8 S.W. 551 (Mo. 1888), Wolfe v. Dyer

Citation:8 S.W. 551, 95 Mo. 545
Opinion Judge:Black, J.
Party Name:Wolfe, Plaintiff in Error, v. Dyer
Attorney:B. G. Thurman and Railey & Burney for plaintiff in error. Cockrell & Suddath for defendant in error.
Case Date:June 04, 1888
Court:Supreme Court of Missouri
 
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Page 551

8 S.W. 551 (Mo. 1888)

95 Mo. 545

Wolfe, Plaintiff in Error,

v.

Dyer

Supreme Court of Missouri

June 4, 1888

Appeal from Cass Circuit Court. -- Hon. N. M. Givan, Judge.

Affirmed.

B. G. Thurman and Railey & Burney for plaintiff in error.

(1) A married woman cannot make a valid contract for the conveyance of her title to real estate owned and held as her "ordinary legal estate." Hence, all testimony of defendant Dyer, and admissions in relation to such contract, should have been excluded under the pleadings. Hord v. Taubman, 79 Mo. 101; Shroyer v. Nickell, 55 Mo. 264; Carr v. Williams, 10 Ohio 305; Knowles v. McCamley, 10 Paige Ch. 342; Atkinson v. Henry, 80 Mo. 153, and cases cited; Walker v. Owen, 79 Mo. 570; Rannells v. Gerner, 80 Mo. 483. (2) The warranty deed from Horne and wife to Dyer read in evidence against the objection of plaintiff should have been excluded. It did not purport to convey the land in controversy. Mrs. Horne was a married woman and held the land as her ordinary legal estate. This deed could not convey her title, either legal or equitable. Shroyer v. Nickell, 55 Mo. 264; 7 Cent. Law Jour. 182, and cases cited; Meier v. Blume, 80 Mo. 184, and cases cited; Atkinson v. Henry, 80 Mo. 153, and cases cited; Hord v. Taubman, 79 Mo. 104; Huff v. Price, 50 Mo. 228. (3) The record in the case of Jacob Taggart v. Amos B. Horne et al. was incompetent evidence, and ought not to have been admitted and considered by the court. And the fifth instruction given on the part of defendant should have been refused. "Estoppels in pais are not applicable to femmes covert, except where regarded as femmes sole, in consequence of the possession of separate estates." Rannells v. Gerner, 80 Mo. 474, 483, and cases cited; Mueller v. Kaessmann, 84 Mo. 318, 323, et seq. (4) The respective rights of Harriet C. Horne and Jas. D. Dyer were not in controversy in the suit of Taggart v. Dyer, and the decree in that case is not res judicata as between them. McCrory v. Parks, 18 Ohio St. 1, approved in Henry v. Woods, 77 Mo. 282; People v. Johnson, 38 N.Y. 63; Coit v. Tracy, 8 Conn. 268; McMahan v. Geiger, 73 Mo. 145; Freeman on Judgments, sec. 158; Graham v. Railroad, 3 Wall. 704. (5) "In order that a judgment in a former action should bind parties and privies, by way of estoppel, in a subsequent action, it must have directly decided a point which was material in such former action, and is in litigation in the latter." Dixon v. Merritt, 21 Minn. 201; People v. Johnson, 38 N.Y. 63; Woodgate v. Fleet, 44 N.Y. 13, 14; Dickinson v....

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