Miller v. Quick

• Decision Date: 12 November 1900
• Citation: 59 S.W. 955,158 Mo. 495
• Parties: MILLER et al. v. QUICK.
• Court: Missouri Supreme Court

59 S.W. 955

158 Mo. 495

MILLER et al. v. QUICK.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

DEEDS — DEFEASANCE — CURTESY — LIMITATIONS.

1. Prior to 1875, a direct conveyance by a husband to his wife, while void at law, vested in her an equitable separate estate, the husband being regarded as holding the legal title in trust for her, in which estate he was entitled to curtesy in like manner as in her legal estate; and hence where a husband conveyed an undivided one-half of land to his wife, and after her death attempted to convey the entire estate, he conveyed only his estate by the curtesy, and ejectment by the wife's heirs would not lie until his death, at which time limitations would begin to run against their right to recover the wife's one-half interest.

2. A defeasance to a deed, executed in a separate instrument, and signed by the grantor alone, is void.

3. A defeasance to a deed from a husband to his wife, executed by the husband alone, and in a separate instrument, is a self-serving declaration, not binding on the wife, and cannot be read into the deed to show a different intent than that expressed in the deed.

Appeal from circuit court, Holt county; C. A. Anthony, Judge.

Action by Diana Miller and others against George W. Quick. From a judgment for defendant, plaintiffs appeal. Reversed.

Ejectment to recover possession of 120 acres of land in Holt county. The plaintiffs are the heirs at law of Nancy E. Hahn. The petition is in the usual form. The answer is a general denial, and special pleas of the 10 and 30 years statutes of limitations, with a prayer that the defendant's title be declared absolute. The reply avoids the plea of limitation by setting up the facts hereinafter stated. It was admitted that Daniel Hahn is the common source of title. On the 10th of August, 1854, Daniel Hahn and Nancy E. Hahn were husband and wife, and on that day he conveyed to her, direct, by warranty deed, an undivided half of the S. E. ¼ of section No. 17, in township No. 59, of range 38, covering the land here involved, and also a like undivided interest in other lands, amounting to about 520 acres, which is not involved in this suit. Nancy E. Hahn died in 1866, intestate and seised of such undivided interest in all the said lands, except 40 acres, not included in this action, which she and her husband conveyed to one Freeholt in 1861. After her death, by warranty deed dated November 11, 1867, Daniel Hahn conveyed 70 acres of the 120 acres here in controversy to Joseph Coleman, and the defendant acquired the Coleman title by mesne conveyances. Afterwards, on the 6th of November, 1869, Daniel Hahn conveyed, by warranty deed, to Alvin H. Buzzard, an undivided one-half of the 50 acres, the remainder of the original 120 acres here in suit, and the defendant claims to hold, by mesne conveyances, the undivided one-half interest in the 50 acres so conveyed by Hahn to Buzzard. On the 9th of May 1879, Hahn and Sarah J. (his second wife) quitclaimed the whole of the 50 acres to defendant's grantor, and defendant claims, therefore, to have full title thereto. Daniel Hahn died November 7, 1897, and the plaintiffs, as the sole heirs of Nancy E. Hahn, instituted this suit on the 29th of November, 1897. It was stipulated between the parties that the annual rents and profits of the undivided half amounted at the trial to $150, and that the monthly rents and profits were $12.50. The defendant offered in evidence the following instrument of writing, signed by Daniel Hahn, and duly acknowledged and recorded on the same page of the records with the deed of August 10, 1854, from Daniel Hahn to Nancy E. Hahn: "Know all men of these presents that I, Daniel Hahn, of the county of Holt, in the state of Missouri, have this day conveyed to my wife, Nancy E. Hahn, one undivided half of all my real estate (the deed bearing even date herewith, and the numbers of said land are given in said deed). Now, said deed is made with this express understanding, that is to say: That whereas, my said wife, Nancy E., has left my bed and board, and sued for a divorce in the Holt circuit court, now, if said Nancy E. returns to my house and lives with me as a wife, and I never drink any intoxicating liquors or get drunk and treat her ill, then said deed is to be void so long as I act right towards my said wife. But if I at any time hereafter take to drink, or abuse my wife, Nancy E. Hahn, then, and in that case, the said deed is to be in full force and virtue, in law and equity. Witness my hand and seal this 10th day of August, 1854. Daniel Hahn. [Seal.] Attest: James Foster. Charles Blackley." Upon plaintiffs' objection, the court excluded the instrument. The defendant then offered to prove "that Nancy E. Hahn, the wife of Daniel Hahn, returned to the home of said Daniel Hahn, and lived with him as his wife, and that the said Daniel Hahn did not thereafter drink intoxicating liquors, or get drunk, or treat his wife ill, and that he acted right towards his wife until the time of her death." Upon plaintiffs' objection, the court excluded such testimony. The defendant showed possession in himself and his grantors from the date of Daniel Hahn's deeds, in 1867 and 1869. The plaintiffs asked, inter alia, the following instructions: "The court...