Gaede v. Smith

• Decision Date: 03 December 1945
• Docket Number: 39414
• Citation: 190 S.W.2d 931,354 Mo. 738
• Parties: Donna Lea Gaede v. Sherman James Smith, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 931

354 Mo. 738

Donna Lea Gaede v. Sherman James Smith, Appellant

No. 39414

Supreme Court of Missouri

December 3, 1945

Appeal from Morgan Circuit Court; Hon. G. Derk Green Judge.

Affirmed.

T A. Shockley for appellant.

(1) Where husband purchasing realty has deed made to himself and wife, spouses become tenants by entirety, and presumption is that husband took deed as he did as gift for wife. Alexander v. Alexander, 44 S.W.2d 872; Hernandez v. Prieto, 162 S.W.2d 829; Hiatt v. Hiatt, 168 S.W.2d 1086. (2) A minor or insane person can be the grantee in a deed even without an order of the probate court and even though there is no actual acceptance, nor knowledge of the deed subject to the avoidance by the minor. 227 Mo. 262; 180 Mo. 709. (3) A deed, mortgage or lease by a minor or infant is not absolutely void, but is voidable by him or his heirs if the infant is not barred by estoppel or by limitation, or if deed is not avoided it is good. Shaffer v. Detie, 191 Mo. 389; Hamlin v. Hawkins, 61 S.W.2d 348. (4) Minors, if not estopped have two years after majority (and only two years) to void a deed. Sec. 3446, R.S. 1939. (5) The same rule applies to a minor even though a married woman. Holcomb v. Pressley, 301 Mo. 208. (6) Ratification of minority contract after majority, must be (1) in writing, or (2) by partial payment, or (3) by disposal of property, or (4) refusal to deliver property, R.S. 1939, Sec. 3358, or (5) by failing to disaffirm within statutory period by deed or written disaffirmance is acknowledged and recorded. Sec. 3446, R.S. 1939; Windisch v. Farrow, 159 S.W.2d 392.

A. J. Bolinger for respondent.

(1) The contract entered into between appellant and respondent wherein appellant waived all right to the farm was a valid and binding contract and after the execution of the same, the complete equitable title vested in respondent. Semon v. Illgenfritz, 15 S.W.2d l.c. 915; Speiser v. Speiser, 188 Mo.App. 328. (2) The fact that the contract was informal does not affect its validity. Vincent v. Means, 207 Mo. l.c. 715; Crites v. Crites, 225 Mo. 990. (3) Any presumption as to vesting of the estate by the entirety is rebuttable. Alexander v. Alexander, 44 S.W.2d l.c. 87. (4) Respondent being a minor when she accepted the deed and not being the maker of the deed is not bound by the two-years statute but has a right to seek relief at any time within the running of the general statute of limitations. 31 C.J. 1019. (5) The statute begins to run only after the removal of disability. Shipley v. Bunn, 125 Mo. l.c. 449. (6) The institution of the present suit was sufficient disaffirmance. 31 C.J. 1021; Parrish v. Treadway, 267 Mo. l.c. 99. (7) Where a wife already owns land and directs her husband's name to be inserted, the husband obtains no title. Powell v. Powell, 267 Mo. l.c. 125; Propes v. Propes, 171 Mo. l.c. 417; Snyder v. Elliott, 171 Mo. l.c. 370; Jones v. Elkins, 143 Mo. 647; Larrick v. Heatheman, 288 Mo. l.c. 376.

OPINION

Douglas, J.

This is an action to quiet title to land in Morgan County. In 1937 Donna, the plaintiff, married defendant who was a farm hand on her father's farm. Donna was then sixteen years old. Her father gave her a farm situated in Pulaski County where she lived with her husband. In 1940 the farm was sold to the United States for part of the Fort Leonard Wood reservation for $ 3,000. Donna, still being a minor, was represented in the sale by her father who was her curator. After the sale Donna and her husband and her mother and father all moved to Morgan County. She had two farms in view so her father arranged to buy both and took deeds in blank awaiting her choice between them. Donna finally decided on the "Nelson Farm." Her father completed the purchase of this farm with the funds received from the sale of the Pulaski County farm and gave her the deed with the grantee blank. A short time later on December 2, 1941, the deed was recorded showing the grantees to be "Donna Lea Smith and Sherman James Smith, her husband." Donna became of age on January 8, 1942.

In March, 1943 Donna and her husband made a written agreement, preparatory to separation, dividing the live stock and personal property, her husband waiving his rights in the farm. The live stock was sold and her husband took his share of the proceeds and went to California. In January, 1944 Donna obtained a divorce. Then she filed this action against her former husband.

Her husband filed a cross action claiming the farm was deeded to him and his wife as tenants by the entirety, that they became tenants in common after the divorce, and asked for partition. Donna filed an amended petition stating her husband inserted his name in the deed as a grantee without her knowledge or consent. that the farm was paid for entirely by her funds, that she at no time intended to give him any interest in it and that he had relinquished whatever claim to it he may have had by the separation agreement. The court found for Donna and her husband appeals.

The rule is well settled that when real estate is purchased by the husband and deeded to both the husband and wife as tenants by the entirety a presumption arises that the husband intended to give his wife such interest in the real estate. However, this is a rebuttable presumption and may be overcome by clear and positive evidence. Hiatt v. Hiatt (Mo.), 168 S.W.2d 1087; Alexander v. Alexander (Mo. App.), 44 S.W.2d 872; Hernandez v. Prieto, 349 Mo. 658, 162 S.W.2d 829. The same rule applies where the wife is the purchaser and takes a deed to herself and her husband. See Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108.

There appears to be no dispute that the deed received by Donna's father was blank as to the grantee. However, the evidence sharply conflicts concerning the insertion of the husband's name. But in view of the separation agreement it is unnecessary to resolve this issue.

Donna and her husband signed a written agreement, prepared by Donna who had been a school teacher, disposing of all their personal property between them and by which her husband agreed "to waive all rights on the 80 acres known as Nelson place." There can be no...