Clay v. Mayer

• Decision Date: 31 May 1898
• Citation: 46 S.W. 157,144 Mo. 376
• Parties: CLAY et ux. v. MAYER et ux.
• Court: Missouri Supreme Court

46 S.W. 157

144 Mo. 376

CLAY et ux. v. MAYER et ux.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

HUSBAND AND WIFE — TENANCY BY CURTESY — DEEDS — RETROSPECTIVE LAWS.

1. Where the husband is entitled to possession of his wife's land during coverture, as tenant by the curtesy initiate, both husband and wife must join in the execution and acknowledgment of a deed, in order to convey the legal title.

2. Rev. St. 1889, § 6869, making the land of a married woman her separate property, is not retrospective in its operation, so as to affect the husband's rights as tenant by curtesy initiate, acquired prior to its passage, since the constitution forbids retrospective laws.

Appeal from circuit court, Dekalb county; Herndon, Judge.

Ejectment by William Clay and wife against Otto Mayer and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

S. G. Loring, for appellants. Hewitt & Blair, for respondents.

SHERWOOD, J.

Ejectment suit for certain land in Dekalb county, begun in 1895. In January, 1886, Otto Mayer bought the land from Wills and wife; paying therefor with money received from the father of Mary Mayer, his wife, and taking the deed in ordinary general warranty form, without more. After admitting possession, the answer consisted of a general denial. The evidence on behalf of plaintiffs was to the effect that Mrs. Clay bought the land from Mrs. Mayer, and paid her for it; that Mrs. Mayer executed and acknowledged and delivered the deed to Mrs. Clay, but that, Mr. Mayer not being present, Mrs. Clay took the deed to the town where Mr. Mayer was, and he executed and acknowledged it before a notary, but it was never delivered to Mrs. Clay, but left with the notary, without any directions from Mr. Mayer to the notary respecting it; that Mrs. Clay went out of the notary's office on some errand, and never returned for the deed; that on the same evening, however, she met Mrs. Mayer, who had the deed in her possession, but refused to deliver it to Mrs. Clay, on the ground that more money was due her on the land; that Mrs. Clay then returned to St. Joseph, and, on her arrival there, her attorney wrote to the notary at Stewartsville (Mr. Clark) about the deed, who replied that he had it in his possession, but that Mrs. Mayer claimed that there was $20 still due on the land; that Mrs. Clay offered to pay the $20, but Mrs. Mayer then claimed that there was $215 due on the land. The defendants introduced no evidence, but, at the close...