Propes v. Propes
| Decision Date | 09 January 1903 |
| Citation | 71 S.W. 685,171 Mo. 407 |
| Parties | FLORINDA PROPES v. PEYTON PROPES et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Holt Circuit Court. -- Hon. E. A. Vinsonhaler, Special Judge.
Reversed and remanded (with directions).
C. A Anthony, S. F. O'Fallon and John Kennish for appellants.
(1) The deed, on its face, created in plaintiff and defendant an estate by the entirety. Pomeroy's Equity Jurisprudence (2 Ed.), sec. 1376; Bispham's Principles of Equity (5 Ed.) sec. 469. Some incompetency of mind showing an incapacity at the time of executing it or some imposition practiced on the donor or testator, some confidence abused or undue influence exerted, should be shown to authorize a court to exercise the power of setting aside wills or deeds, properly executed. Moore v. Moore, 67 Mo. 198. Want of consideration can not be shown against the recitation in the deed, for the purpose of defeating the operative words of the deed. Bobb v. Bobb, 89 Mo. 419; Taylor v Crockett, 123 Mo. 300; Henderson v. Henderson's Exrs., 13 Mo. 151. (2) Defendant's estate in the land was not a gift from the wife. The deed in this case was not made by Florinda Propes, but by others, and conveyed lands purchased as well as lands partitioned. And when the husband and wife assumed and undertook to pay for those lands, the transaction was complete and unavoidable. (3) The court erred in finding that the defendant was indebted to plaintiff for money loaned to defendant in the year 1889, and requiring payment of such indebtedness, before defendant could be restored to his marital rights in the lands in controversy. No issue was tendered by the pleadings as to money loaned to defendant. (4) The court erred in its decree divesting plaintiff of title and restraining him from the control and possession of the lands in controversy. Martin Meyer died in 1886 and the defendant Propes married his daughter Florinda, February 14, 1889. One child was born of the marriage in 1898. Defendant's marital rights were vested before the taking effect of the amendment to section 6869, Revised Statutes 1889. The addition of the words "real estate" in said section, now section 4340, Revised Statutes 1899, first appeared in the revision of 1889, and did not take effect until several months after the marriage of plaintiff and defendant. Defendant, by reason of his marital rights under the statute then in force, was entitled to the possession of his wife's lands. Arnold v. Willis, 128 Mo. 149; Flesh v. Lindsay, 115 Mo. 1; Dyer v. Wittler, 89 Mo. 81; Mueller v. Kaessmann, 84 Mo. 318; Bledsoe v. Simms, 53 Mo. 305. This right to the possession of his wife's land was a vested right, and the amendment to section 6869 could not be construed as taking away the husband's right then existing, as that would deprive him of property without due process of law, and would be unconstitutional and void. Evidently this amendment was not intended to curtail the rights of a husband theretofore married, and even if that was the intention, the act would be in conflict with article 2, section 15, of the Constitution, forbidding retrospective legislation. Arnold v. Willis, 128 Mo. 145; Leete v. Bank, 141 Mo. 574; Leete v. Bank, 115 Mo. 184; Pritchard v. Norton, 106 U.S. 132; Dunn v. Sargeant, 101 Mass. 336; Reeve's Dom. Rel. (4 Ed.), p. 5, note; Schouler Dom. Rel. (5 Ed.), sec. 114. Where a husband, without fraud and without being guilty of an act entitling the wife to a decree of separation, obtained a vested interest in property of the wife, the court of chancery, on the application of the wife, can not interfere with the husband's interest so as to place it beyond his reach. Van Duzer v. Van Duzer, 6 Paige 336, 31 Am. Dec. 257.
T. C. Dungan for respondent.
(1) If the only object was to partition and set apart what already belonged to the wife, then no new title would be conveyed, then the title of the part so set off would still be the wife's as before the partition, and the deed ought to have been made to the wife alone, and the husband would take no title, even if his name was inserted in the deed. Whittsett v. Wamack, 159 Mo. 14; Palmer v. Alexander, 162 Mo. 127; Cottrell v. Griffiths (Tenn.), 65 S.W. 397. Under our statute, prior to the amendment of 1889, the husband's marital right in his wife's lands was not an estate, as at common law, that could be sold under execution for his debts, or alienated by him; even the rents and profits were exempt from his sole debts; so that such marital interest was simply a usufruct right during their joint lives, and not an estate at all, and such right was only one in possession, and unless possession was had during coverture by the husband, he had nothing except the right to take, or recover such possession. If, however, a child was born of the marriage, he became then vested with an estate as tenant by the curtesy initiate, which, upon the death of the wife, became consummate for the life of the husband. The marital interest, then, of the husband being merely usufruct and not a vested estate in the husband, it was clearly within the power of the Legislature to change such right before it became a vested one in possession, by the amendment of 1889, just as it might and did abolish the right of the tenant by the curtesy of the husband in a wife's lands after marriage and before the birth of a child. Mitchell v. Violet (Ky.), 47 S.W. 195; Phillips v. Farley (Ky.), 66 S.W. 1006. (2) (a) A wife may maintain suit against her husband not only as to her separate property or provision therefrom, but she may also in other cases, where he improperly interferes with her rights by making unwarrantable claims on her property. 1 Story's Equity, sec. 29; 2 Story's Equity, secs. 167, 246, 847 and 956; Bright on Husband and Wife, 471; Barber v. Barber, 21 How. 582; Walter v. Walter, 84 Mo. 140; Sackman v. Sackman, 143 Mo. 576; Woodward v. Woodward, 148 Mo. 241. (b) As to wife's right of possession of her property, in her own right, or sole and separate where the husband abused her, and caused her to live separate and apart from him, and as to effect of section 6865, Revised Statutes 1899, or an action or proceeding independent of such statute: Sackman v. Sackman, 143 Mo. 576; Woodward v. Woodward, 148 Mo. 241.
Martin Meyer, in his lifetime, was seized and possessed of about 700 acres of land in Holt county, Missouri, including the land in controversy, and he was also possessed of about $ 21,000 in money and personalty. He resided upon the said land and died thereon, intestate, October 4, 1886, leaving a widow, Catherine Meyer, and eight children surviving him, viz., John Meyer, George Meyer, Alexander Meyer, Amos Meyer, Mary Ann Griffith, Eliza Ritchie, Sophronia Martin and Florinda Propes, the plaintiff. The widow elected to take a child's part in said estate. The estate was duly administered upon and fully settled in the Holt County Probate Court, and final distribution made thereof, the widow and each child receiving the sum of $ 2,268.50. The widow, Catherine, purchased the undivided interest of Eliza Ritchie, being one-ninth of said land, and thereby became the owner of a two-ninths part thereof in fee simple. No dower or home-stead in same was ever claimed, assigned or set off to the said widow. She died on June 13, 1895, leaving a will, and devised thereby all her undivided two-ninths part of said real estate to seven of the said children equally, plaintiff being one of those included, and Eliza Ritchie being the one excluded.
Defendant Propes married plaintiff February 14, 1889. After the death of Catherine the sons and the defendant went to the office of Van Buskirk, an attorney, and employed him to prepare an agreement to be signed by all the heirs of Martin Meyer, and the children and devisees of Catherine Meyer (except Eliza Ritchie), agreeing to the appointment of commissioners then selected and named, to make partition of all the lands and estates of said Martin and Catherine Meyer, deceased, each binding themselves to take such land, or money and land, or money alone, as said commissioners might set off to them respectively, each party to make and accept deeds or money and abide the partition of the said commissioners. Plaintiff was not present and had nothing to do with it, and knew nothing of it, until the writing was presented for her signature, when she signed same. After plaintiff and some others had signed it some changes were made by Van Buskirk by making additions and changes therein, without her knowledge or consent. The time of meeting being changed she was notified of the changed date, and on the day set by the changed date, all parties met at the old homestead and the commissioners, Roecker, Scott and Meyer, made a partition and assignment to the different children and heirs, as provided by such changed agreement, and they assigned to plaintiff, Florinda Propes, 120 acres, being the east half of the northeast quarter and the northwest quarter of the northeast quarter of section twenty-three, in township sixty-one, of range thirty-three, of the land in controversy, with the condition that she should pay to her brother, Alex. Meyer, $ 1,678.38. Attorney Van Buskirk, being present, asked plaintiff how she wanted her deed made, notwithstanding the written agreement drawn by him, specifying to whom same was to be made. Plaintiff said, "Make it to me." He then told her as she had no children, it would be different with her, that she must leave it to some one after her death. She replied, "Of course I want it to go to my husband after my death."
Van Buskirk prepared the deed shortly thereafter and drew same to Florinda Propes as the second party, conveying the land to her, Florinda Propes, her heirs and...
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