Doyle v. Rolwing

• Decision Date: 19 November 1901
• Citation: 165 Mo. 231,65 S.W. 315
• Parties: DOYLE v. ROLWING.
• Court: Missouri Supreme Court

65 S.W. 315

165 Mo. 231

DOYLE v. ROLWING.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

REAL PROPERTY — CURTESY — DIVORCE — DEATH OF WIFE.

Though there was a valid marriage, and issue born alive capable of inheriting, a man has no estate by curtesy in land of which a former wife, divorced through her own fault, dies seised of an estate of inheritance.

Appeal from circuit court, Mississippi county; Henry C. Riley, Judge.

Action by George M. Doyle against E. G. Rolwing. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Boone & Lee, for appellant. Russell & Deal, for respondent.

VALLIANT, J.

This is an action in ejectment. Plaintiff claims an undivided one-twelfth in fee, and a life estate as tenant by the curtesy in the rest. His fee in the one-twelfth is conceded, but his claim of estate by the curtesy is disputed. The facts are these: In 1874 and 1878 plaintiff bought the lands in question, and paid for them with his own means, but took the deeds in his wife's name as grantee. The titles were fee simple. There were three children born of the marriage, capable of inheriting. In February, 1881, he obtained a decree of divorce for the fault of his wife. After the divorce the wife, or she who had been the wife, conveyed the land by deed to the three children of the marriage. Defendant holds title under them. She died in 1890, leaving the plaintiff surviving. Plaintiff inherited a one-twelfth interest from one of his deceased children. The defendant holds the fee to eleven-twelfths. The judgment of the circuit court was for the plaintiff for one-twelfth, and the rents and profits appertaining thereto, and for the defendant for the rest. The plaintiff appeals.

The question of law which the case presents for decision is this: When a tenant by the curtesy initiate obtains a divorce for the fault of his wife, does his estate continue, so that if she dies, leaving him surviving, the curtesy becomes consummate? In deciding this question, we find it easier to defer to the weight of authorities than it is to be satisfied with the reason they give. In 9 Am. & Eng. Enc. Law (2d Ed.) 858, it is said: "When a marriage is dissolved, the husband ceases to have any interest in his wife's lands by the estate of curtesy, as this estate depends upon coverture and the death of the wife, and does not arise upon the death of a divorced wife." Then, in a note, the author cites the following cases in support of his text: Boykin v. Rain, 28 Ala. 332, 65 Am. Dec. 349; Wheeler v. Hotchkiss, 10 Conn. 225; Starr v. Pease, 8 Conn. 541; Townsend v. Griffin, 4 Har. 440; Howey v. Goings, 13 Ill. 95, 46 Am. Dec. 427; Doe v. Brown, 5 Blackf. 309; Hays v. Sanderson, 7 Bush, 489; Oldham v. Henderson, 5 Dana, 254; Wright v. Wright's Lessee, 2 Md. 429, 56 Am. Dec. 723; Barber v. Root, 10 Mass. 260; Moran v. Somes, 154 Mass. 200, 28 N. E. 152; Dunham v. Dunham, 128 Mass. 34; Clark v. Slaughter, 38 Miss. 64; Schuster v. Schuster, 93 Mo. 438, 6 S. W. 259; Renwick v. Renwick, 10 Paige, 420; Davis v. Davis, 68 N. C. 180; Blaker v. Cooper, 7 Serg. & R. 503; McGrath v. Pennsylvania Co., 8 Phila. 113; Sellars v. Davis, 4 Yerg. 503; Burt v. Hurlburt, 16 Vt. 292; Gould v. Webster, 1 Tyler, 409; Mattocks v. Stearns, 9 Vt. 326; Porter v. Porter, 27 Grat. 599. The Missouri case cited (Schuster v. Schuster, 93 Mo. 438, 6 S. W. 259) does not answer the question we have before us, because in that case the divorce was granted at the suit of the wife for the husband's fault, and it was covered by our statute which declares that in case of divorce the guilty party shall forfeit all rights and claims under and by virtue of the marriage. Section 2929, Rev. St. 1899. But the majority of the courts referred to in the above list sustain the principle as stated in the text, and to the same effect, and based on the same reason, is another high authority on this subject. 2 Bish. Mar. & Div. § 1644. An estate by the curtesy is a common-law creation. A divorce a vinculo at common law was an annulment of the marriage for a cause that existed before the marriage was entered into. It declared the marriage void ab initio. 1 Bl. Comm. 435. It left the parties, so far as their estates dependent on or arising out of the marriage were concerned, as though no marriage had occurred. Therefore we would have no difficulty in reaching the conclusion that a divorced husband at common law had no estate by the curtesy. But the difficulty arises in attempting to apply the consequences of a divorce under the statute to the common-law estate of curtesy. A divorce under the statute for a cause arising after the marriage puts an end to the marital relation, but it does not relate back to the act of marriage and render it null. It recognizes the marriage as valid, and recognizes that rights arise out of it. It is prospective only in its effect. In a divorce at common law there were no marital property rights to be adjusted, for if the marriage was void from the beginning no property rights arose out of it, but in a divorce under the statute there are property rights to be affected; and the reasons that would lead us to a clear conclusion if we had only the common law to deal with are not so conclusive when we attempt to declare the effect of a statutory divorce on a common-law estate. It is said that there are four essentials to an estate by the curtesy, — a valid marriage, seizure of the wife during coverture, birth of a child capable of inheriting, and death of the wife; and the argument is that inasmuch as she who was a wife is not a wife after the divorce, and not a wife when she dies, therefore one of the essentials to the estate by the curtesy is missing. That argument runs through nearly all of the cases cited above that sustain the proposition that the husband forfeits his estate by the divorce. Whilst deferring to the weight of authority, we confess that we do not feel the force of that reasoning. It adheres too closely to the letter. It plays upon the word. It sticks in the bark. When the essentials to an estate by the curtesy were defined by Lord Coke, he did not have in his mind a modern statutory divorce. He addressed his definition to the marriage relation, its incidents and accidents, as contemplated by the common law. When he used the word "wife" in that connection, it was descriptive of a woman in the bonds of a legal marriage, which was not liable to be terminated on account of the misconduct of herself, or that of her husband. To apply the ancient definition to altered conditions would be equivalent to giving it a force its authors never contemplated. In 2 Bish. Mar. & Div. § 705, it is said: "But this divorce puts an end to all rights depending on the marriage, and not actually vested, as dower in the wife, curtesy in the husband, and his right to reduce to possession her choses in action." What the law writer there says is not entirely in accord with views heretofore expressed by this court, for he takes choses in action not reduced to possession out of the category of a husband's vested rights. We have held that a husband had by the common law such a vested right in his wife's choses in action as that the legislature could not by an act subsequent to his marriage destroy it. Leete v. Bank, 115 Mo. 194, 21 S. W. 788. In Porter v. Porter, supra, the Virginia court, in a learned opinion by Anderson, J., discuss the effect of a divorce on an estate by the curtesy, and show that the estate of a husband who is tenant by the curtesy initiate is an estate for life in his own right. Quoting from the old English authorities, the court point out the distinction between the estate of the husband in his wife's lands before issue born, when he held only in jure uxoris, and that which the law created for him after issue born, which he held by his own right; the one depending on the continuance of the marital relation; the other, not; the one liable to be defeated by the act of the wife; the other, only by that of the husband. The court...