Hach v. Rollins
| Decision Date | 12 November 1900 |
| Parties | HACH v. ROLLINS et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Affirmed.
Geo. L Edwards and J. J. O'Donohoe for appellants.
(1) Plaintiff's petition does not state facts sufficient to constitute a cause of action. R. S. 1889, sec 4513; R. S 1899, sec. 2933; Gross v. Lange, 70 Mo. 45; Garrison v. Young, 135 Mo. 203. (2) The deed executed by Andrew Hach to the defendants Wilhelmine Rollins and Louise Anderson on the sixth day of March, 1878, was certainly valid and sufficient, at least between said grantor and defendants, to vest in the defendants all the right, title and interest of said grantor in the real estate in said deed described. Such being the case, the plaintiff never at any time had a dower interest, inchoate or otherwise, in said premises. Wagner's Statutes 1872, sec. 1; Frank v. Caruthers, 108 Mo. 573 and 574; Bobb v. Bobb, 89 Mo. 419; Weiss v. Hietkamp, 127 Mo. 29; 2 Devlin on Deeds (2 Ed. 1897), sec. 834. (3) The plaintiff was incompetent to testify as to contracts and transactions had with her deceased husband. R. S. 1889, sec. 8918; R. S. 1899, sec. 4652.
L. M. Conkling for respondent.
(1) If a person contract to marry another, and represents to the other that he owns property, in his own name, and after such contract and before the marriage, directly or indirectly disposes of or conveys away his property, without the knowledge or consent of the other contracting party, it is a fraud upon the marital rights of the other or innocent party, and a court of equity will grant relief from the fraud, upon proof of the contract having been made before the conveyance and the promise is finally fulfilled by a subsequent marriage. Schouler on Domestic Relations, secs. 181, 12, 259 (4 Ed. 1889); 2 Parsons on Con., p. 69 (5 Ed.); Smith v. Culbertson, 9 Rich. 106; Martindale on Conveyance, sec. 37, p. 42; 5 Johns. Chan. 382; 7 N.J.Eq. 515; 8 Bush's, 201; Duncan's App., 43 Pa. St. 167; 57 Pa. St. 120; 3 Ired. Eq. 487; 10 Ind. 191; Williard's Ex. (2 Ed.), pp. 211, 212, 213, 214; Gibson v. Carson, 3 Ala. 421; Gainor, 26 Iowa 337; 21 Kan. 521; Cranson v. Cranson, 4 Mich. 230; Smith v. Smith, 6 N.J.Eq. 515; Jenny v. Jenny, 24 Vt. 324; Boone on Marriage and Divorce, chap. 10, sec. 44; 2 Beav. 22; Goodard v. Snow, 1 Russ. 485; Linker v. Smith, 4 Wash. C. C. 224; McAffee v. Ferguson, 9 B. Mon. 475; Tucker v. Andrews, 13 Me. 124; Strong v. Menzies, 6 Ired. Eq. 544; Robinson v. Buck, 71 Pa. St. 386; Gregory v. Winston, 23 Gratt. 102. All such disposal or conveyance of property is fraudulent and voidable. Howard v. Hooker, 2 Ch. Rep. 81; Taylor v. Pugh, 1 Hare 608; Freemann v. Hartman, 45 Ill. 57; Tucker v. Andrews, 13 Me. 124; McAffee v. Ferguson, 9 B. Mon. 475; Terry v. Hopkins, 1 Hill. Ch. 1; Manes v. Durant, 2 Rich. Eq. 404. (2) It is a fraud for a man on the eve of marriage, unknown to his intended wife, to defeat her dower by secretly disposing of and conveying away his property. 14 Am. and Eng. Ency. of Law (2 Ed.), p. 252; Dearmond v. Dearmond, 10 Ind. 191; Petty v. Petty, 4 B. Mon. (Ky.) 217; 39 Am. Dec. 501; 6 N.J.Eq. 515; 50 How. Pr. (N. Y.) 410; 10 Hun (N. Y.) 194; Baird v. Stearne, 15 Phila. (Pa.) 339; 39 Leg. Int. (Pa.) 314; Tate v. Tate, 1 Dev. and B. Eq. 21 N.C. 22.
This is a bill in equity by the widow of Andrew Hach to set aside a voluntary conveyance, made by the husband to his children by his first marriage and before his marriage to the plaintiff, on the ground that it is a fraud upon the plaintiff's inchoate right of dower and to the homestead.
Andrew Hach, a man sixty-seven years of age, and a widower, with grown, married children, owned a homestead on the corner of Tenth and Mound streets, in St. Louis. Early in the year 1877, he courted the plaintiff, who was then a girl of twenty-one years of age. As an inducement to her to agree to marry him, he promised her that he would take her to live in his homestead, which they would occupy as long as he lived and after his death the property should go to her and whatever children she might have. She accordingly promised to marry him. Under his promise to marry her, he debauched her, in consequence of which she became pregnant. Notwithstanding her importunities he refused to carry out his promise and make her his wife. Her child was born February 12, 1878. On the sixth of March, 1878, without plaintiff's knowledge or consent, he conveyed the homestead to his two daughters, the defendants Wilhelmine Rollins (nee Hach) and Louise Anderson (nee Beyerback) for an expressed consideration of one thousand dollars, but in reality the conveyance was purely voluntary and without any money consideration. Hach and his daughters continued to occupy the homestead and he paid substantially all the expenses as long as he lived. After the birth of her child Hach still refused, though often repeating his promise, to marry the plaintiff, so she sued him for breach of his contract. Then he married her on the twenty-eighth of August, 1878, and she dismissed her suit. He took her to live with him in his homestead, and his children continued to occupy portions of the house. The plaintiff ascertained, accidentally, several years after her marriage that Hach had conveyed the property to his daughters before her marriage, and demanded of him an explanation therefor and reminded him of his prior promise to her. He lulled her into a state of security by assuring her that the deed amounted to nothing, that he was still the "boss" of the place, that his daughters would not dare to assert any claim to the property and that his promise to her would be carried out. They continued to occupy the house, the children by the first marriage continued to occupy, with his permission, various parts thereof, for over seventeen years, when he died intestate in May, 1894. She bore him four children, three of whom survive, and all are minors. The child born before her marriage died when only a few years old. He left no property of any kind except this homestead. For about three years after his death the plaintiff and her children and the children by the first marriage continued to occupy the house just as they did during his lifetime. During all these twenty years neither of the daughters asserted any title under the deed aforesaid. But on the contrary they and their father admitted to many persons that the deed was made to cheat the plaintiff out of any interest in the property which she would otherwise acquire by virtue of her marriage to him. Hach said, at least once, that he did it to get even with the plaintiff for suing him for breach of contract. Three years after his death the two daughters notified the plaintiff to vacate. She then instituted this suit to have the deed cancelled for fraud upon her inchoate right of dower and in the homestead. The answer admitted that defendants were in possession (and so was the plaintiff) and denied all fraud. Upon these facts appearing to the court, a decree was entered declaring that the deed in nowise affects the dower rights of the plaintiff or the rights of her children in the land, and cancelling the deed. The defendants appeal.
The first question in this case is, has plaintiff any interest in the land?
Our statute (sec. 2933, R. S. 1899) provides: "Every widow shall be endowed of the third part of all lands whereof her husband, or any other persons to his use, was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower, in the manner prescribed by law, to hold and enjoy during her natural life." It is accordingly argued that Hach did not have an estate of inheritance in this land at any time during the marriage and therefore the plaintiff has no dower interest therein.
Ordinarily this test determines the particular case. But fraud vitiates everything and to the eye of a court of chancery the conditions existing before the perpetration of the fraud continue to exist the same as if the fraudulent act had never been committed. So if the deed from Hach to his daughters was concocted and executed as a fraud upon the plaintiff her rights are the same as if the deed had never been made, and if this deed had never been made Hach would have been seized of an estate of inheritance in this land during the marriage, and upon his death the plaintiff would be entitled to dower therein.
Similar transactions to this are not without precedents in the law. At common law a husband was entitled to the possession of the wife's real property during coverture, and to curtesy therein after her death, by way of compensation for his liability for her ante-nuptial debts and post-nuptial support. Therefore it was held that he was entitled to any property she owned before marriage and that her conveyance thereto, without his knowledge or consent, on the eve of marriage, was a fraud on his rights which he had the right to redress by appropriate action to set aside the conveyance. And as a corollary of this right of the husband, the wife has been held entitled to maintain an action to set aside a conveyance by the husband, without her knowledge or consent, on the eve of her marriage, made to defeat her marital rights, notwithstanding she never was liable for his ante-nuptial debts or post-nuptial support.
The rule as to the wife is thus stated in 14 Am. and Eng. Ency of Law (2 Ed.), p. 252. "An inchoate right of dower in lands is a subsisting and valuable right which will be protected and preserved, and it is as much a fraud for a man on the eve of marriage, unknown to the intended wife, to make a voluntary conveyance for the purpose of...
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