Crawford v. Whitmore

• Decision Date: 13 February 1894
• Citation: 25 S.W. 365,120 Mo. 144
• Parties: Crawford et al. v. Whitmore et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 365

120 Mo. 144

Crawford et al. v. Whitmore et al., Appellants

Supreme Court of Missouri, Second Division

February 13, 1894

Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed.

O. D Jones for appellants.

(1) "The deed from a husband to a wife or from the latter to the former, is null in law, this arising from their being regarded as one person." Turner v. Shaw, 96 Mo 22. (2) It is clear here that the legal title is in defendants; it is only claimed the wife has the equity conferred on her by her husband's deed made pending defendant's judgment lien. Equitable title will not sustain ejectment while the legal title is outstanding. Guyol v. Choteau, 19 Mo. 546; Thompson v Lyon, 33 Mo. 219; Williams v. Carpenter, 35 Mo. 52; Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; Cowell v. Gray, 85 Mo. 169.

Blair & Marchand for respondents.

(1) Deeds from husband to wife are not void. Certainly not, when husband is simply correcting an error in making deed to her, to whom it should have been made in the first instance. Turner v. Shaw, 96 Mo. 22; 2 Kent's Com. [6 Ed.], 166; Bangert v. Bangert, 13 Mo.App. 144; Cooper v. Standley, 40 Mo.App. 138. (2) The better law is that the title passed to the wife and the husband became the trustee of Mrs. Crawford. They both being parties plaintiff, they can recover. 2 Kent's Com. [6 Ed.], 162, 166; Woodsworth v. Tanner, 94 Mo. 124; Bangert v. Bangert, 13 Mo.App. 144.

OPINION

Burgess, J.

Action of ejectment for seventeen and one-half feet off of the west side of lot 7, in block 13, in Hurdland, Knox county, Missouri. The defendants Whitmore were made parties defendant upon their own motion, as landlords of the defendant Musgrove. Judgment was rendered against him for the possession of the property and $ 70 damages, and they appealed to this court.

The defendants Whitmore answered separately; admitted that plaintiffs were husband and wife; admitted their possession and denied all other allegations in the petition. The answer of the defendant W. D. Whitmore, after averring that he is the owner of the land in fee, proceeds as follows:

"And for further answer defendant says that before and after Milton B. Crawford was the owner in fee of said lands, and in a merchandising business, he bought flour of the firm of Whitmore & Brother, then engaged in the milling and flour business in Quincy, Illinois, and thus became indebted to them in the sum of over $ 300. That said firm was composed (of) this defendant and his brother, Henry R. Whitmore. That said Crawford held himself out to defendant and the world as the owner of said lot and gained credit on the faith of being the owner of his place of business. That the firm of Whitmore Brothers sued Milton B. Crawford, and, in the year A. D. 1889, recovered a judgment against (him) in this court while he was the owner of said lot in fee and the lien of said judgment attached thereto to his fee simple title and his marital rights therein even if it had been the property of his wife, and while the lien of the said judgment was still alive, and within three years after the rendition of said judgment the defendant caused execution to be issued on said judgment and levied on said land and it was regularly advertised and sold at sheriff's sale and a good and sufficient sheriff's deed made therefor to Henry R. Whitmore, who thereby became the owner of all the title to said land and lot.

"That during the life of said judgment lien Milton B. Crawford made two attempted conveyances of said land, one of one-half of it to codefendant Musgrove, and the other to his wife and coplaintiff. That in the deed to his wife he recites in a series of 'whorehouses' that his wife was the owner of the means with which he bought the land. That said allegations are not true. That at the time he bought said lot it was vacant, and he has, of his own means, built a house upon it, that now and at the time he bought constituted the main value of the property.

"And defendant says that on the tenth day of January, A. D. 1890, his brother, Henry R. Whitmore, executed to him a good and sufficient deed for said land and lot, and he is now the owner in fee thereof. And he says that the deed executed by Milton B. Crawford during the pendency of the lien of said judgment was made to defraud prior and existing creditors, to wit, defendant and his brother, Henry R. Whitmore, and is in law and fact fraudulent and void. And defendant asks that both said deeds, the one to codefendant Musgrove and to plaintiff Evaline Crawford be set aside, and far naught held and for general relief and costs of suit."

To this answer plaintiff replied, admitting the entry and possession of the defendant Musgrove, and the making of the deed from M. B. Crawford to his wife and coplaintiff Evaline. Plaintiff read in evidence a deed from Geo. M. Janes and wife to Milton B. Crawford, dated August 20, 1883, for all of lot 7. The plaintiff next read in evidence a deed from Milton B. to his wife Evaline which is as follows:

"This deed, made and entered into on this, the fourth day of June A. D. 1887, by and between Milton B. Crawford, of the first part, and Mrs. Evaline Crawford, wife of the first party, of the second part, all of Knox county, Missouri.

"Witnesseth whereas, said first party purchased and took a deed from George N. Janes and wife on August 20, 1883, for lot seven, in block thirteen, in the town of Hurdland, in said county of Knox, at and for the consideration of $ 130, and which is in said deed stated, and whereas said deed was, on August 24, A. D. 1883, duly filed on record in the recorder's office for said county of Knox, and duly recorded therein, and whereas I bought of Benj. F. Earhart a small house and moved the same upon said lot, and whereas I bought lumber of Ira D. Cottey to...