Driskill v. Ashley

• Decision Date: 02 June 1914
• Docket Number: No. 16749.,16749.
• Citation: 259 Mo. 1,167 S.W. 1026
• Parties: DRISKILL v. ASHLEY.
• Court: Missouri Supreme Court

167 S.W. 1026

259 Mo. 1

DRISKILL v. ASHLEY.

No. 16749.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. HUSBAND AND WIFE (§ 193)—CONVEYANCES BY MARRIED WOMEN—VALIDITY.

Prior to the married women's act (Rev. St. 1889, § 1996), a conveyance by a married woman, in which her husband did not join, was void and passed no title.

2. HUSBAND AND WIFE (§ 193)—CONVEYANCES —VALIDITY.

Under Rev. St. 1879, § 669, declaring that a husband and wife may convey the real estate of the wife by their joint deed, a conveyance of the property of a wife, signed by the husband and acknowledged and certified, passes good title, particularly where the grantee remained in possession for many years, notwithstanding the husband was not named as one of the grantors, for he at most had only title by curtesy initiate.

3. ESTOPPEL (§ 93)—EQUITABLE ESTOPPEL.

A husband and wife conveyed land to plaintiff in 1888, but plaintiff failed to record his conveyance until 1909, one year after the husband and wife conveyed the same land to their son, the defendant. Plaintiff held possession of the land for some time by means of a church erected thereon, but it was not rebuilt after destruction by fire. Held that, though defendant put up a building on part of the land in ignorance of the boundaries, there was no estoppel preventing plaintiff from asserting his prior title.

4. REFORMATION OF INSTRUMENTS (§ 45)— RIGHT.

A reformation of a deed cannot be decreed on slight evidence, for the courts cannot deal lightly with the solemnly expressed terms of a written instrument.

Appeal from Circuit Court, Hickory County; C. H. Skinker, Judge.

Ejectment by Obediah Driskill against William A. Ashley. From a judgment for plaintiff, defendant appeals. Affirmed.

The following authorities were cited on behalf of plaintiff: Peter v. Bryne, 175 Mo. 233, 75 S. W. 433, 97 Am. St. Rep. 576; Dentzel v. Waldie, 30 Cal. 138; Pease v. Bidge, 49 Conn. 58; Stone v. Montgomery, 35 Miss. 83; Elliot v. Sleeper, 2 N. H. 525; Clark v. Clark, 16 Or. 224, 18 Pac. 1; Thompson v. Lovrein, 82 Pa. 432; Kelton v. Brown (Tenn. Ch.) 39 S. W. 541; Bonter v. North Cato, 20 U. C. C. P. 76; Hargis v. Ditmore, 86 Ky. 653, 7 S. W. 141; Stone v. Montgomery, 35 Miss. 107; Woodward v. Seaver, 38 N. H. 29; Carr's Lessee v. Lehugh, 1 Ohio Dec. 84; Johnson v. Montgomery, 51 Ill. 185; Miller v. Shaw, 103 Ill. 277; Yocum v. Lovell, 111 Ill. 212; Schley v. Pullman Palace Car Co., 120 U. S. 575, 7 Sup. Ct. 730, 30 L. Ed. 789; Evans v. Summerlin, 19 Fla. 858; Chapman v. Miller, 128 Mass. 269; Hills v. Bearse, 9 Allen (Mass.) 403; Child v. Sampson, 117 Mass. 62; Burge v. Smith, 27 N. H. 332; Ingoldsby v. Juan, 12 Cal. 564; Mead v. Billings, 10 Johns. (N. Y.) 99; Sterling v. Park, 129 Ga. 309, 58 S. E. 828, 13 L. R. A. (N. S.) 298, 121 Am. St. Rep. 224, 12 Ann. Cas. 201; Hrouska v. Janke, 66 Wis. 252, 28 N. W. 166; Friedenwald v. Mullan, 10 Heisk. (Tenn.) 266; Morgan v. Snodgrass, 49 W. Va. 387, 38 S. E. 695; Ochoa v. Miller, 59 Tex. 460; Dinkins v. Latham, 154 Ala. 90, 45 South. 60; Armstrong v. Stovall, 26 Miss. 275; Holleman v. De Nyse, 51 Ala. 95; 1 Devlin, Deeds (Ed. 1887) § 204; 3 Wash. Real Property, § 2120.

Henry P. Lay, of Warsaw, and W. L. Pitts and J. W. Montgomery, both of Hermitage, for appellant. F. M. Wilson and Rechow & Pufahl, of Bolivar, for respondent.

GRAVES, J.

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 $25, and monthly rents at $2.50. The answer was: (1) A general denial; (2) the ten years 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 $1. The judgment fixed the monthly rents at 25 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 $1. 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, § 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 et al. v. Byrne et al., 175 Mo. 233, 75 S. W. 433, 97 Am. St. Rep. 576, 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 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 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. (C. C.) 25 Fed. 890; Roberts v. McIntire, 84 Me. 362, 24 Atl. 867; Evans v. Summerlin, 19 Fla. 858; Stone v. Montgomery, 35 Miss. loc. cit. 107. After quoting from the foregoing cases, the learned judge then adds:

"Numerous other cases maintain the same position, with few exceptions. The expression of all the courts upon the question directly involved in the construction of this deed are harmonious. Ingoldsby v. Juan, 12 Cal. 564; Dentzel v. Waldie, 30 Cal. 138; Mardes v. Meyers 28 S. W. 693; Miller v. Shaw, 103 Ill. loc. cit. 292. There is a clear distinction between the cases where the husband undertakes to convey the real estate of the wife and the deed fails to disclose the wife as one of the grantors. As before stated, the wife labors under certain disabilities, and the courts, with the view of protecting her rights, insist that the instrument shall disclose the performance of every act on her part necessary to convey her estate. In the case of Hrouska v. Janke, 66 Wis. 252 , the principal cases relied upon by appellant in this case are reviewed, and the court announces that they are distinguishable from the cases of the character before us for determination. This deed should be construed in accord with the clear intention of the parties who executed it. Judge Burgess very appropriately said in case of Walton v. Drumtra, 152 Mo. loc. cit. 497 : `The rigid rules of construction applied to deeds and wills in former years have in modern times been somewhat modified so that deeds are now construed so as to carry into effect the intention of the parties thereto, and wills the intention of the persons executing them.' See, also, Mills v. Catlin, 22 Vt. 98. After 16 years of undisturbed possession of this property, under an instrument executed by the husband and wife, acknowledged by them to be their free act and deed, to hold that, because the husband's name does not explicitly appear in the introductory clause of the deed, it was invalid, because not jointly made, would, in our opinion, be doing violence to the spirit of the statute, as well as an absolute abandonment of substance and a complete surrender to form."

To get the real views of this court in the Peter Case, a short review of the cases...