Frost v. Frost

• Court: Missouri Supreme Court
• Writing for the Court: Valliant
• Citation: Frost v. Frost, 98 S.W. 527, 200 Mo. 474, 118 Am. St. Rep. 689 (Mo. 1906)
• Decision Date: 21 November 1906
• Parties: FROST v. FROST.

98 S.W. 527

FROST v. FROST.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. HUSBAND AND WIFE — ESTATES IN ENTIRETY.

An estate in entirety owned by husband and wife remains, as at common law, an estate in which neither has an interest to the exclusion of the other, but each owns the whole while both live, and, at the death of either, the other continues to own the whole free from the claim of any heirs of the deceased.

2. SAME.

Rev. St. 1899, § 4340, declaring what shall be the separate property of a married woman and saying that it shall be "under her sole control," does not apply to estates in entirety.

3. SAME.

Where an estate in entirety was sold by husband and wife and he invested the proceeds, together with a sum of his own money in other land, he was bound to take title in the name of himself and wife as an estate in entirety to the proportion of the estate that their joint fund bore to the entire amount invested.

Appeal from Circuit Court, Cass County; W. L. Jarrott, Judge.

Bill by Rachel L. Frost against Daniel B. Frost to establish a trust in lands alleged to have been purchased with joint funds. From a judgment for plaintiff, defendant appeals. Reversed and judgment directed.

J. S. Brierly and T. N. Haynes, for appellant. A. A. Whitsett and C. W. Sloan, for respondent.

VALLIANT, J.

Plaintiff is the wife of defendant. There are two counts in her petition: In the first it is alleged that the plaintiff and defendant jointly owned certain land in Clinton county, each owning an undivided half, which they sold for $3,000; that defendant collected and appropriated to his own use the whole sum; therefore plaintiff asks judgment for $1,500, and interest. In the second count it is alleged that in 1888 plaintiff and defendant, being then husband and wife, and residing in Missouri, each owning "certain moneys" (how much each owned not stated), invested those moneys in certain real estate in Clinton county, "taking the title to said real estate in their names jointly, each owning an undivided half interest therein"; that in 1901 by their joint deed they sold the Clinton county land for $3,000, all of which sum came into the possession of defendant, and with it he purchased 200 acres in Cass county at the price of $6,000, paying therefor $4,000 cash, and executing a deed of trust for the remaining $2,000; that of the $4,000 cash, $3,000 was the proceeds of the Clinton county land, one-half of which plaintiff avers was her own separate estate; that at the time of the purchase of the Cass county land it was agreed between the plaintiff and defendant "that the deed should be made to plaintiff and defendant jointly, giving to each one his respective share or interest, in the same manner that the title to the real estate in said Clinton county was held," but that, in violation of that agreement, defendant, without the knowledge or consent of plaintiff, took the title in his own name, in consequence, by implication of law, a trust has resulted in plaintiff's favor. The prayer is that defendant be decreed to have taken the title, to the extent that her $1,500 represent the purchase money in the land, in trust for her use. There was also a prayer for general relief. The answer was a general denial, except the admission that plaintiff and defendant were husband and wife. The cause was tried by the court without a jury. There was a finding of the issues for the defendant on the first count, and judgment accordingly, from which there was no appeal; that count therefore is out of our way. On the second count the finding and judgment were for the plaintiff, the judgment being that the plaintiff recover of defendant $1,400 and interest, viz., $1,436.63, for which execution was awarded, and also that for satisfaction of the same the plaintiff should have a lien on the Cass county land. From that judgment, the defendant has appealed.

At the trial the plaintiff endeavored to prove that some of her money went into the purchase of the Clinton county land. Her proof on that point, however, was very vague and unsatisfactory. If she were here attacking the deed to the Clinton county land, seeking to reform it so as to establish a title by resulting trust in her favor on the ground that her husband used her money to purchase the land, her suit would fail, because her proof is not sufficient. But such is not the character of this suit; she is not attacking the Clinton county deed, and the defendant is not disputing its terms. Here the plaintiff comes alleging that she was the owner in fee as her separate statutory estate of an individual half of the Clinton county land, and relies on the deed conveying that land to her and her husband to prove that title. She says in her petition that, when that land was sold, it was agreed between her and her husband that the proceeds should be invested in the Cass county land, "and that the deed should be made to the plaintiff and defendant jointly, giving to each one his respective share or interest in the same manner that the title to the real estate in Clinton county was held." She stands on that Clinton county deed as it is, and avers that it gave her an undivided half of the land as her separate estate. But, when the deed was produced in evidence, it showed that the title was not as she alleged, but that it vested in her and her husband as an estate in entirety. Neither she nor her husband owned a half interest, they each owned the whole interest while both should live, and the survivor would have the whole when either should die. While they both lived in the marital relation she would have the equal enjoyment of the property with her husband, and, in that qualified sense, it might perhaps be said she had a half interest, but, in addition to that right, she had the contingent prospect of owning it all, and of that contingent right her husband could not deprive her. Washburn, speaking of estates in entirety, says: "But, if the estate is conveyed to them originally as husband and wife, they are neither tenants in common nor properly joint tenants, though having the right of survivorship, but are what are called `tenants by entirety.' While such estates have, like a joint tenancy, the quality of survivorship, they differ from that in this essential respect, that neither can convey his or her interest so as to affect the right of survivorship in the other. They are not seised, in the eye of the law, of moieties, but of entireties." 1 Washburn, R. P. (6th Ed.) p. 562. The common-law doctrine of estates in entirety is the law of this state. Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302; Bank v. Fry, 168 Mo. 492, 68 S. W. 348. The text-writer last above quoted, on the...