McLeod v. Venable

• Decision Date: 12 June 1901
• Citation: 63 S.W. 847,163 Mo. 536
• Parties: McLEOD et al. v. VENABLE et al.
• Court: Missouri Supreme Court

63 S.W. 847

163 Mo. 536

McLEOD et al. v. VENABLE et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

WIFE'S SEPARATE ESTATE — PURCHASE OF LAND — ESTATE IN ENTIRETY — AGENCY — VERBAL AUTHORIZATION.

1. Where a married woman received money from her father's estate after the passage of the married woman's act of 1875, providing that such money should be her separate estate, and should not be appropriated by the husband without the wife's written consent, and her husband invested the money so received in land, without the wife's consent in writing, taking the title in their joint names, such land was not held by the entirety, so as to entitle him to the whole estate by survivorship on her death, but her heirs were entitled to such proportion of the land as the amount of her money invested bore to the total cost of the land.

2. Where a husband and wife agreed orally to use money which she had inherited from her father's estate in the purchase of land, both the money and land being in charge of her brother as administrator, in pursuance of which agreement the husband arranged to have the wife's share of the estate credited on the price of the land, and took a deed without consulting her as to its form, a contention that her brother acted as her agent in the matter was not supported by the facts, but it was apparent that her husband applied the money to purchasing the land under her verbal consent, and hence created a resulting trust in favor of her or her heirs.

Appeal from circuit court, Pike county; David H. Eby, Judge.

Suit by Louis McLeod and others against Richard C. Venable and others. From a decree in favor of plaintiffs, defendant Richard C. Venable appeals. Affirmed.

Ball & Sparrow, for appellant. J. D. Hostetter, for respondents.

MARSHALL, J.

This is a proceeding in equity to declare a resulting trust in and for a partition of the N. W. ¼ of section 15, in township 53, range 1 W., in Pike county. The plaintiffs are a part of the heirs at law of Jane Venable, and the defendants are the husband and remaining heirs of Jane Venable. Jane Venable was a daughter of William McLeod. She married Richard C. Venable on the 11th of October, 1865. Her father, William McLeod, died March 13, 1876, seised of the land described above. During the course of the administration of his estate said land was ordered sold, and Jane Venable and Richard C. Venable became the purchasers thereof at such sale on July 10, 1876, at its appraised price of $4,912. In payment therefor they executed their two notes for $2,270 and $2,640, respectively, of date July 10, 1876. Jane Venable's distributive share of her father's estate amounted to $1,200. The executor credited this amount upon said notes on July 12, 1876, and the balance due thereon, $3,712, was paid by the husband, Richard C. Venable, out of money earned by the joint labor of himself and wife. The deed to the land was made to Jane Venable and Richard C. Venable. Thus the title remained until January 24, 1897, when Jane Venable died, intestate, without issue, and leaving neither father nor mother surviving her. Thereupon this action was instituted for the purposes stated. All the parties hereto, except Richard C. Venable, are the surviving collateral heirs of Jane Venable, her brothers and sisters and their descendants. The trial court found and decreed that Jane Venable owned an interest in the land in the proportion of 1,200 to 4,912, or 75/307, and that upon her death one-half of her interest vested in her husband and the other half in her collateral heirs; devested title out of Richard C. Venable as to that portion; decreed partition; and ordered the land to be sold, and the proceeds distributed in such proportion. From this decree Richard C. Venable has perfected this appeal.

1. Defendant Richard C. Venable contends that he and his wife, Jane, were seised of the premises by the entirety, and that upon the death of his wife he became entitled to whole estate. This contention is based principally upon the rule announced in Garner v. Jones, 52 Mo., loc. cit. 71, as follows: "At common law a conveyance in fee, to husband and wife, of real estate, created a tenancy by the entirety. Being but one person in law, they took the estate as one person; each being the owner of the entire estate; neither of whom had any separate or joint interest, but a unity or entirety of the whole. So, if either died, the estate continued in the survivor, as it had existed before, an undivided unity or entirety. There was no survivorship, as in joint tenancies, but a continuance of the estate in the survivor as it originally stood. The only change by death was in the person, not in the estate. Before death they both constituted one person holding the entire estate, and after the death of either the survivor remained as the only holder of the estate. This principle was introduced into this state as a part of the common law, and it has not been altered by our statute of conveyances. See Gibson v. Zimmerman, 12 Mo. 385, 51 Am. Dec. 168. It is also the settled law of most of the states of the Union where it has not been changed by statute. Tyl. Inf. 498; Lux v. Hoff, 47 Ill. 425, 95 Am. Dec. 502." Defendant, however, overlooks what was further said in that case, as follows: "It may be conceded that, if a husband invests the separate funds of his wife in real estate, and takes a deed to them jointly, a court of equity would protect her in the enjoyment of the property, and declare a trust in her favor. But no such point arises in this case." Garner v. Jones, 52 Mo., loc. cit. 72. In the case at bar, however, while it is true that Richard and Jane were married prior to the passage of the act of 1875, and therefore the husband had a vested right to reduce the choses in action of the wife to possession at any time during the coverture, which right could not be taken away from him by that act (Leete v. Bank, 115 Mo. 184, 21 S. W. 788; Id., 141 Mo. 574, 42 S. W. 1074), nevertheless the wife, Jane, had no choses of action — or, at any rate, not the choses in action which were invested in this land — prior to 1875, and therefore Leete v. Bank, supra, has no application to this case. The wife's distributive share in her father's estate did not accrue to her until the death of her father in 1876; and at that time, by the express provisions of the act of 1875, it became her separate property, which her husband could not reduce to possession without her written consent, which was not given in this case. Since the passage of that act, if a husband obtains possession of his wife's personal property without such written consent, and invests it, together with money of his own, in land, and takes the title in their joint names, she or her heirs will be entitled to the proportion of the land that the amount of her money thus invested bears to the total amount paid for the land (Jones v. Elkins, 143 Mo. 647, 45 S. W. 261; Winn v. Riley, 151 Mo. 61, 52 S. W. 27), and a court of equity will declare a resulting trust in her favor in the land to that extent. Under such circumstances the estate is not one by the entirety, and the husband does not take the whole upon the death of the wife.

2. But defendant Richard C. Venable contends further that Jones v. Elkins and Winn v. Riley, supra, do not apply to ...