Barker v. Circle

• Decision Date: 31 May 1875
• Parties: MARTHA A. BARKER, Plaintiff in Error, v. STEPHEN CIRCLE, Defendant in Error.
• Court: Missouri Supreme Court

60 Mo. 258

MARTHA A. BARKER, Plaintiff in Error,

v.STEPHEN CIRCLE, Defendant in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to Carroll Circuit Court.

Kinsey & Mirick, for Plaintiff in Error.

I. The acknowledgment was not in conformity to the law in force at the time of its execution and does not pass the wife's interest in land. (See Chauvin vs. Wagner, 18 Mo., 546; McDaniel vs. Priest, 12 Mo., 546.) In those cases the deed embraced but one tract owned by the wife, and the Court say that the words, “ and relinquished her dower,” may be stricken out as superfluous; but in this case, as the land belonged both to husband and wife, the words, “ and relinquished her dower,” cannot be stricken out as superfluous, because they are the words required by the statutes to pass the dower, and the only construction that can be placed upon the words, is, that they are words of limitation upon the effect of the preceding acts of the wife in making the acknowledgment, and restrict the same to the relinquishment of dower and nothing else.

II. Plaintiff in error being a married woman at the time of the execution of the deed of trust, is bound by none of the covenants therein contained, and is not estopped, after the death of her husband, from setting up an after-acquired title to the said land. (See 17 Johns, 166.)

III. Defendant attempts, in his answer, to set up an equitable defense, but the matters therein set forth would entitle him to no relief in a proceeding to acquire the legal title. (Shroyer vs. Nickell, 55 Mo., 269 and cases there cited.)

IV. If the answer does present an equitable defense to our legal title, defendant should ask that the same be decreed to him.Ray & Ray, for Defendant in Error.

I. Under our law, an equitable title is a good defense to an action of ejectment, if properly pleaded. (See 20 Mo., 108; 27 Mo., 263; 19 Mo., 78; 47 Mo., 227 & 130; 42 Mo., 138 & 568; 39 Mo., 24.)

II. The mere addition of the words “ and relinquishes her dower” in the certificate of a married woman's acknowledgment of a conveyance of her own estate, will not avoid the deed as to her. (Perkins vs. Carter, 20 Mo., 465; 23 Mo., 223; 44 Mo., 65; 56 Mo., 196; 18 Mo., 531; 19 Mo., 425; 11 Ill., 123.)

III. Whoever is capable of making a valid disposition of property may create a trust and grant a power of sale. Such trust and power of sale are valid when executed by a married woman, to secure the debt of her husband, or the contingent liability of his endorsers, (11 Am. Law Reg., 651, § 5; Kinner vs. Wash, 44 Mo., 65; Hill Tr., 46--421 and note; Young vs. Guff, 28 Ill., 20; 2 Wash. Real Pr., 80.)

IV. The doctrine of estoppel, by warranty, applies to cases of conveyances of their lands by married women joining with their husbands. (See 3 Washb. Real Pr., p. 106, § 43; p. 234, § 23, [3 Ed.]; Doane vs. Wilcut, 5 Gray, 328, 332; Colcord vs. Swan, 7 Mass., 291; Wagn. Stat., 273, § 2; R. C. 1855, § 3 [[[[[on Conveyances]; 8 Ohio, 222; 10 Metc., 192.)

V. If any person shall convey any real estate, by conveyance purporting to convey the same in fee simple absolute, and shall not, at the time of such conveyance, have the legal title, but shall afterwards acquire it, the legal title subsequently acquired shall pass to the grantee, etc. (R. C., 1855, p. 355, § 3; p. 234, § 23; 3 Washb. Real Pr., 106, § 43; 5 Gray, 328; 7 Mass., 291.)

HOUGH, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Carroll Circuit Court, for the recovery of the possession of one hundred and twenty acres of land in section 9, T. 51, R. 22.

The defendant, in his answer, set up in substance the following facts: That, in the year 1840 or 1841, the plaintiff, then being a married woman, purchased the property in controversy from one Robert H. Courts, who was at that time the owner thereof, and paid for the same, with her own money, the sum of five dollars per acre, and went into possession thereof, under said purchase, and, thereby, became entitled to a deed, from said Courts, for said premises; that on the 19th day of August, 1859, the plaintiff, jointly with her husband, Samuel Barker, executed and delivered a certain trust deed, whereby they conveyed to one R. D. Ray, as trustee, the premises sued for, and other real property which belonged to her husband, to secure certain parties, therein named, against loss and damage, by reason of their being sureties on a certain promissory note, therein described, and executed by said husband. Said trust deed expressly provided, that in the event of the failure of said Samuel Barker, to pay or cause to be paid the said note by the 1st day of April, 1860, the said trustee should proceed to sell the property described in said trust deed, at the court-house door in the town of Carrollton, first giving twenty days' notice, and apply the proceeds, as therein directed; that said note was not paid or caused to be paid, by said Barker, at the time specified, and the said trustee, afterwards, on the 19th day of March, 1864, in pursuance of the provisions of said trust deed, sold said property, and made, executed and delivered a deed therefor, to the purchaser at said sale, under and from whom, the defendant, by sundry mesne conveyances, claimed title and was in possession thereof, and had made lasting and valuable improvements; that after said sale, and about the year 1865, said Samuel Barker died, and afterwards, to-wit, on the 15th day of September, 1869, the plaintiff herein, with full knowledge of the sale under said trust deed, and of the purchase and possession of the defendant, and of the improvements made by him, procured from said Courts and wife, a quit-claim deed to herself for the premises in suit, for the nominal consideration of four dollars, but really in consideration of the previous purchase and payment of the purchase money by plaintiff, in 1840 or 1841. The defendant further stated that the plaintiff had no other or further title to the premises, or right to the possession thereof, than as stated in his answer; and that the legal title so taken by her, was with full knowledge and in fraud of defendant's rights, and denied that plaintiff was entitled to the possession, or that he, the defendant, unlawfully detained the same from her.

The deed of trust was set out in full in the answer of the defendant and the certificate of acknowledgment thereof is as follows:

State of Missouri,

)

)

ss.

County of Carroll.

)

Be it remembered that Samuel Barker and Martha A. Barker, his wife, who are personally known to me, Clerk of the County Court, in and for Carroll County, State of Missouri, to be the persons whose names are subscribed to the foregoing instrument of writing as parties thereto, this day appeared before me and acknowledged that they executed and delivered the same, as their voluntary act and...