Fariss v. Coleman

• Decision Date: 09 March 1891
• Citation: 15 S.W. 767,103 Mo. 352
• Parties: FARISS v. COLEMAN.
• Court: Missouri Supreme Court

15 S.W. 767

103 Mo. 352

FARISS v. COLEMAN.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

DOWER — HOW BARRED — ACTIONS — INSTRUCTIONS.

1. By an antenuptial contract it was agreed that the property then owned or which may be thereafter acquired by the parties should not be affected by said marriage, and that neither should have any interest in the property belonging to or thereafter acquired by the other. There was no agreement that the husband should give to or settle on his intended wife any property, and she owned none at the time of the contract. Held, under Rev. St. Mo. 1879, § 2201, providing that if any woman shall receive any property by virtue of an antenuptial contract, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of dower, it should be a bar to dower in the estate of her husband, that such contract did not bar the wife's dower.

2. A decedent, during his life-time, had conveyed certain property to his wife and some of his children separately. After his death another child claimed a share therein, whereupon a contract reciting the matters in dispute was signed by the wife and children, which provided that the title of certain land of which decedent died seised should vest in the parties in certain proportions, and that "all titles to lands and all property which formerly belonged to the said [decedent,] and which now stands in the names of the respective parties hereto of record, or which belongs to either growing out of agreements in writing made during the life-time of the said [decedent,] are confirmed and ratified." Held, that such agreement did not operate as a release of the wife's right of dower in land conveyed by decedent to one of the parties, in which conveyance the wife did not join.

3. In an action for dower it appeared that a judgment foreclosing a mortgage on the land in question was rendered before plaintiff's marriage, but the sale was not made until after it. The property passed by mesne conveyance, reciting as a consideration the amount of the foreclosure judgment to one C., the deceased husband's son-in-law, who purchased at the request of decedent. There was evidence that C.'s grantors held the title for decedent. The court charged that if the purchaser at the foreclosure sale purchased the property under an agreement with decedent, and held the property for him when the marriage took place, then plaintiff was entitled to dower. Held, that such instruction was erroneous, as not supported by the evidence.

4. The limitation prescribed by the Missouri statute in actions for the recovery of land makes no exception where plaintiff is ignorant of his rights, and it is error to charge, in an action for dower, that plaintiff cannot recover if defendant has been in possession of the land for the statutory period after the husband's death, unless the jury also find from the evidence that the husband owned the land, concealed such ownership by fraud from the plaintiff, and that she did not discover that fact within 10 years preceding the bringing of the action.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Hitchcock, Madill & Finkelnburg, for appellant. Wm. B. Thompson and C. S. Hayden, for respondent.

BLACK, J.

This is an action commenced on the 19th November, 1881, by Jane C. Fariss and her present husband against William T Coleman for the assignment of dower and for damages for the detention thereof. The plaintiff prevailed in the circuit court, and the defendant appealed. It is admitted by the pleadings that the plaintiff, whose name was then Jane C. Waters, and Daniel D. Page were married on the 3d July, 1866, and continued to be husband and wife until the month of April, 1869, at which time Page died. The petition, as amended on the trial, states that Page was possessed and seised during the marriage of a leasehold estate in the north half of block 59 of the city of St. Louis, having a front on Market street of 306 feet, to which the plaintiff never released her dower. The answer denies the alleged seisin of Page, and then pleads several matters, with a view of showing that, even if Page was seised of the premises during marriage, still the plaintiff is barred of her dower. The matters thus pleaded are in substance these: First, an antenuptial contract; second, a contract made by the plaintiff and the heirs of Page on the 2d June, 1869, after the death of Page, and known as the "Chauvin Claim Contract;" third, the statute of limitations. The plaintiff by her reply admits the execution of the marriage contract, but denies that it constitutes any bar to this action, and she goes on to state that it was procured from her by fraud and deception; that Page had failed in business, and, to cover up the property in question from his creditors, allowed the title to stand in the name of Louis A. Benoist; that to defraud plaintiff out of her dower he stated when the marriage contract was made that he possessed no real estate, and but little personal property; that she signed the contract believing the statement to be true; that she did not know that he owned this property until a short time before the commencement of this suit; and that Page concealed from her the fact that he owned the property during the period of her coverture. She admits signing the Chauvin deed, but says it has nothing to do with the property in question, and that it was procured by fraud and imposition practiced upon her. Adverse possession, as alleged, is also denied.

1. The pleadings, it will be seen, present many matters of defense, and the evidence took a still wider range. In the view we take of this case, it is necessary at the outset to eliminate a vast amount of matter which constitutes no defense whatever; and, first, as to the antenuptial contract. At the time the plaintiff and Page were married, — July 3, 1866, — she was a widow lady in the prime of life, and had several children. Page was an old man and had two daughters; one married to the defendant, Coleman, and the other to Mr. Bacon. He also had a son, named Francis. Page and Mr. Bacon had been partners in the banking business, but had failed, and owed large sums of money. Thus matters stood when the marriage contract was executed. The plaintiff testified that when she contemplated marriage with Mr. Page he was asked if he had any property which he could settle upon her, and he said he had no property; that he had turned all of his property over to his creditors; that he had made some money after the failure, and was able to take care of her; that he then promised to give her $50,000 in gold, and said they would make a marriage contract which would protect her. The contract begins with this recital: "Whereas, a marriage is contemplated between Daniel D. Page and Jane Catharine Waters, both of the city of St. Louis and state of Missouri; and whereas it is agreed between said parties that the property now owned or which may be hereafter acquired by each, shall not be affected by said marriage, and that neither party shall have any interest in the property belonging to or hereafter acquired by the other; and whereas said Page is desirous that the said property of his intended wife shall be settled on her for her sole and separate use, free from his interference or control, and not subject to any debt of his." The substance and effect of the stipulation following this preamble is that Jane C. Waters assigns and conveys to Samuel Gaty, in trust, all of the property, real and personal, which she then had or might thereafter acquire by gift, devise, or purchase, for her sole and separate use, free from the control or debts of her intended husband. The contract concludes with these words: "The said parties of the first and third parts hereby agree with each that neither party shall by virtue of such marriage have or acquire any right, title, interest, or estate, present or future, in the property of the other, but such property shall remain as if the party to whom it belongs was sole and unmarried. The said Daniel D. Page hereby grants unto the said Jane Catharine Waters full power to make a last will and testament, and assents to the said trust hereby created." The proof shows that the plaintiff had no property, real or personal, at the date of the contract, or at the date of the marriage. During the marriage Page caused the title to several parcels of real property to be placed in her name. The evidence tends to show that during that time she received from him stocks and bonds to the amount of $20,000 or more. On the other hand, she says she never received any part of the $50,000 which Page promised to give her. It is not claimed that any money or property was ever placed in the hands of Gaty, to be held in trust for her sole and separate use. The trial court gave the jury various instructions on the subject of this marriage contract. Those given at the request of the plaintiff proceed upon the theory that to bar dower by reason of property given to plaintiff by Page the...