McTigue v. McTigue

• Decision Date: 22 May 1893
• Citation: 22 S.W. 501,116 Mo. 138
• Parties: McTigue, by next Friend, v. McTigue, Appellant
• Court: Missouri Supreme Court

22 S.W. 501

116 Mo. 138

McTigue, by next Friend, v. McTigue, Appellant

Supreme Court of Missouri, First Division

May 22, 1893

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

John J O'Connor for appellant.

Curtesy depends on the common law, and is recognized by the laws of Missouri. Tremmel v. Kleiboldt, 6 Mo.App. 549. Under the facts in this case the appellant is entitled to curtesy in his deceased wife's real estate, and, therefore, the demurrer to the evidence of plaintiff should be sustained. Revised Statutes, 1889, sec. 8869; Soltan v. Soltan, 93 Mo. 307; Tremmel v. Kleiboldt, 75 Mo. 255; Spencer v. O'Neil, 100 Mo. 49; Carr v. Dings, 54 Mo. 95.

Dodge & Mulvihill for respondent.

The court was correct in refusing the instruction of appellant and in overruling his motion for a new trial. First. The husband can have no curtesy in lands of the wife where it has been expressly excluded in the deed of purchase. Second. Hannah McTigue, by her death in 1880, never did have the legal title to said property, and it passed at once by action of law to her heir, the respondent. 1 Washburn on Real Property [5 Ed.], sec. 15, p. 176; Bennett v. Davis, 2 P. Wms. 316; Cochran v. O'Hern, 4 Watts & Serg. 95; Morgan v. Morgan, 5 Madd. Ch. 248-408; Regler v. Cloud, 14 Pa. St. 361; Jacques v. Methodist Church, 17 Johns. 548; Mason v. Deese, 30 Ga. 308; Waters v. Tazewell, 9 Md. 291; Marshall v. Beall, 47 U.S. 70; Roberts v. Moseley, 51 Mo. 282; 64 Mo. 511; Tremmel v. Kleiboldt, 6 Mo.App. 549; 75 Mo. 255.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

-- This is an action in ejectment to recover possession of a lot in the city of St. Louis, in which the plaintiff had judgment and the defendant appeals.

Both parties claim title under Hannah McTigue, deceased, the plaintiff being the only child and heir of the said Hannah, who died intestate, and the defendant the surviving husband of the said Hannah and the father of the plaintiff.

The title of the said Hannah was acquired by the following deed "This deed made and entered into this twelfth day of January, 1876, by and between Adolphus Meier (widower) of the city of St. Louis, state of Missouri, party of the first part, and James Halloran, of the same place, party of the second part, and Hannah McTigue, wife of John McTigue, party of the third part, witnesseth, that the said party of the first part, in consideration of the sum of $ 700 to him in hand paid by said party of the third part, the receipt of which is hereby acknowledged, and the further sum of $ 1 to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, do by these presents, grant, bargain and sell unto the said party of the second part, the following described lot or parcel of ground being and laying in the county of St. Louis, state of Missouri, to-wit: Lot numbered fourteen in block number 7, Adolphus Meier's first addition to the city of St. Louis, a plat of which is on file in the office of the recorder of deeds for St. Louis county, said lot having a front on the south line of Cozens street of twenty-five feet by a depth of one hundred and twenty-three feet to an alley of fifteen feet wide. To have and to hold the same, with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining, unto him, the said party of the second part, his heirs and assigns forever. In trust, however, to and for the sole and separate use, benefit and behoof of the said Hannah McTigue; and the said James Halloran, party of the second part, hereby covenants and agrees to and with the said Hannah McTigue that he will suffer and permit her, without let or molestation, to have, hold, use, occupy and enjoy the aforesaid premises, with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband and wholly free from his control and interference, debts and liabilities, curtesy, and all other interests whatsoever, and that he will, at any time, and all times hereafter, at the request and direction of said Hannah McTigue expressed in writing, signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises, or any part thereof, to do which full power is hereby given, and will pay over the rents, issues, profits and proceeds thereof to her, the said Hannah McTigue, and that he will, at the death of said Hannah McTigue, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times, as the said Hannah McTigue shall by her last will and testament, or any other writing signed by...