Jones v. Jones

• Decision Date: 09 July 1930
• Docket Number: No. 28191.,28191.
• Citation: 30 S.W.2d 49
• Parties: R.F. JONES v. MAUDE E. JONES, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 49

R.F. JONES v. MAUDE E. JONES, Appellant.

No. 28191.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Stone Circuit Court. — Hon. Fred Stewart, Judge.

REVERSED AND REMANDED (with directions).

Moore & Moore for appellant.

(1) The husband and wife owning lands by the entirety, the divorce vests the legal title in the parties as tenants in common. Aeby v. Aeby, 192 S.W. 97. No contract for the sale of lands, tenements or hereditaments shall be valid, unless the agreement etc., upon which the action is brought, shall be in writing, signed by the party to be charged, etc. Sec. 2169, R.S. 1919; Ringer v. Holtzclaw, 112 Mo. 519; Keller v. Theury, 143 Mo. 142; Carrick v. Minke, 60 Mo. App. 140; Fox v. Courtney, 111 Mo. 147; Mason v. Small, 130 Mo. App. 249. (2) Under certain circumstances, performance takes the contract for the sale of land out of the Statute of Frauds, but not in the case at bar. (3) As a part of the contract wherein plaintiffs claim that defendant agreed to take $800 for her interest in this real estate, and as a part of its consideration, is that defendant would not contest a divorce suit. Such agreement is against public policy and void. (4) A contract between husband and wife entered into for the object of promoting a divorce will not be relieved of its illegality by the fact that the party instituting the divorce had legal grounds therefor. 13 C.J. 464, 463, 406; McDonald v. McDonald, 175 Mo. App. 513; Blank v. Noel, 112 Mo. 159; Donohue v. Donohue, 159 Mo. App. 610; Speck v. Dausman, 7 Mo. App. 165. (a) As to wife conveying her real estate, see: Secs. 2176, 2181, 2188, R.S. 1919. In such connection see also: Secs. 7323, 7327, 7328, R.S. 1919.

Rufe Scott for respondent.

(1) All that part of the contract objected to as against public policy because it provides that there will be no contest of divorce proceedings or claim for alimony, was accepted by the appellant at the time and all the provisions fully carried out. It might have been declared void had she chosen to so treat it, but by not doing so, and by her acceptance of the $800 in settlement of the property rights under the contract after the divorce, she is estopped now from complaining about the settlement of their property rights. The appellant cannot accept one provision of the contract and repudiate other provisions of it. She received the $800, and is now claiming the undivided one-half interest in the land as tenant in common by virtue of the decree of divorce which she says was rendered under a void contract. State ex rel. Gironx v. Gironx, 19 Mont. 149; 21 Cyc. 1595; Bailey v. Dillon, 71 N.E. 538; Patton v. Patton, 58 Atl. 1019. (2) The contract was fair, reasonable and voluntary. There is no evidence or allegation of fraud. The wife was in the wrong and left her husband without cause or excuse. She admitted that she had other company. She did not want to live with him, and all the complications, including this lawsuit, are the direct results of her own wrong. Banner v. Banner, 184 Mo. App. 399; 9 Cyc. 519; 21 Cyc. 1592; Roberts v. Hardy, 89 Mo. App. 86; Fisher v. Clopton, 110 Mo. App. 667. (3) Contracts between husband and wife as to their property rights are as binding on each as if made between other parties. O'Day v. Meadows, 194 Mo. 588; Rice Stix & Co. v. Sally, 176 Mo. 107; Bank v. Hageluken, 165 Mo. 443. Married women by their contracts and the performance of them are estopped thereby the same as femme sole. Inlow v. Herren, 306 Mo. 42.

SEDDON, C.

This action is one involving title to eighty acres of land in Stone County, Missouri. The plaintiff (respondent) and the defendant (appellant) were formerly husband and wife. On October 4, 1923, by decree of the Circuit Court of Stone County, the bonds of matrimony existing between plaintiff and defendant were dissolved and the parties were divorced, plaintiff being adjudged to be the innocent and injured party. At and prior to the entry of said divorce decree, plaintiff and defendant were the owners of an estate by the entirety in and to the eighty acres of land now in controversy. By the instant action, commenced in the Circuit Court of Stone County on April 6, 1926, plaintiff seeks a judgment divesting the defendant of any right, claim, interest, or title in and to the land in controversy, and declaring plaintiff to be the sole and absolute owner thereof in fee simple.

The gravamen of plaintiff's cause of action is thus stated in the petition:

"Plaintiff states that on March 4, 1918, he purchased from John R. Young and wife, the following described real estate, to-wit: The east half of the South East Quarter of Section Seven (7), in Township Twenty-six (26), Range Twenty-three (23), in Stone County, Missouri; that he paid, as consideration for said real estate, the sum of $3200, and that the said John R. Young and wife executed a warranty deed to said lands, conveying same to plaintiff and defendant, Maude E. Jones, who was at that time the wife of plaintiff, said deed of conveyance being recorded in Book No. 45 at page 379, of the (deed) records of said county.

"That the defendant herein was named as one of the grantees in said deed for the reason that she was the wife of plaintiff at the time, and at the instance and request of plaintiff, because she was his wife and he desired to make provision for her in case of his death while the marriage relation existed, and for no other purpose, defendant having furnished no part of the said consideration of $3200 paid for said lands.

"Plaintiff further states that on the 4th day of October, 1923, by decree of the Circuit Court of Stone County, Missouri, at the October Term, 1923, thereof, he was divorced from the defendant, and that plaintiff was by said judgment and decree adjudged to be the innocent, injured and aggrieved party, and was by said decree restored to all the rights of a person sole and unmarried.

"That defendant executed a contract with plaintiff, whereby all the property rights, including the above described real estate, were settled and adjusted between plaintiff and defendant; that said settlement was based upon a valuable consideration, which consideration was paid by plaintiff to defendant in money, and defendant thereby parted with all her right, title and interest of, in and to said real estate, but that defendant has failed to execute to plaintiff a deed of conveyance as evidence of the said settlement.

"Plaintiff says that he is the sole owner of said real estate and that defendant has no interest therein.

"Wherefore, plaintiff prays the court for an order and decree that the defendant be divested of all right, title, interest and claim to said real estate, or any part thereof, and that plaintiff be adjudged and decreed the absolute owner thereof in fee simple, and for such other orders touching the premises as to the court may seem meet and proper."

The defendant, in due time, filed an answer, and a (so-called) counterclaim, or cross-petition. The answer admits that, on October 4, 1923, plaintiff was divorced from defendant by decree entered in the Circuit Court of Stone County, and that such decree adjudged the plaintiff to be the innocent and injured party; avers that, on March 4, 1918, plaintiff and defendant purchased from John R. Young and wife the land in controversy, as described in the petition, and that the greater part of the purchase price therefor was paid out of funds belonging to the defendant, and that title to said land was taken in the names of plaintiff and defendant, as tenants by the entirety; denies that plaintiff is the sole owner of said real estate, but avers that plaintiff and defendant are tenants in common thereof; avers that, on May 17, 1923, plaintiff and defendant entered into a certain written contract and agreement, wherein they purported to settle and adjust the rights and interests of the parties in and to certain personal property and chattels, but denies that such contract and agreement affected the rights, titles, and interests of the parties in and to the real property owned by the parties as tenants by the entirely; alleges that said contract and agreement is violative of the Statute of Frauds, in that said contract, upon its face, does not purport to transfer to plaintiff any right, title, or interest of the defendant in and to said real estate; and avers that "one of the considerations for said contract is that defendant herein would not make any contest of the proceedings for divorce to be filed by plaintiff herein, nor ask any alimony or anything for her support, and which shows upon its face that one of the considerations and the element of the same was illegal, which makes the said contract void and of no force and effect in the premises." By way of cross-petition, defendant avers that she and plaintiff are tenants in common of the described land, and that plaintiff and defendant, respectively, is each the owner of an undivided one-half interest in fee therein; and that defendant desires partition of said real estate, according to the respective interests of the parties therein; wherefore, defendant prays partition and division of the described real estate according to the respective rights, titles, and interests of the parties therein, and, if partition and division in kind cannot be made without material injury to the rights of the respective parties, that the described real property be ordered to be sold, and that the proceeds of such sale be ordered to be divided between the parties according to their respective rights and interests therein.

No reply is shown by the record to have been filed by plaintiff.

A trial of the action before the court, without the aid or intervention of a jury, resulted in a judgment, wherein the court found the facts, as alleged in the petition, to be true; that plaintiff is the sole owner of the described real estate; and that defendant has no right, title or interest in said...