Tennison v. Tennison

CourtUnited States State Supreme Court of Missouri
Citation46 Mo. 77
PartiesRUTH TENNISON, BY NEXT FRIEND, Plaintiff in Error, v. ARCHIBALD TENNISON et al., Defendants in Error.
Decision Date31 March 1870

Error to Second District Court.

Ewing & Holliday, and Perryman & Denning, for plaintiff in error.

I. There being no bill of exceptions, this court will only notice error apparent on the face of the record proper. (Bateson v. Clarke et al., 37 Mo. 34; State, to the use, etc., v. Matson et al., 38 Mo. 490.) Courts of equity, for many purposes, treat the husband and wife as distinct persons, capable of contracting with each other and of having separate estates, debts, and interests. (Arundell v. Phipps, 10 Ves. 144-9; Livingston v. Livingston, 2 Johns. Ch. 539; 2 Sto. Eq., § 1368; Putnam v. Bicknell, 18 Wis. 333.)

II. The petition states facts sufficient to clothe the husband with a trust as to the land mentioned in decree of Circuit Court. (Little v. Maul, 2 Ired. N. C. Eq. 18; 2 Leigh's N. P. 1109; 5 Whart. 138; 2 Kent, 5th ed., 137.) And when the rights of creditors or bona fide purchasers are not in the way, courts of equity will compel the execution of the trust for the benefit of the wife. (Walker v. Walker, 25 Mo. 367; 27 Mo. 375; 2 Sto. Eq., § 1372; Darby v. Darby, 3 Ark. 399; Rich v. Cockell, 9 Ves. 375.)

III. There is a marked difference between the property in possession of the wife at date of marriage and property belonging to the wife in action. Chancery will restrain the husband from proceeding in the courts to reconvey such chose until a provision is made for her out of the property; for such rights in action are of an equitable nature and property of equitable cognizance. (2 Kent, 139-41.)

IV. Courts of equity will compel him to carry out his contract made with the wife, though it be by parol. (2 Sto. Eq., §§ 1372, 1374; 2 Kent, 166; Livingston v. Livingston, 2 Johns. Ch. 537; Arundell v. Phipps, 10 Ves. 129-45; Bullard v. Briggs, 7 Pick. 533; Garlick v. Strong, 3 Paige, 440.)

V. The equity of the wife attaches where the husband obtains the possession of the property by fraud. (Spence's Eq. Jur. 488; Colmer v. Colmer, 2 Ark. 98.)

Relfe & Arnold, and Bush & Beale, for defendants in error.

I. Plaintiff's petition does not state facts sufficient to constitute a cause of action. It does not show that the $100 in gold was given for the sole and separate use of plaintiff, but shows it to have been such a gift that it became the absolute property of the husband when he reduced it to possession. (2 Kent, 135-41; Sallee v. Arnold, 32 Mo. 532; 2 Blackst. Com. 396-7; Mardree v. Mardree, 9 Ired. 295; Chase v. Palmer, 25 Maine, 341; Woelper's Appeal, 2 Barr, 71.)

II. Plaintiff's husband could not have been a trustee for plaintiff unless she had a separate estate; and by her petition she shows that she waived her right to have a separate estate. (40 Mo. 61; Moss v. McCall, 12 Ala. 630.)

III. Equity will not interpose to divest the husband of his wife's personalty when he is invested with it by law, or when he has reduced it to possession. The wife's equity to a suitable provision for the maintenance of herself and children out of her separate estate does not attach, except upon that part of her personal property in action, which the husband can not acquire without the assistance of a court of equity; and if the husband acquires possession of the wife's personal property, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. (2 Kent, 141; Shaw v. Mitchell, Daveis's, 216.)

IV. Courts of equity will never be called into activity to remedy the consequences of laches or neglect. (Creath v. Sims, 5 How. 192; Lewis v. Baird, 3 McLean, 56; Perry v. Craig, 3 Mo. 360.)

V. The contract by which the money and land warrants were to be invested in lands in plaintiff's name was not published until the husband had disposed of the lands, and is not alleged or proved to have been in writing, acknowledged, or recorded. (R. C. 1855, p. 459, §§ 17, 18; 19 Mo. 543; 31 Mo. 230.) The court can not set up a verbal contract between the husband and wife to create in the wife any estate or right to the land which a court of equity could recognize. (2 Sto. Eq., § 1379.)

VI. The contract, as set forth in plaintiff's petition, was not sufficient to show that the land in suit was clothed with a trust that the law would enforce against third parties, or that third parties were required to take notice of. (R. C. 1855, p. 459-60, §§ 17-19; 31 Mo. 230.)

VII. The petition does not show that any of the funds were given to plaintiff for her sole and separate use, and does not ask that the land be vested in plaintiff for her sole and separate use.

VIII. If the decree be found to be correct upon the case maoe, it will be affirmed. If the decree is unsupported by the evidence, it will be reversed and remanded (as was done in this case by the Second District Court), or the bill dismissed. (2 Mo. 126; Labarge v. Channin, id. 145; Baker v. McCarty, 5 Mo. 1; 41 Mo. 574; Rutherford v. Williams, 42 Mo. 37; Knowles v. Mercer, 16 Mo. 455.)

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in equity to vacate and set aside certain deeds, and for a decree vesting in the plaintiff the title to lands therein described. An unauthenticated draft of a bill of exceptions appears in the record, the judge before whom the cause was tried having refused to sign it because of its alleged unfairness and insufficiency. There is, therefore, nothing but the record proper before this court upon which it can act; and that presents the single question of the sufficiency or insufficiency of the petition to justify the awarding of the relief prayed for, the truth of the facts therein alleged being assumed.

The petition shows in brief that the plaintiff intermarried with the defendant, Archibald Tennison, many years ago, and that they have ever since lived together as husband and wife, and are still so living together in that relation; that the plaintiff, subsequently to such intermarriage, derived from her father and his estate a considerable amount of money and property; that it was mutually arranged and agreed upon between herself and husband that he should take a certain portion of such property as his own absolute estate, the plaintiff waiving her right to a settlement of any portion of it upon herself, and that he did so receive and appropriate to his own use his agreed proportion of said property; that her husband, in consideration thereof, agreed to invest certain other moneys, together with certain land warrants acquired by the plaintiff from her father and his said estate, in lands to the sole and separate use of the plaintiff and in her name; that her husband, in consideration and in pursuance of the premises, did in fact apply, use, and invest such moneys and land warrants in the purchase and acquisition of the lands described in the petition, taking a deed thereof in his own name; the plaintiff supposing and believing, however, that the lands were conveyed directly to herself for her separate use. The petition further shows that the plaintiff's husband and the other defendants entered into a fraudulent combination and conspiracy to cozen and cheat the plaintiff out of her equitable right, title, and interest in said lands; and that her husband, in pursuance of such fraudulent conspiracy, conveyed said lands to the other defendants voluntarily and without consideration, and with a...

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