78 W. Va. 576 | W. Va. | 1916
By an instrument in writing, bearing date December 14, 1911, sealed and acknowledged by ber, Elizabeth Shumate, a married woman, living separate and apart .from her husband, undertook to convey her separate real estate to her son, the plaintiff, John. R. Shumate. Her husband did not join in the execution of the paper; nor did it, or the certificate of acknowledgment, contain the recitals required by sec. 6, ch. 73, Code. She died in April, 1912. In June of the same year, R. A. Shumate, her husband, conveyed to his children then living and the heirs of such of them as were dead his cur-tesy in his wife’s lands. John R. Shumate thereupon filed this bill, praying cancellation of the deed for such interest as a cloud on his title, a declaration of the validity of the deed to him for his mother’s lands or its validity as a contract to convey, and enforcement as such against her husband and heirs at law should the court be of opinion by reason of the noncompliance with the provisions of the statute cited the instrument so made was ineffectual as a conveyance of his mother’s lands. Prom a decree awarding cancellation of the deed made by the father, but denying other relief, plaintiff has appealed; and defendants cross-assign error.
Relief by cancellation was predicated upon sec. 16, ch. 65, Code, saying: “ If a husband of his own free will shall leave his wife except for cause such as would entitle him tó a divorce, he shall be barred of his curtesy in his wife’s estate, unless she afterwards become reconciled to and 'live with him as his wife.” That R. A. Shumate voluntarily left his wife Elizabeth some time about the year 1905, and moved to Narrows, Va., where he has since continuously resided, and át no time thereafter resumed actual or virtual cohabitation with her, the testimony fully establishes; as it also does the complete negation of any cause therefor traceable to her conduct. The absence of any insinuation of lack of devotion or loyalty on her part to her matrimonial vows, warrants the conviction that she was in every respect faithful to her husband, and tolerant to his faults and foibles, from which, as we shall see, he was not wholly immune. The only charge affecting her faithfulness to him Was that she refused his request to aceóm-
By way of cross-assignment, defendants deny the sufficiency of the evidence to prove abandonment, and contend that the facts of abandonment and intention to abandon are successfully controverted by proof tending to show that R A. Shu-mate made ample provision for the maintenance and support of his family- composed of his wife and the three defective children, that thereafter he registered as a voter and occasionally voted in Mercer County, was assessed there with and paid taxes on personal property belonging to him and paid poll tax charged to him, gave personal attention to such property, at frequent intervals visited his wife, transacted business for her at her request, was present, during her illness and when she died and attended her funeral. But they did not then or at. any other time subsequent to the separation, so far as the proof shows, occupy the same rooms or apartments on such ooeeasions, or, although ostensibly friendly, act toward each
But, assuming that by this enactment the Legislature meant an abandonment such as would justify a divorce, an assumption not readily inferrable from the language used, does not the evidence abundantly support the conviction that R. A. Shumate did in fact abandon his wife? Actual separation by one party to the matrimonial union,' co-incident with the intention to abandon, constitute statutory ground for dissolution of the marital ties. Burke v. Burke, 21 W. Va. 445; Tillis v. Tillis, 55 W. Va. 198. Within this definition falls the act and conduct of B. A. Shumate. He abandoned his wife, with the intention not to resume cohabitation with her. To several persons, who bear testimony to his statement, he declared, when leaving, that he did not intend to return to his Mercer County home. Nor, as heretofore observed, did he thereafter renew cohabitation with his wife.
Voluntary withdrawal from cohabitation, concurrent with an intention to forsake and not return, constitutes abandonment within the meaning of the divorce statutes. The duration of the separation in excess of the time fixed by law is important only in so far as it tends to emphasize the element of intent. Moore v. Stevenson, 27 Conn. 14. In Stock v. Mitchel, 252 Ill. 530, similar facts were held sufficient to show bar of the husband’s right to curtesy, under the Illinois statute, in the deceased wife’s lands. Where a husband is dissipated, lives apart from his wife, and contributes nothing to her support, and she engages in business on her account, this is such an abandonment, within the spirit of the statute, as will justify the award of a decree of divorce from him. Shields v. Bellman, 74 Tenn. 488; Walker v. Strongfellow, 50 Tex. 570. While many cases prescribe as one of the conditions of abandonment failure of the husband to provide for the wife’s maintenance, R. A. Shumate likewise substantially falls within the same category. At the time of the separation
These conclusions effectually dispose of defendant’s cross-assignments, and lead to an affirmation of the decree in so far as it grants plaintiff’s prayer for cancellation.
While it is essential to the validity of a deed conveying the separate estate of a married woman living with her husband that it be signed by her and her husband and acknowledged, in order to make it a valid contract conveying her estate, we see no reason why a married woman living separate and apart from her husband may not make a valid contract of sale of her separate estate, enforceable in a court of equity. A deed void for want of formality may nevertheless be good as a contract and pass the equitable title. 1 Pom. Eq. Sec. 383; Atkinson v. Miller, 34 W. Va. 115; Boggess v. Scott, 48 W. Va. 316; Virginia Coal & Iron Co. v. Roberson & Wife, 88 Va. 116. Mrs. Shumate’s deed, although not executed and acknowledged in the formal manner prescribed by sec. 6, ch. 73, Code, was sufficient to convey her equitable title; it was a binding execu-tory contract. The land which she attempted to convey was her separate estate, and shé was then living separate and apart from her .hsuband. The question presented is res in-tegra. All the eases heretofore decided involving the validity of contracts or deeds for the separate lands of married women were cases in which the wife and husband were living together. In such case the statute creating separate legal estates expressly requires the husband to join in the wife’s contract of sale as well as in her deed; and it has been held that her acknowledgment; in such case, is also necessary. ' The power of a married woman to dispose of her statutory separate real estate depends, of course, on statute law. At common law she
Prior to the 1st of April, 1869, when the new code took effect, separate estate was a creature of equity only, and the power the wife had of disposing- of it depended on the instrument by which it was created. She could be, and frequently was, authorized to dispose of it without her husband’s consent. There being no impediment to her disposing of her separate equitable estate in the manner provided by the instrument creating it, there can be no impediment to her disposing of her separate legal estate, if the statute .permits her to do so. That the Legislature has authorized a married woman, living separate and apart from her husband, to contract for the sale of her separate legal estate, we think, is clear. Sec. 3, ch. 66, Code, creating such estates, empowers a married woman to “convey and devise real and personal property and any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with the like effect as if she were
It is said that Chapter 66 does not impliedly repeal Sec. 6, eh. 73 of the Code. But that section deals only with deeds, not with executory contracts of sale. It prescribes the form of a deed by a married woman living separate and apart from her husband, and says the deed and acknowledgment thereto must both recite the fact that she is living separate and apart from her husband, and no officer is authorized to certify her acknowledgment until that fact is proven to his satisfaction. Contrary, however to the rule adopted by the courts of Virginia and of this state, respecting the conclusive effect of the certificate of privy examination and acknowledgment of 'a; married woman living with her husband, the certificate of acknowledgment by a married woman living separate and apart from her husband is expressly made only prima facie evidence of the facts therein stated. Harkins v. Forsythe, 11 Leigh 294; and Rollins v. Menager, 22 W. Va. 461. Thát evinces a purpose to make the validity of the deed depend
That section 6 of chapter 73. does not relate to-executory contracts is shown by the purpose intended as well as by the terms employed. The -first part of it says, “such writing shall operate to convey from the wife her right of dower in the real estate-embraced therein, and pass from her- and her representatives all right, title and interest of every nature which, at the date, of such -writing, she may have in any real estate conveyed thereby, as effectually as if she were, at said date, an unmarried woman.”1 The words “such writing” refer to the writing mentioned in section 4 of this chapter, purporting to convey real estate. It was certainly not intended to make an executory contract,- which did not even purport to convey real estate, operate to pass the wife’s title. It was the legislative purpose to .give such effect only to instruments which purported to.convey title; and in construing sec. 3, eh. 66, so far as it related to the executory contract of a married woman, living with her husband, for the sale of her separate estate, this court has held that the same formality required for her deed is necessary. The reason for that holding is found in the very terms of sec. 3, ch. 66, which do not permit a married woman, living with her husband, to sell or convey her real estate without her husband’s joining, to which this court,has added, by construction, her acknowledgment as a further and necessary protection to the wife. In that part of sec. 6, ch. 73, relating to a married woman living separate and apart from her husband, the very term “deed” is used, which, of course, means a deed of conveyance. It does not embrace an executory contract.
. Sec. 3, eh. 66, was not designed simply to create legal separate.estates and protect married women in the enjoyment there-.
The fact being established in this case that Mrs. Shumate was living separate and apart from her husband on account of no fault of hers, at the time she attempted to convey her land to appellant, her deed should be given the effect she intended it to have. The equity of the ease demands it, and the rules of law do not forbid it.,
These conclusions lead to the affirmation of the decree in so far as it decrees that the defendant R. A. Shumate is barred of the right of curtesy in the lands of Elizabeth Shumate and that he acquired no title therein as husband of said Elizabeth Shumate in the lands of which she died seized and now in controversy in this cause, and that the deed executed by the said defendant R. A. Shumate to the defendants Susan A. Brown, Harvey M. Shumate, Ballard P. Shumate, Arthur T. Shu-mate, Sallie Y. Johnston, Nina Shumate, Pearl Hall, Laura Showalter, George Shumate, and Arly Shumate, bearing date the 20th day of June, 1912, purporting to convey to them the life estate of the said R. A. Shumate in the land in controversy in this suit as tenant by the curtesy, is null and void and of no effect; and that the said deed bearing date the 20th day of June, 1912, and recorded in the office of the clerk of the county court of Mercer County, West Virginia, in Deed Book 83, at page 462, executed by the defendant R. A. Shu-mate to the defendants Susan A. Brown, Harvey M. Shumate, Ballard P. Shumate, Arthur T. Shumate, Sallie V. Johnston, Nina Shumate, Pearl Hall, Laura Showalter, George Shu-mate, and Arty Shumate, should be set aside and annulled; and so much of said decree as decides that the deed executed by Elizabeth Shumate to the plaintiff John R. Shumate, dated the 14th day of December, 1911, is void as a deed of convey-
Affirmed in part. Reversed in part. Remanded.