*1 Hall, Hall, McReynolds, Louwilla Hall, Martha v. Port Anna K. Harry (2d) McReynolds, Appellants. One, 11, 1940. December

Division Walter Eilbert M.. and Otto P. Shanks for appellants. *2 Harry respondent.

William Stewart and E. S. Bouse *3 BRADLEY, C. This cause is to title determine to real estate in County. Lewis The plaintiff court found that was the owner and appealed. defendants is, It in effect, conceded prior that 16, 1933, Hall, June Will deceased, land, owned the had, family, and with his lived on it for

many years. His first wife, Lonnie, died June 1924. Their chil- dren are defendants Port Hall MeReynolds. and Louwilla Defendant, Martha Hall, is the Port, wife of Harry MeReynolds and is the hus- band of Louwilla. March immediately and prior to their marriage, Will Hall plaintiff, and who was then Kell, Anna L. entered into an antenuptial contract which each relinquished all after-acquired rights marital respective their properties. Para- graph (f) provided: “In the party (Will Hall) event first pre- deceases party (Anna second Kell) L. party then second is to be paid $2,000 the sum of (two dollars) thousand from the estate of party.” first

June Hall, by Will warranty deed, conveyed, for a recited consideration $2,000, question land in Anna wife, to his K., plaintiff, who join did not in the execution of the deed. The deed following: contained the “Reference is herein made to a certain antenuptial, duly contract grantor executed grantee between and of this instrument. Said an-

tenuption contract bears date of March 6th, and imme- diately prior grantor grantee and becoming husband and and duly which status exists between them of the date of this instru- predecease not herein should

ment. Now the event then antenupthm provided for in said grantor fully herein as back fully revert shall real estate to the described the title above assigns; otherwise heirs, grantor herein, administrators to the his simple title” convey complete fee intended to this -instrument ours). (italics September-3, filed This cause was

Will Hall died March May 9, 1939. 21, 1938, judgment 1936, tried entered November possession of in the alleged Plaintiff she was the owner and that supra, from land; paragraph, in the not, that italicized the word interest deed, error; claimed some a clerical that defendants her, be determined. the land and asked that title adverse Hall, alleged that plaintiff title; had Lonnie Defendants denied that Louwilla, Will, first mother of Port and deceased, wife of and the purchased money, question; the lands in improved, with own legal placed Hall, that title in Will but that he held trustee Lonnie; at time execution plaintiff, questipn Hall, the land in was the of Will homestead grantor therein, plaintiff, that since grantor, the then wife deed, join “absolutely null, did said deed was void and of Also, no effect.” defendants denied not was word a clerical grror. reply

In her generally, specifically denied denied the having claims of purchased, etc., by defendants as been Hall, alleged case, Lonnie if such were the were defendants barred Statute Limitations. defendants, was admitted that Port Hall and Mc- Louwilla Eeynolds, only living were the Hall, they children Will and that years were over on 16, 1933, old June date of execution of the plaintiff, deed to neither of them lived on the land. There *4 was no evidence support allegations offered to the in the answer that the purchased, land was developed, by etc., Lonnie Hall, but it is, in effect, conceded the that land was the homestead of Will ITall. Mr. Noah W. Simpson, attorney, an antenuptial drew the pencil and amade draft of paragraph, the supra, from the deed, an'd gave draft, this for deed, insertion in the notary the prepared who the Simpson deed. Mr. testified that italicized words and grantor, in paragraph, supra, from the deed, were transposed as compared position to the of these in words gave draft he to the notary. The antenuptiow spelling and transportation likely were inability due accurately scrivener’s Mr. Simpson’s read writ- ing. stand, Mr. Simpson, when on the said that his handwriting was “mighty poor.”

This argued cause was not orally, and defendants, appellants here, argument, make written no but in say their brief (1) that “it is the well any settled law of this State that conveyance of the homestead only void by alone is not part the husband of land or of tract (2) . and husband, . . also as to the children, but the wife and on the a written contract equity suits to correct that it is the rule asserting party upon ground that the burden cast of mistake convincing and by that is clear mistake overthrow evidence exhibits ultimate presumption that the contract prima facie mut- showing the mistake was agreement parties, of ’’ ual. homestead supporting proposition As that the Stat., p. rely 1929, 6 Ann. void, on R. S. defendants See. Growney Carroll, (2d) 38 W. Haines v. 327 Mo. al. v. et al. v. 272 Mo. 198 S. W. Bushnell et O ’Donnell et Loomis et Mo. 137 S. W. 257. 608, among things, provides

Section “the husband shall alienating incapable selling, mortgaging from or debarred any whatever, every sale, mortgage homestead manner such hereby however, or Provided, alienation null declared and void: nothing herein prevent contained shall be so construed as to jointly alienating husband and from convejing, mortgaging, wife any inor disposing homestead, any part other manner of such case, thereof.” supra, specific performance The Haines was for a contract made husband, joining, not for the sale strip a small from the .private Specific for a per homestead road. opinion, formance In refused. the court cited and reviewed Growney eases, supra, cases, Bushnell and other and held (327 Mo. (2d) 38 S. 1049) l. c. is “the settled law any this State that of the homestead tract of land or part of it only husband alone is not void as the wife children, but also as to the husband.” To the same effect is Gum v. Wolfinbarger, 338 Mo. 93 S. W. (2d) rulings 667. These are based on statute, that, contends here, the situation there was no alienation of meaning the'homestead within the of Sec. 608. Regan et al. v. Ensley, Mo. S. W. partition. was in The plaintiffs, Mary Regan Alice Anderson, and'Sarah claimed as tenants common with brother, their Ensley, William defendant. The land was the homestead of Ensley, Solomon plaintiffs father of and defendant. Solomon died testate. His will devised the land to his wife life, remainder son, to his the defendant. It was con tended that the devise of the homestead was void the statute, under now Sec. It was held that the devise of homestead wife for life was prohibited by the statute. (283 The court said 222 775) W. l. c. : “It apparent disposi that *5 tion of this property by the testator in his will helped rather than hurt the beneficient purpose of the (homestead), law we are of the opinion that the inhibition therein in regard alienation to as here ex ercised has not been violated.”

1222 of alienation restrain the policy those statutes which “The of protect the joining the in the deed the homestead without possession protect family, in the wife, and enable her to the hus acquired enjoyment homestead, has been a after one way of in the They interpose obstacles band. not intended to are children, wife, the wife and a of the homestead to the or to may approval with the consent and of the whatever Exemp conveyance.” form of such Homestead and [Thompson’s tions, sec. 473.] Jur., 92, part, Am. “for most p. is stated in 26 sec. prop- purported authorities hold that a of homestead erty by although joined is not husband to effectual .wife the view taken that the transaction is not an alienation property purview statute, within home- of the because the rights

stead parties protection of the for whose the statute was enacted affected, are only conveyances per- the act refers third sons, joinder and that in such circumstances is an absurd and idle ceremony.” Beedy 13 R. L., p. 1377, Finney also C. sec. v. [See al., et Iowa, 276, 118 91 N. W. Bassett al. v. et Powell et 178 Ala. 60 So. 45 (Ann.), p. A. L. R. 410.] Section Stat., p. Ann. provides, among R. things, that “the children of (homesteader) the deceased shall joint have right occupation (of homestead) with the they until arrive, widow shall respectively, age twenty-one at the years, and the right widow shall have the occupy such homestead during her widowhood, life or upon remarriage or death pass shall to the heirs (italics ours). husband” Prior death of the homesteader, his children, adult minor, have no vested interest in the constituting homestead, if but die, homesteader seized homestead, his widow becomes vested with a life estate therein, upon terminable marriage, and the minor children become vested with an years, .estate for terminable upon arriving age at years. of 21 v. Mansfield al. et [Moore (Mo.), 286 S. 353, l. c. Brewington al. v. Brewington et et 48, l. c. 109 S. And in addition to estates, these W. 723.] coming into existence upon death, intestate, of the homesteader seized of homestead, the remainder estate in constituting the land the homestead vests in heirs, Sec. R. Stat., p. Ann. possession is postponed until expiration of the homestead estate or estates. We think that sound impels reason the conclusion deed to plaintiff, present case, was not an alienation of homestead within the meaning of Sec. 608. question The then is: estate, What if any, did convey? the The antenuptial provided paid $2,000 would be “from the estate” of her husband as a consideration for her release of all rights her marital

1223 to from paid be $2,000 It is true that property. in his life, and discharge during his it if he estate, but chose husband’s prevent. would law that did, know no the inference is he we ' 1889) 6864, of what R. S. enactment, (Sec. in 1889 Even before Stat., 5055, part a 2998, 1929, p. 7 Ann. now Sec. R. S. relating sole status of act, married woman’s femme by wife vested a land the 'husband his legal remained equitable thereto. The title title wife death, during upon his husband, trust for title, (Sec. 1929, 3 life, legal the statute of uses R. S. under Stat., p. 1926), Ann. vested in the wife. v. Berthold-Jen [Carson nings Co., also, 270 192 W. 1018. See Turner v. Lumber Mo. S.

Shaw, 897; Field, 96 Mo. S. W. v. 102 Mo. S. W. Small al. et 120 Mo. 25 S. W. Crawford et v. Whitmore Sheriff, Kirchgrab Pitts 108 Mo. 18 W. Stark et al. v. v. er, obtained, 85 W. Mo. And the same rule of law 868.] though conveyed by even the husband the wife constituted et (Mo.), homestead. al. v. Bradshaw 222 S. W. [Sorrell 1024.] Since the a act, married woman’s direct and unconditional of land wife, passes a husband to his the wife the interest, except husband’s as rights. marital et al. [Friedel Bailey et al., v. (2d) 9, 44 S. W. l. c. and cases there In present is quite ease it clear that antenuptial cited.] contract and other, the deed are tied into each speak, so to and it is equally clear that paragraph referring in the deed to the contract same, was intended effect, comparable as the paragraph in contract, is, predeceased if the husband, then the title would revert to follows, the husband. therefore, jonveyed a fee, base or conditional which became absolute upon the Husband’s death. Dougherty Tebow v. et 205 Mo. 315, l. c. [See 125, 103 S. W. 985.] The trial court found that fee, the owner in but made specific io reformation of the deed. The effect of the decree would diminate word not transpose the italicized words jrantor in the paragraph, supra, and thus leave drafted Mr. Simpson. The judgment affirmed, should be is so Hyde ordered.

Dalton, CC., concur. PER foregoing CURIAM: The opinion by Bradley, C., adopted

ts opinion of the court. All judges concur.