47 Mo. 20 | Mo. | 1870
delivered the opinion of the court.
This was a suit for specific performance, and the questions presented are involved in some difficulty. Prom tho papers in the case it appears that on the 7th day of October, 1845, Britton A. Hill and Mary Melinda Shepard, then a minor, by her guardian, Elihu H. Shepard, entered into a marriage contract, by which it was agreed that he, the said Britton, should not, in any event, take, claim, or intermeddle with any of the property of which the said Mary was seized or possessed, or of which she might thereafter be seized or possessed, by inheritance, devise, donation, purchase, or otherwise, nor with the profit, income, or interest thereof.
It is further provided that the trustees, or the survivor of them, or the heirs or executors or administrators of the survivors of them, shall, upon the written request of said Melinda and said Britton, convey the real estate or personal property as they direct,; and the said Britton and Melinda are authorized to appoint new trustees, by directing Kayser and Holmes, or the survivor of them, to do so in writing. Further power is given the said Melinda, in law, to devise all or any part of her said real estate and personal property by her last will and testament, or by any other writing whatever, signed with her hand, in the presence of two or more credible witnesses.
Upon the execution of this contract, the marriage was solemnized between the parties, and of the marriage there was born a son, now living.
By an act of the General Assembly of the State of Missouri, approved March 2, 1849, the bonds of matrimony contracted
Prior to the marriage of Mrs. Hill and Barclay, they made and executed a marriage contract, which is similar in all essential particulars to the one entered into between Hill and Mary Melinda. The trustees appointed were Richeson and Davis, and the latter becoming disqualified, Papin was appointed in his place; and they, with Barclay and wife, are now the plaintiffs in this suit.
On the 15th day of February, 1864, Elihu H. Shepard made a lease of a certain lot in the city of St. Louis, for the term of fifty years, to Simmons, the defendant herein, on certain conditions, and on the additional condition that if, at any time during the continuance of the lease, the lessor or his legal representatives should determine to sell the leased premises, he or they should first submit to the lessee the best terms as to price or payment upon which the same would be sold, and the said lessee should have the refusal of said property at the terms proposed for the space of thirty days.
On the 29th day of June, 1865, Elihu H. Shepard conveyed the lot to Mary Melinda Barclay, wife of D. R. Barclay. On the 18th of March, 1869, a notice was given to the defendant, signed by Barclay and wife and $he trustees, stating that they had concluded to sell the lot, and fixing the price and terms of sale. The defendant duly accepted the proposition in writing and acceded to the terms and price. Accordingly, a deed was regularly made, conveying the premises to the defendant, signed and acknowledged by Richeson and Papin, as trustees, and by Barclay and wife. The defendant refused to accept the deed, and this suit was commenced to compel a specific performance of the contract.
It is insisted by ,the respondent that, under the statute, the present Mrs. Barclay, formerly Mrs. Hill, could only convey her real estate by an instrument in conjunction with her husband, and that, as the legislative divorce was unconstitutional, and therefore a nullity, Mr. Hill is still her husband and his concurrence is indispensably necessary.
We do not consider that the settlement of 1845, whereby Mary Melinda, then a minor, conveyed her estate to Holmes and Kay
Although the instrument conveying property to a married woman points out a particular mode by which she may dispose of it, still she will not be confined to that mode, and it will not be held exclusive unless restraining or negative words are used. (Kimm v. Weippert, 46 Mo. 532.) It is needless and unnecessary to go into any discussion of the refinements which have sprung out of the doctrine of powers, for, after all, the main and important question in the case is, whether the non-concurrence of Britton A. Hill in the deed rendered it invalid.
That the legislative divorce was unconstitutional, is not disputed. It was so decided as early as 1835, in the case of The State v. Fry et al., 4 Mo. 120.) But, as an historical fact, we know, by an examination of the session acts, that the practice of granting legislative divorces was kept up and obtained for many years, and, indeed, until a comparatively recent period. In many States these divorces have been held constitutional; and perhaps it is not inappropriate to say that great differences in reference to the question have always prevailed, in the minds of the profession. The divorce was no doubt supposed to be valid by Mr. Hill at the time it was obtained, and he is a lawyer of eminent professional ability. Be that, however, as it may, the course of judicial decision in this State has settled the law in opposition to .such divorces. But, granting that the divorce at the time was illegal, does it follow that Mr. Hill is entitled to any marital rights, or that Mrs. Barclay is incapable of acting without his consent or concurrence ?
By the common law the wife was incapable of acting or entering into contracts without the consent of the husband. Whilst .covert she labored under a complete and total disability; but cer
From all the investigation that I have given to the case, it is of first impression, so far as the question presented is concerned. Now the record shows that since 1849, a period of twenty years, Mr. Hill and Mrs. Barclay have not only lived separate and apart, but they have ceased to intermeddle with the affairs of each other. With mutual concurrence they have both changed their situation in life ; each has married and brought up children, built up separate and distinct property, and transacted their business without regard to any previous connection between them.
It! may be reasonably inferred that there is not any very amicable feeling of relationship existing between them. Under such circumstances does the law demand or require the absurdity of Mrs. Barclay, when she wishes to dispose of her private property, going to Mr. Hill and asking him to join in the conveyance, when at the same time he professes to be the husband of another woman ? The length of time that has elapsed, the manner in which each party has regarded and treated the other, ought to operate as an effectual estoppel, and preclude either party from an attempt to intermeddle in the affairs of the other.
For upward of twenty years Mr. Hill, so far as his relationship toward Mrs. Barclay extends, has treated her as a femme sole ; and upon no principle of justice has he any interest in, or can he interfere or exert any control over, her property. Mr. Hill is not here claiming any right, but it is set up in defense that the deed is not valid unless he joins and concurs.
If these views be correct, this deed tendered to the defendant was amply sufficient to convey the fee simple in the property, and an affirmance of the judgment of the court below necessarily follows.
Judgment affirmed.