Richardson v. De Giverville

• Decision Date: 07 December 1891
• Citation: 107 Mo. 422,17 S.W. 974
• Parties: RICHARDSON v. DE GIVERVILLE et al.
• Court: Missouri Supreme Court

17 S.W. 974

107 Mo. 422

RICHARDSON v. DE GIVERVILLE et al.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

ANTENUPTIAL CONTRACTS — CONFLICT OF LAWS.

1. An antenuptial contract entered into in France, under the Code Napoleon, with reference to the community of property, excluded the property then owned by the wife from the community, and provided that on her death the husband should have during his life the whole of the income arising therefrom, or, in case of children living of the marriage, half of such income, but contained no agreement that the real estate of the wife should remain her sole estate free from the control of her husband. Held, that such agreement did not secure to the wife a separate estate in her real estate owned by her at such time in Missouri, as an intent to exclude the common-law rights of the husband did not clearly appear therefrom.

2. An antenuptial contract entered into in France with reference to the community of property under the Code Napoleon, in so far as it relates to personal property, will be construed according to the law of France, but, as to real property owned by one of the parties in Missouri at the time it was entered into, will be construed by the law of Missouri.

3. Under the Code Napoleon, an antenuptial contract entered into in France with reference to the community of property to be acquired by the spouses after marriage gives the husband the right to manage realty owned by the wife at the time of the marriage, and disables the wife from alienating it without his special consent; and therefore such realty, situated in Missouri, is not the wife's separate estate under the Missouri laws.

Appeal from St. Louis circuit court; GEORGE W. LUBLE, Judge.

Suit by Joseph C. Richardson against Marie V. K. de Giverville and her husband to enforce the specific performance of a contract to convey realty. From a judgment dismissing his petition on the merits, and setting aside a contract of sale as a cloud on defendants' title, plaintiff appeals. Affirmed.

Reynolds & Lewis and L. F. Parker, for appellant. Boyle, Adams & McKeighan, for respondents.

BLACK, J.

Plaintiff, Richardson, brought this suit against Madame de Giverville and her husband, to enforce the specific performance of a written contract executed by her while a married woman by Mr. Bailey, her agent, for the sale of 50 acres of land in the limits of St. Louis to the plaintiff. The petition states that Madame de Giverville owned and held the property as her sole and separate estate. The defendants deny this averment, and say she was seised of and held the property as her general estate, subject to the marital rights of her husband, and for this reason the contract is invalid. They aver that the contract, which had been recorded, constitutes a cloud upon their title, and ask that it be set aside and canceled. The circuit court found the issues for the defendants, dismissed the plaintiff's petition, and gave judgment as prayed for in the answer. The following are the essential facts, stated in the order of time in which they occurred: James W. Kingsbury, by his will, which was probated in St. Louis in 1853, devised the land in suit and other lands to his son and two daughters. One of these daughters, who is the real defendant in this case, and her co-defendant, Armand Francois Robert, count of Giverville, married in France in 1865. Preparatory thereto they executed a marriage contract. If Madam de Giverville has a separate estate in the property in question, she has it by force and effect of this antenuptial contract. The contract was executed in France before a notary public; bears date the 25th October, 1865; is signed by the parties, but not under their seals. Omitting formal and immaterial parts, it is as follows: "Article First. The future conjoints adopt the community of goods as the basis of their civil marriage, such as it is established by the Code Napoleon. They covenant, however, that this community shall be limited to the acquisitions of real and personal estate which they may make during their marriage. Accordingly, the same community from which is excluded all the present estate of the future conjoints, and that which may fall to them in their own right in the future, shall be governed (except what shall be hereafter stipulated) by the dispositions of the articles 1498 and 1499 of the Code Napoleon. Article Second. Each conjoint shall be entitled to one-half or moiety of the benefits of the community of acquisitions above mentioned. It is, however, stipulated, as it is allowed by the article 1525 of the Code Napoleon, that the surviving conjoint shall be entitled to the usufruct, during his life-time, of the portion of the real and personal estate which shall come to the conjoint first dying in the community: provided, however, that there shall be no living children of said intended marriage, for otherwise the surviving conjoint shall be entitled to the usufruct only of one-half of that portion. To enjoy the usufruct which shall come to him, in either of the said events, the surviving conjoint shall not be obliged either to give security or to invest the money coming from or give adequate substitute for the personal estate, but he shall cause an inventory thereof to be made." By the third and fourth articles, the parties make a general declaration of the property, real and personal, which they each bring to the marriage, with a value fixed upon the personal property. "Article Fifth. At the dissolution of the marriage, or of the community of acquisitions, each one of the conjoints shall retake what belongs to him or her in his or her own right, as he or she is entitled to. It is covenanted, however, that each of them, or their heirs, shall retake personal property of the same nature and kind as that brought in the community by each of them, according to the appraisement thereof, and to an amount equal to the sum they shall be entitled to deduct from the community. Article Sixth and last one: Lastly, the future conjoints mutually grant and made over to each of them, as a gift, and to the benefit of the survivor of them, (which gift they respectively accept,) the usufruct, during the life of the said survivor, of all the personal and real estate, without exception, which the one first dying shall have at the time of his death, and which shall come from his succession. In case there shall be any living children or child of the intended marriage, this gift shall be limited to the usufruct of one-half or moiety of the same real and personal estate. To enjoy the usufruct which shall come to him in either of the said events, the survivor shall not be obliged either to give security or to invest the money coming from or give adequate substitute for the personal property, but he shall cause an inventory thereof to be made. This donation shall not prejudice in any manner the convention stipulated in article second concerning the property coming from acquisitions."

Count and Madame de Giverville came to the United States in 1872, and have resided in St. Louis since that time. She acquired the property in question in severalty by virtue of a partition deed executed in 1874 by her and her sister and their husbands, the brother having died before that date. While the count was in France on a visit, his wife placed the property in suit in the hands of Mr. Bailey, a real-estate agent, for sale; and he sold the same to the plaintiff at $300 per acre. Bailey at the same time, as the agent of Madame de Giverville, and not as the agent of her husband, gave the plaintiff a writing, dated the 27th June, 1885, in the form of a receipt, acknowledging the payment of $100 as part of the purchase price, and stating the terms of the sale. This is the contract which the plaintiff seeks to enforce by this suit. It appears Judge Gantt held a power of attorney to transact business for Count de Giverville, but there was doubt as to whether it gave him authority to execute a deed; hence the transaction stood unclosed until Count de Giverville returned, which was less than a month after the date of the contract. He declined to join his wife in a deed to the plaintiff, insisting that the property was worth $400 per acre. Subsequently, and in April, 1886, Bailey acknowledged the execution of the contract before a notary public, and the plaintiff then caused the same to be recorded in the records of land titles. The abstract of title procured by the plaintiff, at the time he purchased the property through Bailey, did not disclose the marriage contract. The abstracter overlooked it, though it had been duly recorded in St. Louis. About a year and a half after the date of the contract of sale, the plaintiff for the first time discovered and received actual notice of the existence of the marriage contract, and within four or five months thereafter he commenced this suit. In the mean time the property had increased in value, so that when this suit was commenced it had a market value of more than twice that specified in the contract upon which this suit is founded.

1. If Madame de Giverville was seised of and held this property as her general estate, then she could only convey it by a deed jointly executed by herself and husband, and her contract for the sale of it is invalid, both at law and in equity. If, however, she held the property to her sole and separate use, free from the control of her husband, then it was her separate estate in equity; and she could convey it by her deed without her husband...