Turner v. Shaw

96 Mo. 22 | Mo. | 1888

Sherwood, J.

Ejectment for an undivided one-sixth. part of lots 519 and 520 in block 65, in the city of Louisiana, Pike county, Mo.

The plaintiff and defendant are brother and sister, •children and heirs-at-law of their father and mother, Jno. P. and Sarah Ann Turner. The answer was a general denial, with a statement of special matters of defense set out at length, alleging that John P. Turner, deceased, the common source of title, being a southern sympathizer, and alarmed at the condition of the country, in June, 1861, executed a deed of conveyance to the property in question to his wife, Sarah Ann Turner. This deed was recorded in 1865. John P. Turner with his family, consisting of his said wife and two daughters, Mary J. Shaw and Sallie Turner, continued in the uninterrupted possession of the property up to the date of his death, in 1880. The wife died in 1882. The defendant Mary J. Shaw, widowed sister of the plaintiff, was the housekeeper and general manager of the household from the time of the acquisition of the property in 1852, until the death of her mother, Mrs. Sarah Ann Turner, in 1882 ; that on account of his fears for the safety of himself and property and for the purpose of placing all his property in such a condition that his family might have full benefit of it in case of his death or its confiscation, on June 5, 1861, in consideration of * ‘ love and respect ” for his said wife, he conveyed to her all of his property, consisting of several tracts of land together with the lots in question, which were occupied as his homestead. In September, 1874, the wife, Sarah Ann Turner, in consideration of the sum of five dollars, etc., re-conveyed the same property to her husband.

In August, 1878, being advised that the last-named conveyance was ineffectual to re-invest him with the legal title to the property so as to enable him to make a proper disposition of his entire estate among his children, and especially to secure to his two daughters *26aforesaid the property in dispute for a permanent home for them, he and his said wife executed a deed to the said Mary J. Shaw, by which they intended to convey all of his property, including these two lots; that on the same day, Mary J. Shaw executed her deed to her father for the ■same property, following the description of the last-mentioned deed. In both of these conveyances lots 519 and 520, in block 65, were-' omitted by the. mistake of the scrivener. October 25, 1878, John F. Turner made his last will, devising .these two lots to his said daughters, subject to the life estate of his wife, Sarah Ann Turner.

Sallie Turner afterwards conveyed her interest to her sister, Mary J. Shaw. It is alleged that John F, Turner in his lifetime had given to the plaintiff, by way of advancement, money and property largely in excess-of his distributive share in the estate, and that Mrs. Sarah Ann Turner, at all times, up to the date of her death, assented to the propriety of making such a disposition of the property as to secure this home to the two daughters, and did all that was deemed necessary to accomplish that 'end. These allegations of the answer concluded by praying for such reformation of the deeds-of 1878 as to include the lots aforesaid. Except denying that the plaintiff was the brother of the-defendant, the reply was a general denial. The court found and gave judgment for the plaintiff.

I. This case was heard and determined solely upon 'the theory of the special defense set forth in the answer,, that defendant was entitled to have the deeds of 1878 so-reformed as to have included therein the lots in controversy. After an examination of the evidence, I am satisfied that it is not sufficient to warrant a decree for the reformation of those deeds. In order to reach such a standard of probative efficacy, the evidence must be clear, and positive, and convincing. Modrell v. Riddle, 82 Mo. 31, and cas. cit. Or, as Judge Story puts it, *27“entirely satisfactory, and equivalent to an admission.” 1 Sto. Eq. Jur. (13 Ed.) sec. 156. There is, therefore, no fault to find with the action of the lower court in this view and on this theory of the case.

II. But there is another aspect in which this case is to be regarded, one which appears to have escaped the attention of both court and counsel; it is this : . The deed from a husband to a wife, or from .the latter to the former, are null in law, this arising from their being regarded as one person. Very differently, however, are they regarded in a court of equity. There they may sue and be sued, contract and be contracted with, become the debtor or creditor of each other, with like effect, so far as regards equitable contemplation and rights, as if they twain had never become one flesh. Morrison v. Thistle, 67 Mo. 596, and cas. cit.; 1 Bishop Mar. Wom., secs. 35, 37, 713, 717. The deed of 1861, from Jno. F. Turner to his wife, while it did not vest in her a legal title to the lots in litigation, still passed to her an equitable estate.

III. And the .estate thus created in the wife was an equitable separate estate. This is apparent for two reasons : (1) Because the language of the habendum of the deed last mentioned is : “To have and to hold unto the said Sarah Ann Turner, and to her sole use and benefit.” Morrison v. Thistle, supra. (2) Because the deed was made directly from the husband to the wife. If the deed had been made by a stranger to the wife, then, a separate estate in her would not have been created, absent the necessary words ; but being made to the wife by the husband, a separate estate, as against him, was the result. Deming v. Williams, 26 Conn. 226 ; Huber v. Huber, 10 Ohio, 371; Steel v. Steel, 1 Ired. Eq. 452; Maraman v. Maraman, 4 Met. [Ky.] 84 ; McWilliams v. Ramsay, 23 Ala. 813; 1 Bishop Mar. Wom., sec. 838.

*28IV. It being then established that, in consequence of the deed of 1861, the wife became the owner of an equitable separate estate in the land thereby conveyed, what was the effect of her deed made back again to her husband in 1874? I can regard it as having but one effect, and that was to convey to him the same lands, that is, her equitable estate therein, which prior thereto she had been the recipient of from him. This must have been the effect of the deed of 1874, or else it had no effect at all. But it may be urged that this deed was utterly invalid, because it was executed by the wife alone. However this may be as to mere statutory estates, which require a joinder of husband and wife in. order to their valid execution, it will not hold as to separate estates in equity, which the wife may charge, mortgage, or convey without let or hindrance from her husband. With regard to such property she is, in equity, a feme sole, and has the jus disponendi, which is the inseparable incident of ownership. By virtue of this, she charges, she incumbers, or she absolutely disposes of it, or she binds it by her parol agreements, just as any other owner would. This position is sustained by abundant authority, both here and elsewhere. Livingston v. Livingston, 2 Johns. Ch. 537; Whitesides v. Cannon, 23 Mo. 457; King v. Mittalberger, 50 Mo. 182; McQuie v. Peay, 58 Mo. 56; Claflin v. Van Wagoner, 32 Mo. 252 ; Schafroth v. Ambs, 46 Mo. 114 ; Kimm v. Weippert, 46 Mo. 532; Lincoln v. Rowe, 51 Mo. 571; DeBaun v. Van Wagoner, 56 Mo. 347; Gay v. Ihm, 69 Mo. 584 ; 1 Bishop Mar. Wom., sec; 853 ; 2 Ib. sec. 163; Taylor v. Meads, 34 L. J. [N. S.] 203.

It is upon the idea that a feme covert, possessed of a separate estate, may convey it, that gave origin, in the conveyances creating such estates, to clauses against alienation. 1 Bishop Mar. Wom., sec. 844. Such clauses, the invention of Lord Thurlow, amount to a *29constant assertion of the power which the feme possesses, but for such prohibitions. These views are contrary to those expressed in Martin v. Colburn, 88 Mo. 229; but the opinion there was by a divided court, and satisfied now that it was erroneous, we all agree to overrule that case.

Y. The husband being the possessor of the legal estate in the lots in question, and having received from his wife all the equitable estate which, by his deed of 1861, he had conveyed to her, it results that at the time he made his will, he had full power and ownership' to dispose of the lots as he would ; and that no reformation of the deeds of 1878 was necessary.

We reverse the judgment and remand the cause with directions to enter judgment for defendant.

With the exception of Rat, J., absent, all concur. '