Shroyer v. Nickell

• Citation: 55 Mo. 264
• Parties: SABINA SHROYER, Defendant in Error, v. WM. A. NICKELL, et al., Plaintiffs in Error.
• Decision Date: 31 January 1874
• Court: United States State Supreme Court of Missouri

55 Mo. 264

SABINA SHROYER, Defendant in Error,

v.WM. A. NICKELL, et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Saline Circuit Court.

Strother & Shackelford, for Plaintiffs in Error.

I. The conveyance of George W. Allen to Presly Shroyer and wife vested the title to the real estate sued for in both as one by the entireties. Both must join in any contract or conveyance to invest the title as a quasi corporation. (12 Mo., 385.) Hence, the statute, prescribing the mode in which a married woman may convey her real estate, has no application to the case. (R. C., 1855, 302, § 35.) Therefore, the two together, making a contract or conveyance, may and can do so, just as any other person, so that an executory contract signed by both will be enforced against either or the survivor.

II. Even in case of an executory contract by husband and wife, in relation to sale of her real estate, in which the purchase money is received and lasting improvements made, this court has held, that, before the land can be recovered in ejectment, the purchase money must be repaid and the lasting improvements paid for. (50 Mo., 228.)

III. In all the cases in which the courts have decided that a court of equity will not correct an error in a married woman's deed, the land was owned by the wife in her own right. Certainly, the court will not follow the precedents by extending the rule to cases like the present against manifest justice.Boyd & Davis, for Defendant in Error.

I. The title to the whole or any interest in the land could only pass by a deed, in which Shroyer and his wife joined, duly acknowledged in accordance with the statute of this State. It is well settled, that a married woman can only dispose of her interest in real estate in this State by deed, in which her husband joins with her, duly acknowledged in conformity with the statute.

II. A court of equity will not enforce a contract made by a feme covert for the sale of real estate, unless it be executed and acknowledged in the manner prescribed in the statute, nor will a court of equity interfere to amend or correct any mistake in the contract or to make it conform to the statute. (Huff vs. Price, 50 Mo., 228; Carr vs. Williams, 10 Ohio, 305; Martin vs. Dwelly, 6 Wend., 9; Doe vs. Howland, 8 Cowan, 278; Knowles vs. Canley, 10 Paige Ch., 343; Jackson vs. Sears, 10 Johns., 435; Jackson vs. Stevens, 16 Johns., 110; Johns vs. Reardon, 11 Md., 465; Chauvin vs. Wagner, 18 Mo., 544; Wannall vs. Kem, 51 Mo., 150.)

SHERWOOD, Judge, delivered the opinion of the court.

Action of ejectment in the Saline Circuit Court brought by plaintiff, Sabina Shroyer, against defendant, Wm. A. Nickell, to recover possession of the W. half of the North-East Quarter of Sec. 16, T. 50, Range 21.

To this action, on his application, Wm. Prior was also made a party defendant, and thereupon the defendants answered jointly, pleading the general issue, and also, as a special and equitable defense, they alleged, in substance, that defendant, Nickell, was rightfully in possession of the land sued for; that on the 11th day of October, 1858, Presly Shroyer, the husband of plaintiff, purchased of George W. Allen the premises in question for the sum of $1,200, paid out of his own funds by said Shroyer; that Allen, in consideration of that sum, conveyed the real estate so sold to the husband and wife jointly, and in such way that they became and were seized as one person of the land thus conveyed; that Shroyer and his wife, on the 21st day of September, 1861, in consideration of the sum of $1,300, duly paid to them, contracted to sell said land to Wm. C. Randolph, and on that day, in accordance with such contract, attempted to convey to Randolph, by a deed duly signed and acknowledged, the land they contracted for, but by mistake of the scrivener the land was described in the deed so made as the W. half of the South-East Quarter, &c., instead of W. half of the North-East Quarter, &c. that Shroyer and wife were not the owners of the land thus erroneously described and mentioned in the deed to Randolph; that Randolph, on the 16th day of March, 1864, sold the land thus purchased from Shroyer and wife to defendant, Prior, but, in attempting to convey the same to Prior by deed, made the same mistake in regard to the proper description of the land as had been made in the deed from Shroyer and wife to Randolph; that the mistake in the deed from Randolph to Prior was duly corrected by an appropriate decree in favor of Prior against Randolph's heirs; that Prior has, since his purchase from Randolph, sold and conveyed, by a correct description, the land in controversy to defendant, Nickell, who, in good faith and believing he had acquired a title thereto, entered into the possession of such land, and made valuable and lasting improvements thereon to the amount of $1,025; that by reason of the premises, Nickell was in equity and good conscience entitled to the tract of land in controversy, and that plaintiff, as the survivor of her husband, holds the legal title in trust for defendant Nickell. The answer concluded with a prayer for reformation of the deed of Shroyer and wife to Randolph, for specific performance, and for other and further relief.

The portion of the answer setting up the equitable defense was successfully demurred to, and upon trial had, evidence was adduced, conducing to show a chain of title from the State of Missouri to George W. Allen, and from Allen to Shroyer and wife by deed which conveyed the property in suit to them jointly, that plaintiff was the survivor of her husband, and that Nickell was in possession of the premises.

The defendant introduced no evidence, and the court found and rendered judgment for the plaintiff for possession of the land and for one cent damages. After an unsuccessful motion for a new trial, this cause comes here on a writ of error.

The sufficiency of the defendants' equitable defense is the only question the record presents for our consideration; and this necessitates the discussion of the following points:

First--The power of a court of equity to effectuate the reformation of a deed of conveyance where a married woman is named therein as a grantor, and more especially in the case before us.

Second--If it shall be ascertained that no such power, as applicable to the present case, exists, is the defendant in possession absolutely without redress?

Third--If not without redress, what is the measure of relief which can be afforded...