162 Mo. 173 | Mo. | 1901
This was a proceeding instituted in the Miller Circuit Court to set aside a conveyance of certain lands in Miller county. Leaving off caption of petition and setting forth its substance and material portions, plaintiff therein states that she was married to Samuel Newton, now deceased, before any of the dates and times mentioned in this petition and from and after their marriage was his wife until his death on the twenty-second day of December, 1896; that during their coverture and for a long time prior to the twenty-first day of November, 1896, the said Samuel Newton was the owner of in fee, and seized and possessed of the following lands situated in Miller county, giving description of such lands, composing about 300 acres, as-well as property situate in the town of Eldon (giving description), which lots in Eldon plaintiff and her husband during his lifetime occupied as their homestead, of all which lands and lots plaintiff’s husband died seized and possessed; that on the twenty-first day of November, 1896, while the said Samuel Newton was in his last sickness and not expecting to live for but a short time and shortly before his death, he conveyed the aforesaid lands to the defendant for the purpose of defeating, as far as he could, the marital rights of the plaintiff in said property, after his death, and that the defendant took and received the conveyance for said property, well knowing the reason and intention of the said Samuel Newton, in conveying the property aforesaid to him, and with a view to aid her said husband as far as he could in depriving her of her marital rights after his death; that the defendant paid nothing for the said land so conveyed; that there was not sufficient consideration for said conveyance, and the only real consideration was that the defendant, who was the brother of the plaintiff’s husband, might
Wherefore, she prays the court that it, in consideration of the above facts, adjudge and decree that the said deed aforesaid, which is recorded in the recorder’s office of Miller county, Missouri, in book 10 at page 55 thereof, be declared fraudulent as to her, and in fraud of her marital rights as the widow of the said Samuel Newton deceased, that she be adjudged the owner of an one-half interest in said lands, and that the defendant be deemed and held in law and* equity to hold the said lands in trust only, and so as not to deprive her of her marital rights therein as attempted by the acts herein complained of, and that this court adjudge and decree, that a partition and division of said lands be made between the plaintiff and defendant giving to each the one-half thereof, and also that this court appoint commissioners to make such partition and division and for all such other and further orders, judgments and decrees in and about the premises as will do her complete justice and give her all of her marital rights as the widow of Samuel Newton, deceased, of which she has been so fraudulently and forcibly deprived, and also to adjudge against the defendant the value of the rents and profits of the property aforesaid, to which she has been lawfully entitled since the death of her husband and which she avers to be of the monthly value of fifty dollars and also for her costs and other proper relief.
To the above petition defendant interposed the following demurrer:
“Eor cause of demurrer defendant shows that said petition does not state facts sufficient to constitute a cause of action.
“Second. That said petition shows upon its face that several causes of action have been improperly united therein.
“Third. The petition discloses the fact that the plaintiff, as the widow of Samuel Newton, deceased, has filed her election to take and receive as her share and interest in his estate under*182 the provisions of section 4518 and of section 4522 of the Revised Statutes of Missouri of 1889, and that her declaration of such election has been duly filed in the office of the clerk of the probate court and in the recorder’s office of Miller county, and by such election she ratified the deeds and conveyances made by her deceased husband in his lifetime and an action will not lie to set aside such deeds and conveyances in order that she may elect to receive one-half of his real estate under the provisions of section 4518, Revised Statutes, aforesaid.”
The trial court held the petition sufficient; defendant stood on his demurrer and final decree went as prayed in, the petition.
It is alleged in defendant’s abstract that defendant excepted to the action of the court in overruling his demurrer to the petition.
1. The record shows no such exception; but an exception in such case neither helps nor hurts, as a demurrer will heep without an exception. [Spears v. Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo. 236.] Besides, an exception recited in the record proper does not preserve the matter thus recited;. that is the sole and appropriate function of a bill of exceptions, which alone possesses such preservative power. [State v. Wear, 145 Mo. 162.]
2. A demurrer admits, not the truth of such facts as are alleged in a petition, but the truth of such facts as are well pleaded, and not otherwise or elsewhere. [Bliss Code Plead. (3 Ed.), sec. 418; 1 Chit. Pl. (16 Am. Ed.), *693; Com. Dig. Pleader, Q 6. and other cas. cit. in n.]
The facts in the case at bar are sufficiently well pleaded, provided they are “sufficient to constitute a cause of action;”' this is the main point in controversy which the demurrer raises to the petition’s sufficiency. A subsequent portion of the petition relating to personal property, will be discussed later on.
4. Eelative to the sale of the other realty, the rule is well settled in other jurisdictions that a conveyance of land made by a husband to defraud his wife of her dower in the circumstances mentioned in the questioned petition, constitutes a valid basis for invoking equitable aid and relief.
In Walker v. Walker, 66 N. H. 390, Blodgett, J., observed : “Upon the facts found at the hearing, the bill can be maintained. The attempt of the plaintiff’s husband to dispose of nearly all of his personal estate so that he should have the enjoyment and control of it for life and the plaintiff be deprived of any portion of it at his decease, can not be sanctioned. It is settled law, that conveyances of real estate made by the husband during the coverture for the purpose of defeating the-wife’s rights, are, as to her, fraudulent and void. Whether the same rule obtains in transfers of personal property for the like purpose when the husband reserves therein no right to himself, is a question upon which the authorities are somewhat at variance ; but where the transfer is a mere device or contrivance by which the husband, not parting with the absolute dominion over the property during his life, seeks at his death to deprive his widow of her distributive share, there is no substantial conflict of authority that the rule applicable to conveyances of realty prevails......
“Marriage does not debar a man from all right to dispose of his property during his life according to his will and pleasure. On the contrary, 'nothing is better settled than the power of a husband to dispose of his personal property in good faith, by gift or otherwise, during coverture, free from all postmortem
Scribner says: “So the wife may be relieved in equity against a fraudulent conveyance executed by her husband with intent to defeat her dower. And to the extent of establishing the invalidity of the conveyance as against the wife, this relief may be had during the lifetime of her husband. So in a case where the husband purchased lands of his son at an exorbitant price, and executed his bond and mortgage for the purchase-money, with intent to prejudice his wife’s interests in his estate, a court of equity, after the death of the husband, required the soil to satisfy the bond and mortgage from the personalty which had come to his hands.” [Second Vol. (2 Ed.), 163.]
The same author says elsewhere: “Nor will a fraudulent mortgage of the husband be sustained as against the wife. This was determined in Killinger v. Reidenhauer. ‘In Pennsylvania,’ said the court in that case, ‘where lands are considered as chattels for payment of debts, the husband’s lands may be levied on and sold, and the wife loses her dower. So here, a mortgage given by the husband will bind the dower right; all
So, too, in Georgia, there is no statute inhibiting the sale of land by the husband to defeat his wife’s right of dower, and yet it is there held that while the husband may make an actual and bona fide conveyance whereby the dower of the wife in his land is actually defeated, still a mere colorable sale and conveyance, not made by the parties with intent to be real and operative, but only as a means of dividing the lands among the children of the husband after his death, he meanwhile being the real, while the grantee in the conveyance is the nominal and formal owner, will leave the husband seized, so far as concerns the dower right, and his widow may claim, and have assigned dower, notwithstanding the colorable conveyance aforesaid. [Flowers v. Flowers, 18 L. R. A. 75.]
So that, it will be seen that the ability or inability of a husband to defeat dower by conveying away his lands, is not the basis, in either instance, for equitable interference; the only basis for that consists in the animus which prompts the conveyance ; if fraudulent in such circumstances as recited in the present petition, then equity, properly invoked, takes charge of the affair.
In this case the petition alleges, and the demurrer confesses, the truth of the allegation, that the husband died seized and possessed of the property in suit.
Concession is made by counsel for defendant what, indeed',
“But it is argued that they were not his at the time of his death by reason of the deed. I admit that, so far as the mere form or right is concerned, they were not his. Here the form hides the substance, and was intended to do it. But in a court of chancery, no matter how cunningly and deeply covered and concealed the right may be, the deep searching justice of the chancellor, with his argus eyes, will uncover it. The chancery commands the right to remain where it should have been till all the purposes of justice are accomplished.”
And it will not escape observation that what the widow takes by election is neither more nor less than dower. Thus, section 4520 provides: When the husband shall die without a child or other descendant living, capable of inheriting, the widow shall have her election to take her dower, as provided in section 4513, discharged of debts, or the provisions of section 4518, as therein provided.
And section 4522, after pointing out the mode of making the election mentioned and provided for in preceding sections, gives expression to the same idea by saying that if the widow do not file her declarations in twelve months and have it filed in the recorder’s office in fifteen months after grant of letters, she shall be "endowed” under the provisions of sections 4513,
In other words, it is as much out of the power of the husband, in the circumstances set forth in the petition, to defraud his wife out of her election-dower, as to thus deprive her of her ordinary common-law dower, as represented by section 4513.
Speaking of dower in personal property, Judge Scott, in Stone v. Stone, says: “Although dower is given in personal estate by our statute, yet it was not thereby intended to restrain the husband’s absolute control of it during his life, to give and dispose of as he wills; provided it be not done in expectation of death, and with a view to defeat the widow’s dower. The husband may do as he pleases with his personal property, subject to this restriction. After the enjoyment of the property, in the most absolute manner, during his 'entire life, the law will not permit him, at the approach of death, and with a view to defeat his wife’s right of dower, to give it away. If such a disposition was allowed, the efficacy of the statute conferring dower in personalty, would depend on the whim or caprice of the husband.” [18 Mo. 392, et seq.]
In Hornsey v. Casey, 21 Mo. 545, no such element of fraud was present — as in Stone’s case. And in the case at bar, plaintiff no more ratified by her election-dower the fraudulent deeds and conveyances here complained of, than had she pretermitted her right of choice of dowers, and fallen back on the provisions of section 4513.
It is well enough to say in conclusion that that portion of the petition is had which relates to filing her election under section 4522, and to filing declaration in the recorder’s office, since it is not shown that the declaration was filed in twelve months after grant of letters, nor that such declaration was filed
But this defect is cured by the statement that decedent died on December 22, 1896, and the petition on its face shows that the suit was made returnable to the September term, 1897; and this necessarily shows that the papers aforesaid were filed in time.
Eor these reasons, the judgment should be affirmed.