Peter v. Byrne

• Decision Date: 09 June 1903
• Citation: 175 Mo. 233,75 S.W. 433
• Parties: PETER et al. v. BYRNE et al.
• Court: Missouri Supreme Court

75 S.W. 433

175 Mo. 233

PETER et al. v. BYRNE et al.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

HUSBAND AND WIFE—CONVEYANCE OF WIFE'S LAND—JOINT DEED.

1. A deed of a married woman's land was signed and acknowledged by both herself and her husband, and throughout the same the grantors were referred to as "parties" of the first part and in the plural number. The husband acknowledged that he signed the same as his "free act and deed," and after the conveyance, and during the life of both husband and wife, they made no claim to the property, or that the deed was invalid. Held, that such deed was the joint deed of both husband and wife, under Rev. St. 1879, § 669, providing that a husband and wife may convey the real estate of the wife by their joint deed, etc., though the husband's name did not explicitly appear in the introductory clause thereof.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Robert N. Peter and another against Cecelia Byrne and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Vories & Vories and S. P. Reynolds, for appellants. Haynes & Corby and B. R. Vineyard, for respondents.

Statement.

FOX, J.

On the 31st day of August, 1900, plaintiffs filed their petition in the Buchanan county circuit court, which is as follows: "Plaintiffs state that on the 1st day of August, 1899, they were and still are the owners in fee and entitled to the possession of the north fifty-six (56) feet of lots six and seven (6 and 7), in block thirty (30), in St. Joseph Improvement Company's addition, an addition to the city of St. Joseph, in Buchanan county, Missouri; that, being so entitled to the possession of said real estate, defendants on the 2d day of August, 1899, entered into possession of the premises and unlawfully withhold from plaintiffs the possession thereof, to their damage in the sum of one hundred dollars ($100.00); that the monthly rents and profits of said real estate are five ($5.00) dollars per month. Plaintiffs further state that defendants George A. Byrne and Mark L. Byrne are minors, and that defendant Cecelia C. Byrne is their guardian and curator, duly appointed by the probate court of Buchanan county. Plaintiffs therefore pray that judgment be rendered for one hundred ($100.00) dollars damages, and for monthly rents and profits in the sum of five ($5.00) dollars per month, and for all other and proper relief." On September 18, 1900, and during the regular September term, 1900, of said circuit court, defendants, and each of them, filed their answer, which is a general denial.

It is admitted in this cause that Sarah M. Peter is the common source of title; also, that Sarah M. Peter, the mother of plaintiffs, was married to Armenius Peter at the time she acquired this property by a general warranty deed, and continued to be his wife until her death. It was shown by the testimony that appellants were the only children and heirs at law of Sarah M. Peter, the common source of title.

Defendants introduced in evidence the following deed to Annie Oatman:

"This deed, made and entered into this fifteenth day of October, in the year of our Lord eighteen hundred and eighty-three, by and between Sarah M. Peter, wife of Armenius Peter, of the county of Buchanan and state of Missouri, of the first part, and Annie Oatman, wife of John A. Oatman, of the county of Buchanan and state of Missouri, of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of five hundred dollars to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, have given, granted, bargained, and sold, and by these presents do give, grant, bargain, sell, and convey, and confirm unto the said parties of the second part, and to their heirs and assigns, forever, the certain tracts, pieces, or parcels of land lying and being in the county of Buchanan and state of Missouri, to wit, fifty-six feet of the north end of lots six and seven in block thirty (30), in the St. Joseph Improvement Company's addition to the city of St. Joseph, to have and to hold the said tract, piece, or parcel of land, with all the privileges and appurtenances there-unto belonging or in any wise appertaining, unto them, the said parties of the second part, and to their heirs and assigns, forever; and the said parties of the first part, for them, their heirs, executors, and administrators, do covenant and agree that they will warrant and forever defend the title to the said tract, piece, or parcel of land, and every part thereof, unto them, and the said parties of the second part, their heirs and assigns, against the lawful claim or claims of all persons whomsoever. In testimony whereof the said parties of the first part have hereunto set their hands and seals the day and year first herein written.

                                  "Sarah M. Peter.   [Seal.]
                                  "Armenius Peter.   [Seal.]
                

"State of Missouri, County of Buchanan —ss.: On this sixteenth day of October, 1883. before me, a notary public within and for said county, personally appeared Sarah M. Peter and Armenius Peter, her husband, to me known to be the persons described in and who executed the within and foregoing instrument or deed, and acknowledged that they executed the same as their free act and deed. In witness whereof I have hereunto signed my name and affixed my official seal at my office in said county the day and year last aforesaid.

"My term of office expires January 24, A. D. 1887.

                    "[Seal.]             John F. Tyler
                

"Notary Public of Buchanan County in the State of Missouri."

To the introduction of which deed in evidence plaintiffs objected, because this is a deed of a married woman, and her husband is not joined with her as grantor in this deed, and the same is void, because at that time a married woman could not convey her legal estate without her husband joining her as such in the deed. The court overruled plaintiffs' objection and admitted said deed in evidence, to which action and ruling of the court in admitting said deed in evidence and overruling plaintiffs' objections thereto plaintiffs then and there excepted.

Defendants offered in evidence a general warranty deed, duly executed by Annie Oatman and John A. Oatman, her husband, dated the 10th day of September, 1884, conveying the property herein sued for to all of the defendants herein, which said deed was in due form and properly acknowledged, on said 10th day of September, 1884, filed for record October 15, 1884, at 3 o'clock and ____ minutes p. m., and recorded in Book 130, page 231. To the introduction of said deed in evidence the plaintiffs objected. The court overruled plaintiffs' objections, and admitted said deed in evidence, to which action of the court in overruling plaintiffs' objections to said deed and admitting the same in evidence the plaintiffs then and there excepted.

This was substantially the evidence upon which this cause was submitted to the court. At the May term, 1901, of the Buchanan county circuit court, the court rendered judgment for the defendants, and plaintiffs prosecute their appeal to this court, and this cause is now before us for review.

Opinion.

It will be observed that this is a suit in ejectment for the possession of the north 56 feet of lots 6 and 7 in block 30, St. Joseph Improvement Company's addition in St. Joseph, Mo. At the trial it was admitted that Sarah M. Peter was the common source of title; also, that Sarah M. Peter, the mother of plaintiffs, was married to Armenius Peter at the time she acquired this property by a general warranty deed, and continued to be his wife until her death. The evidence showed that Sarah M. Peter departed this life on the 29th day of November, 1889; that plaintiffs Robert N. Peter and Turah Duncan were her only children and heirs at law; that said Armenius Peter departed this life on the 27th day of July, 1899. It was contended by the plaintiffs at the trial that the Peter deed was void and of no effect, because it purported to be a deed of a married woman conveying her real estate without her husband joining her as a grantor in the deed; the name of her husband, Armenius Peter, not appearing in said deed as a grantor. The defendants also introduced a deed in evidence from Annie Oatman and her husband, purporting to convey this property to defendants. The evidence also showed that defendants had had possession of this property 16 years. There is only one question for decision in this cause, viz.: Is this instrument of writing purporting to be the deed of Sarah M. Peter to Annie Oatman void? If said deed is void, then plaintiffs are entitled to recover; if the deed is valid, they are not.

At the close of the evidence in this cause plaintiffs requested the court to declare the law as follows: "The court declares the law to be that the deed introduced in evidence by defendants from Sarah M. Peter to Annie Oatman, recorded in Book 130, at page 244, is void and of no legal effect, and the finding and judgment must be for the plaintiffs." The court refused this declaration of law, and plaintiffs duly preserved their exceptions to the action of the court. This instruction very sharply presents the only question involved in this suit. It will be noted that the deed before us for construction recites that "Sarah M. Peter, wife of Armenius Peter, of the first part." Then follows the granting clause: "Witnesseth, that the said parties of the first part, in consideration," etc., "have given, granted, bargained, and sold," etc. The concluding clause of this deed recites: "In testimony whereof, the said parties of the first part have hereunto set their hands and seals the day and year first herein written." In addition to this, the covenants of warranty in this deed use this language: "The said parties of the first part do covenant," etc.

Appellants earnestly insist that...