72 W. Va. 340 | W. Va. | 1913
Lead Opinion
The bill filed in this cause, for reformation of a deed, so as to make it include 50 acres of land, alleged to have been included in the contract of sale, but admittedly not included in the deed, proceeds upon two alternative theories: Equitable title in the male defendant, by reason of his alleged purchase of the additional land claimed, or title in the female defendant, a married woman and a contract of sale thereof on her part,'with intent to include it in the deed and a right of reformation against her so as to obtain the benefit of the alleged contract.
The former theory rests upon the contention that the judicial sale at which C. A. Crislip became a purchaser included two tracts of land, one of 200 acres and another of 50 acres,, under a designation of one tract of 200 acres, there having been a previous sale of 16 acres out of the 200 acres, and one of 35 acres, not shown to have come out of the 200 acre tract or the 50 acre tract, but supposed'to have been taken out of one or the other of them. The question thus presented is the construction of the decree of sale under which C. A. Crislip purchased, viewed in the light of the decree confirming it and such other portions of the record of the suit as are available, practically all of the papers having been lost or destroyed, possibly destroyed by fire. The 50 acre tract and the 200 acre tract were conveyed to Lemuel Cris-lip on Dec. 2, 1865, the former by Abner Suttle and wife and the latter by Eli Perkins and wife. They were adjoining tracts and seem to have been parts of a larger tract of 400 acres. They are known, respectively, as the Suttle tract and the Perkins tract. On April 13, 1880, Lemuel Crislip conveyed to his son, John L. Crislip, two tracts of land, containing, respectively, 16 acres and 35 acres. Admittedly the 16 acre parcel was a portion of the 200 acre Perkins tract, but it does not appear from what land the 35 acres was taken. On the 22nd day of October, 1880, Lemuel Crislip executed to B. F. Armstrong, trustee, a deed of trust, con-ve3-ing to him by metes and bounds the Perkins tract of 200 acres, in trust to secure a debt to Y. S. Armstrong and W. W. Biley, executors of the will of L. C. Stewart, deceased. This deed of
Crislip, the purchaser of the 200 acre tract, took no deed for it. He subsequently sold and conveyed to Wiseman, ‘and Geo. F. Cunningham, one of the commissioners who made the sale, joined in the deed to Wiseman, though J. G. Schilling alone had been directed to execute the deed on payment of the purchase money. The deed conveys only the Perkins tract. Wiseman claims Crislip sold him both as containing about 200 acres, and has sued for reformation of the deed. The court below, granting the
Assuming the deed from Lemuel Crislip to Margaret J. Cris-lip, dated October 10, 1883, to have been at first correctly recorded and to have described the land thereby conveyed as containing 200 acres, as. and for the aggregate, residue of the Perkins 200 acre tract and the Suttle 50 acre tract, as contended by counsel for the appellee, we have thus far some foundation in the record for the view that the circuit court may have intended by its decree a sale of such residue of such 200 acres, or, to be more accurate, we have some evidence of intent to decree such a sale. The deed from Lemuel Crislip to Margaret J. Crislip is not, however, the instrument by which title was passed to Cyrus A. Chislip. The muniments of title immediately involved are the decree under which he purchased and the confirmed sale thereunder. The decree describes the tract of land ordered to be sold as the tract on which Armstrong and Kiley, executors, had their deed of trust, and that was incontrovertibly the Perkins 200 acre .tract only. The land ordered to be sold is further described as being the 200 acres of land mentioned in the deed from Lemuel Crislip to Margaret Jl Crislip, filed in the papers in the cause as Exhibit No. 1. That, deed may be read as having described twp 200 acre tracts, the Perkins tract conveyed to Lemuel Crislip and by him subsequently conveyed to Margaret J. Crislip, being one, and' the aggregate residue of the two tracts conveyed by Lemuel Crislip to Margaret J. Crislip described in that deed, as containing 200 acres. If the land decreed to be sold was the 200 acres described in the deed from Lemuel Crislip to Margaret J. Crislip by reference to the deed to Lemuel Crislip for the Perkins tract, then the decree correctly recited, found and adjudicated that the Armstrong and Eiley deed of trust was a lien thereon, but, if the 200 acres referred to in the decree, was 200 acres composed of the residues of the Perkins tract and the Suttle tract, defined as one, the Armstrong and 'Eiley deed of trust was not a lien on the whole thereof, and the recitals of the decree, its findings and adjudication, were wrong. Moreover, the Eeed and Peebles judgment would have been the first lien on the Suttle tract instead of' the second. If, on the other hand, the 200 acre tract mentioned in the decree and ordered to be sold is regarded as the Perkins tract only, the decree is consistent in all respects, for the Arm
That in the conveyance by Lemuel Crislip to Margaret J. Cris-lip, the latter assumed the payment of the indebtedness of the former and the firm of which he was a member, as consideration, is a circumstance relied upon as conflicting with the conclusion here announced. It is, however, somewhat remote and dearly inconclusive. The decree deals with one 300 acre tract of land, treating it as the tract mentioned in the deed from Lemuel Cris-lip to B. F. Armstrong, trustee, and also as the tract of .300 acres in the deed from Lemuel Crislip to Margaret J. Crislip. There is but one 300 acre tract of land which answers the description and that is the Perkins tract. It is also the only tract which corresponds with other recitals and adjudications found in the decree. There is no description by metes and bounds nor otherwise than by reference to documents and this description • so clearly defines the land sold as the Perkins 300 acre tract that mere extraneous evidence and circumstances cannot be permitted to overthrow it. The decree had not enforcement of payment of the consideration for its primary object. The purpose of the suit was the enforcement of liens independént of the agreement
The title to the 50 acre tract of land being thus found to be in Margaret J. Crislip, a married woman, the remaining inquiry is whether or not reformation of the cl eed can be had as to her. ■ She joined her husband, C. A. Crislip, in the deed to Wiseman conveying the Perkins tract. That deed conveyed none of her land. It conveyed only a tract of land, the equitable title to which was in her husband, C. A. Crislip. She entered into no written contract of any kind or character for the conveyance of any of her land, unless the deed of the husband in which she joined can be considered as such contract. All that is relied upon in this connection is an alleged verbal contract of sale. A married woman cannot bind herself to convey her land in that way. Simpson v. Belcher, 61 W. Va. 157; Amick v. Ellis, 53 W. Va. 421; Rosenour v. Rosenour, 47 W. Va. 554; Moore v. Ligon, 30 W. Va. 146. Nor, if it is deemed to have been intended to convey her land, but not to have done so because of a mistake, can reformation thereof be had against her, unless the recent Married Woman’s statute has altered her status in this respect. “Although the courts have entertained different views as to whether or not a suit to reform will lie as against a married woman, it is now pretty well settled that, in the absence of power conferred by statute putting a married woman on an equal with feme soles as respects property or capacity to contract, a mistake in a written instrument will not be reformed as against them.” 34 Cyc. 959. This text is sustained by Marlin v. Gargandine, 46 Ill. 322; Hutchings v. Huggins, 59 Ill. 29; Building Ass’n v. Scanlan, 144 Ind. 11; Shroyer v. Nickell, 55 Mo. 264; Bank v. Schmidt, 6 Mont. 609; Carr v. Williams, 10 Ohio 305; Purcell v. Goshorn, 17 Ohio 105; Pelesch v. Hambach, 48 Wis. 443; Conrad v. Schwamb, 53 Wis. 372; O’Malley v. Ruddy, 79 Wis. 147. See 42 Cent. Dig., sec. 114. The Married Woman’s statute in this state has not changed a married woman’s status in respect to capacity to convey her real estate. Some of the decisions already cited were rendered after the passage of that act. She cannot convey except in the manner prescribed by statute nor can she bind herself to convey except by a contract executed and acknowledged in the statutory form prescribed for her acknowledgment of deeds. By an express provision of section 3 of chapter 66 of the Code, as amended
In that case we said: “The liberal rule of construction only requires that a statute be so enforced as to carry into effect the will of the legislature as expressed in the terms thereof, and give, not stintedly or niggardly, but freely and generously, all the statute purports to give. This stops far short of carrying the statute to purposes and objects entirely beyond those mentioned in it. One object of these statutes is to enable a married woman to have the absolute, free and unrestrained control of her property and power to make contracts respecting it and to vindicate her property and contract rights by action in the courts of the state as if she were a feme sole. For the accomplishment of these purposes, the statute should be liberally construed. She is subjected, by-this same law, to the reciprocal right extended to others to sue her in the courts as if she were a feme sole, and, for the ef-fectuation of this purpose, the statutes should be liberally construed. So, in respect to all the other rights and liabilities expressly given and imposed by this law. The evils intended to be suppressed and the purposes and objects to be promoted are all mentioned in the statutes and the rule of liberal construction requires no more than that they shall be so interpreted and applied
As the title to the land in controversy is held by Mrs. Crislip, a married woman, living with her husband, against whom reformation of the deed so as to include it cannot be decreed, the decree complained of must be reversed and the bill dismissed with costs.
Reversed. Bill Dismissed.
Concurrence Opinion
(concurring):
I concur in the decision for the reason that the description of the land in the deed embraces no part of the wife’s land. There having been no previous written contract of sale by the wife, there is no evidence that it was her intention to convey any part of her land. An oral contract by a married woman for the sale of her land is void.
But I do not agree to the limited purpose and effect which the opinion seems to give to sec. 3, ch. 66, Code 1906'.' That statute empowers a married woman to contract respecting her land, and to convey the sáme, but prescribes the manner of her doing so. ■ The limitation is upon the form, 'or manner only, of executing the contract, not upon its effect and the rights of the contracting parties, when properly executed. It must be in writing and be signed by the husband, unless she is living separate and apart from him. But if it is executed in the manner prescribed, it is as binding upon the contracting parties, and is subject to the same remedies for reformation and specific performance, at the suit of either contracting party, as if it had been made by a man, ox a feme sole. Because the statute says she may contract; that is, she may make an executory, or an executed, contract, “in the manner, and with the like effect as if she were unmarried.” Her contract, executed in the manner prescribed, confers the same rights and is susceptible to the same remedies as like contracts executed by unmarried women,* else it rvould not have “like effect.” Of course, if the requirement of the statute, respecting formality of execution, has not been complied with, the courts would have no power to supply such omission, because, to do so, would be to make a contract. But if a married woman, her hus
The great weight of authorities from other states, construing similar statute, the terms of some of which are less comprehensive than ours respecting the contractual rights of married women concerning their separate estates in lands, supports this view. See the following: Lewis v. Ferris, (N. J. Ch.) 50 Atl. 630; Stevens v. Holman, 112 Cal. 345, 53 Am. St. Rep. 216; Herring v. Fitts, 43 Fla. 54, 30 Sou. 804; Hamar v. Mesker, 60 Ind. 413; Snell v. Snell, 123 Ill. 403, 5 Am. St. Rep. 526, (but the Illinois statute is broader than ours); Gardner v. Moore, 75 Ala. 394, 51 Am. Rep. 454; 26 A. & E. E. L. 99; 34 Cyc. 959.