52 S.W. 11 (Mo. 1899), Lewis v. Rhodes

Citation:52 S.W. 11, 150 Mo. 498
Opinion Judge:VALLIANT, J.
Party Name:Lewis, Appellant, v. Rhodes
Attorney:R. D. Cramer and Edward Higbee for appellant. Smoot, Mudd & Wagner for respondent.
Case Date:June 14, 1899
Court:Supreme Court of Missouri
 
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Page 11

52 S.W. 11 (Mo. 1899)

150 Mo. 498

Lewis, Appellant,

v.

Rhodes

Supreme Court of Missouri, First Division

June 14, 1899

Appeal from Scotland Circuit Court. -- Hon. E. R. McKee, Judge.

Reversed (with directions).

R. D. Cramer and Edward Higbee for appellant.

(1) The defendant and Mrs. Lewis, plaintiff's mother, were married in 1864. The land in suit was neither her equitable nor statutory, separate estate; it was conveyed to her by Scotland county in 1863, by an ordinary conveyance, and sold to her under the decree in partition, by sheriff's deed in 1879, without any words excluding the husband's marital interest. It was not competent for Mrs. Rhodes then to make any contract with her husband concerning this land. She was laboring under her common law disability and the contract pleaded in the amended answer is void. Schaffer v. Kugler, 107 Mo. 58; Richardson v. DeGiverville, 107 Mo. 422; Lindsay v. Archibald, 65 Mo.App. 117; Mueller v. Kaessmann, 84 Mo. 318. A mere personal executory contract between them is unqualifiedly void. 9 Am. and Eng. Ency. of Law, 791; McCorkle v. Goldsmith, 60 Mo.App. 480. (2) Nor has the common law disability of the husband been removed, and the contract pleaded in the answer is void. White v. Wager, 25 N.Y. 328; Schaffer v. Kugler, 107 Mo. 63; Mueller v. Kaessmann, 84 Mo. 328; Turner v. Shaw, 96 Mo. 22; Crawford v. Whitmore, 120 Mo. 144. (3) Mrs. Rhodes had only a common law estate in this land. She and her husband were married in 1864. Section 6869, R. S. 1889 is prospective in its operation. Their rights were vested. Leete v. State Bank, 115 Mo. 184; Arnold v. Willis, 128 Mo. 145; Reed v. Swan, 133 Mo. 107; RoBards v. Murphy, 64 Mo.App. 91; Bartlett v. Roberts, 66 Mo.App. 133. (4) Tested by the plainest principles obtaining in proceedings to enforce specific performance of parol contracts, the judgment below can not stand. (a) There was no satisfactory proof of a contract between Rhodes and his wife. That proof must be so clear as to leave no room for reasonable doubt in the mind of the chancellor, and the acts done tending to show part performance must be referable solely to the alleged contract. The undisputed evidence shows that Mrs. Rhodes paid for all improvements. Rhodes's remaining in possession was not an act of part performance. Emmel v. Hays, 102 Mo. 194; Rogers v. Wolfe, 104 Mo. 10; Taylor v. Von Schrader, 107 Mo. 206. The evidence must be clear, forcible, positive and definite. Ells v. Railroad, 51 Mo. 204. (b) Rhodes's continuing on the farm, and any improvements he may have made, are...

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