Boyle v. Chambers
| Decision Date | 31 March 1862 |
| Citation | 32 Mo. 46 |
| Parties | JEREMIAH T. BOYLE, Respondent, v. CHARLES CHAMBERS AND WIFE, Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Land Court.
The facts of the case appear from the opinion of the court. The title and deeds upon which the question presented arose, will be found set forth at length in the case of Reaume v. Chambers, 22 Mo. 36.
R. M. Field, appellants.
I. The deed of 1818 being more than thirty years old, and having been produced from the proper custody, was admissible in evidence without further proof. This rule of evidence is nowise affected by the circumstance that some of the parties labored under the disabilities of coverture. The rule is founded on the necessity suggested by the antiquity of the deed. (1 Gibb. Ev. 103; 2 Phil. Ev. 475; 1 Green. Ev. 570, 521.)
II. The execution of the deed from Mrs. Mallette is proved by her own testimony, as appears from the deposition.
III. By the Spanish law, the right was vested in the husband, upon his marriage, to convey the paraphernal property of the wife with her consent. This right was not taken away by the introduction of the common law. (
IV. By the rules of the common law, the deed of the husband is effectual to convey the fee in the land of the wife, subject to be avoided only by the wife or her heirs; and in the present case no such avoidance is shown.
It is purposed to discuss some principles of the common law, applicable to the proposition contained in this refused instruction.
“If the jury find that the deed of Antoine Mallette to P. Chouteau was the deed of Antoine, and was made and delivered by him after intermarriage with Angelique Moreau, then said deed operated to pass to Chouteau the wife's interest in the land therein described, subject to be avoided by the wife; but that the deed of the sheriff is not sufficient to avoid the estate so passed to Chouteau.”
In the case of Norcum v. Sheahan, 21 Mo. 25, the question was, whether the deed of the husband could, during the continuance of the coverture of the wife, be avoided by another deed of the husband and wife. It is held that it could be so avoided. But it is the unanimous opinion of the court that the deed of the husband, alone, had passed the wife's estate.
It will be observed that although in that case the wife had, in fact, joined in the deed, yet, on account of her non-age, her execution was a nullity; and that the argument and opinion are based upon the proposition of the deed being the sole deed of the husband. By that deed, says Judge Scott, (p. 29,) the estate of the wife “did pass--it conveyed a defeasible estate in fee; and had it never been defeated, their vendee's title would have remained valid.”
The case at bar essentially differs from Norcum v. Sheahan in the material fact that Angelique Mallette has never exercised her privilege of avoiding the deed of her husband. The plaintiff, unlike Norcum, does not claim by a subsequent conveyance from the wife. On the contrary, he claims in spite of her. He claims to have her estate by a transfer in invitum. This radical distinction in the facts of the two cases should be observed whenever the ruling in Norcum v. Sheahan be applied to the case at bar.
Although the well-established principles of the common law, upon which depends the proposition presented by the instruction, have been recognized by this court in several cases, yet they are of such unfrequent application in practice that the recollection of the court will be asked to some elementary learning. Nor can such reference be useless in any case, as, according to Mr. Preston, in no science, so much as in that of the law, is a recurrence to first principles so necessary for the formation of correct conclusions.
It is commonly said that he has a life estate. This description of his interest is not confined to the unlearned. It is frequently used by lawyers of the present day, and has crept upon the bench. In Norcum v. Sheahan, the late judge of the Common Pleas instructed the jury that by marriage the husband became tenant for life, with remainder in fee in the wife, of the lands of the wife,-- thus depriving the wife, by the fact of marriage, of all estate of present enjoyment in her own land, and ignoring the familiar law that a remainder can only be created by deed, and never by act of law.
This court reversed the Common Pleas, and decided (p. 28) that the husband, by the marriage, became “seized of a freehold estate in his wife's land,” by which is to be understood a freehold of inheritance, or in fee. When we examine the language of accurate law writers, from Littleton to Kent, we find this description of the estate: “Husband and wife are seized in fee, in right of the wife.” If other terms are used to express the quantity or quality of this estate, they are synonymous: for instance, “Husband and wife are seized jointly in fee for and during the coverture.”
The relation of husband is created by the fact of marriage. If the wife die, living the husband, his estate in her lands is at an end. A husband, therefore, as such, has no estate for his life in the lands of the wife. If issue be born of the marriage, his estate does not determine by her death; but the common law does not recognize him as tenant for life. It constructed a paraphrase to describe his interest, and to this day we have the ancient estate of tenancy by the curtesy of the laws of England. Herein we see the care which the sages of the law had, to prevent those erroneous conclusions which ever flow from the use of inaccurate terms. All the concomitants of an estate, independent of the heir, are visible, and he is said by the ancient law writers to hold of the lord paramount. So, in our system, a similar principle obtains. Our statute of descents excepts the widow's dower; the course of descents is designated subject thereto; no exception is made of the husband's curtesy, yet curtesy survives the statute.
“By the intermarriage,” says Roper, (Roper on H. & W. p. 3,) “the husband acquires a freehold interest during the joint lives of himself and wife, in all such freehold property of inheritance as she was seized of at that time, or may become so, during the coverture.”
“If,” says Coke, (Co. Litt. 67 a,) “the husband hath issue by the wife, then he is entitled to an estate for term of his own life, in his own right; and yet he is seized in fee, in right of the wife, so as he is not bare tenant for life.”
In Polyblank v. Hawkins, (Doug. 314, 1 Saunders, 253 n,) the husband had declared that he was seized in his demesne as of freehold in right of his wife. The court, upon demurrer, held that he should have declared that “he and his wife were seized in their demesne as of fee in right of the wife.” The same is stated in 1 Bacon's Abr., 695; and such will be found the view entertained of the husband's estate in all well-considered modern cases.
The merging of the wife in the husband is complete. If an estate in fee be given to a man and his wife, they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout, et non pour mie: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor. And if a grant is made of a joint estate to husband and wife and a third person, the husband and wife shall have one moiety and the third person the other moiety, in the same manner as if it had been granted to two persons. So, if the grant is to husband and wife and two others, the husband and wife take one-third in joint tenancy, (2 Black. Com. 282).
That an estate may be defeated, or is to determine upon some future event, does not seem to vary its quantity during its continuance. “He (says Coke, Co. Litt. 18 a) that hath a fee simple, conditional or qualified, hath as ample and great an estate as he that hath a fee simple absolute; so that the diversity appeareth between the quantity and quality of the estate.”
It seems that, at the earliest known period of the common law, the estate of the wife could not be, in any manner, aliened so as to bar herself or heirs. This was a consequence of the legal extinction, by marriage, of the woman. She was deemed incapable of performing any act to affect her rights; and her joining in a feoffment with her husband, was, as to her, a nullity. But the necessities of men have, in all ages, broken down all restrictions on the free alienation of lands, and so in this case, the rule of common law was overcome by a fiction. When it was desired to transfer her lands, the bargainee brought a suit, setting up a ficitious title thereto. The wife appeared in court, and being privily examined by the judges, and acknowledging that she had no defence to make to the suit, and no defence being made by the husband, judgment was rendered for the claimant. This proceeding became the common mode of assurance, and being recognized as such, a tax, or fine, per acre, for every alienation was levied for the king's use. Such is, in brief, “a fine.”
But, although it was by the tedious and costly method of a fine that husband and wife could alien the lands of the wife so as effectually to bar her and her heirs, yet the common law (says Roper on H. & W., p. 55) imparted to “the husband as a necessary incident to the seisin he acquired of the wife's freehold estate by marriage, a power by alienation, of converting her interest in it to a mere right; for the property of the wife during the...
To continue reading
Request your trial