Evans v. Morris

• Decision Date: 11 April 1911
• Citation: 136 S.W. 408,234 Mo. 177
• Parties: EVANS et al. v. MORRIS et al.
• Court: Missouri Supreme Court

136 S.W. 408

234 Mo. 177

EVANS et al. v. MORRIS et al.

Supreme Court of Missouri, Division No. 2.

April 11, 1911.

1. ACKNOWLEDGMENT (§ 6)—CONVEYANCE— ACKNOWLEDGMENT BY MARRIED WOMAN.

A deed executed by a married woman to her husband on December 9, 1882, the acknowledgment of which did not recite that she was examined apart from her husband, and acknowledged that it was executed freely and without undue influence by him, as required by the statute then in force, conveyed no title.

2. INFANTS (§ 39)—SALE OF LAND—ORDER APPOINTING CURATOR.

The order appointing a curator in proceedings to sell the interest of minors in an estate was not objectionable so as to invalidate the sale in not reciting the minors' names.

3. HUSBAND AND WIFE (§ 193)—DEEDS BY WIFE—JOINDER OF HUSBAND—NECESSITY.

Under Rev. St. 1899, § 4335, now Rev. St. 1909, § 8304, making a married woman a feme sole so far as to enable her to transact business on her own account, to contract and be contracted with, to sue and be sued, etc., without her husband being joined, a married woman 18 years of age can convey land without joinder in the deed by her husband.

4. SPECIFIC PERFORMANCE (§ 24)—CONTRACTS ENFORCEABLE.

A contract executed by a married woman in her husband's personal presence and with his oral consent to convey her interest in land in consideration of a sum received by her when the contract was signed could be specifically enforced against her children.

5. CURTESY (§ 9)—TITLE OF WIFE.

A wife's right of action to establish a resulting purchase-money trust against her father in land which was in his adverse possession under a deed not giving the daughter any interest was insufficient to support a curtesy right in her husband.

6. TENANCY IN COMMON (§ 3)—TITLE OF HEIRS.

Decedent's children by his second marriage are tenants in common with the children of his first marriage as to land in which they both inherit an interest.

7. HOMESTEAD (§§ 141, 142)—PROPERTY CONSTITUTING HOMESTEAD—PROPERTY HELD IN TRUST.

The widow and children of a second marriage are not entitled to a homestead in property held by decedent under a resulting trust in favor of the children of his first marriage.

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by Dora E. Evans and others against Margaret A. Morris and others. From a judgment in part for plaintiffs, defendants appeal. Reversed and remanded for new trial.

The establishment of a resulting trust in 86 acres of land in Linn county, Mo., is sought.

One George M. Morris, late of Linn county, was twice married. Plaintiffs are his children and grandchildren through his marriage with Nancy Morris, his first wife. The defendants are his widow and children by his second marriage, except defendant Sarah J. Gash, who is a daughter by the first marriage. Plaintiffs were partially successful at the trial below, the court decreeing the title as follows: To plaintiff Evans, 122/450; to plaintiff Shiflet, 122/450; to plaintiff Oliver Mate Gash, 61/450; to defendant Sarah J. Gash, 14/450; to the defendants Marion Morris, Edward Morris, Lola Morris, Ivy Morris, and Alpha Morris (the last-named five being children of the second marriage), 14/450 each; and to Margaret Morris, widow of George M. Morris, a lien of $100 upon the interests of Ella Elsie Gash and Oliver Mate Gash. There was a finding in favor of plaintiff Ella Elsie Gash, but no interest awarded to her. From this decree, defendants appeal.

The decree below is erroneous in many particulars —both as to form and substance. While it is our custom in suits of this character to retry the cause and direct the lower court to enter such judgment as it should have given, it is impossible for us to do so in this case, on account of the indefinite and unsatisfactory nature of the evidence. Some of the errors in the decree entered below arise from an erroneous construction of deeds offered in evidence; and we will construe these deeds so that proper effect may be given to them upon a retrial.

A. W. Mullins and Bailey & Hart, for appellants. Bresnehen & West, for respondents.

BROWN, J. (after stating the facts as above).

The claims of the plaintiffs to the 86 acres in controversy result from the investment therein of the proceeds of a 60-acre tract in which they held part of the title. Consequently, to determine plaintiffs' rights in the 86 acres now in dispute, we must first ascertain what interest they held in the 60 acres.

The title of plaintiffs in the 60-acre tract was vested in the following manner: First, a deed from George M. Morris to Nancy Morris, his wife, dated December 25, 1879. This conveyance vested in Nancy Morris (the ancestor of plaintiffs) a separate equitable estate, which upon her death ripened into a legal estate in her children, subject to the curtesy right therein of her husband, unless the next conveyance hereinafter mentioned transferred the title back to her husband. Pitts v. Sheriff, 108 Mo. 110, 18 S. W. 1071; Stark v. Kirchgraber, 186 Mo. 633, loc. cit. 641, 642, 643, 85 S. W. 868, 105 Am. St. Rep. 629; Miller v. Quick, 158 Mo. 495, 59 S. W. 955. On December 9, 1882, said Nancy Morris made a conveyance of the above-mentioned 60 acres to her said husband, George M. Morris. The validity of this deed is challenged, first, on the ground that Mrs. Morris could not convey her interest in this land without her husband joining her; and, second, that the acknowledgment does not recite that she was examined apart from her husband. The acknowledgment is as follows: "State of Missouri, County of Linn— ss.: Be it remembered that on the 9th day of December, A. D., 1882, before the undersigned, a justice of the peace, within and for the county of Linn, aforesaid, personally came Nancy Morris, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument of writing as the party thereto, and acknowledged the same to be her act and deed for the purposes therein mentioned. In testimony whereof I have hereunto," etc. (Signature omitted.)

It is unnecessary to determine whether or not Mrs. Morris possessed the power to make this deed without her husband joining her as a grantor therein. The law in force when it was executed prescribed that her acknowledgment thereto should recite that she was made acquainted with its contents, and that upon an examination apart from her husband she acknowledge that it was executed freely and without compulsion or undue influence on his part. It will be seen that this acknowledgment contains no such recitals; and, for aught that appears, the husband may have been personally present at the very time the officer took and certified the same. The husband being the grantee in this deed, the reason of the law which then required a separate examination applied with more force than if the deed had been made to a stranger. The execution of this deed not being proven and certified, as required by law, it conveyed no title, and the trial court did not err in excluding it. Section 681, Rev. St. 1879; Goff v. Roberts, 72 Mo. 570, loc. cit. 572; Bagby v. Emberson, 79 Mo. 139. The law which dispensed with separate examinations of married women in taking their acknowledgments was first enacted in the year 1883, and took effect July 1st of that year. Acts 1883, p. 20. Nancy Morris retained the title to this 60-acre tract until December 22, 1882, when she died intestate, and was survived by her husband and five daughters, to wit: Dora E., Isabella E., Sarah J., Eliza E., and an infant (name not given). This infant survived its mother only three months. The plaintiffs in this case are children and grandchildren of said Nancy Morris, as follows: Dora E., who intermarried with one Evans; Eliza E., who intermarried with one Shiflett; Ella Elsie Gash and Oliver Mate Gash, children of Isabella E., who intermarried with one Edward Gash, and died before the institution of this suit. Edward Gash also asserts a claim of curtesy through his deceased wife, Isabella. Sarah J. Gash, the remaining daughter of Nancy Morris, was made a party defendant herein, for reasons which will hereafter appear. It will thus be seen that, upon the death of the infant child of Nancy Morris, the title to the 60 acres became vested as follows: A life estate by the curtesy in the husband, George M. Morris; remainder 6/25 in each of the four...