19 N.W. 461 (Neb. 1884), Johnson v. Vandevort

Citation:19 N.W. 461, 16 Neb. 144
Opinion Judge:COBB, CH. J.
Party Name:JOHN P. JOHNSON, PLAINTIFF AND APPELLEE, v. J. VANDERVORT AND OLIVER A. JENNINGS, DEFENDANTS AND APPELLANTS
Attorney:C. Gillespie and Martin & Gilman for appellants. E. W. Thomas, A. Schoenheit, and C. W. Johnson, for appellee.
Judge Panel:COBB, CH. J. REESE, J., concurs. MAXWELL, J., dissenting. REESE, J., concurs. MAXWELL MAXWELL, J., dissenting.
Case Date:May 28, 1884
Court:Supreme Court of Nebraska
 
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Page 461

19 N.W. 461 (Neb. 1884)

16 Neb. 144

JOHN P. JOHNSON, PLAINTIFF AND APPELLEE,

v.

J. VANDERVORT AND OLIVER A. JENNINGS, DEFENDANTS AND APPELLANTS

Supreme Court of Nebraska

May 28, 1884

          APPEAL from Richardson county. Heard below before DAVIDSON, J. The action was brought there to settle the interest of plaintiff and defendant as tenants in common, to quiet title and obtain a partition of the land in controversy. Plaintiff claimed title through Mary Jane Hare, to whom the undivided one-half of the land had been conveyed by her husband. Defendants claimed title direct from Thomas R. Hare whose deed had been made by an attorney in fact, subsequent to the conveyance of Thomas R. to Mary Jane. Decree below for plaintiff. Further facts appear in the opinion.

          Judgment reversed and cause dismissed.

         C. Gillespie and Martin & Gilman for appellants.

         E. W. Thomas, A. Schoenheit, and C. W. Johnson, for appellee.

         COBB, CH. J. REESE, J., concurs. MAXWELL, J., dissenting.

          OPINION

          COBB, CH. J.

         It is claimed by both parties that this case turns upon the effect to be given to the deed from Thomas R. Hare to Mary Jane Hare, his wife, on the 13th day of February, 1865. If this deed conveyed the legal title in and to the [16 Neb. 145] land in controversy to Mary Jane Hare, then her deed executed by her and her husband, after she became the wife of Andrew J. Akers, to the plaintiff on the 20th day of January, 1882, also carried the title to him. On the other hand, if after the execution and delivery of the deed of February 13, 1865, the legal title, whatever may have been the equities between Mr. and Mrs. Hare as evidenced by the said deed, remained in the former, then such title passed to the defendants by virtue of the other conveyances set out in the pleadings and evidence. It is not denied, nor can it be, that at the date of the deed from Thomas R. to Mary Jane Hare the common law, unaffected by what is generally termed liberal or modern legislation as to the powers and rights of married women, was in force in the then territory of Nebraska. At common law a deed from husband to wife was void. 1 Co. Litt., 3 a. Moyse v. Gyles, 2 Vern. 385. Beard v. Beard, 3 Atk. R. 72. The case of Shepard v. Shepard, 7 Johns. Ch. 57, is a leading American case, and while it holds that the conveyance in that case would be enforced as an evidence of an equity in favor of the wife, yet the chancellor in the opinion states the law the same as the English cases above cited. He says: "The deed from H. S. to the plaintiff was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife during coverture. In equity the courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus, in Stoit v. Ayloff, (1 Ch. 33,) the husband promised to pay his wife 100 pounds; they separated and she filed her bill for the sum. But the court would not relieve the plaintiff because the debt was sixteen years old, and the promise made by a husband to a wife, which the court conceived to be utterly void at law. Again

Page 462

in Moyse v. Gyles, (2 Vern. 385), the husband made a grant or assignment of his interest in a church lease to his wife. She brought a bill after his death to have the defective grant supplied, and [16 Neb. 146] the court held the grant to be void in law and dismissed the bill, as the grant was voluntary...

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