Halferty v. Scearce

• Decision Date: 07 October 1896
• Citation: 37 S.W. 113,135 Mo. 428
• Parties: Halferty v. Scearce, Appellant
• Court: Missouri Supreme Court

37 S.W. 113

135 Mo. 428

Halferty v. Scearce, Appellant

Supreme Court of Missouri, Second Division

October 7, 1896

Appeal from Clinton Circuit Court. -- William Henry, Esq., Special Judge.

Affirmed.

M. B Riley for appellant.

(1) Parol evidence is admissible to show the actual consideration for a deed. 17 Am. and Eng. Ency. of Law, page 438, and cases cited. (2) Plaintiff not having renounced the settlement made upon her by her husband, she could not claim under him as doweress. R. S. 1889, sec. 4530.

H. T Herndon for respondent.

(1) The deed from Solomon Halferty to plaintiff will not operate to bar plaintiff's claim by virtue of section 4529, Revised Statutes, 1889. Because not made before marriage and not expressed to be in release and satisfaction of dower. Section 4530, Revised Statutes, 1889, on which defendant relied reads as follows: "Renunciation of jointure. If any deed or conveyance, agreement or contract for jointure be made after marriage, or be made before marriage and during the infancy of the wife, in either case the widow may, at her election, renounce her dower and have jointure, and have dower," etc. (2) If the deed on which defendant relied to bar this action will operate as a jointure which the widow is required to announce in order to have her dower under the first section of the dower act, it must be by virtue of the section above set out, as construed by the supreme court in the case of Logan v. Philips, 18 Mo. 22. (3) But in order for it to have this effect it must be shown to have been made and accepted in lieu of dower in the land in question, as well as in other lands. (4) A provision in lieu of dower made before marriage will bar the widow's dower in ail the lands of her husband by force of section 4529, Revised Statutes, 1889. (5) In such case it is not a contract for a provision, but a provision made, while the doctrine of equitable jointure proceeds upon the idea of a contract on the part of the wife to accept a certain provision in lieu of dower. Washburn on Real Property [4 Ed.], page 319. (6) The deed from Solomon Halferty to plaintiff was void as a contract until she accepted its benefits after coverture; it then became valid and binding as a contract between them. Roberts v. Walker, 82 Mo. 200. (7) The widow's dower whether we call it an estate or a right, is not indivisible so far as her election is concerned. Horney v. Casey, 21 Mo. 545; Crecelius v. Horst, 5 Mo.App. 419.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

Action by plaintiff who is the widow of Solomon Halferty, deceased, for the admeasurement of dower in a tract of land containing twenty-one and sixty-nine hundredths acres, in Clinton county, Missouri, of which her husband was seized of an estate of inheritance during the existence of their marriage.

The defense set up in the answer was, that on the twenty-ninth day of August, 1885, during the existence of the marriage relation between plaintiff and said Solomon Halferty, they entered into an agreement, whereby, in consideration of the relinquishment by her of all her dower rights in and to the lands of said Solomon Halferty, he, by deed of general warranty, conveyed to her eighty-two acres of land being in said county; and denying her right to dower in the land described in her petition.

There was judgment for plaintiff and defendant appealed.

Solomon Halferty deeded the land in which plaintiff claims dower to the defendant on the fourth day of October, 1884, but plaintiff who was then his wife did not sign or join in that deed. Defendant has been in possession of the land ever since his purchase.

On August 29, 1885, Solomon Halferty, by deed of general warranty, conveyed to plaintiff and her children therein named eighty-two acres of land, in lieu of her dower right in his land. The deed contains the following provisions, to wit:

"Witnesseth that the said party of the first part, for and in consideration of the relinquishment of dower by said party of the second part in and to all lands of said first party, and for the further consideration of natural love and affection which said first party bears said second and third parties, does by these presents grant, bargain, and sell, convey and confirm unto said second and third parties, by the terms hereinafter set forth, the following described real estate, lying, being, and situated in the county of Clinton and state of Missouri, to wit:

"All that portion of the east half of the northwest quarter of section 16 which lies south of a hedge fence thereon, being about forty-two acres, more or less; also, the north half of the northeast quarter of the southwest quarter of section 16, and twenty-five acres off the south side of the east half of the northwest quarter of section 6, except therefrom five acres in the southeast corner thereof belonging to W. H. Hawkins, all of said land lying in township 55 of range 32, containing in the aggregate eighty-two acres, more or less.

"To have and to hold the above described premises, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining unto the said party of the second part for and during her natural life, then unto the said parties of the third part and unto their heirs and assigns forever; he, the said party of the first part hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed, that he has good right to convey the same, that said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he will warrant and defend the title unto the said second and third parties and unto their assigns forever."

It is claimed by defendant that the land conveyed by this deed was in full of plaintiff's inchoate right to dower in all of Solomon Halferty's land, and in support of this contention defendant offered verbal testimony tending to show that such was the agreement between plaintiff and her husband at the time of its execution, but on objection by plaintiff the evidence was excluded by the court, and defendant saved his exceptions.

Solomon Halferty died in March, 1890.

Defendant's first contention is that the court committed error in excluding the verbal evidence offered by him tending to show that at the time of the execution of the deed from Solomon Halferty to plaintiff and her children, it was agreed between her and her husband that the life interest in the land conveyed to her, was not only in lieu of but in full of any inchoate right of dower in all the land which he then owned, but also in the land in question which he had theretofore sold and conveyed to defendant.

It may be conceded that parol evidence is admissible for the purpose of contradicting a receipt, or the recitals in a deed as to the payment of the purchase money, or the amount thereof, but such evidence is not permissible for the purpose of adding to, enlarging upon, varying or ingrafting upon a deed matters not mentioned therein and having no connection therewith.

The evidence offered contradicted the recital in the deed, that it was in consideration of the relinquishment of dower by plaintiff in and to all the lands which her husband then owned, in that it showed that she also relinquished her dower in the land in controversy, which he had several months theretofore conveyed to the defendant, and in which he then had no interest, or estate. The evidence was clearly inadmissible and it was correctly so held.

A final contention is that as plaintiff had not renounced the settlement, as it is called, made upon her by her husband, she could not claim under him as doweress. Sec. 4530, R. S. 1889.

If this were a suit by the widow for dower in land which her husband owned at the time of the execution of the deed to her, there might be some force in this contention, but as the land in question had already been conveyed by him, and the deed was in consideration of the relinquishment of his wife's inchoate right to dower in land which he then owned, the statute has no application, and her failure to renounce the provisions of the deed to her, was no bar to her right for dower in the land described in the petition. The judgment is affirmed. Gantt, P. J., and Sherwood, J., concur.

CONCUR BY: SHERWOOD

Sherwood J. (concurring) --

Nota Bene. -- I improve this occasion to say that the above case necessarily gives tacit recognition to the idea that a wife possessed of a mere dower right in her husband's land may so contract with him as to make valid a conveyance to her of a tract of his land in consideration of the concurrent relinquishment by her of her dower right in another tract of her husband's land; such relinquishment constituting a consideration for such conveyance to her. This has been the settled law of this state ever since Caldwell v. Bower, 17 Mo. 564. See, also, Woodson v. Pool, 19 Mo. 340. To the same effect is Novelty Co. v. Pratt, 21 Mo.App. 171. Elsewhere this doctrine finds ample support. Bullard v. Briggs, 7 Pick. 533, and cases cited; Garlick v. Strong, 3 Paige Ch. 440; William and Mary College v. Powell, 12 Gratt. 372; Clerk v. Nettleship, 2 Lev. 148.

It seems unnecessary to state that in none of the instances mentioned, did the femme have an equitable separate estate when contracting with her husband, nor, according to the authorities, was such an estate necessary as a basis on which the contract between husband and wife was to rest.

The contract was good in equity, even though it may have been void in law; and this distinction is steadily maintained in numerous cases.

Thus in Livingston v. Livingston, 2 Johns. Ch. 537, a wife who at the time of her marriage...