in this state, the husband being regarded as the only necessary party plaintiff in actions for the recovery of her lands. Gray v. Dryden, 79 Mo. 106; Cooper v. Ord, 60 Mo. 420, and cases cited. But waiving all that, say that in the present case she was improperly joined with her husband, such joinder is not a fatal error, and may be corrected in this court by striking out her name as party plaintiff, and leaving the judgment to stand in the name of the husband alone. This point has been so ruled in at least two cases by this court, and has thus passed into precedent. Cruchon v. Brown, 57 Mo. 38; Weil v. Simmons, 66 Mo. 617. And our statute expressly authorizes it,
This matter is discussed at large in 8 Central Law Journal, 340, where the authorities and our statutory provisions are commented on quite fully. In New York, from which state we have derived our code, it is a matter of common occurrence to make such amendments as have been mentioned, and no one of the great array of learned lawyers who abound in that state has ever ques
For these reasons the judgment should, as at first
ordered, stand affirmed.
Lead Opinion
I. Mrs. Mueller being seized of the fee in the land, having no separate estate therein, her husband was powerless to bind, charge or convey the land except by a deed duly executed and acknowledged in ■conjunction with his wife. This point, which arises on the provisions of the statute (R. S., 1879, sec. 3295), has ■been uniformly and frequently ruled in this way by this court, ever since the statute was first enacted. 1 Wag. Stat. 935, sec. 14; Wannall v. Kem, 51 Mo. 150; Clark v. Bank, 47 Mo. 17; Clark v. Rynex, 53 Mo. 380; Silvey v. Summer, 61 Mo. 255; McBeth v. Trabue, 69 Mo. 642; Bartlett v. O’ Donoghue, 72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hord v. Taubman, 79 Mo. 101.
II. And because Mrs. Mueller had no separate estate in the land, any promise made by her, if she made any, could not affect, nor have any effect on, her legal or equitable interest in the land; and this owing to her common law marital disability. Shroyer v. Nickell, 55 Mo. 264; Whitely v. Stewart, 63 Mo. 360; Hord v. Taubman, 79 Mo. 101; Bagby v. Emberson, 79 Mo. 139; Meier v. Blume, 80 Mo. 179; Atkison v. Henry, 80 Mo. 151.
For the reasons aforesaid, no specific performance could be decreed against her, or against her husband, and, therefore, judgment affirmed.