Danner v. Berthold
| Decision Date | 24 January 1882 |
| Citation | 11 Mo.App. 351 |
| Parties | JOHN R. DANNER ET AL., Defendants in Error, v. AUGUSTUS BERTHOLD, Plaintiff in Error. |
| Court | Missouri Court of Appeals |
1. Where a husband permanently renounces his marital obligations, removes to a foreign jurisdiction and permanently dwells there, contributing nothing to the support of his wife, and she, during his absence, holds herself out to the world as a feme sole, acquires lands with her own earnings, takes a conveyance to herself in fee, and sells the land, describing herself in the conveyance as a feme sole, and the purchaser, relying on such recital, and with knowledge of her course of living and dealing, believes tat she is a feme sole, the husband and wife cannot maintain ejectment against the purchaser without first tendering him the amount of the purchase-money, and all sums expended by him in good faith in erecting improvements on the land.
2. Semble that a husband's renunciation of his marital relations and his permanent residence in a foreign jurisdiction clothes the wife with the powers of a feme sole, and that she may then convey title to land held by her in fee, without her husband joining in the deed.
ERROR to the St. Louis Circuit Court, LINDLEY, J.
Reversed and remanded.
W. M ECCLES, for the plaintiff in error: The grantor is estopped from setting up that the recitals in her deed are false.-- Union Savings Assn. v. Kehlor, 7 Mo.App. 158; Lensendeffer v. Smith, 66 Mo. 80. Equity will put the parties in statu quo. -- Stumpf v Stumpf, 6 Mo.App. 272. There can be no recovery in this case until the defendant has been made whole.-- Schaefer v. Causey, 8 Mo.App. 142; Sims v. Gray, 66 Mo 613; Huff v. Price, 50 Mo. 230; Shroyer v. Nichols, 55 Mo. 264. Where the husband is beyond the jurisdiction the wife may convey her real estate as if she were a feme sole. -- Gallagher v. Delargy, 57 Mo. 30; Rose v. Bates, 12 Mo. 32; Gregory v. Paul, 15 Mass. 31.
E. PARMER and W. M. KINSEY, for the defendants in error: The deeds under which appellant claims, are null and absolutely void, vesting no title whatever in the grantees named herein.-- Huff v. Price, 50 Mo. 228. The husband is entitled to the possession of land, the legal title to which is vested in the wife, and may recover the same by suit in ejectment in his own name.--Tyler on Eject. 169; Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420. By virtue of his marital rights the husband has an estate of freehold in land of his wife.-- Vallé v. Obenhause, 62 Mo. 81. In order to give rise to an estoppel by deed, the parties must be sui juris, and the instrument so executed as to be binding in law.--Big. on Estop. 276. A married woman is not estopped by her representation that she is a feme sole. --Big. on Estop. 489; Concord Bank v. Bellis, 10 Cush. 276; Lowell v. Clark, 2 Gray 161. In cases of this character, " equity will not aid [by estoppel] defects which are of the essence of the power, nor supply any circumstance for want of which the legislature has declared the instrument void." In such cases " equity does not overturn, but follows, the law." -- Glidden v. Strupler, 52 Pa.St. 400.
This is an action of ejectment. It appears that in 1865, John R. Danner and Nancy A. Robinson were married to each other in St. Louis; that, in 1867, John R. Danner left his wife, and that they have never since lived together. The evidence is uncertain as to whether he moved to Illinois immediately after the separation, or whether he remained in St. Louis until 1872, and then removed to Illinois. Mrs. Danner remained in St. Louis, and never saw her husband but once after the separation; that was in 1872, when she went to see him in Illinois. For several years after the separation (perhaps before), she kept a saloon and house of prostitution in St. La. In 1870, she had accumulated a little money in this business, and with this money she bought the land in controversy, and had it conveyed to her in fee simple as Nancy A. Danner, and without any other description. She made improvements on the property with her own money. In 1873, desiring to raise some money, she gave a deed of trust on the property to one Gehner, reciting in the deed that she was a widow. In March, 1876, for the purpose of defrauding her landlord out of some $500 which she owed him, she conveyed her equity in the land to one Nolan. In the certificate of acknowledgment the notary recited that " she declared herself single and unmarried." In July, 1876, Nolan conveyed the property by warranty deed to one Hammel. In August, 1876, one of the lots (No. 7) went to sale under the deed of trust, the defendant became the purchaser, and the trustee made a deed to him, again reciting that Nancy A. Danner was a widow. In January, 1877, Hammel and wife conveyed the other lot (No. 8) to the defendant, by a deed of special warranty.
It is thus seen that the title of the defendant is derived wholly from deeds made by a married woman, who stood seised of the land in fee, without the concurrence of the husband, and who sought to give validity to her conveyance by reciting therein that she was a widow. As a general rule, conveyances attempted to be made by a married woman, are void, and no one can acquire title through them. The judgment in this case, which was for the plaintiffs, was, then, clearly right, unless the circumstances of the case are such as to take the case out of the general rule.
The defendant pleads, as an equitable defence, that, at the time when Mrs. Danner made the conveyances under and through which he claims, she had long lived separate from her husband, engaged in a business scarcely compatible with the existence of the marriage relation, representing herself as a feme sole, in which character she bought, improved, and conveyed this land, and carried on all her business; and that he purchased the land in good faith, believing from her conduct and course of life, and from the recitals in her deeds, that she was a feme sole. The weight of the evidence probably supports this defence, but at the same time there is some evidence casting suspicion upon it, and tending to show that before he made the investments, the defendant may have known that Mrs. Danner was a married woman. Nevertheless, we are disposed to take it that upon this record the defendant is entitled to stand as having made out the defence which he has set up.
Thinking so, I confess I have searched long to find some legal or equitable ground upon which the plaintiffs could be thrown out of court. Aside from the legal position and rights of the plaintiffs, it appears, without any contradiction, that Mrs. Danner is the real party plaintiff; that her husband is passive in the matter; that when written to, he was not ashamed to promise to lend her the use of his name in bringing this suit if she would send him $30. She brought the suit, using his name with hers, without sending him the $30. So far as we can consider her as the real party plaintiff, I confess I have never seen a more impudent case in a court of justice. She stands here in the face of her own deeds, with their false and fraudulent recitals, endeavoring to recover this land from an innocent purchaser, who has been misled by her fraud into investing his money in it. The money which she thus obtained was obtained under such circumstances that, if prosecuted in time, she might have been sent to the penitentiary for obtaining money under false pretences; and she is now asking a court of justice to become the instrument through which this fraud shall be consummated. She asks us to give her back the property, without requiring her to return the money which she obtained in parting with it, through a crime in the nature of larceny.
Must we do this? We thought at one time that we might grant the defendant the relief which he seeks in his answer, on a rule which has been declared by several American courts, including our own, that, where a husband permanently renounces his marital obligations, and takes up his residence in a foreign country, or in another state of the Union, his wife is restored to the capacity of contracting, of holding and transmitting property, and of suing and being sued, as a feme sole. Gallagher v. Delargy, 57 Mo. 29; Rose v. Bates, 12 Mo. 30; Gregory v. Paul, 15 Mass. 91; Abbott v. Bayley, 6 Pick. 89; Gregory v. Pierce, 4 Metc. 478; Ayer v. Warren, 47 Me. 217; McArthur v. Bloom, 2 Duer 151; Rhea v. Renner, 1 Pet. 105; Arthur v. Broadnax, 3 Ala. 557; Mead v. Hughes, 15 Ala. 141, 148; Wagg v. Gibbons, 5 Ohio St. 580; Love v. Moynehan, 16 Ill. 277; Smith v. Silence, 4 Iowa 321; Bean v. Morgan, 4 McCord, 148 (overruled; Bryce v. Owens, 1 Hill (S. C.) 8). The rule is founded in the necessity of allowing the abandoned wife, under such circumstances, to make contracts and obtain credit, in order that she may live, and not be driven to a life of crime for subsistence. It was well expressed by Putnam, J., in the leading case in Massachusetts, in the following language, which our supreme court, in Rose v. Bates (supra ), has adopted: Gregory v. Paul, 15 Mass. 91.
In Gallagher v. Delargy (57 Mo. 29), our supreme court fully upheld the...
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