O'Day v. Meadows

• Decision Date: 06 March 1906
• Parties: CLYMENA ALICE O'DAY, Appellant, v. B. F. MEADOWS and SUE I. B. O'DAY
• Court: Missouri Supreme Court

92 S.W. 637

194 Mo. 588

CLYMENA ALICE O'DAY, Appellant, v. B. F. MEADOWS and SUE I. B. O'DAY

Supreme Court of Missouri, Division Two

March 6, 1906

Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.

Reversed and remanded (with directions).

T. A Sherwood and Henry C. Young for appellant.

(1) Marriage settlements are not affected by subsequent divorce so as to divest rights which have vested thereunder, unless by express terms it is so decreed in the divorce proceeding. 9 Am. and Eng. Ency. of Law, 860; 19 Am. and Eng. Ency. of Law, 1230, 1248; Saunders v. Saunders, 144 Mo. 482; Kinzey v. Kinzey, 115 Mo. 501; Doyle v Rolwing, 165 Mo. 238; Schuster v. Schuster, 93 Mo. 438; Rose v. Rose, 93 Ind. 255; Patton v Loughbridge, 49 Iowa 218; Dixon v. Dixon, 23 N.J.Eq. 316; Lister v. Lister, 35 N.J.Eq. 49; Bufe v. Bufe, 88 Mo.App. 627. (2) The divorce decree operated to settle all questions pertaining to property rights between the parties to that proceeding and their privies. The defense attempted to be invoked here should have been, and is presumed to have been, interposed in that action, and has become res adjudicata. Patton v. Loughbridge, 49 Iowa 218; Fischli v. Fischli, 1 Blackf. (Ind.), 360; 1 Herman on Estoppel and Res Adjudicata, sec. 405, p. 474; Stultz v. Stultz (Ind.), 8 N.E. 238; Dunham v. Dunham, 128 Mass. 34; Roe v. Roe (Kan.), 35 P. 808; Thompson v. Thompson (Ind.), 31 N.E. 529; Rose v. Rose, 93 Ind. 179; Mucklenberg v. Holler, 29 Ind. 139; Walker v. Walker (Ind.), 50 N.E. 68; Natcher v. Clark (Ind.), 51 N.E. 468; Gallagher v. Gallagher (Wis.), 77 N.W. 145; Murray v. Murray (Ind.), 53 N.E. 946; Weidman v. Weidman (Ohio), 48 N.E. 506; Richardson v. Stowe, 102 Mo. 43; Barnett v. Barnett (N. M.), 50 P. 337; Plaster v. Plaster, 47 Ill. 290; McKnight v. McKnight (Neb.), 98 N.W. 62; Hills v. Hills, 94 Ind. 436; Nicholson v. Nicholson, 113 Ind. 131; Yost v. Yost (Ind.), 41 N.E. 11; Morse v. Morse, 25 Ind. 156; Kamp v. Kamp, 59 N.Y. 212; Viertel v. Viertel, 99 Mo.App. 717; Luckowski v. Luckowski, 108 Mo.App. 205; 7 Ency. Plead. & Prac., 56, 128; 1 Ency. Plead. & Prac., 414; Crews v. Mooney, 74 Mo. 26; Waters v. Waters, 49 Mo. 385; State ex rel. v. St. L. Ct. of App., 99 Mo. 216; In re Gladys Morgan, 117 Mo. 254; Chester v. Chester, 17 Mo.App. 657, citing Plaster v. Plaster, 47 Ill. 294; Husband v. Husband, 67 Ind. 585; Schmeding v. Doellner, 10 Mo.App. 373; Calame v. Calame, 9 C. E. Green 440, 10 C. E. Green 548; Gerke v. Gerke, 100 Mo. 237; Salisbury v. Salisbury, 92 Mo. 683; Marx v. Marx, 89 Mo.App. 455. (3) The marriage settlement was improperly admitted in evidence for the purpose either: (a) Of defeating the operative words of conveyance contained in the deeds under which plaintiff holds or to establish a resulting trust. Bobb v. Bobb, 7 Mo.App. 508, 89 Mo. 411; Weiss v. Heitkamp, 127 Mo. 30. (b) Or of controlling or affecting their terms. Davidson v. Manson, 146 Mo. 608. (c) Or of showing the creation of a jointure, or enlarging the terms of the divorce decree. Halferty v. Scearce, 135 Mo. 428; Davis v. Davis, 61 Mo. 395; Murray v. Murray (Ind.), 53 N.E. 946; Stultz v. Stultz (Ind.), 8 N.E. 238; Moon v. Cottingham, 90 Ind. 239; Perry v. Perryman, 19 Mo. 469; Martin v. Norris, 91 Mo. 465; Dudley v. Davenport, 85 Mo. 462; Farris v. Coleman, 103 Mo. 360. (4) Conceding for the argument that the deeds in question may be impeached by showing a lack of consideration therefor, nevertheless the post-nuptial contract between plaintiff and John O'Day, deceased, was valid and binding upon the parties thereto both at law and in equity and constituted a sufficient consideration for the conveyances. Rice, Stix & Co. v. Sally, 176 Mo. 131; Bank v. Hageluken, 165 Mo. 323; Case v. Espenschied, 69 S.W. 276; McBreen v. McBreen, 154 Mo. 323; Saunders v. Saunders, 144 Mo. 482; Pawley v. Vogel, 42 Mo. 291; Garbut v. Bowling, 81 Mo. 214; Halferty v. Scearce, 135 Mo. 428; Bufe v. Bufe, 88 Mo.App. 627; Turner v. Shaw, 96 Mo. 27; Woods v. Turner, 94 Mo. 124; Walsh v. Chambers, 13 Mo.App. 301; Betts v. Magoon, 85 Mo. 580; Schouler v. Schouler, 18 Mo.App. 69; Smith v. Smith, 50 Mo. 126; Morrison v. Thistle, 67 Mo. 596; Richardson v. Lowery, 67 Mo. 411; Schuster v. Schuster, 93 Mo. 438; Gilliland v. Gilliland, 96 Mo. 522; Thomas v. Thomas, 107 Mo. 459; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Curd v. Brown, 148 Mo. 82; Bank v. Sampson, 152 Mo. 658; Doyle v. Rolwing, 165 Mo. 241. (5) The deeds, if valid upon their face, operated either as a voluntary post-nuptial settlement or or as a post-nuptial jointure, and will not be disturbed in equity. Cases cited under point 4, supra; 19 Am. and Eng. Ency. of Law, 1230; 17 Am. and Eng. Ency. of Law, 712. (6) The deeds were valid upon their face, and operated to convey to plaintiff at the time of their execution and delivery a present vested estate for life, beginning in future, i. e., upon the death of John O'Day. First. (a) They created a vested interest and took effect by their terms and by delivery in praesenti as contradistinguished from conveyances which are testamentary in their character either because limited by their terms to take effect only after the grantor's death or because retained in the grantor's possession and under his dominion during his lifetime and not delivered until after his death. Murphy v. Gabbert, 166 Mo. 596; Miller v. Holt, 68 Mo. 584; 1 Devlin on Deeds, (2 Ed.), sec. 309; Leaver v. Gauss, 62 Iowa 314; Nichols v. Emery, 109 Cal. 323; White v. Hopkins, 80 Ga. 154; 2 Devlin on Deeds (2 Ed.), secs. 853, 854, 855, 857; R. S. 1899, sec. 2950; Dozier v. Toalson, 180 Mo. 552; Griffin v. McIntosh, 176 Mo. 398. (b) And they took effect although a life estate was reserved in the grantor. Allen v. De Groodt, 105 Mo. 445; Sneathen v. Sneathen, 104 Mo. 209; Stoddard v. Wells, 120 Mo. 25; Saunders v. Saunders, 144 Mo. 482; Rogers v. Bank, 82 Mo.App. 384. Second. Estate of freehold in futuro may be made to commence by deed as well as by will. R. S. 1899, sec. 4596; 1 Bouvier's Law Dic., p. 560; 1 Burrill's Law Dic., p. 585; 2 Wash. Real Prop., 641; Aubuchon v. Bender, 44 Mo. 560; 4 Kent. Com. 199. Third. The deeds were effective under the statute of uses to convey the life estate. Wilson v. Albert, 89 Mo. 537; 3 Wash. Real Prop., 354; Martindale on Conveyances, sec. 59; 2 Wash. Real Prop., 450, 451; 4 Kent Com., 493, 494; Anglade v. St. Avit, 67 Mo. 434; Tindall v. Tindall, 167 Mo. 218; Bray v. Conrad, 101 Mo. 331; Jackson v. Fish, 10 Johns. 456; Hunt v. Hunt, 14 Pick. 374; McConnell v. Reed, 4 Scam. 117; Fash v. Fash, 38 Ill. 368; Eckman v. Eckman, 68 Pa. 460; Bell v. Scammon, 41 Am. Dec. 706; Bogy v. Shwab, 13 Mo. 380; Lynch v. Livingston, 8 Barb. (N.Y.) 463; Jackson v. Sebring, 8 Am. Dec. 357; McKinney v. Settles, 31 Mo. 544. Fourth. The intent of the parties, evidenced by the instruments, is to govern their construction. Davis v. Hess, 103 Mo. 31; Long v. Timms, 107 Mo. 512; McCulloch v. Holmes, 111 Mo. 445; Utter v. Sidman, 170 Mo. 293; Miller v. Holt, 68 Mo. 584. (7) A parol rescission of the deeds under consideration cannot be shown so as to operate as a reconveyance of either the legal or equitable title. Real estate cannot be conveyed except by deed. Even the destruction of the instrument cannot have that effect. 1 Dev. on Deeds, sec. 300. (8) A rescission in fact was not shown in this case. Miller v. Crigler, 83 Mo.App. 395; Mfg. Co. v. McCord, 65 Mo.App. 507; Robinson v. Siple, 129 Mo. 208.

Delaney & Delaney for respondents.

(1) The agreement between John O'Day and his wife Clymena Alice O'Day, plaintiff herein, is postnuptial and was not binding on the wife according to the rules of common law. Neither is it binding since the Married Woman's act, for the wife by section 2951, Revised Statutes 1899, is given the right of election, in a case like the present, and such right of election is but another name for the right of rescission. The alleged contract was therefore not a contract at all as it lacked mutuality. It was voidable at the election of Clymena Alice O'Day, and some act on her part, or acquiescence on her part, after she became discovert, was necessary before the agreement could be dignified as a contract. Her action in bringing suit for divorce and claiming alimony was a direct repudiation of such agreement and of deeds made pursuant thereto. Roberts v Walker, 82 Mo. 200; Tarbut v. Bowling, 8 Mo. 214; Halferte v. Scarce, 135 Mo. 429; Sackman v. Sackman, 143 Mo. 576; McBreen v. McBreen, 154 Mo. 323; Saunders v. Saunders, 144 Mo. 493; Schuster v. Schuster, 93 Mo. 438; Kingsley v. Kingsley, 115 Mo. 496; Ilgenfritz v. Ilgenfritz, 116 Mo. 429. (2) The conveyance from John O'Day and wife to A. C. O'Day (and it is on this deed that plaintiff herein must bottom her right), does not pass a legal title sufficient to maintain ejectment, because: 1st. The paper is testamentary in its nature. 2nd. It attempts by deed to create a freehold estate in futuro, to-wit, a contingent estate per auter vie without creating at the same time and by the same deed or instrument a particular estate to support it. This is clearly testamentary. No present estate passes. Murphy v. Gabbert, 166 Mo. 596; Turner v. Scott, 51 Pa. 126; Leaven v. Gauss, 62 Ia. 314; Pinkham v. Pinkham, 55 Neb. 79. (3) The divorce decree does not conclude O'Day's devisees. The question involved in this issue was not involved in the divorce issues. The fact that O'Day might have adjusted this matter by tendering an issue will not sustain plaintiff in his position that the matter is adjudicated. Lumber Co. v. Nickey, 85 Mo.App. 270; Nelson v. Barnett, 123 Mo. 570; Clemens v. Murphy, 40 Mo. 121; Garland v. Smith, 164 Mo. 1; Barkhoefer v. Barkhoefer, 93 Mo.App. 373. (4) Res adjudicata must be pleaded affirmatively. The reply does not...