Kennedy v. Koopmann
| Decision Date | 17 December 1901 |
| Citation | 65 S.W. 1020,166 Mo. 87 |
| Parties | KENNEDY, Appellant, v. KOOPMANN |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wm. Zachritz Judge.
Affirmed.
M Kinealy and Kinealy & Kinealy for appellant.
(1) The only objection to the deed tendered by plaintiff as the complete fulfillment of her contract was, that her husband was not a party to it. (2) The marriage contract became part of plaintiff's deed to defendant. Klenke v Koeltze, 76 Mo. 240. (3) If the deed tendered by plaintiff conveyed a sufficient title she performed her contract, notwithstanding the adverse opinion of the examiner, or of defendant's counsel. The title was marketable. Greene v. Ditsch, 143 Mo. 1. (4) The husband could waive his statutory rights in favor of his wife, by contract. Hart v. Leete, 104 Mo. 329; Clark v. Clark, 86 Mo. 122; DeHatre v. DeHatre, 50 Mo.App. 5; Christmas v. Hahn (Ky.), 9 S.W. 279; Am. Home Missy. Soc'y v. Wahhams, 10 Barb. 598; McCord v. McCord, 19 Ga. 602; Strong v. Skinner, 4 Barb. 551; Bradish v. Gibbs, 3 John's Ch. 522. (5) The marriage contract created a separate estate in plaintiff, Elizabeth F. Kennedy, and gave her an absolute power to dispose of all her estate by her own deed as effectually as if she were a feme sole. Fairchild v. Cresswell, 109 Mo. 38; Strong v. Skinner, 4 Barb. 551, citing Bradish v. Gibbs, 3 John. Ch. 522; Hoggatt v. White, 2 Swan (32 Tenn.) 265; Christmas v. Hahn (Ky.), 9 S.W. 279. (6) Even if the sole conveyance of plaintiff would not pass title to the property owned by her and described in it, certainly the conveyance of herself and Vogel, trustee, would do so. Cases under point 5, supra. (7) The wife having in this case the absolute power of disposition of her real estate, her deed executing that power conveyed a title free of all claim of her husband to curtesy or other marital right in the land conveyed; even if, under the contract, the husband would take curtesy in the lands of the wife it would only exist in lands remaining undisposed of at her death. McTigue v. McTigue, 116 Mo. 142; 8 Am. and Eng. Ency. of Law (2 Ed.), 525; Neelly v. Lancaster, 47 Ark. 179; Cooper v. MacDonald, 7 Ch. Div. 300; Pool v. Blakie, 53 Ill. 495; Chapman v. Brice, 83 Va. 392; Kiracofe v. Kiracofe, 93 Va. 591; Wylie v. Frampton, 17 Ont. 515. (8) Charles F. Vogel had no interest in the property, his appointment as trustee was unnecessary to enable plaintiff to convey a good title to defendant under the contract. Cases under point 4, supra. (9) The contract of sale set forth the measure of damages on its breach, and, hence, even had plaintiff failed to perform her contract, the allowance of interest ($ 250) on the $ 2,500 was error. Besides, there was no cause for defendant holding the $ 2,500 in readiness for the performance of the contract after twenty days from its date.
Lubke & Muench for respondent.
(1) The marriage contract between these parties did not expressly create a trust, nor did it name a trustee. But one of two results can follow from this fact. Either no equitable separate estate was created in the wife, and then the signature of the husband was essential, under the statute, in order to validate the deed of the wife, the marriage contract having been executed prior to 1889. Brown v. Dressler, 125 Mo. 592; Arnold v. Willis, 128 Mo. 150; Clay v. Mayer, 144 Mo. 376. Or, else, an equitable separate estate was by such contract created in Mrs. Kennedy, which left the legal estate elsewhere. In the absence of a designated trustee, equity vested such legal title in the husband, Robert S. Kennedy. That legal title so remained unless divested by some proper means. 1 Bishop on Mar. Women, secs. 28, 795, 796, 800; 2 Bishop on M. W., sec. 116; Gover v. Owings 16 Md. 91; Blanchard v. Blood, 2 Barb. 352; Gordon v. Eans, 97 Mo. 588; R. S. 1889, sec. 8683. (2) It is true that by her sole deed, a married woman may now convey her equitable estate in land in this State, but the legal title will remain in the trustee. Ryland v. Banks, 151 Mo. 1. (3) This marriage settlement did not exclude Mr. Kennedy from possible curtesy rights on his part. There are no words of express exclusion in the instrument, and these wanting, the curtesy right attaches to an equitable as well as a legal estate. Tremmel v. Kleiboldt, 75 Mo. 255; Soltan v. Soltan, 93 Mo. 307; McTigue v. McTigue, 116 Mo. 142. (4) A court of equity will not force a vendee to receive an unsatisfactory, imperfect or non-marketable title. It will not do so, if a third person has an interest in, or claim against, the property, however improbable it be that the right will be exercised. Waterman on Spec. Perf., secs. 411, 412, 413; Rozier v. Graham, 146 Mo. 361; Michener v. Holmes, 117 Mo. 185; Green v. Ditsch, 143 Mo. 12. This remedy is granted as a matter of sound judicial discretion, not as a matter of course. Pomeroy on Spec. Perf. of Cont., sec. 35; Veth v. Gierth, 92 Mo. 97; Hill v. Rich Hill, etc., 119 Mo. 28; Isaacs v. Skrainka, 95 Mo. 524. The onus is upon the party seeking performance. Taylor v. Von Schraeder, 107 Mo. 225. An outstanding dower interest will defeat the action. Greffet v. Willman, 114 Mo. 122. (5) On the failure of plaintiff to carry out her contract, defendant is entitled to be reimbursed as to his actual losses. It is agreed that he held ready the sum of $ 2,400, while waiting for plaintiff to complete the title which was incomplete. The very date when the opinion of counsel was sought (May 19, 1898) shows that the negotiations had been extended thus late. The twenty days limit was on defendant, not on plaintiff; as to her she had "a reasonable time" within which to remedy defects, and what that reasonable time was has been found by the court below.
This is an action by plaintiff for the specific performance of a contract for the sale by her to defendant of a lot of ground and appurtenances in the city of St. Louis, which the defendant refused to carry out because the deed tendered to him did not, as claimed, pass a good and merchantable title.
In 1885, the plaintiff intermarried with Robert S. Kennedy, and up to the time of the institution of this suit on August 16, 1898, their relation as husband and wife had never been severed though they were not living together. Prior to their marriage they entered into a marriage contract without the intervention of a trustee, wherein it was recited that Robert S. Kennedy desired "that all the property of his intended wife shall be settled on her, to her sole and separate use, free from his interference or control, and not subject to his debts." And it was covenanted "that all the lands, tenements and hereditaments, goods, chattels, stocks, bonds, notes, rights in action, credits and all other property, real, personal and mixed, whether in possession, reversion or remainder, which the said Elizabeth F. Pratt, party of the second part, now has, or which she may at any time hereafter acquire, by gift, devise, descent or otherwise, shall be owned and held by her to her own separate and exclusive use and benefit, separate and apart from her intended husband, unaffected by said intended marriage in every particular, and not subject to his debts or liabilities, with absolute freedom and power on her part, to use, sell or otherwise dispose thereof during coverture as she may deem fit, and at her death to make such disposition of the same by last will or testamentary appointment in the nature of a last will, as she may deem proper and fit; and the said party of the first part hereby grants unto her, said party of the second part, power and authority to make such last will, and hereby assents to the same when made." In April, 1898, Mr. Charles F. Vogel was appointed trustee under this marriage contract, which was after the date of the contract of sale sued upon.
The contract for the sale of the land was entered into on March 14, 1898, between respondent Koopmann, on the one side, and Mr. Charles F. Vogel, as agent for plaintiff, on the other, with a ratification thereof by her.
The sale was of an improved lot of ground in the city of St. Louis, and the purchase price was $ 5,500, payable $ 2,500 in cash and $ 3,000 in seventeen months, secured by deed of trust. Further conditions were that the title to the property should be perfect, conveyed by warranty deed, free from liens and incumbrances; that if, upon examination, the title proved defective, and could not be made good within a reasonable time, the sale should be off, and the earnest money returned, as also the fee for examining title, not exceeding $ 15. Koopmann was granted twenty days from date of the agreement to close the purchase and investigate the title.
The objection to the deed was that Mr. Robert S. Kennedy had not signed it, and that without his signature it was claimed that the title would not be good and merchantable. Plaintiff declined to offer any deed signed by her husband, and instituted this suit. To her petition for specific performance, defendant pleaded the fact of plaintiff's marriage; that she had broken the contract by not offering a warranty deed joined in by her husband, and pleaded in recoupment the loss of interest on $ 2,400, which he held in readiness, the expenditure of $ 15 for investigating title, and the loss of $ 100 earnest money with interest. To this answer a reply was filed, setting up the marriage contract, averring the appointment of Vogel as trustee, and claiming that the deed tendered to the defendant complied with the contract.
The case was tried upon an agreed statement of these facts,...
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