Crenshaw v. Crenshaw
| Decision Date | 30 December 1918 |
| Citation | 208 S.W. 249,276 Mo. 471 |
| Parties | MARY JANE CRENSHAW, Appellant, v. JOEL V. CRENSHAW et al |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Affirmed.
Jos. R Palmer, Hostetter & Haley and Creech & Penn for appellant.
(1) The elements entitling a woman to dower in Missouri are (1) a lawful marriage, (2) seizin of the husband, or of some other person to his use, during the marriage, of an estate of inheritance in the land, and (3) death of the husband prior to the death of the wife. Murray v. Scully, 259 Mo 57; 3 Words and Phrases, 2188. (2) When a divorce is granted for the fault of the husband the wife's dower is not barred. Scales v. Scales, 65 Mo.App. 293; Murray v. Scully, 259 Mo. 57; Givens v. Marbut, 259 Mo. 223; Hunt v. Thompson, 61 Mo. 148; R. S. 1909 sec. 359. (3) The wife who has been divorced for the husband's fault or misconduct is not entitled to dower until the death of the husband; during the husband's life the dower is inchoate, and not until his death does it become consummate. Hunt v. Thompson, 61 Mo. 148. (4) The inchoate right of dower is not an interest in nor title to real estate, and is not the subject of relinquishment, release or conveyance by the wife during the life of the husband, except by some one of the methods authorized by the statute. Tiedeman's Real Property (3 Ed.), sec. 85; 4 Words and Phrases, p. 3493; 14 Cyc. 925; McCrillis v. Thomas, 110 Mo.App. 703; Mining Co. v. Baker, 170 Mo.App. 457; Brannock v. Magoon, 216 Mo. 722; Teckenbrock v. McLaughlin, 246 Mo. 711; First Nat. Bank v. Kirby, 269 Mo. 285; 13 Cyc. 688; Brawford v. Wolf, 103 Mo. 391. (5) The quitclaim deed of Mrs. Crenshaw only passed the interest she then had, and any interest, estate or title that thereafter accrued to her did not inure to the grantee or those claiming under him, and this notwithstanding the Married Woman's Act. Bland v. Windsor, 187 Mo. 137; State Bank of St. Joe v. Robidoux, 57 Mo. 450; Ford v. Unity Church, 120 Mo. 498; Hendricks v. Musgrave, 183 Mo. 309; Wilson v. Fisher, 172 Mo. 15; Brawford v. Wolfe, 103 Mo. 397; Conrey v. Pratt, 248 Mo. 576; R. S. 1899, sec. 901. (6) The statute giving a widow the right to assign dower in the real estate of which her husband died seized before it has been admeasured to her, refers to the dower interest existing after the husband's death and not to her inchoate dower. R. S. 1909, sec. 346; Brannock v. Magoon, 216 Mo. 722. (7) A quitclaim deed passes no interest, title or estate not in existence at the date of its execution. (8) The deed given by Mrs. Crenshaw would not estop her to claim dower. The deed was without consideration. To work an estoppel there must be such conduct on the part of one party as to induce the other party to act, relying on such conduct, and resulting to his injury. 2 Words and Phrases (2 S.), p. 337; 3 Words and Phrases, p. 2498; 16 Cyc. 726; DeBerry v. Wheeler, 128 Mo. 90; Osburn v. Court of Honor, 152 Mo.App. 652; Harrison v. McReynolds, 183 Mo. 548; 21 Cyc. 1343; Bank v. Ragsdale, 171 Mo. 185. (9) The fifteen hundred dollars allowed Mrs. Crenshaw as alimony for the support of herself and child was not dower, the court had no power to require the relinquishment of her dower, and this allowance of alimony could not be a consideration for the deed she executed. Scales v. Scales, 65 Mo.App. 292; 1 Words and Phrases (2d S.), 181. (10) The quitclaim deed viewed in the light of a contract was invalid, because the consideration was nothing more than the law would have cast upon her at her husband's death and was inadequate to bind her and preclude her claim for dower, the consideration not having been paid. Spratt v. Lawson, 176 Mo. 181; Egger v. Egger, 225 Mo. 116. (11) The quitclaim deed was not effectual as an estoppel, it not having been ratified subsequent to the husband's death. 14 Cyc. p. 932; Saunders v. Blythe, 112 Mo. 5. (12) Dower is favored in a high decree by the law as the reward of chastity; in doubt, the response is in favor of dower. Blevins v. Smith, 104 Mo. 588; Chrisman v. Linderman, 202 Mo. 614.
Sutton & Huston for respondents.
(1) The conclusion is inevitable from a consideration of the authorities and the mandates of judicial reason, that a dowress who is a femme sole may, by her separate deed, release her inchoate dower to her divorced husband, who is at the time the terre-tenant of the principal estate. Smith v. Pendell, 19 Conn. 112; Miller v. Emans, 19 N.Y. 390; Williams v. Esten, 179 Ill. 274; Blain v. Harrison, 11 Ill. 385; Summers v. Babb, 13 Ill. 483; Jackson v. Vanderheyden, 17 Johns. 167; Johnson v. Shields, 32 Me. 424; Shepherd v. Howard, 2 N.H. 507; Thatcher v. Howland, 2 Met. 41; Moore v. Harris, 91 Mo. 621; McAnaw v. Tiffin, 143 Mo. 676; Tatro v. Tatro, 18 Neb. 397; Nichols v. Park, 78 A.D. 95; Green v. Putnam, 1 Barb. 506; Moloney v. Horan, 53 Barb. 38; Brannock v. Magoon, 216 Mo. 729; McCrillis v. Thomas, 110 Mo.App. 703; Littlefield v. Crocker, 30 Me. 193; Kitzmiller v. Van Rensselear, 10 Ohio St. 64. (a) It is a well established rule at common law that contingent future rights and interests in real estate, though not alienable, could be released to the terre-tenant of the freehold. Smith v. Pendell, 19 Conn. 112; Miller v. Emans, 19 N.Y. 390; Williams v. Esten, 179 Ill. 274. (b) So, a dowress, though she could not assign her dower to another so as to invest him with it, she could release it to the terre-tenant of the principal estate, and the same rule prevails in modern decisions. Blain v. Harrison, 11 Ill. 385; Moore v. Harris, 91 Mo. 621; McAnaw v. Tiffin, 143 Mo. 676; Summers v. Babb, 13 Ill. 483; Jackson v. Vanderheyden, 17 Johns. 167; Johnson v. Shields, 32 Me. 424; Shepherd v. Howard, 2 N.H. 507; Thatcher v. Howland, 2 Met. 41. (c) A right of dower, until legally assigned, is a right resting in action only. A widow may release it, but she cannot before dower is assigned invest another person with the right to maintain an action on it; nor can she convey or assign it. Green v. Putman, 1 Barb. 506. (d) But her deed, though it may not operate as a grant, will operate as an estoppel against her in favor of her grantee and those claiming under such grantee. Maloney v. Horan, 53 Barb. 38; Brannock v. Magoon, 216 Mo. 729; McCrillis v. Thomas, 110 Mo.App. 703; Littlefield v. Crocker, 30 Me. 193; Kitzmiller v. Van Rensselear, 10 Ohio St. 64; Blain v. Harrison, 11 Ill. 385. (e) A decree a vinculo matrimonii dissolves the marriage and puts an end to the relation of husband and wife, and to all property rights, including the right to dower, except when it is expressly preserved by statute. Tatro v. Tatro, 18 Neb. 399. (f) Dower does not attach to lands acquired by a husband after his wife has obtained a divorce. Nichols v. Park, 78 A.D. 95. (g) The operative words of the usual form of quitclaim deed in common use are sufficient operative words of conveyance, and such a deed is as effectual to transfer title as any other form of conveyance, and conveys every shred of right, title or interest the grantor may have in the premises. McAnaw v. Tiffin, 143 Mo. 676; Weissenfels v. Cable, 208 Mo. 534; Chew v. Keller, 171 Mo. 225; Wilson v. Albert, 89 Mo. 543; Ennis v. Tucker, 78 Kan. 55; Livingstone v. Murphy, 187 Mass. 315; Kyle v. Cavanaugh, 103 Mass. 356; Pinkerton v. Fenelon, 131 Wis. 440. (h) While the consideration of a deed is open to investigation and explanation for some purposes, yet in the absence of fraud or mistake the want of consideration cannot be shown against a recital of a consideration in the deed for the purpose of defeating the operative words of the deed. Weissenfels v. Cable, 208 Mo. 534; Chambers v. Chambers, 227 Mo. 287; Bobb v. Bobb, 89 Mo. 419; Strong v. Whybark, 204 Mo. 348; Russell v. Robbins, 247 Ill. 510; Burleigh v. Coffin, 22 N.H. 118. (2) The same contract was amply sufficient to constitute a valid and binding contract, supported by a valuable consideration, actually paid to the plaintiff and received and appropriated by her whereby she is now estopped to claim such dower. Owen v. Yale, 75 Mich. 258; Tatro v. Tatro, 18 Neb. 399; Bourne v. Simpson, 9 Ben. Mon. 457; Marvin v. Collins, 48 Ill. 156; Adams v. Storey, 135 Ill. 448; Garbut v. Bowling, 81 Mo. 214; Ellis v. Diddie, 1 Ind. 561; Wood v. Seely, 32 N.Y. 105; Reed v. Morrison, 12 Serg. & R. (Pa.) 18; Allen v. Allen, 112 Ill. 323; Collins v. Woods, 63 Ill. 285; Scales v. Scales, 65 Mo.App. 283; Spratt v. Lawson, 176 Mo. 181; Egger v. Egger, 225 Mo. 143.
On February 19, 1915, plaintiff filed in the circuit court of Lincoln County, Missouri, her petition for the assignment of dower in the lands of her husband, Wm. N. Crenshaw, described in the petition. The petition alleges, and the separate answer of Joel V. Crenshaw, executor of the estate of Wm. N Crenshaw, et al., admits, that plaintiff and said Wm. N. Crenshaw were married in Lincoln County, Missouri, on December 15, 1896; that on March 28, 1898, she was, in the circuit court of said county, divorced from said Wm. N. Crenshaw; that in the trial of said divorce case, the court found plaintiff to be the innocent and injured party, and entitled to the relief prayed for in her petition. The petition alleges, and said answer admits, that said Wm. N. Crenshaw died on January 5, 1915, the fee simple owner of the real estate described in petition. The petition alleges, and said answer admits, that Wm. N. Crenshaw died leaving a will, which was duly probated in said county, and letters testamentary issued to Joel V. Crenshaw on January 11, 1915, and that by the terms of said will said real estate was devised to defendants Martha E....
To continue reading
Request your trial