Fontaine v. Boatmens' Sav. Inst.
| Decision Date | 31 October 1874 |
| Citation | 57 Mo. 552 |
| Parties | ANN FONTAINE, Plaintiff in Error v. THE BOATMENS' SAVINGS INSTITUTION, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Circuit Court.
Dryden & Dryden, and M. Kinealy, for Plaintiff in Error.
I. Seizin in law of an estate of inheritance by the husband entitles the wife to dower.
It being admitted by the defendant, that at the date of the deed of 10th July, 1835, from Louis Provenchere and wife to Felix Fontaine, Provenchere was seized in fee of the ground demanded, that deed was sufficient in law to transfer a like estate and seizin of the premises in dispute to Fontaine the grantee. The seizin given by the deed was at least prima facie such as would entitle the wife of the grantee to dower.
Beneficial seizin for an instant entitles the widow to dower at common law. .)
II. It is however insisted by the defendant that Fontaine's seizin was merely transitory and not a beneficial seizin. Seizin is transitory where the same act or instrument which gives the grantee the estate conveys it away from him or deprives him of it.
If Fontaine's seizin was but transitory, as is insisted, it is matter of defense, and the burden of proving it, and of thus overturning the plaintiff's prima facie case, rests upon the defendant.
III. The law raises no presumption of mere transitory seizin, in this case.
1st. A deed having been shown to have been delivered, in the absence of proof to the contrary the law presumes it to have been delivered on the day of its date. (Caldwell vs. Garner, 31 Mo., 134; 6 Peters, 124; 14 Pet., 322; 4 East., 477; 5 B. and Ald., 902.) Under this principle the deed to Fontaine was delivered one day before the delivery of the one from him, and therefore his seizin was neither transitory nor instantaneous. 2nd. Prima facie the deed to Fontaine was founded upon the consideration expressed in it; if it was founded upon the consideration expressed in it, then the two deeds were not parts of one and the same transaction, but were separate and distinct.
IV. The deposition of Mrs. Fontaine was inadmissible because: 1st. It really proves nothing relevant save what stands admitted: 2d. It was offered for the purpose of showing that Fontaine, the husband, took the conveyance from Provenchere as a trustee. It is therefore an attempt to prove the existence of a trust created by express contract, concerning lands, by parol testimony. As no fraud, or fraudulent or other representations of Fontaine are alleged or proved, the trust, if any, is within the Statute of Frauds and parol evidence is inadmissible. (Brown Frauds, §§ 94, 95; Chiles vs. Woodson, 4 Bibb, 102; Stephens vs. Cooper, 1 John Ch., 429; Squire vs. Harder, 1 Paige, 494; Id., 562; Newton vs. Sly, 15 Mich., 391.)
Lackland, Martin & Lackland, for Defendant in Error.
I. Where the seizin of the husband is instantaneous, or he is a mere conduit through which to pass the title to accomplish an ulterior design, the wife is not entitled to dower.
II. The seizin of the husband is transitory or instantaneous where the same act or transaction which gives him the estate conveys it out of him, or where he takes a conveyance in fee, and at the same time re-conveys in mortgage to secure the purchase money. (Greggs vs. Smith, 7 Halst., 22; Mayberry vs. Brien, 15 Pet., 21; Craft vs. Craft, 2 McCord, 54; Holbrook vs. Finney, 4 Mass., 556; Staw vs. Teft, 15 Johns., 458; Coats vs. Cheever, 1 Cow., 460.)
III. Where both instruments are executed at the same time, between the same parties, relative to the same subject matter, they both constitute the same transaction. It is immaterial that they bear different dates, provided they are delivered at the same time.
IV. The deed from Louis Provenchere and Catharine his wife to Felix Fontaine, bears date July 10, 1835. The deed from said Felix to Deronin, trustee of said Catharine, is dated July 11, 1835. Both deeds were acknowledged before the same officer July 11, 1835, and filed for record and recorded on the same page of the same book in the recorder's office on the date last aforesaid. In such case, the law presumes that both deeds were executed and delivered July 11, 1835, and constitute one transaction. (Cunningham vs. Knight, 1 Barb., 399; McGowan vs. Smith, 44 Barb., 232, and cases above cited.)
V. The title did not pass from Provenchere to Fontaine; nor from him to Deronin, until the deeds were delivered. The legal presumption is that they were not delivered until they were acknowledged. Both were acknowledged on the same day, before the same officer, and both filed for record on the same day upon which they were acknowledged. The record of a deed is prima facie evidence of its delivery. The only evidence on this point, contained in the record, proves that both deeds were executed, delivered, and filed for record on the same day, and therefore make but one transaction, as they relate to the same property.
VI. We submit that the proper legal construction of the deeds above mentioned is, that Felix Fontaine was never beneficially seized of the premises described in the petition, or any part thereof, so as to entitle his wife to dower; but that the seizin was only instantaneous and transitory; that he was only used as a mere conduit to pass the title out of Louis Provenchere into Deronin in trust for the sole use of the wife of the said Louis, and the heirs of her body.
VII. The deposition of plaintiff and the statement of Babcock were competent evidence. Although it may be true that defendant is estopped from saying that said Felix was not seized of any estate whatever, it is permitted to show the nature or character of the seizin. It may be shown, even by parol proof, that he was only seized of an implied or resulting trust.
It is true the recital of the consideration of $2,000.00 in the deed from said Louis and wife to said Felix, may be conclusive for the purpose of passing the title from the grantors to the grantee; but it is not conclusive for any other purpose. As to the question whether the said Felix did in fact pay said Louis $2,000, or any other sum for the land, this recital is regarded as a mere receipt, which is only prima facie evidence and may be rebutted, contradicted or explained by oral testimony. Provenchere might have sued Fontaine, and, notwithstanding the recital in the deed that the money had been paid, he would have been allowed to prove it was still due and unpaid.
This court has repeatedly held, that the grantor in a deed conveying a fee simple absolute, acknowledging the receipt of the consideration, is not estopped from showing a different consideration than that mentioned in the deed; and it is difficult to see why the same privilege does not extend to the grantee. (Rabsuhl vs. Lack, 35 Mo., 316; Peacock's Administrator vs. Nelson, 50 Mo., 256; Farnum vs. Loomis, 2 Oregon, 29; Fenstonevs. Same, 2 Ohio, N. S., 415; Emerson vs. Harris, 6 Met., 475; Smith vs. Addleman, 5 Blackf., 406; Worsham vs. Callison, 49 Mo., 206.)
This was a suit for the assignment of dower under the statute. The petition averred that the plaintiff was the wife of Felix Fontaine, who died in 1849, and, that during the coverture the said Felix was seized in fee of the premises described, and that she was entitled to dower therein.
The answer denied that the said Felix was ever seized of such an estate in said premises as to entitle plaintiff, as his wife, to dower.
On the trial in the Circuit Court the defendant admitted that one Louis Provenchere was seized in fee of the premises on the 10th day of July, 1835. Plaintiff then read in evidence a deed executed by Provenchere and Catharine, his wife, dated July 10th, 1835, conveying the premises to Felix Fontaine, for the expressed consideration of $2,000. This deed was acknowledged before Hough, a justice of the peace, on the 11th day of July, 1835, and recorded on the same day.
Plaintiff further read in evidence, a deed executed by Felix Fontaine alone, conveying the premises to one Francois Deronin in trust, for the sole use of Catharine Provenchere, the wife of Louis, and the heirs of her body. The consideration in this deed was stated to be twenty-five dollars, and it was dated and acknowledged before the same officer, and recorded July 11, 1835. Defendant admitted that plaintiff was the wife of Felix Fontaine on the 11th day of July, 1835,...
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