Richardson v. DeGiverville

• Decision Date: 07 December 1891
• Citation: 17 S.W. 974,107 Mo. 422
• Parties: Richardson, Appellant, v. De Giverville et al
• Court: Missouri Supreme Court

17 S.W. 974

107 Mo. 422

Richardson, Appellant, v. De Giverville et al

Supreme Court of Missouri, First Division

December 7, 1891

October, 1891

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

Reynolds & Lewis and L. F. Parker for appellant.

(1) The execution of the antenuptial contract was sufficient in form to sustain it under the statute and in equity, and will be held to be good as between the parties. No objection was made to its introduction, and the rights of no third parties had intervened. Logan v. Phillips, 18 Mo. 22; Wilkinson v. Rozier, 19 Mo. 443; Lemay v Poupenez, 35 Mo. 71; McClurg v. Phillips, 57 Mo. 214; Harrington v. Fortner, 58 Mo. 468; Klenke v. Koeltze, 75 Mo. 239; 1 Pomeroy Eq. Jur., secs. 378, 380. (2) The antenuptial contract created, as to the property then owned and possessed by respondent, a separate estate in her. Picotte v. Cooley, 10 Mo. 312; Childress v. Cutter, 16 Mo. 24; Clark v. McGuire, 16 Mo. 302; Cutter v. Waddingham, 22 Mo. 206; Beal v. Morgner, 46 Mo. 48; Miller v. Dunn, 62 Mo. 216; Klenke v. Koeltze, 75 Mo. 239; 1 Pomeroy Eq. Jur., sec. 503; 3 Pomeroy Eq. Jur., sec. 1101. (3) The right of the wife to dispose of her separate property without joining her husband is absolute, and specific performance can be decreed against her. Turner v. Shaw, 96 Mo. 22; Waterman on Spec. Perf., sec. 66, p. 93; 3 Pomeroy's Eq. Jur., sec. 1104; Kimm v. Weippert, 46 Mo. 532; Snell's Eq., secs. 321, 322. (4) This case is not one in which any such laches appear as to bar plaintiff's right to maintain this action. 3 Pomeroy's Eq. Jur., sec. 1408; Sliger v. Bent, S. C. Ill; Spurlock v. Sproule, 72 Mo. 511; Bliss v. Prichard, 67 Mo. 181.

Boyle, Adams & McKeighan for respondents.

(1) The land in controversy was not the separate equitable estate of the respondent. Gwin v. Smur, 101 Mo. 550; Rush v. Brown, 101 Mo. 556. (2) A sheriff's deed which was never expressly required to be under seal has always been held to be affected by our statutory provision (R. S. 1889, secs. 6853, 2388), and so the court has uniformly held that a deed in order to become effectual and valid, whether made by a sheriff in his official capacity or a private person in his or her own right, must be under seal to affect real estate. Grimsley v. Adm'rs, 5 Mo. 280; Walker v. Keith, 8 Mo. 301; Moreau v. Detchemendy, 18 Mo. 522; S. C., 41 Mo. 431. And it is held that seals on bonds and deeds never have been dispensed with in this state, except as the statute dispenses with them and substitutes a scroll. State ex rel. v. Thompson, 49 Mo. 188. Under these statutes it has been held in the cases cited, that in order for an instrument to be sealed it must express on its face to be sealed, and the signer must affix a scroll to his name by way of a seal, or it must be in fact sealed. (3) The antenuptial contract like all other contracts must be constructed with reference to personal property by the lex loci contractu, but in case of the real estate by the lex loci rei sitoe. 2 Parsons on Contracts [6 Ed.] and cases cited; Thomas v. Watkins, 2 Ves. 35; Holmes v. Remser, 4 Johns. Ch.; Harvey v. Belard, 1 Mason, 412; United States v. Crosby, 7 Cranch, 115; Horford v. Nichols, 1 Paige, 220; Willis v. Cowper, 9 Wheat. 565; McCormick v. Sublint, 10 Wheat. 192; Darby v. Mayer, 10 Wheat. 465; Depas v. Mayo, 11 Mo. 314, 318. Where an antenuptial contract is made in one state to have effect in another it must be governed by the laws of the latter. Succession of Jesse Wilder, 22 La. Ann. 219. (4) Under the decisions and the law governing equitable separate estates, and the exclusion of all the marital rights of the husband in the wife's landed property, no separate estate was established or created by this marriage contract in the respondent as to the land in question, or any other land, nor can the Code Napoleon be used as a part of the contract to aid in the establishment of such an estate, nor if it could be used for such purpose would it affect such object, but rather the contrary. 1 Bishop on Married Women, secs. 824, 830, 795, 800; Garner v. Jones, 52 Mo. 68; Bank v. Collins, 75 Mo. 280; Edwards v. Burns, 26 Mo.App. 119; Beal v. Morgner, 46 Mo. 48; Schaffert v. Ambs, 46 Mo. 380; Bank v. Taylor, 53 Mo. 444; Trennell v. Kleiboldt, 75 Mo. 255; Soltan v. Soltan, 93 Mo. 207; Besse v. Pellochoux, 73 Ill. 285; Childers v. Cutler, 16 Mo. 24; 1 Bouvier, 305; Dillonborough v. Wisberg, 10 Mo.App. 465; Sloan v. Terry, 78 Mo. 626; Hart v. Leete, 104 Mo. 315. (5) Under the facts and circumstances of this case there was a mutual abandonment of the contract in question, and, if not, such laches by appellant, as precludes him from his right to enforce in equity any contract which may have existed for the conveyance of the land in controversy. Veith v. Gierth, 92 Mo. 97; Bank v. Bowman, 61 Mo. 76; Langley v. King, 93 Mo. 513; Broshner v. Grotzh, 6 Wheat. 529. (6) The respondent and her husband were in possession at the time the suit was brought, long before, and afterwards, of the land in controversy, and a decree was properly granted removing the cloud of title cast upon the land by the recording of the receipt in controversy. Lackland v. Nevins, 3 Mo.App. 335; Harrington v. Mehrback, 57 Mo. 519; Church v. Hintze, 72 Mo. 363.

Black J. Barclay, J., not sitting.

OPINION

Black, J.

Plaintiff Richardson brought this suit against Madam De Giverville and her husband to enforce the specific performance of a written contract executed by her, while a married woman, by Mr. Bailey, her agent, for the sale of fifty acres of land in the limits of St. Louis, to the plaintiff. The petition states that Madam De Giverville owned and held the property as her sole and separate estate. The defendants deny this averment and say she was seized of and held the property as her general estate, subject to the marital rights of her husband, and for this reason the contract is invalid. They aver that the contract, which had been recorded, constitutes a cloud upon their title, and ask that it be set aside and canceled. The circuit court found the issues for the defendants, dismissed the plaintiff's petition, and gave judgment as prayed for in the answer.

The following are the essential facts, stated in the order of time in which they occurred: James W. Kingsbury by his will, which was probated in St. Louis in 1853, devised the land in suit and other lands to his son and two daughters. One of these daughters who is the real defendant in this case, and her codefendant, Armand Francois Robert, Count of Giverville, married in France in 1865. Preparatory thereto they executed a marriage contract. If Madam De Giverville has a separate estate in the property in question she has it by force and effect of this antenuptial contract.

The contract was executed in France before a notary public, bears date October 25, 1865, is signed by the parties, but not under their seals. Omitting formal and immaterial parts it is as follows:

"Article I. -- The future conjoints adopt the community of goods as the basis of their civil marriage, such as it is established by the 'Code Napoleon;' they covenant, however, that this community shall be limited to the acquisitions of real and personal estate which they may make during their marriage; accordingly, the same community from which is excluded all the present estate of the future conjoints, and that which may fall to them in their own right in the future, shall be governed (except what shall be hereafter stipulated) by the dispositions of the articles 1498 and 1499 of the 'Code Napoleon.'

"Article II. -- Each conjoint shall be entitled to one half or moiety of the benefits of the community of acquisitions above mentioned. It is, however, stipulated as it is allowed by the article 1525 of the 'Code Napoleon,' that the surviving conjoint shall be entitled to the usufruct, during his lifetime, of the portion of the real and personal estate which shall come to the conjoint first dying in the community: Provided, however, that there shall be no living children of said intended marriage; for otherwise the surviving conjoint shall be entitled to the usufruct only of one-half of that portion. To enjoy the usufruct which shall come to him, in either of the said events, the surviving conjoint shall not be obliged either to give security or to invest the money coming from or give adequate substitute for the personal estate, but he shall cause an inventory thereof to be made."

By the third and fourth articles the parties make a general declaration of the property, real and personal, which they each bring to the marriage, with a value fixed upon the personal property.

"Article V. -- At the dissolution of the marriage or of the community of acquisitions, each one of the conjoints shall retake what belongs to him or her in his or her own right as he or she is entitled to. It is covenanted, however, that each of them or their heirs shall retake personal property of the same nature and kind as that brought in the community by each of them according to the appraisement thereof, and to an amount equal to the sum they shall be entitled to deduct from the community.

"Article VI and last one: Lastly, the future conjoints mutually grant and make over to each of them, as a gift, and to the benefit of the survivor of them (which gift they respectively accept), the usufruct, during the life of said survivor, of all the personal and real estate, without exception, which the one first dying shall have at the time of his death, and which shall come from his succession. In case there shall be any living children or child of the intended marriage, this gift shall be limited to the usufruct of one-half or moiety of the same real and personal estate....