Gwin v. Smurr

• Decision Date: 17 November 1890
• Parties: GWIN et al. v. SMURR et al.
• Court: Missouri Supreme Court

14 S.W. 731

101 Mo. 550

GWIN et al. v. SMURR et al.

Supreme Court of Missouri.

November 17, 1890.

LAND OF MARRIED WOMAN — RIGHTS OF HUSBAND — SPECIFIC PERFORMANCE.

1. Land held by a married woman under the Missouri married woman's act (Rev. St. 1879, § 3295,) cannot be charged, affected, or conveyed,

except by the joint deed of the husband and wife, and an executory contract to convey cannot be specifically enforced, though executed and acknowledged by her jointly with her husband, nor can a payment made thereunder be declared an equitable lien on the land.

2. The husband has no separable interest in the land, as to which the agreement could be specifically enforced against him.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

This was a suit for the specific performance of a contract executed and acknowledged by the defendants, Adaline Smurr and John M. Smurr, her husband, by which, in consideration of $500, the receipt of which is acknowledged, and of certain payments to be made, they agreed to convey to the plaintiffs certain lands held by the wife, under Rev. St. Mo. 1879, § 3295. The court found the issues for the defendants, and dismissed the bill. The plaintiffs appealed.

E. A. Andrews, for appellants. Wm. H. Chiles, for respondents.

SHERWOOD, J.

Plaintiffs ask for the specific performance of an alleged contract for the conveyance of land held by the wife in fee; for the cancellation of a deed of the same land subsequently made to other parties; for $50,000 damages against John Smurr, the husband, for failure to perform the agreement; and for all other relief, etc.

1. The title of the wife was under the married woman's act, (Rev. St. 1879, § 3295,) having been derived after 1866, and there being no words employed either in her father's will or in the decree of partition, which created in her an equitable separate estate. In consequence of which, her executory contract to convey the land, though executed and acknowledged jointly with her husband, was wholly worthless, as a court of equity would not compel specific performance of such an instrument. State v. Clay, 100 Mo. 571, 13 S. W. Rep. 827. The only way the land of the wife, held by the tenure of the act aforesaid, can be charged, affected, or conveyed, is by the joint deed of the husband and wife. Craig v. Van Bebber, 100 Mo. 584, 13 S. W. Rep. 906, and cases cited. The court did right, therefore, in dismissing the petition when the above facts appeared in...