McBreen v. McBreen

• Decision Date: 20 February 1900
• Parties: McBREEN, Appellant, v. McBREEN, et al
• Court: Missouri Supreme Court

55 S.W. 463

154 Mo. 323

McBREEN, Appellant, v. McBREEN, et al

Supreme Court of Missouri, Second Division

February 20, 1900

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Affirmed.

Thos F. Gatts for appellant.

(1) It is the settled law of this State that the husband is entitled to curtesy in all estates of inheritances of which the wife dies seized either at law or in equity, and the limitation of estates to the sole and separate use of the wife will not debar the husband from curtesy, as such limitations necessarily terminate upon the death of the wife. Alexander v. Warrance, 17 Mo. 228; Tremmel v Kleiboldt, 75 Mo. 255; Soltan v. Soltan, 93 Mo 307; Watts v. Ball, 1 P. Williams 108; Parker v. Carter, 4 Hare 400; Follet v. Tyes, 14 Sim. 125; Appleton v. Rowty, 8 Law Rep. Eq. Cases, 139; Mullany v. Mullany, 4 N.J.Eq. 16; Cushing v. Blake, 30 N.J.Eq. 689; Nightingale v. Hidden, 7 R. I. 120; Steadman v. Palling, 3 Atk. 423; Morgan v. Morgan, 5 Madd. 410; Lowry v. Steele, 4 Ohio 170. (2) The wife by no contract or act of her own or by will can defeat the husband's estate by the curtesy no more than the husband can defeat dower. Soltan v. Soltan, 93 Mo. 307; R. S. 1889, sec. 3961. (3) The clause in the deed in question was simply the act of the wife, in purchasing the property, to have the title vest in her free from the control of her husband, and for her sole and separate use. This limitation, if it could have any effect under the authorities above cited, died with the wife. For under the deed in question, it was the intention of the grantor to convey a fee simple title, and the rule is that a grantor can not by any conditions in a deed limit the estate conveyed to less than an estate in fee simple when the purpose of the deed, taken as a whole, is to convey a fee simple estate. Riner v. Mansfield, 96 Mo. 394. (4) The estate by curtesy in Missouri, is controlled by the common law. Alexander v. Warrance, 17 Mo. 288. And at common law this estate was incident and dependent upon the nature of the wife's estate, not upon the kind of instrument creating the wife's estate, but a matter of legal effect from the instrument. So that at common law, where the wife died seized of an estate in lands, either at law or in equity, the estate by the curtesy attaches, notwithstanding the rents and profits are to be paid to her separate use during the coverture, and the receipt of the rents and profits have been held a sufficient seizure in the wife. 4 Kent's Com. (12 Ed.), pp. 31, 32, 33; Powell v. Gossam, 18 B. Mon. 179; Payne v. Payne, 11 B. Mon. 138; McTague v. McTague, 116 Mo. 139; Appleton v. Rowley, 8 Law. Rep. Eq. 139; Mullany v. Mullany, 4 N.J.Eq. 16; Turner v. Shaw, 96 Mo. 22; Blank v. Nohl, 112 Mo. 159.

Powell & Powell for respondents.

(1) This contract, although between husband and wife, will be enforced in equity. While not enforcible at law yet the principle is well established that a court of equity will enforce a contract between them. McCorkee v. Goldsmith, 60 Mo.App. 475; Hiltenbrandt v. Robetsch, 62 Mo.App. 437; McCubbin v. Patterson, 16 Md. 176. Especially is this true when she has fully performed her part of the contract as Ann McBreen did in this case in releasing her dower and giving up to him her homestead. Walker v. Owen, 79 Mo. 570. (2) A husband may waive his marital rights. DeHatre v. DeHatre, 50 Mo.App. 1; Hart v. Leate, 104 Mo. 315; Botts v. Good, 97 Mo. 88. By this agreement they settled all matters of property between them for all time and absolved and released each other "from any and all obligations toward each other by reason of their relation as husband and wife," and plaintiff thereby waived all his marital rights. (3) The question for the court in this case is: Are the words used in both the granting and habendum clause of the deed to Ann McBreen "free and clear of any and all marital rights of her present husband or any husband she may have hereafter," sufficient to show intent to exclude curtesy? The "marital rights" of a husband are all rights which come to him by virtue of the marriage. Curtesy is, therefore, a right which accrued by virtue of the marriage and is a marital right. These words "any and all marital" rights are broad and sweeping and show the intent to bar plaintiff absolutely from any marital right, including that of curtesy which came to him by virtue of the marriage. McTigue v. McTigue, 116 Mo. 138; Speidel's Appeal, 107 Pa. St. 18; Rigler v. Cloud, 14 Pa. St. 363; Haight v. Hall, 74 Wis. 152; Stokes v. McKibben, 13 Pa. St. 267; Bennet v. Davis, 2 P. Williams, 316; Holmes v. Liptrot, 8 Ga. 279, 280; Cochran v. Hearn, 4 Watts & S. 95.

BURGESS J. Gantt, P. J., concurs, in a separate opinion. Sherwood, J., concurs in the opinion. Gantt, concurring and dissenting.

OPINION

BURGESS, J.

This action is ejectment for the possession of a city lot in Kansas City. The petition is in the usual form. The answer avers that defendants are the children and only heirs at law of Ann McBreen, deceased, who was plaintiff's wife, and that long before she acquired the property in question she and plaintiff being unable to longer live together because of disagreements they agreed in writing to separate, she agreeing to relinquish her dower in several lots which he then owned in Kansas City, and he to pay her one thousand dollars in money, give her all the household and kitchen furniture, except a small portion thereof, in consideration for which and upon the performance of the provisions of said agreement the said plaintiff and the said Ann McBreen were absolved from any and all obligations toward each other by reason of their relation as husband and wife, and that the parties released each other from any and all obligations by reason of their marriage. That each party complied with the terms of the agreement, and thereafter lived separate and apart from each other. That thereafter said Ann acquired the lot in question by purchase, etc.

The case was tried by the court, a jury being waived, upon the following agreed statement of facts. That John McBreen and Ann McBreen were husband and wife and that the defendants are their only children. That John and Ann McBreen, finding it impossible to live together in peace and harmony, did on the 28th day of February, 1890, enter into an agreement in writing, by which it was agreed that John should pay his wife Ann the sum of one thousand dollars in cash, in consideration for which she was to join him in deeds of conveyance, and relinquish her dower in certain other lands which he then owned, and might wish to convey to other parties. The wife was to have all of their household and kitchen furniture, except the furniture of one room, which the husband was to have. It was also agreed that thereafter the parties were to live separate and apart, and absolve each other from all obligations toward each other as husband and wife. That on the 12th day of November, 1891, Ann McBreen, purchased for the price of $ 1,100, from Joseph B. Ganghoff, the lot in question, who executed to her a warranty deed in which it is stated that said Ganghoff in consideration of $ 1,100 to him paid by Ann McBreen, "does by these presents grant, bargain and sell, convey and confirm unto Ann McBreen, to her sole and separate use, free and clear of any and all marital rights of her present husband or any husband she may have hereafter, and her heirs and assigns, the following described real estate situate in Jackson county, Missouri, to-wit, all of lot 23, block one, in Graham's addition to Kansas City. To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities, to her sole and separate use, free and clear of any and all marital rights of her present husband or any husband she may have hereafter."

Both parties complied with the agreement on their respective parts, Mrs. McBreen, receiving the thousand dollars, and the furniture from her husband, and relinquishing by deeds her dower interest in all the lands which he then owned and conveyed to other parties, and he receiving the furniture of one room. The agreement also showed that Mrs. McBreen took possession of said lot at the time of her purchase, and with the defendants remained in possession thereof, until her death on May 23, 1895, and that defendants have been in possession ever since. That the value of the monthly rents and profits of said lot is eleven dollars per month. That John McBreen, and his wife Ann, were never divorced.

It was said in Tremmel v. Kleiboldt, 75 Mo. 255, that: "It is well settled that the husband is entitled to curtesy in all estates of inheritance of which the wife dies seized, either at law or in equity. As to equitable estates, actual possession by the wife, or the receipt by her of the rents, issues and profits, or possession by a trustee for her benefit, is equivalent to legal seizin, and the limitation of such estates to the sole and separate use of the wife, will not debar the husband from curtesy, as such limitation necessarily terminates upon the death of the wife." Citing Alexander v. Warrance, 17 Mo. 228; Baker v. Nall, 59 Mo. 265; Lewin on Trusts, 622; Watts v. Ball, 1 P. Will 108; Parker v. Carter, 4 Hare 400; Morgan v. Morgan, 5 Mad. 408; Follett v. Tyrer, 14 Sim. 125; Appleton v. Rowley, 8 Law. Rep. (Eq. Cas.) 139; Mullany v. Mullany, 4 N.J.Eq. 16; Cushing v. Blake, 30 N.J.Eq. 689. The same rule is announced in Soltan v. Soltan, 93 Mo. 307, 6 S.W. 95, and in Woodward v. Woodward, 148 Mo. 241, 49 S.W. 1001.

It must thence follow that plaintiff is entitled to the possession of the property in question, as tenant by the curtesy, unless by the terms of the deed from Ganghoff to Mrs. McBreen or of the agreement made...