Halferty v. Scearce

• Decision Date: 07 October 1896
• Court: Missouri Supreme Court
• Parties: HALFERTY v. SCEARCE.<SMALL><SUP>1</SUP></SMALL>

37 S.W. 113

135 Mo. 428

HALFERTY v. SCEARCE.¹

Supreme Court of Missouri, Division No. 2.

October 7, 1896.

EVIDENCE — TO CONTRADICT RECITAL IN DEED — DOWER — CONTRACT FOR JOINTURE — ELECTION.

1. Parol evidence is not admissible to show that the consideration for a deed made by a husband to his wife, which recited that it was made in consideration of the relinquishment by the wife of her dower rights in lands owned by the husband, also included the relinquishment of her dower right in land which the husband had previously sold and conveyed.

2. Under Rev. St. 1889, § 4530, providing that a widow may at her election renounce any contract for jointure made during marriage, and claim dower, a widow who received a conveyance of land from her husband in consideration of her relinquishment of her right of dower in the lands he then owned is not required to renounce such agreement and conveyance to enable her to claim dower in land that he had previously sold and conveyed, and which was not within the terms of the contract.

Appeal from circuit court, Clinton county; William Henry, Special Judge.

Action by Eliza Halferty against Simeon A. Scearce. Judgment for plaintiff, and defendant appeals. Affirmed.

M. B. Riley, for appellant. H. F. Herndon, for respondent.

BURGESS, J.

Action by plaintiff, who is the widow of Solomon Halferty, deceased, for the admeasurement of dower in a tract of land containing 21.69 acres, in Clinton county, Mo., in which her husband was seised of an estate of inheritance during the existence of their marriage. The defense set up in the answer was that on the 29th day of August, 1885, during the existence of the marriage relation between plaintiff and said Solomon Halferty, they entered into an agreement whereby, in consideration of the relinquishment by her of all her dower rights in and to the lands of said Solomon Halferty, he, by deed of general warranty, conveyed to her 82 acres of land being in said county, and denying her right to dower in the land described in her petition. There was judgment for plaintiff, and defendant appealed.

Solomon Halferty deeded the land in which plaintiff claims dower to the defendant on the 4th day of October, 1884; but plaintiff, who was then his wife, did not sign or join in that deed. Defendant has been in possession of the land ever since his purchase. On August 29, 1885, Solomon Halferty, by deed of general warranty, conveyed to plaintiff and her children, therein named, 82 acres of land, in lieu of her dower right in his land. The deed contains the following provisions, to wit: "Witnesseth: That the said party of the first part, for and in consideration of the relinquishment of dower by said party of the second part in and to all lands of said first party, and for the further consideration of natural love and affection which said first party bears said second and third parties, does by these presents, grant, bargain, and sell, convey, and confirm, unto said second and third parties, by the terms hereinafter set forth, the following described real estate,...