Rush v. Brown

• Decision Date: 17 November 1890
• Court: Missouri Supreme Court
• Parties: RUSH v. BROWN et al.

14 S.W. 735

101 Mo. 586

RUSH v. BROWN et al.

Supreme Court of Missouri.

November 17, 1890.

CONTRACTS OF MARRIED WOMAN — SPECIFIC PERFORMANCE.

1. Under Rev. St. Mo. 1889, §§ 2396, 2397, authorizing a married woman to convey her real estate by deed, she has no power to make a contract to convey such land.

2. A petition alleged a contract by a wife and her husband for the conveyance of her land, and the payment of a certain amount on the contract. The prayer was for specific performance, and general relief. Rev. St. Mo. 1889, § 2039, provides that the petition shall contain "a demand for the relief to which the plaintiff may suppose himself entitled," and that, "if the recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain the amount demanded." Held, that the prayer could not be construed as a prayer for a money judgment, and therefore a general demurrer to the petition was properly sustained.

This is an appeal from the decision of the circuit court of Buchanan county sustaining defendant's demurrer to plaintiff's amended petition for specific performance of an agreement to convey the real property of respondent Mary L. Brown, a married woman, held as her legal estate. Defendants are husband and wife. The material facts on which relief is asked in the petition are these: That before the 25th day of February, A. D. 1887, the defendants, and each of them, jointly, and in the presence of each other, made, constituted, and appointed, and by their declaration, by parol, lawully authorized, one Owen, as their agent, to sell for them the parcel of land in controversy, upon certain terms, for the price of $12,000; that on the 25th day of February, 1887, and while such agency was still in full force, said Owen, in the name of, and as such agent for, said defendants, sold said real estate to plaintiff, upon the terms aforesaid, and plaintiff paid defendants' said agent the sum of $3,000, and otherwise complied with the terms of sale; that, at the time of the payment of said $3,000, the said Owen, as the agent of said defendants, delivered to plaintiff a certain memorandum in writing whereby the defendants acknowledged the reciept of said sum of $3,000, and declared that the same constituted the cash payment of the purchase price of said real estate that day sold plaintiff, etc., to which memorandum the names of the defendants were signed by said Owen, as aforesaid, their agent, (which memorandum was filed; (that, after such payment of $3,000, the defendants, and each of them, after being informed of the payment thereof, and the making and signing of said memorandum, each and jointly, by parol, ratified and affirmed the same; yet the defendants, and each of them, ever since have and now refuse to convey the same to plaintiff by deed in proper form. "Wherefore the plaintiff prays that defendants be ordered by this court to make, execute, and deliver to plaintiff their deed in common form, with usual covenants of warranty, conveying to plaintiff the real estate aforesaid, as, by their said note and memorandum, herewith filed, they are bound to do, and that plaintiff further recover his costs in this cause laid out and expended, and for all and such other relief as should be granted in the premises."

Jas. F. Pitt, for appellant. Ryan & Macdonald, for respondents.

BARCLAY, J., (after stating the facts as above.)

Under our statutes, and the uniform construction of them that has for many years prevailed, a married woman cannot be compelled to specifically perform a contract for the sale of her legal estate in land. Rev. St. 1889, §§ 2396, 2397; Shroyer v. Nickell, 55 Mo. 264; State v. Clay, 100 Mo. 571, 13 S. W. Rep. 827. So well established is this rule that we are disposed to stop with the briefest announcement of it, rather than to hazard obscuring it by elaboration.

2. The prayer of the petition here is for specific performance and general relief. A general demurrer to the petition having...