Sackman v. Sackman
| Decision Date | 08 March 1898 |
| Citation | 45 S.W. 264,143 Mo. 576 |
| Parties | Sackman v. Sackman et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. E. J. Broaddus, Judge.
Remanded (with directions).
Wm Henry for appellants.
(1) The allegations in the petition and the judgment of the court simply for the recovery of the land, with damages, costs, and value of the monthly rents and profits, as allowed only in ejectment suits by statute, without decreeing the legal title in plaintiff, make it manifest that the case was tried by the circuit court on the theory that it was a suit at law in ejectment, and not a proceeding in equity or under the married woman's statute; and this involves manifest error as gleaned from the face of the petition and the judgment, in that the petition shows on its face that plaintiff and defendant were husband and wife, between whom suits at law in ejectment are not maintainable. (2) A deed from a husband to his wife can not in any event vest in the wife any other or greater title in lands than a mere separate interest or estate in equity (Turner v. Shaw, 96 Mo. 27; Crawford v. Whitmore, 120 Mo. 149; Pitts v Sheriff, 108 Mo. 115); and plaintiff's title deed being direct from her husband can not support any action at law. Crawford v. Whitmore, 120 Mo. 149. (3) A proceeding under the married woman's statute is plainly a proceeding at law, and under it the court is only authorized to make such order or decree as shall give the wife the sole use and benefit of such of her real estate as to it may seem reasonable and just, and this real estate is only that which she shall hold in her own right. R. S. 1889, secs. 6865 and 6866. (4) Under said deed the land is not held by plaintiff in her own right, but on the contrary the legal title is held by defendant Sackman, as her husband, during coverture, and during this time he has the right of curtesy. Cornwell v Orton, 126 Mo. 365. (5) The suit for divorce was also a suit for the possession of the same property now in controversy, and the allegations are substantially the same in both cases, and hence the judgment against plaintiff in that suit, shown in evidence by her in this one, ought to bar her right to recover the land. (6) The dismissal of plaintiff's bill in the divorce suit was an adjudication against her as to any criminal conduct or ill-usage toward her by her husband, giving her cause to live separate and apart from him under section 6865, Revised Statutes of 1889, and on her own showing she had no cause of action under that statute, for to justify an abandonment of the husband by the wife, his conduct must have been such as would entitle her to a divorce (Droege v. Droege, 52 Mo.App. 91, and authorities there cited), and during coverture she can only divest her husband of his rights in her real estate for the causes mentioned in said section. Meriwether v. Howe, 48 Mo.App. 154. (7) The petition does not state facts sufficient to constitute a cause of action either at law or in equity. (8) The marriage or ante-nuptial contract never had the effect to relinquish or bar plaintiff's dower in any of the lands of defendant Sackman, for at most it could only put her upon her election after the death of her husband as to whether she would take dower or the land granted. Roberts v. Walker, 82 Mo. 207. (9) The postnuptial contract or deed did not have the effect to relinquish the dower interest of plaintiff in the eighty acre tract of land other than that sought to be conveyed, for the wife can only relinquish her inchoate right of dower in her husband's lands by joining with him in a deed to a third person. R. S. 1889, sec. 2396. (10) It follows from the two last propositions that there is a mistake and lack of consideration for the conveyance of the land in controversy so far as the relinquishment of plaintiff's dower in the other eighty acres forms the consideration; and it also follows that if the equity powers of the court are called into action in any way under the pleading, then its action must be exclusively in equity for the enforcement of the obligation of the contract (3 Pom. Eq. Jur., sec. 1400); and herein the right to enforcement is not absolute, but discretionary with the court (3 Pom. Eq. Jur., sec. 1404); and before such enforcement there must be mutuality of obligation and remedy, freedom from mistake, fraud or illegality; and the instrument must be fair, equal and just in terms and circumstances, so its performance will not be harsh, oppressive or nugatory. 3 Pom. Eq. Jur., sec. 1405.
Crosby Johnson for respondent.
(1) The Supreme Court will not undertake to revise the findings of the trial court in equity cases, unless all the evidence which was introduced in the trial court is set forth in the abstract. Garrett v. Mining Co., 111 Mo. 279; Trimble v. Wollman, 62 Mo.App. 541; Grand v. Cannon, 118 Mo. 595. (2) The deed from a husband to his wife vests in her an equitable title in the land therein described. Turner v. Shaw, 96 Mo. 22; Pitts v. Sheriff, 108 Mo. 110; Crawford v. Whitmore, 120 Mo. 144. (3) Want of consideration can not be shown against a recital in a deed for the purpose of defeating its operative words. Bobb v. Bobb, 89 Mo. 412; Henderson v. Henderson, 13 Mo. 151. (4) A wife's release of dower and her undertaking to support herself are a valid consideration for a deed from her husband to herself. Randall v. Randall, 37 Mich. 563. (5) Where the husband and wife are living apart she may maintain equitable ejectment against him for the recovery of her separate estate. McKendry v. Fessler, 131 Pa. St. 24; Buckingham v. Buckingham, 45 N.W. 504; Minier v. Minier, 4 Lans. 421; Barclay v. Plant, 50 Ala. 500; Hardin v. Gerad, 10 Bush. 259. (6) Where a wife is living apart from her husband she may maintain replevin against him to recover her personal property. Howland v. Howland, 20 Hun. 472; White v. White, 58 Mich. 546; Berdell v. Parkhurst, 58 How. Prac. 102. (7) Plaintiff's agreement to release dower and to support herself was a good consideration for defendant's conveyance to her of the land in dispute. Garbut v. Bowling, 81 Mo. 214.
This controversy is between the wife upon one side, and her husband and his tenant upon the other. It is concerning the possession of eighty acres of land conveyed April 10, 1894, by defendant, Rufus C. Sackman, to his wife, the plaintiff in this action. Plaintiff prevailed in the trial court, and defendants appealed.
The facts upon which we rest our judgment will sufficiently appear in the opinion. The points relied upon by appellant will be considered in the order in which they are presented upon the record.
I. Defendants, at the trial, interposed an objection to the introduction of any evidence, assigning as grounds therefor that the petition failed to state a cause of action. Hence it becomes necessary to make a condensed summary of plaintiff's allegations. The petition states, that, at the time of the institution of this suit, plaintiff was the wife of defendant, Rufus C. Sackman; that she was the owner and entitled to the exclusive possession of the land in controversy; that it was her sole and separate property; that she and her husband were living separate and apart from each other; that she had been excluded from any enjoyment of said land and defendant Sackman had placed his co-defendant Wilson in her residence, and that defendants were in the joint occupancy of the property; that prior to their separation her husband was guilty of such cruel conduct toward her that her life and health were endangered and that his treatment of her was such as to justify her in living separate and apart from him; that she undertook to take charge of her property and he struck and beat her with his fist. The value of the rents and profits is then alleged; and it is charged that the property had been damaged by defendants. The petition concludes with a prayer that plaintiff be placed in the sole and exclusive possession of the premises and that defendant Sackman be enjoined from interfering therewith, and for judgment for damages, rents and profits and for all proper relief. No demurrer was interposed by defendant. The court was not asked to require plaintiff to make the petition more definite and certain.
The question of its sufficiency was first raised at the trial by an objection to any evidence in its support. To sustain such an objection the petition must be so fatally defective that a motion in arrest would lie. Grove v Kansas City, 75 Mo. 672. We agree with the trial court that the objection to the petition is not well taken. It is stated therein that plaintiff is the owner of the real estate in question, and that it is her sole and separate property. It is also alleged that her husband struck her and beat her with his fist, and was guilty of such cruel and inhuman treatment as to endanger her life and to justify her in living separate and apart from him. It is further averred that he had exclusive possession of the land, and was preventing plaintiff from enjoying any part of the rents and profits. While the petition contains other statements that may have been unnecessary, yet the above allegations are in it. These averments bring the plaintiff within the express provisions of ...
To continue reading
Request your trial