McKee v. Reynolds

• Decision Date: 10 April 1869
• Citation: 26 Iowa 578
• Court: Iowa Supreme Court
• Parties: MCKEE v. REYNOLDS

26 Iowa 578

MCKEE v. REYNOLDS

SUPREME COURT OF IOWA

JUNE TERM, 1869

April 10, 1869

1. Husband and wife: SALE AND CONVEYANCE OF DOWER RIGHT. The contingent right of dower of the wife in the husband's lands, or his in hers, is not the subject of barter and sale between 'them. And aside from an agreement to separate, it is not competent for one to convey to the other his or her dower interest in real estate.

2. — A promissory note of the wife, executed by her to her husband in consideration of the conveyance to her of his contingent right of dower in her lands, cannot be the basis of a judgment against her in an action at law. The foregoing principles are not changed by any of the provisions of our statute.

3. — AGREEMENTS OF SEPARATION. Where an agreement of separation has been fairly entered into, and its terms afterward carried out in good faith by one of the parties, the law will, in many cases where justice demands it, hold the other party to it. But the law will not sanction an agreement contemplating a future separation, nor enforce an agreement to separate if one of the parties is unwilling to do so.—Per DILLON, Ch. J.

4. — CONVEYANCE OP DOWER. While the law does not recognize in the husband the legal right to make a valid grant to his wife of his inchoate right of dower, yet, if in pursuance of an agreement to separate he does so, and she pays him a consideration therefor, he would thereby be estopped from setting up a right of dower after her death.—Per DILLON, Ch. J.

5. — But if, on the other hand, she has not paid the consideration, she cannot be compelled thereto by an action; nor would the husband in such case be estopped, his deed being inoperative to bind him as a grant, and there being no equity existing in favor of the wife, she having paid no consideration, to make the deed operate as an estoppel.

Appeal from Jasper District Court.

SATURDAY, APRIL 10.

MARRIED WOMEN : POWER TO CONTRACT : LIABILITY : RELEASE OF DOWER : AGREEMENT TO SEPARATE, ETC.—Action at law by the payee against the maker of the following promissory note : "$1,000. On, etc., I promise to pay to Robert McKee or order $1,000, with 10 per cent interest from date, value received, Jan. 7, 1868.

(Signed) SARAH F. REYNOLDS."

The petition is in the ordinary form, alleging the execution of the note by the defendant, its non-payment, and demanding a personal judgment against her for the amount thereof with interest and costs. The consideration of the note is not stated in the petition, nor is there any prayer except for a general personal judgment against the defendant.

To this petition the defendant answered, among other things, "that the note was not the property of the plaintiff, but that of one Alexander Reynolds, and was given and executed under the following circumstances:

"At the time of such execution, and now, said Alexander Reynolds and defendant were husband and wife; that the sole and only consideration for the said note was the execution of a certain quitclaim deed, a copy of which is attached, by which said Alexander Reynolds quitclaimed" all right, title and interest, whether "by dower or otherwise, to any and all the estate, whether real or personal, now held, or hereafter to be acquired," by the defendant; and no other consideration whatever than the execution of said deed entered into and formed a part of the consideration of said note; that at the time the said note and deed were executed, the same were done by defendant and said Alexander Reynolds, with the design and view of a separation from each other, and a sundering, so far as said parties could, of the marital relations existing between them; and the same was carried into effect by said Alexander leaving defendant and going to the State of Missouri, where he has continued to reside ever since about the time said note and deed were executed; since which time said Alexander and defendant have ceased to cohabit and live with each other as husband and wife, although no divorce has ever been applied for by either of the said parties."

The following is a copy of the deed referred to in, and made part of, the answer:

"Know all men, by these presents, that I, Alexander Reynolds, of the county of Jasper, and State of Iowa, in consideration of the sum of one thousand dollars, in hand paid me by Sarah F. Reynolds, my wife, do hereby sell and quitclaim unto said Sarah F. Reynolds, of Jasper county, and State of Iowa, all my right, title and interest, whether by dower or otherwise, to any and all the estate, whether real or personal, now held, or hereafter to be acquired, by the said Sarah F. Reynolds, and I do hereby further covenant with the said Sarah F. Reynolds, her heirs and assigns, for the quiet and peaceable possession of the above named property forever.

{U. S. Rev. stamp, $100, can.} Witness my hand, this 7th day of January, A. D. 1868.

(Signed) ALEXANDER REYNOLDS.

{STATE OF IOWA, JASPER COUNTY.} ss.

On this 7th day of January, A. D. 1868, before me, the undersigned, a notary public in and for said county, appeared the above named Alexander Reynolds, personally known to me to be the identical person whose name is affixed to the foregoing instrument as grantor, and acknowledged the same to be his voluntary act and deed for the purposes therein expressed.

In testimony whereof, I have hereunto set my hand. [L.S.]

(Signed) S. N. LINDLEY, Notary Public.

The plaintiff demurred to this portion of the answer, because,

"1. It shows that the defendant is liable on the note.

"2. The conveyance of the husband's dower interest is a sufficient consideration to support a promise.

"3. The husband can by deed convey to the wife his dower interest in lands, and such conveyance is valid.

"4. The answer does not allege an offer to return or surrender the deed."

The court sustained the demurrer, and the defendant electing to stand upon her answer excepted to the ruling of the court, holding it to be insufficient, and appeals.

The only error assigned is the ruling of the court sustaining the demurrer to the answer.

Seevers & Cutts for the appellant.

Winslow & Wilson for the appellee.

DILLON, Ch. J.— 1. HUSBAND AND WIFE : sale and conveyance of dower right, I. Aside from statute, the promissory note of a married woman is absolutely void at law, and no judgment can be rendered thereon against her. Jones v. Crosthwaite, 17 Iowa, 393, and authorities cited on p. 397.

The case referred to examines the question how far the statute has removed the common law disability of a married woman to make contracts which shall be binding upon her at law and upon which a personal judgment may be rendered against her. Since then other cases have been decided respecting the statute powers and rights of married women. Logan v. Hall, 19 Iowa, 491 ; Jones v. Jones, id. 236 ; McCormick v. Holbrook, 22 id. 487; Owen v. Owen, id. 270; Richmond v. Tibbies, 26 id. 474, but none of them touch the exact questions arising on the present record.

It has been argued by the appellant, that in no case can the husband and his wife make a contract which can be enforced in an action at law, during the coverture, by the one against the other. If we were prepared to assent to this broad proposition, it would, without more, determine the case in favor of the defendant. But we prefer to leave this point open, or where existing decisions have left it, and to decide this ease upon the special circumstances set out in the answer.

The undisputed doctrine of the common law is, that marriage annihilated the legal capacity of the wife to contract, she was not sui juris, was considered as sub sub potestate viri and incapable of entering into contracts with her husband which would be of legal validity or which could be enforced at law against her.

Of course, this incapacity exists except so far as it has been removed by statute; and it was held in Jones v. Crosthwaite, that the statute did not intend to emancipate married women from all the disabilities of coverture. I would be willing to hold that there is nothing in our statute which has so far removed the incapacity of the wife to contract with her husband as to make her liable upon her promissory note given under the circumstances stated in the answer; placing my judgment of reversal upon the ground of the disability of the wife as well as upon that of the want of consideration for the note. But the court prefer to place its judgment upon the latter ground, both because the path is plainer and more free of difficulty, and because it is the line of defense more particularly specified in the demurrer.

We now proceed to examine the question whether the conveyance of the husband's dower interest to his wife is valid, and constitutes a sufficient consideration for the note of the wife given therefor. (See demurrer.) This makes it necessary to consider the nature of the dower interest, and the mode in which it can be released or transferred.

If no separation is contemplated, it is not competent for the husband and wife as a matter of right to make a contract which shall be enforceable at law, whereby the one shall, in consideration of a sum agreed to be paid, relinquish to the other all of his or of her right of dower in real estate then owned or thereafter to be acquired.

No court would so. hold unless the law making power should thus enact in language so plain as not to be mistaken. In view of the nature and purpose of the dower right, of the favor with which courts have always regarded it, of the door to fraud or improvidence which would be opened, and of the disabilities of coverture and the ground of such disability viz.: public policy and the protection of the wife, no court would hold that this right, while it is inchoate and contingent, can be sold and bartered away by husband to wife, or wife to husband (for under the statute their rights are reciprocal, Rev. § 2513; acts 1862), unless the language of the legislature, which it was claimed conferred such a right, was so unmistakable...