87 Mo. 540 | Mo. | 1885
Dissenting Opinion
Dissenting. — The record shows that two declarations of law were asked by the defendant to which plaintiff excepted, but it does not show that they were given, and for this reason they should be disregarded. The second, upon which the majority opinion is based, if given, should 1^ e been refused, for there is not a particle of evidence tending to show a privy explanation of the contents of the deed to Mrs. Webb. Bat it is imina.
The record, however, presents a question of a more serious character. It is this: Was there a separate examination ? It is not in terms found that ■ there was a separate examination of the wife. In lieu of that, the facts found are, that Mr. Webb was lying on the floor of a small house of one room, fourteen feet square; that Mrs. Webb went to an outside kitchen to get a drink for the notary, and on her return, and as she was about to step into the door, the notary met her at the open doorway, and made the examination while she was about to step into the house. The witnesses appear to agree that Webb was lying with his head towards the door, facing the opposite direction, but this is not found as a fact, nor is it found that the husband and wife did not, or could not, communicate with each other. The acknowledgment of the wife must be apart from the husband. This was the law when this deed was executed. They need not be in separate apartments, nor be so situated as to be wholly unable to see each other, but they should be so situated at the time as not to be able to communicate by word or motion. Belo v. Mayes, 79 Mo. 71; Steffen v. Bauer, 70 Mo. 401. While there is evidence upon which the court might find a separate examination, still, in view of the close proximity of the parties, I think the judgment should be reversed and the cause remanded, to the end that the finding or instructions given may be more specific on. this question.
Lead Opinion
Action for dower by widow. The question presented by the record is the usual one, whether the acknowledgment by Mrs. Webb was taken as required by law. The declarations of law are unexceptionable, at least so far as plaintiff is concerned; for the •second declaration of law, following the rule laid down in WanneTl v. Kem, 57 Mo. 480, since denied in Belo ».. Mayes, 79 Mo. 67, required that the deed should have •been explained to the then wife out of the presence of her husband. Counsel for plaintiff make no objection to either declaration of law, and the first is correct in every point of view. The court made a finding of facts, and then found for defendant, and as the declarations of law, with the exception above noted and that favoring plaintiff, are correct, and this is a law case, and the evidence will not be weighed, we affirm the judgment: