48 Mo. 140 | Mo. | 1871
delivered the opinion of the court.
This was a proceeding in the nature of a bill in equity for the purpose of reinstating a trust. It appears that the plaintiff and defendant, on the 18th of May, 1857, mutually agreed to convey, or procure to be conveyed, certain real estate belonging to them, or their friends respectively, to a trustee, to hold to the joint use of both. This agreement was made in contemplation of marriage. Afterward the plaintiff, in pursuance of this agreement, procured from her mother, Charlptte J. Purdy, a conveyance of certain real estate to one John Burkholder, for the use, benefit and behoof of said Mary R. (the plaintiff) and the said Littleton H. (the defendant), as joint tenants and not as tenants in common, to be used and enjoyed by the said plaintiff
It is further objected that this suit cannot be maintained by the wife against the husband; that the only cases wherein the wife is permitted to proceed against the husband are: First, where she asks for relief in respect of her separate property; and secondly, where she asks for relief in respect of her separate provision out of her property. These two instances are the usual ones where she is allowed to proceed against her husband. But it does not follow .that they are the only ones. She may have other rights which it is necessary for her own protection to vindicate; in which case the courts will not stand still and see her sacrificed and turned away remediless. Story, after stating the rule at law in respect to her disabilities, says : “ But there are exceptions in equity which are wholly unknown at law. Thus, if a married woman (as sometimes happens) claims some rights in opposition to the rights claimed by her husband, and it becomes proper to vindicate her rights against those of her husband, at law she cannot maintain any suit against him. But in equity she may maintain a suit against him and all others who may be proper or necessary parties. In such a suit she cannot act under the advice or protection of her husband, and therefore she is allowed to seek the protection of some other person, who acts as her next friend, and the bill is accordingly exhibited in her name by such next friend.” (Sto. Eq. PI., § 61.) It is also said in the same work to be our constant experiénee that the husband may sue the wife or the wife the husband, in equity, notwithstanding neither of them can sue the other at law. This language was cited and approved in the case of Barber v. Barber, 21 How. 582, and the court declares that these “citations have been made to show the large jurisdiction which a court of equity has to secure the rights of married women when it may be neces
Hatch was the ready and willing instrument in the hands of the appellant in carrying out the disgraceful transaction. That the property was deeded to him in fee, and that immediately thereafter he conveyed by the same title the property to the appellant, and that the consideration in both deeds was only nominal, raises the
But the further point is urged against the decree that it applies the trust to the property of the appellant, and that this property was improved and enhanced in value by some of his own means. The hotel property which is made subject to the trust was purchased with the trust property of the wife, and some of the improvements were paid for out of the rents and profits of the trust estate. It is insisted that these rents and profits belonged absolutely to the husband, and that, therefore, there should be a deduction to that amount. But suppose the money had been laid out and expended upon the original trust estate of the wife before there was any alteration in the deeds, would it not have been the same trust property, and subject to the terms and conditions and limitations of the original trust ? Such being, as we think, the case, the unlawful conversion did not change the character of the property, and the cestui que trust has the right to enforce her claim against the property acquired by the proceeds and profits of what was originally hers. It may be that she is getting a more valuable claim than she previously had; if so, the case furnishes a happy illustration of the doctrine of retributive justice. Upon a full review of the whole case we think the judgment should be affirmed.-