Neef v. Redmon

• Decision Date: 31 October 1882
• Citation: 76 Mo. 195
• Court: Missouri Supreme Court
• Parties: NEEF v. REDMON, Appellant.^a1

76 Mo. 195

NEEF

v.REDMON, Appellant.^a1

Supreme Court of Missouri.

October Term, 1882.

Appeal from Tipton Common Pleas Court.--HON. GEO. W. MILLER, Judge.

AFFIRMED.

Action by Mary G. Neef, a married woman, and Herman, her husband.

Smith & Krauthoff and Edmund Burke, for appellant, argued that Mrs. Neef, being a married woman, could make no contract for the purchase of real property, which bound her at law; and as the one she made did not bind her, it could not bind Hazell and take away his power to make another contract for the sale of the property with a person capable of contracting.

Draffen & Williams, J. E. Hazell and Owens & Wood for respondents, cited, as to the obligation of the contract, Ivory v. Murphy, 36 Mo. 541; Moore v. Mountcastle, 61 Mo. 424; as to notice, Major v. Bukley, 51 Mo. 227; Gibson v. Lair, 37 Mo. 188; Young v. Cason, 48 Mo. 259; Nulsen v. Wishon, 68 Mo. 383.

HENRY, J.

Mary G. Neef contracted in writing with L. S. Hazell for the purchase of an undivided half of a lot of ground owned by said Hazell, paying him $5 of the purchase money, $350, and agreeing to pay the balance on or before the 18th day of December, 1877, at which time on payment of said balance Hazell was to execute a deed conveying said interest. On the next day after this contract was made, the defendant proposed to and did purchase the said Hazell's interest, and received a deed therefor. It is charged in the plaintiffs' petition, and there was abundant evidence to the effect, that defendant before his purchase was informed of the particulars of the contract between plaintiff and Hazell, and took advantage of the intoxication of the latter to procure the sale and conveyance to himself of the property in controversy. After the sale and conveyance to the defendant, Hazell, in pursuance of his contract with Mrs. Neef, executed a deed conveying to her the said property, and this is a suit to set aside the deed from Hazell to the defendant and for general relief. On the hearing of the cause the circuit court found for plaintiffs and entered a decree vesting the legal title to the lot in Mary G. Neef, and defendant has prosecuted his appeal.

This is a case of the first impression in this court, and there is a lamentable dearth of authority on the question involved.

“As a general rule, a married woman cannot, except in special cases, contract as a femme sole, nor as such sue or be sued.” Cord on Rights of Married Women, § 532. “Any form of contract which she may make, is as to her, a nullity.” 1 Bishop on the Law of Married Women, § 39. But it by no means follows, that one cannot bind himself by a contract with her. She cannot bind herself personally, by any contract she may make. It is not, like most contracts of an infant, voidable only, but, while it remains wholly unexecuted on her part, is absolutely void. Not binding her, it cannot be enforced against the party contracting with her. The element of reciprocity or mutuality is absent. A contract executed by her, in whole, or in part, and remaining executory on the part of the person contracting with her, occupies a different footing. If she has executed her part of the contract, he cannot say there is no consideration for his agreement. “If she has done all on her part required by the contract, it will be enforced against the other party,” and it makes no difference that she could not have been compelled to perform the agreement. 2 Bishop on the Law of Married Women, § 250. “But if the agreement rests merely in mutual promises, then, on principle, as the promise of the married woman is a nullity, it cannot constitute a consideration for the promise of the other party; therefore it is void as to him.” Ib.

Conceding that he might rescind the contract by tendering to her what he had received in part performance of the contract on her part, shall he retain what he has thus received and refuse to perform his contract, on an offer by her to complete the performance on her part? It is not the case of a mere payment of money on a verbal contract and an attempt to enforce specific performance because there has been a part performance of the...