Gladney v. Sydnor

• Decision Date: 24 February 1903
• Citation: 172 Mo. 318,72 S.W. 554
• Parties: GLADNEY et al. v. SYDNOR et al.
• Court: Missouri Supreme Court

72 S.W. 554

172 Mo. 318

GLADNEY et al. v. SYDNOR et al.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

CONSTITUTIONAL LAW — HOMESTEAD — HUSBAND'S RIGHT OF ALIENATION — INVASION OF VESTED RIGHT — CONSTITUTIONALITY OF STATUTE — ALTERATION OF WIFE'S REMEDY.

1. Subject to Rev. St. 1889, § 5435, permitting a wife to file a claim of homestead to lands occupied by herself and husband, after which he could not alienate without her consent, a husband had, prior to 1895, the right to alienate his homestead, subject only to the wife's dower. In 1895 the legislature enacted that the husband should be debarred from and incapable of selling, mortgaging, or alienating the homestead in any manner, and any such sale, etc., should be void. Held, that this act, in so far as it affected a husband's power over an existing homestead, was an invasion of his vested right, in violation of Const. art. 2, § 15, prohibiting laws retrospective in their operation.

2. The husband's right, prior to 1895, to convey the homestead without the wife's consent, was a vested right, though the wife might defeat it by taking the steps prescribed by Rev. St. 1889, § 5435.

3. The fact that the husband had not exercised such right would not warrant its invasion by the legislature.

4. The act of 1895 was not defensible as merely affecting the wife's remedy, as under it she was not required to proceed in any manner to bar the husband's power of alienation.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Suit by Clemanda Gladney and another against Thomas G. Sydnor and another. From an order dissolving a temporary injunction and a judgment dismissing the bill, plaintiffs appeal. Affirmed.

This was an action commenced by the appellants in the Lincoln county circuit court on the 3d day of October, 1899, to enjoin a sale under a certain deed of trust, and to cancel and hold for naught said deed. The petition contains substantially the following allegations: "First. Clemanda Gladney, the real plaintiff, stated that she was, and since 1859 had been, the wife of her coplaintiff, George W. Gladney; that Thomas G. Sydnor was the sheriff of Lincoln county, Missouri; that the land described in the petition, consisting of 173.74 acres, had been owned and occupied by George W. Gladney as a homestead for a great many years, all of it since 1884, and that during all that time plaintiff and George W. Gladney, as husband and wife, had owned and occupied the same as a homestead; that on the 25th day of May, 1897, George W. Gladney, without the knowledge and consent of plaintiff Clemanda Gladney, his wife, executed and delivered to George O. Hamilton, trustee, for the use and benefit of Ellen E. Wilson, a deed of trust, securing a note made payable to Ellen E. Wilson; that Clemanda Gladney, as the wife of George W. Gladney, did not join with George W. Gladney in the execution of said deed of trust, and that said deed of trust was on the land in plaintiff's petition described, being the 173.74 acres composing and comprising the homestead of George W. Gladney and Clemanda Gladney at that time; that the note described in said deed of trust was due; that George O. Hamilton, as trustee, had refused to act, and that defendant Thomas G. Sydnor, the then sheriff of Lincoln county, Missouri, under the provisions of said deed of trust, had the land advertised, and was threatening the sale of same. Plaintiff Clemanda Gladney further stated that since the 25th day of May, 1897, to wit, the 21st day of March, 1899, that the title to said land had been conveyed to her through mesne conveyance from George W. Gladney; that she, Clemanda Gladney, was now the sole owner of said land; that the deed of trust given by George W. Gladney to George O. Hamilton, trustee, was, under the laws as they now exist in the state of Missouri, absolutely void; but that, if Thomas G. Sydnor was permitted to sell and make a deed thereto, that it would cast a cloud over her title to the land, and that the deed of trust itself made by George W. Gladney, then on record, cast a cloud over her title. She therefore prayed for a judgment and decree of the court enjoining Thomas G. Sydnor, the acting trustee, from selling said land, and enjoining Ellen E. Wilson from attempting to carry into execution the said deed of trust made by George W. Gladney, and praying the court to cancel and hold for naught the said deed of trust. This petition was filed in the circuit court of Lincoln county, Missouri, and, the court not being in session, and no judge of the circuit court being in the county, a temporary injunction was issued on the 3d day of October, 1899, by the probate court of Lincoln county, Missouri. In the circuit court Ellen E. Wilson filed a separate answer, in substance as follows: Admitting that plaintiffs were husband and wife; admitting that George W. Gladney alone executed the deed of trust complained of on the 24th day of May, 1897, and admitting the record of the deed of trust as charged in the petition; denied the use of the land as a homestead; denied that Clemanda Gladney had become the bona fide owner of any portion of the land since the execution of the deed of trust; charging that, if Clemanda Gladney had obtained the title to any portion of the land from George W. Gladney, the same was without consideration, and the same was to defraud his creditors, and especially this defendant; admitting that defendant Sydnor was the sheriff of Lincoln county, Missouri, and had the land advertised for sale under the terms of said deed of trust; and denying each and every allegation in the petition; and, further answering, alleging that the deed of trust complained of was made to secure an indebtedness created by George W. Gladney prior to the 21st day of June, 1895, and alleging that up to the time of making said deed of trust George W. Gladney owned the land described therein, consisting of 173.74 acres, in his own right, and was then of the value of $4,000; alleging that Gladney owned the land prior to June 21, 1895, and as such owner and head of a family had and possessed a vested right and power, unrestricted by any act or deed or declaration of the said Clemanda Gladney, made or executed by her prior to the making of said deed of trust, to convey, alienate, or incumber the same, whether said land, or any part thereof, was a homestead or not; and that in the exercise of said right George W. Gladney made said deed of trust. Defendant Sydnor answered, stating that he was sheriff of Lincoln county, and at the request of defendant Ellen E. Wilson advertised the land for sale under the power of said deed of trust made by George W. Gladney to George O. Hamilton, trustee, said Hamilton having refused to execute said trust; and, further answering, said he had no knowledge or information as to the other allegations in plaintiffs' petition. Plaintiffs' reply to the separate answer of Ellen E. Wilson was a general denial of all new matter therein contained. Defendant then filed a motion to dissolve the temporary injunction granted by the probate court." Upon the trial of this cause the court sustained the motion to dissolve the injunction, and dismissed plaintiffs' bill. From this judgment this cause is brought here for review.

Norton, Avery & Young, for appellants. Martin & Woolfolk, for respondents.

FOX, J. (after stating the facts).

There is no dispute as to the testimony in this cause. It substantially appears from the evidence introduced that appellants were husband and wife, and had for many years been occupying the land in dispute, and were residing upon it at the time of the execution of the deed of trust in May, 1897. All the land involved in this suit was procured by the appellant Geo. W. Gladney prior to 1884, and he and his wife were occupying it continuously since 1884. Prior to June 21, 1895, Geo. W. Gladney borrowed two sums of money from the respondent Ellen E. Wilson, giving her two notes therefor. On the 24th of May, 1897, these two notes had not been paid, and amounted to $428.67. Geo. W. Gladney on that day — 24th of May, 1897 — took up the two old notes, and executed to Mrs. Wilson one note, including the aggregate amount of the old notes, and to secure the payment of the renewed note executed the deed of trust which is the subject of this suit. The appellant Clemanda Gladney, wife of Geo. W. Gladney, did not join with her husband in the execution of this deed of trust. It further appears that subsequent to the execution of the deed of trust by Geo. W. Gladney he and his wife, on the 21st day of March, 1899, executed a deed, conveying this same land (except 10 acres) to O. H. Avery, and on the same day O. H. Avery and wife conveyed the same land conveyed to him by Geo. W. Gladney and wife to Clemna Gladney. It is also disclosed by the record in this case that the land embraced in the deed of trust far exceeded the value of the "homestead," as defined by the statute. It is practically admitted that the deed from Geo. W. Gladney and wife to O. H. Avery was a voluntary conveyance, and without consideration. This is a sufficient reference to the testimony in order to indicate the vital questions involved in the controversy.

Under the well-settled law of this state, prior to the enactment of the statute of 1895, it is beyond dispute that the husband could sell or incumber the homestead, subject to the wife's inchoate right of dower, without the wife joining with him, except where the wife had filed her claim as provided by section 5435, Rev. St. 1889. This was clearly announced and determined in the cases of Greer v. Major, 114 Mo. 145, 21 S. W. 481; Tucker v. Wells, 111 Mo. 399, 20 S. W. 114; Kopp v. Blessing et al., 121 Mo. 391, 25 S. W. 757; Markwell v. Markwell, 157 Mo. 326, 57 S. W. 1078. In 1895 the legislature materially altered and changed the rights of the husband in respect to his right to incumber or sell the homestead. This change is embraced...