Driskill v. Ashley
| Decision Date | 02 June 1914 |
| Parties | OBEDIAH DRISKILL v. WILLIAM H. ASHLEY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Hickory Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
Henry P. Lay, W. L. Pitts and J. W. Montgomery for appellant.
(1) Prior to the Married Woman's Act of 1889, the deed of a married woman in which her husband did not join was void, and did not convey her land. Sec. 609, R. S. 1879; Huff v Price, 50 Mo. 228; Bartlett v. O'Donoghue, 72 Mo. 563; Sutton v. Casseleggi, 77 Mo. 404. To constitute the husband a party grantor to his wife's deed it was necessary that he be described as grantor, either expressly or by necessary inference. It was not sufficient that he sign and acknowledge. Jewett v. Davis, 10 Allen (Mass.), 68; Bradley v. Railroad, 91 Mo. 498; Whitley v. Stewart, 63 Mo. 360; Martindale on Conveyancing (Ed. 1882), 62; 9 Am. & Eng. Ency. Law (2 Ed.) 111. Under these authorities it is necessary that the husband be joined in the deed as joint grantor; for if he only signed and acknowledged it it is presumed that the wife alone was intended to be the grantor. 9 Am. & Eng. Ency. Law (2 Ed.) 111; Jewett v. Davis, 10 Allen (Mass.), 68. The later case of Peter v. Byrne, 175 Mo. 233, is not in conflict with the foregoing authorities. (2) The deed of a wife, executed prior to 1889, to her husband, or to her husband jointly with others, did not convey the legal title to her land, and would not support ejectment. That this is true as to a deed from the wife to the husband is elementary, and needs no citation of authorities. We have found no case where the wife attempted to convey to her husband jointly with another. It is inconceivable, however, that such a deed, under the law as it stood prior to 1889, would have passed the legal title either to the husband or his joint grantee. In 1888, it was conclusively presumed that the wife needed protection in her dealings both with her husband and with strangers, and that a deed from her, in which he did not join as a party with her, and not against her, was ineffective to pass her title. (3) It being conceded that the land in controversy was in fact dedicated to the public for religious purposes; and it further conclusively appearing that such use entirely ceased at least fourteen years before the institution of this suit, the title to the land with the right to possession thereof reverted to the donor, even though no express provision for such reversion was contained in the deed. Campbell v. Kansas City, 102 Mo. 326. (4) A deed will be reformed to conform to the actual intention of the parties, clear proof of such intention being furnished. Crawley v. Crafton, 193 Mo. 421; Williamson v. Brown, 195 Mo. 313. (5) The plaintiff and Clement S. Driskill, as trustees, constituted but one person, as respecting the property in question. They had no separate rights in relation to it, and the plaintiff cannot maintain an action to recover it without making his co-trustee a party, either plaintiff or defendant. Nor will a judgment in his favor for a half interest be upheld. Brinckerhoff v. Wemple, 1 Wend. (N.Y. Com. Law) 474; 28 Am. & Eng. Ency. Law (2 Ed.), 986. (6) The deed under which plaintiff seeks to recover, while dated in 1888, was not filed for record until August 24, 1909, one year after defendant's deed was filed, and long after the improvements were made on the land, and there is no evidence that the defendant had actual notice thereof; said deed is therefore invalid as to him. Sec. 2811, R. S. 1909; Fox v. Hall, 74 Mo. 315; Hickman v. Green, 123 Mo. 166.
F. M. Wilson and Rechow & Pufahl for respondent.
A deed by a married woman of her real estate, where the husband joins in the execution, signing, acknowledgment and delivery of such deed, is sufficient to transfer the title, notwithstanding the fact that the husband's name does not appear in the body of the deed. Peter v. Byrne, 175 Mo. 233; Dentzel v. Waldie, 30 Cal. 138; Pease v. Ridge, 49 Conn. 58; Stone v. Montgomery, 35 Miss. 83; Elliot v. Sleeper, 2 N.H. 525; Clark v. Clark, 16 Ore. 224; Thompson v. Loverein, 82 Pa. 432; Bonter v. North Cato, 20 U. C. C. P. 76; Hargis v. Ditmore, 86 Ky. 653; Woodward v. Seaver, 38 N.H. 29; Johnson v. Montgomery, 51 Ill. 185; Miller v. Shaw, 103 Ill. 277; Yocum v. Lovell, 111 Ill. 212; Schley v. Pullman Co., 120 U.S. 575; Evans v. Summerlin, 19 Fla. 858; Chapman v. Miller, 128 Mass. 269; Hillis v. Bearse, 9 Allen, 403; Child v. Sampson, 117 Mass. 62; Burge v. Smith, 27 N.H. 332; Ingoldsby v. Jean, 12 Cal. 564; Mead v. Billings, 10 Johns. 99; Hrouska v. Janke, 66 Wis. 252; Friedenwold v. Mullan, 10 Heisk. 266; Morgan v. Snodgrass, 49 W.Va. 387; Ochoa v. Miller, 59 Tex. 460; Armstrong v. Stovall, 26 Miss. 275; Holeman v. De Nyse, 51 Ala. 95; 1 Devlin on Deed (Ed. 1887), sec. 204; 3 Wash. Real Property, sec. 2120.
This is an action in ejectment for one acre of land in Hickory county. The petition is in the ordinary form, laying ouster as of February, 1910, and alleging damages in the sum of twenty-five dollars, and monthly rents at two dollars and fifty cents. The answer was (1) a general denial, (2) the ten-year Statute of Limitations, (3) estoppel, and (4) an affirmative defense for the reformation of the deed under which the plaintiff claims title to the property. Upon a trial before the court, the plaintiff had judgment for the recovery of an undivided one-half interest in the land and for damages in the sum of one dollar. The judgment fixed the monthly rents at twenty-five cents. Several questions are suggested in the brief of the learned counsel for the defendant, and the pertinent facts will be stated in connection with the points made. This sufficiently outlines the case.
I. It is urged the trial court erred in admitting the deed upon which plaintiff relied for title. The admitted common source of title is Rachel Ashley. In November, 1888, Rachel Ashley made a warranty deed to the land in dispute to the plaintiff, Obediah Driskill, and Clement S. Ashley. Clement S. Ashley was her husband. He signed and acknowledged the deed, but his name does not appear in the deed as one of the grantors. The deed recites a consideration of one dollar. The defendant objected to the introduction of this deed, because it was made prior to the Married Woman's Act of 1889, and is, as such defendant claims, a conveyance by the wife alone, which class of conveyance in 1888, it is urged, was void. This is urged as one of the big and vital points in the case. It should be conceded that in 1888 the deed of a married woman, in which the husband did not join, was void and conveyed no title to the purported grantee. [Huff v. Price, 50 Mo. 228; Bartlett v. O'Donoghue, 72 Mo. 563; Sutton v. Casseleggi, 77 Mo. 397.] This concession, however, does not settle the point involved. The real question is whether or not this is the sole deed of the wife, or, to state it differently, whether or not the husband did join the wife in this conveyance. He signed the deed, and he acknowledged the deed. His name appears in the acknowledgment, as well as at the bottom of the deed. The statute then in force (R. S. 1879, sec. 669) so far as applicable reads: "A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her husband, by their joint deed, acknowledged and certified as herein provided."
The question therefore is, whether under this statute the name of the husband must appear in the body of the deed as a grantor. At most the husband had but curtesy initiate in the premises. The land was held by the wife as her separate legal estate. We are impressed with the idea that the weight of authority is against the contention of defendant's learned counsel as to the validity of this deed. The question is practically settled by the case of Peter v. Byrne, 175 Mo. 233, 75 S.W. 433, wherein Fox, J., collects the authorities from other States. There is but a slight difference between the deed under review there and the one with which we have to deal. In that deed the grantor named was "Sarah M. Peter, wife of Americus Peter." The italicized words are merely descriptive of the person, but in their use lies one of the differences between that deed and the one at bar. The other difference is that the plurals "parties of the first part" are used throughout the deed, whereas in the deed before us the singulars are used. Nowhere was the name of the husband, Americus Peter, used in the body of the deed, although he signed and acknowledged it, as did the husband in this case. In the Peter-Byrne case our Brother Woodson, then presiding nisi, held that such deed conveyed a good title, and his judgment was affirmed here in a carefully written opinion by our Brother Fox, wherein the authorities are exhaustively reviewed. It is urged now that the Peter-Byrne case is not in point, because of the difference between the two deeds which we have pointed out, but this contention cannot prevail in the view of the reasoning of Judge Fox, and the authorities he cited with approval. He cites with approval and quotes from the following cases: Elliot v. Sleeper, 2 N.H. 525; Woodward v. Seaver, 38 N.H. 29; Pease v. Bridge, 49 Conn. 58; Schley v. Pullman Car Co., 25 F. 890; Roberts v. McIntire, 84 Me. 362; Evans v. Summerlin, 19 Fla. 858; and Stone v. Montgomery, 35 Miss. 83, 107. After quoting from the foregoing cases the learned judge then adds:
To continue reading
Request your trial