Fisher v. Nelson

• Decision Date: 25 November 1879
• Parties: SYLVESTER J. FISHER, Defendant in Error, v. GEORGE NELSON ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

8 Mo.App. 90

SYLVESTER J. FISHER, Defendant in Error,

v.GEORGE NELSON ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Nov. 25, 1879.

1. A conveyance of realty by a father and mother to their daughter for the term of the natural life of the latter, at an annual rental of one dollar, the former reserving to themselves, or either of them, a home on said premises during life, with free and absolute use and control of the same, passes to the daughter a freehold, giving her a life-estate; and after delivery of the instrument, the father has no such possessory right in the premises as is the subject of conveyance; nor has he such “control” of the premises as will authorize him to turn out his daughter, or to put a stranger in possession.

2. Under the statute, a husband cannot convey his interest in his wife's realty, unless by deed executed and properly acknowledged by her jointly with him.

ERROR to the St. Louis Circuit Court.

Reversed and remanded.

R. M. FOSTER, for the plaintiffs in error: As to wife's acknowledgment of conveyance.-- Wannall v. Kem, 51 Mo. 150; s. c. 57 Mo. 478. Clark v. Rynex, 53 Mo. 380. The instrument in question conveyed a freehold estate.-- Hallet v. Wylie, 2 Johns. 47; Thornton v. Payne, 2 Johns. 74.JOHN N. STRAAT, for the defendant in error: Any estate granted under the lease was a chattel real, which the husband could convey without the wife joining in the deed.-- Bryan v. Wear, 4 Mo. 106; Beal v. Harmon, 38 Mo. 435; 2 Kent's Comm. 342; 1 Bright's Husb. & W. 94-98.

BAKEWELL, J., delivered the opinion of the court.

On May 12, 1873, George Nelson and wife executed and delivered to their daughter Sarah, who afterwards intermarried with defendant, Henry Sylvester, an instrument by which, in consideration of natural love and affection, they did demise and lease to her the premises in question, “to have and to hold, to her, the said Sarah A. Nelson, and her assigns, during the term of her natural life,” at an annual rent of one dollar: “ Provided, however, that the said parties of the first part do hereby reserve unto themselves, or either of them, a home in and upon said premises for themselves, or either of them, during the term of their, or his or her, natural life, with the privilege of living upon said premises as a home, as aforesaid, for them or either of them, without any charges to be paid for said privilege to said party of the second part, or any other person, for the said term last aforesaid, with the full and free use and absolute control of said premises for said term, without any interference of said party of the second part, or any other person, just as they have been doing and living before the making of these presents. And if the said Sarah A. Nelson, by herself, her agent, or attorney, should deprive or attempt to deprive said parties of the first part, or either of them, of said home or said privilege, then this lease shall be void and of no effect.”

Afterwards, and after the death of Mrs. Nelson, George Nelson, Sarah his daughter, and her husband, Henry Sylvester, the defendants in the present action, executed a deed of trust to secure a note made by George Nelson. The certificate of acknowledgment to this instrument is defective as to Mrs. Sylvester, nothing being said as to any separate examination. This deed of trust was foreclosed, and the plaintiff became the purchaser at trustee's sale, and received a deed for the property, on which defendants were all living at...