144 Mo. 482 | Mo. | 1898
In November, 1888, plaintiff and defendant were married. They were both old, and each had adult children by former marriages. They boarded with one of the adult children of the wife. In August, 1890, the husband conveyed certain land to defendant Crump (reserving during his life all rents, issues and profits arising therefrom) the consideration expressed in the deed being $1 “and other valuable consideration” and thereupon, cotemporaneously Crump conveyed the property to the wife, the consideration being declared in the deed to be “that the party of the first part in consideration of the relinquishment and release of all claims of dower of said Matilda Saunders in and to the personal and real estate of Samuel M. C. Saunders, said relinquishment and release being evidenced by acceptance of this deed and of-the sum of one dollar to him paid by said party of the second part, the receipt of which is hereby acknowledged.” The relation between the plaintiff and his wife’s children became unpleasant, so he built a house •on his own land and wanted his wife to go there and live with him, which she refused to do. In June, 1892, he left her, and in December, 1893, began a suit for divorce on the ground of desertion, and obtained a decree by default. Thereupon he instituted this action to cancel the deeds aforesaid. On the trial these facts were admitted. It was also admitted that plaintiff and Crump, if present, would swear that no money was paid as recited in the deeds and that no consideration was intended except the relinquishment of dower, but defendant objected to the testimony as immaterial. The court did not rule upon the objection. There was a decree for defendant, and plaintiff appealed.
The plaintiff contends that the real consideration for the deeds was the relinquishment of dower, to which she would not be entitled until after the husband’s death, at which time she would have the right to elect between dower and jointure, and an implied promise to continue to be his wife until his death, and that as she' broke her implied promise and plighted troth the consideration for the jointure has failed, and as her right to dower was cut out, under the statute (R. S. 1889, sec. 4526), by the husband obtaining the divorce, there was no election between dower and jointure left, and hence she lost all right to both. It is further contended by plaintiff that there is a difference between a jointure created by an antenuptial contract, the marriage in such case furnishing the consideration for the contract, and which is therefore not affected by the subsequent conduct of the wife, and a jointure created after marriage, where it is claimed her rights are only inchoate during coverture and require the ratification, by election, of the wife, after the husband’s death.
On the other hand it is contended that there is a difference between jointure and dower, in this, that dower is barred by divorce obtained by the husband, whereas jointure is a vested interest in the wife, founded upon a valuable consideration at the time of its creation, which is not affected by the subsequent misconduct of the wife and hence is not barred by divorce.
To correctly understand the question to be decided it is necessary to bear in mind the nature of dower and of jointure. “It has been stated that curtesy is founded on positive institutions; but dower is not
In order to entitle a woman to dower at common law it was necessary that she should be his wife at the date of his death. A divorce a mensa et thoro did not bar her dower, for that did not dissolve the marriage— it only authorized them to live separately,' but left the obligation on the husband to support her. Such a divorce on the ground of the wife’s adultery did not dissolve the marriage and therefore had no effect on her dower rights. Likewise the husband’s curtesy was not forfeited by his leaving his wife and living in adul
Jointure is a settlement by the husband on the wife, either before or after marriage. It is said to be “a competent livelihood of freehold for the wife, of lands or tenements, etc., to take effect presently in possession or profit after the decease of her husband for the life of the wife at least.” Sometimes it is called legal, as when made before marriage, and sometimes, equitable, as when made after marriage. Originally it took the form of a conveyance to husband and wife-during their joint lives, and after the husband’s death to the wife. 5 Am and Eng. Ency, Law, p. 915, and cases cited. Prior to 27, H. 8, jointure did not bar dower, but that statute expressly made it a bar. To make a perfect jointure within that statute six elements were necessary: “Firét, it must take effect for her life in possession of profit presently after the decease of her husband; second, it must be for the term of her life or a greater estate; third, it must be made to herself and. to no other for her; fourth, it must be in satisfaction of her whole dower and not of part of it only; fifth, it must be expressed or averred to be in satisfaction of her dower; and, sixth, it may be made either before- or after marriage.” Coke on Litt. L. 1 C. 5, sec. 41, 3 Qb.
Dower is a mere inchoate right derivable from the marriage and is .within the rule whereby non-vested interests are ended by divorce. 2 Bishop on Mar., Div. & Sep., sec. 1634, and cases cited. But jointure is a vested interest' in land, and the wife takes it as purchaser. Campion v. Cotton, 17 Ves. 267; Verplank v. Sterry, 12 Johns. 535; Herring v. Wickham, 29 Gratt. 628; Jones’ Appeal, 62 Pa. St. 324. Being a vested
Under our statute all divorces are a vinculo, and the reasoning employed in the English cases where the divorce was only a mensa et thoro do not apply. We have long had a provision in our divorce statutes that, “In all cases of divorce from the bonds of, matrimony, the guilty party shall forfeit all rights, and claims under and by virtue of the marriage.” R. S. 1889, see. 4508. Ever since February 5, 1825 (R. L. 1825, p. 333), we have had upon our statute books the provisions contained in sections 4526 and 4532, Revised Statutes 1889, the former providing that, “If any woman be divorced from her husband for the fault or misconduct of said husband, she shall not thereby lose her dower; but if the husband be divorced from'the wife for her fault or misconduct, she shall not be endowed,” and by the latter that, “If a wife voluntarily leave her husband and go away and continue with an adulterer, or after being ravished, consent to the ravisher, she shall be forever barred from having her jointure or dower, unless her husband be voluntarily reconciled to her and shall suffer her to dwell with him.” It will be observed that the literal language of section 4526 only bars her dower when she is the guilty party, but that section 4532, bars her “jointure or dower” where she has been guilty of adultery. In' the case under consideration the husband was divorced for the desertion of the wife and not for her adultery, so, it is not necessary to decide whether under section 4532 a woman is barred of her jointure (the statute makes no distinction between such an estate created before and one created after marriage) when her husband is divorced from her for her adultery. It. is plain that defendant’s rights are not affected
Somewhat analagous questions have been adjudicated by this court. Thus in Roberts v. Walker, 82 Mo. 200, there was a post-nuptial contract, creating a jointure for the wife, which she ratified after her husband’s death, and when she afterward claimed her homestead rights, they were denied her — thus recognizing a post-nuptial contract of this character. Schuster v. Schuster, 93 Mo. 438, was a case where the husband’s money was invested in land, but the title was put in the wife. He claimed it was in trust for him, while she claimed it was intended as a settlement or jointure for her. She obtained a divorce, and he sued in ejectment for the land. It’was held that prima facie it was a settlement upon her, and not a resulting trust as it would have been if the deed had been made to a stranger, and construing section 2182, Revised Statutes 1879 (the same as sec. 4508, R. S. 1889), it was said, “This section is clear, and meets the case in hand, and, by it, he forfeited whatever marital interest he may have had in the property.” It should be observed, however, that in that case the husband was not asserting any interest “under and by virtue of the marriage,” but was seeking to establish that the former wife held the title as a mere trustee for him. So that while that case was properly decided, it is not to be taken as a binding interpretation of the true meaning of section 4508, Revised Statutes 1889, nor as an authority in the case at bar. In Kinzey v. Kinzey, 115 Mo. 496, it appeared that the husband after marriage purchased property
After refusing to consider it a case of fraud by the wife on the husband based upon their confidential relations, and saying it was simply a “breach of the confidence that the plaintiff then had that the defendant was and would continue to be to him a faithful wife,” and noting the fact that the conveyance was not procured by her solicitation or undue influence, but was evidently intended by the husband as a suitable provision for his wife and her children, Judge Brace, said: “It may be true that at the time this settlement was made Kinzey may have thought that, as his wife always had been, so she would thereafter always continue to be, faithful to 'her marital vows, and that if he had known that she would thereafter prove false to them he would not have made the settlement upon her and her children that he did make. But that he was mistaken in this reasonable expectation, as subsequent events proved, affords no pretext
These cases establish the rule that there may be a jointure created after as well as before marriage, just as Lord Coke said was the case in England after the enactment of 27 H. 8. The consideration moving to
The reason of the rule at common law which drew a distinction between such contracts máde before and after marriage, and preserving an election to the wife if made during coverture, was that the wife was incompetent to contract during coverture with her husband or any one else. The election preserved by section 4530, Revised Statutes 1889, has been on our statute books since 1825, and although our changed and enlightened conditions have wiped out many of the old
The husband discounted the chances.- He made his election. His confidence was misplaced, but no fraud was perpetrated on him by her, and it can not be said there has been a failure of consideration, nor, under the decisions, that it was a mere nudum packm. It is a good vested interest which it is not in his power to revoke, and which a court of equity has no power to divest.'
For these reasons the judgment is affirmed.