Shumate v. Shumate et al.

• Decision Date: 03 June 1916
• Citation: 78 W.Va. 576
• Court: West Virginia Supreme Court
• Parties: Shumate v. Shumate et al.

78 W.Va. 576

Shumate

v.Shumate et al.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1916.

Decided June 3, 1916.

1. Curtesy right Desertion ''Leave.''

A husband, who leaves his wife except for cause such as would entitle him to a divorce, and, without any intention of renewing cohabitation with her, takes up his residence in another state, where he thereafter continuously resides in disregard of his marital obligations, leaves her within the meaning of section 16, chapter 65 of the Code, and is barred of curtesy in her real estate, although he registers as a voter and votes in this state, is assessed with and pays taxes on personal property and personally supervises farming operations on his lands therein, thereafter leases such property in consideration of support and maintenance of himself and family and payment of taxes, occasionally visits his family and upon the request of his wife transacts business for her, but, though ostensibly friendly, each treats the other on such occasions as a stranger to the marriage tie. Under such circumstances, a deed executed by him, purporting to convey courtesy in her real estate, passes no interest therein to the grantee. (p. 577).

2. Husband and Wife Married Women Conveyances.

An instrument purporting to be a deed, granting the separate estate of a married woman living apart from her husband, though upon a consideration deemed valuable in law, and signed, sealed, and acknowledged by her, the husband not joining therein, is void as a conveyance, unless the acknowledgment appended thereto contain the recitals required by section 6, chapter 73 of the Code, but such instrument is valid as a contract of sale enforceable against her and her heirs. (p. 580).

(Poffenb Arger, Judge, dissenting).

Appeal from Circuit Court, Mercer County.

Bill by John R. Shumate against H. H. Shumate and others. From decree awarding partial relief plaintiff appeals.

Affirmed in part. Reversed, in part. Remanded.

B. W. Pendleton and Sanders, Crockett & Kee, for appellant.

John R. Pendleton and Woods & Martin, for appellees.

Mason, Judge:

By an instrument in writing, bearing date December 14, 1911, sealed and acknowledged by her, Elizabeth Shumate, a married woman, living separate and apart from her husband, undertook to convey her separate real estate to her son, the plaintiff, John. R. Shumate. Her husband did not join in the execution of the paper; nor did it, or the certificate of acknowledgment, contain the recitals required by sec. 6, ch, 73, Code. She died in April, 1912. In June of the same year, R. A. Shumate, her husband, conveyed to his children then living and the heirs of such of them as were dead his curtesy in his wife's lands. John R. Shumate thereupon filed this bill, praying cancellation of the deed for such interest as a cloud on his title, a declaration of the validity of the deed to him for his mother's lands or its validity as a contract to convey, and enforcement as such against her husband and heirs at law should the court be of opinion by reason of the noncompliance with the provisions of the statute cited the instrument so made was ineffectual as a conveyance of his mother's lands. From a decree awarding cancellation of the deed made by the father, but denying other relief, plaintiff has appealed; and defendants cross-assign error

Relief by cancellation was predicated upon sec. 16, ch. 65, Code, saying: "If a husband of his own free will shall leave his wife except for cause such as would entitle him to a divorce, he shall be barred of his curtesy in Ms wife's estate, unless she afterwards become reconciled to and live with him as his wife." That R. A. Shumate voluntarily left his wife Elizabeth some time about the year 1905, and moved to Narrows, Va., where he has since continuously resided, and at no time thereafter resumed actual or virtual cohabitation with her, the testimony fully establishes, as it also does the complete negation of any cause therefor traceable to her conduct. The absence of any insinuation of lack of devotion or loyalty on her part' to her matrimonial vows, warrants the conviction that she was in every respect faithful to her husband, and tolerant to his faults and foibles, from which, as we shall see, he was not wholly immune. The only charge affecting her faithfulness to him was that she refused his request to aecom- pany him to Narrows and there abide as his wife. He alone testifies to this fact. While it is hardly conceivable that at no time within the period of his protracted absence the wife and mother withheld from her children information of such request and refusal, not one of them was called to corroborate such statement, although evidently imbued with positive animosity against the plaintiff. But to his wife, R. A. Shumate attributes a reasonable excuse for declining the proposed change of residence, that excuse being her solicitude for the safety and welfare of three mentally defective children, the result of their marriage. These he did not intend to take to the Virginia Home, but to leave them in the care and custody of the plaintiff, at the Mercer County home. But, though not brought to the attention of the court by any pleading filed in the cause by any of the parties, the adulterous conduct of the husband and father, before and after the separation, abundantly established by proof, affords the most plausible reason for his selection of a residence remote from the abode of his wife and children, where, unmolested and unobserved by them and his neighbors, he could, as he actually did, freely indulge in the unlawful gratification of his lustful passions, and strongly tends to negative his invitation or desire that his wife accompany him to the proposed new residence.

By way of cross-assignment, defendants deny the sufficiency of the evidence to prove abandonment, and contend that the facts of abandonment and intention to abandon are successfully controverted by proof tending to show that R A. Shumate made ample provision for the maintenance and support of his family composed of his wife and the three defective children, that thereafter he registered as a voter and occasionally voted in Mercer County, was assessed there with and paid taxes on personal property belonging to him and paid poll tax charged to him, gave personal attention to such property, at frequent intervals visited his wife, transacted business for her at her request, was present during her illness and when she died and attended her funeral. But they did not then or at any other time subsequent to the separation, so far as the proof shows, occupy the same rooms or apartments on such ooccasions, or, although ostensibly friendly, act toward each other as those bound together by marital ties. Moreover, it will be observed that the statute cited does not as does sec. 6 of the chapter on divorce, use the word "abandon", but declares that if a husband "leave" his wife except for cause such as would entitle him to a divorce, he shall be barred of his curtesy in her lands.

But, assuming that by this enactment the Legislature meant an abandonment such as would justify a divorce, an assumption not readily inferrable from the language used, does not the evidence abundantly support the conviction that R. A. Shumate did in fact abandon his wife? Actual separation by one party to the matrimonial union, co-incident with the intention to abandon, constitute statutory ground for dissolution of the marital ties. Burke v. Burke, 21 W. Va. 445; Tillis v. Tillis, 55 W. Va. 198. Within this definition falls the act and conduct of R. A. Shumate. He abandoned his wife, with the intention not to resume cohabitation with her. To several persons, who bear testimony to his statement, he declared, when leaving, that he did not intend to return to his Mercer County home. Nor, as heretofore observed, did he thereafter renew cohabitation with his wife.

Voluntary withdrawal from cohabitation, concurrent with an intention to forsake and not return, constitutes abandonment within the meaning of the divorce statutes. The duration of the separation in excess of the time fixed by law is important only in so far as it tends to emphasize the element of intent. Moore v. Stevenson, 27 Conn. 14. In Stock v. Mitchel, 252 111. 530, similar facts were held sufficient to show bar of the husband's right to curtesy, under the Illinois statute, in the deceased wife's lands. Where a husband is dissipated, lives apart from his wife, and contributes nothing to her support, and she engages in business on her account, this is such an abandonment, within the spirit of the statute, as will justify the award of a decree of divorce from him. Shields v. Bellman, 74 Tenn. 488; Walker v. Strongfellow, 50 Tex. 570. While many cases prescribe as one of the conditions of abandonment failure of the husband to provide for the wife's maintenance, R. A. Shumate likewise substantially falls within the same category. At the time of the separation he made no provision for his wife's support, although about a year thereafter he leased one of his farms to the plaintiff, the conditions being payment of taxes thereon and support of himself and his wife and their defective children. Though upon facts more conclusive on the question of abandonment, the case of Buford v. Adair, 43 W. Va. 211, supports the views we have expressed on the sufficiency of the facts proved to show the abandonment relied on by plaintiff. Wills v. Wills, 82 S. E. 1092, cited by appellees, shows conduct wholly variant from the acts of R. A. Shumate.

These conclusions effectually dispose of defendant's crossassignments, and lead to an affirmation of the decree in so far as it grants plaintiff's prayer for cancellation.

While it is essential to the validity of a deed conveying the separate estate of a married woman living with her husband that it be signed by her and her husband and acknowledged, in order to make it a valid contract conveying her estate, we...