Warren v. Castello

• Decision Date: 28 March 1892
• Citation: 19 S.W. 29,109 Mo. 338
• Parties: WARREN et ux. v. CASTELLO.
• Court: Missouri Supreme Court

19 S.W. 29

109 Mo. 338

WARREN et ux. v. CASTELLO.

Supreme Court of Missouri, Division No. 2.

March 28, 1892.

MARRIED WOMAN — SEPARATE ESTATE — CONSTRUCTION OF DEED — SPECIFIC PERFORMANCE — VALIDITY OF CONTRACT.

1. The words in a deed, "to J., trustee of M., and her heirs and assigns," create a trust, but not a separate estate, which M., a married woman, could bind by her contracts as if she were sole.

2. In an action for the specific performance of a contract it appeared that the contract was signed only by defendant; that in it he agreed to deed a certain tract of land to plaintiff, a married woman, at any time during a term of 15 years that she might pay him $2,000; that there was no consideration for the promise to convey; and that the contract expressly provided that plaintiff "is in no way obligated to purchase the land." Held, that there was no mutuality of obligation or remedy, both as plaintiff was a married woman and as it expressly agreed that she should not be bound; and that the agreement was gratuitous and voluntary, and incapable of enforcement.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

Action by John Warren and Mary Warren, his wife, against Charles Castello, as administrator de bonis non of William Mreen, deceased, for the specific performance of a contract for the sale of land. Judgment for plaintiffs. Defendant appeals. Reversed.

Rassieur & Schnurmacher and Geo. W. Royse, for appellant. Jas. A. Henderson, for respondents.

GANTT, P. J.

This proceeding was commenced in the probate court of St. Louis county, seeking the specific performance of an agreement alleged to have been made February 1, 1884, between plaintiff Mary J. Warren, then and now a married woman, and William Mreen, since deceased, whereby it is claimed that the said Mreen agreed at any time before March 1, 1889, to convey to said Mary J. Warren certain land lying in St. Louis county, upon the payment to him of $2,000. The proceeding was originally commenced against Mary Ann Mreen, the widow and executrix of the deceased. Since the appeal to this court, Charles Castello, her successor as administrator of the estate, has been substituted for her in the action. The contract which is made the basis of this proceeding is in the form of a bond, in which the said Mreen binds himself to plaintiff Mary J. Warren in the penal sum of $2,000, to be void if he should make and deliver to her a good and sufficient warranty deed for said parcel of land. The contract is signed only by said Mreen, and contains the following provision: "And it is further expressly understood and agreed that the said Mary Warren is in no way obligated to purchase said lands, but that the true intent and meaning of this instrument is that the said Mary Warren, who is now occupying said lands under a written lease, for a term of fifteen years, ending March 1, 1899, shall hereby and herein have the privilege of purchasing said lands at any time during the continuance of said term by paying to said William Mreen the said sum of two thousand dollars, and that upon payment of said sum of money within the time specified the said Mreen shall cause to be made, executed, and delivered to her a good and sufficient warranty deed therefor." The evidence disclosed that Mrs. Warren never paid or offered to pay any part of the purchase price to Mreen in his life-time; that when Mreen signed the agreement she was already in possession of the land therein described, under a lease theretofore entered into between her husband, who was also her trustee, and Mreen, dated June 14, 1883; that Mrs. Warren was in the quarry business; that she had worked a quarry on the land, and had also set out some fruit trees and grape-vines on a part of it. Against the objections of defendant that she was an incompetent witness, the plaintiff Mary J. Warren was permitted to testify in her own behalf in the circuit court that before commencing this proceeding she had tendered Mrs. Mreen, who was then acting as executrix of deceased, the sum of $2,000, and had demanded of her a conveyance to the land. To this action of the court in permitting Mrs. Warren to testify an exception was duly saved by defendant. In the probate court, and again in the circuit court, there was a finding and judgment for the plaintiffs, and the case has been brought here on an appeal taken by the representative of the estate.

On behalf of the defendant it is submitted that the court below erred in its judgment, and that no specific performance of the contract should have been ordered, because (1) the agreement is without consideration to support it; (2) the agreement lacks mutuality of obligation and of remedy in this: that, Mrs. Warren having been at the time the contract was made, and ever since, a married woman, the same was not binding upon her, nor enforceable against her; (3) the contract lacks mutuality by its own terms, independent of any personal incapacity of Mrs. Warren; (4) there was also...