White v. Dorris

• Decision Date: 31 July 1864
• Citation: 35 Mo. 181
• Parties: GEORGE T. WHITE, Defendant in Error, v. DORRIS & WIFE, Plaintiffs in Error.
• Court: Missouri Supreme Court

35 Mo. 181

GEORGE T. WHITE, Defendant in Error,

v.DORRIS & WIFE, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1864.

Error to Cole Circuit Court.

White sued Dorris and wife in ejectment for the recovery of the possession of certain real estate in the city of Jefferson, in the Cole Circuit Court. The answer denied White's right to the possession of said real estate, and averred that the same was owned by the said Thankful Jane Dorris, and that she was in possession thereof.

The cause was tried by the court.

The following agreed statement of facts was submitted to the court, to-wit:

That Dorris and his wife went into the possession of the property in the spring of 1853. A deed was made to Mrs. Dorris for the property by Judge Kerr (her father), in 1855, for the sum of six hundred dollars. The debt upon which the judgment was obtained, and under which plaintiff purchased in 1857, was contracted about the first of January, 1855; judgment was rendered on this debt in February, 1856. It is agreed that Tom Dorris earned the money that he loaned to his mother at the time he was living in the family of his father, but that he did not take any control of his earnings; also, the paper marked Exhibit A. is filed, wherein it is agreed that if plaintiff is entitled to possession, that he is entitled to one dollar per year for rents and profits from the date of plaintiff's purchase, and five dollars damages.

The agreed statement of W. M. Kerr was read in evidence, which is as follows:

“I did not sell the property to Dorris, but to his wife. They did not go into possession under the agreement that I made with Dorris to sell the property to him; Mrs. Dorris took possession of the property the day the deed to the property was made, and not until then, as her property. Dorris and wife remained in possession of the property until in 1863; Thomas Dorris was under twenty-one years of age at the time the money was paid me. In 1855, E. B. Cordell bought at sheriff's sale, under execution against A. P. Dorris, the property in controversy; Cordell afterwards told me that he would let me take the property at his bid, which I did, and the sheriff made the deed to me. I told Dorris if he would pay me the money, I would make a deed to him; he failed to do it. About this time I was going to leave this city, and my daughter (Mrs. Dorris) said she would like to buy the property herself, and said she thought she could pay for it. I agreed to let her have it for $650, what I paid for it; she paid me $200, which she borrowed from her son Tom, who had made it by acting as page for the Legislature. I think I made her the deed on 12th of March, 1855; I took her note for the balance of the money, $450; on 29th November, 1856, she paid me $200 more on said note, which amount she borrowed of her sister, Agnes Ramsay; the balance of $250 is still due on said note. A. P. Dorris never paid me one dime on said property; nor was any of his money appropriated to the payment of the same. I did not sell to Mrs. Dorris to defraud her husband's creditors, but because she wanted the property.”

Defendant read in evidence the deed from W. M. and Mary M. Kerr to Mrs. Dorris to said house and lot. This was all the evidence in the cause.

The plaintiff then asked the court to declare the law of the case to be as follows, to-wit:

1. If the court finds from the evidence that T. J. Dorris was, at the time of the sale of the property in controversy to her by W. M. Kerr, the wife of the said A. P. Dorris, and that she by such purchase acquired a fee simple title to said real estate, that then it will further find that by virtue of, and under said purchase of said T. J. Dorris, the said A. P. Dorris acquired a right of possession, or the usufruct of the said property during his natural life; and, further, that the plaintiff, under the said deed to him from the sheriff of Cole county, acquired whatever right the said A. P. Dorris had therein, to hold and enjoy during the life of the said A. P. Dorris, or, in other words, the plaintiff made, and, by virtue of said deed from said sheriff, was remitted to the rights of the said A. P. Dorris in said realty.

2. Even though the court may find that the alleged title of plaintiff was acquired in the real estate in controversy under a sale made by the sheriff of Cole county, under an execution issued upon a judgment against the husband alone, for a debt contracted by him before the purchase of said real estate by his said wife, yet the plaintiff thereby acquired the right of the husband therein, and is entitled to enjoy the same during the life of the said A. P. Dorris under said sheriff's sale.

3. The husband is entitled to all or any property the wife may acquire during coverture by her labor or acts; and if the said T. J. Dorris borrowed the means to purchase the real estate in controversy, then, as soon as the same was in her possession, it became the money of the said A. P. Dorris; and the payment of the same by her to W. M. Kerr could not operate to defeat his creditors from subjecting the same to the payment of his debts, or any property purchased therewith.

Which instructions were given. Defendant objected, which objection was overruled by the court, and defendant excepted.

Defendant asked the following instructions:

1. That if the evidence shows that Mrs. Dorris acquired the real estate in controversy from her father, by purchase with her own money, 12th of March, 1855, and that she then went into possession by virtue of said purchase, and that the debt of A. P. Dorris, her husband, upon which judgment was had by Russell and Schott, and under which plaintiff purchased, was contracted about the 1st of January, 1855, prior to the time Mrs. Dorris took possession under and by virtue of her purchase, and prior to the time of her purchase itself, the plaintiff cannot recover in this suit.

2. Although the evidence may show that Dorris and wife were in possession of said premises prior to the contracting of the debt above mentioned, yet if such possession was without color or pretence of title the plaintiff cannot recover.

3. Under the act of 1849, the interest of a husband in his wife's real estate is not subject to sale under execution for debts of the husband contracted prior to the time the wife came into possession of such property.

4. Property owned by a married woman before her marriage, or which may be acquired by her after marriage by descent, gift, grant, devise or otherwise, and the use and profits thereof, is exempt from sale under execution for all debts of her husband contracted by him prior to the time the wife came into possession of such property.

The first and second of said instructions were refused; defendant excepted. The court found the issues for the plaintiff.

E. B. Ewing, for plaintiff in error.

I. The instructions given for the defendant in error declare (or intend to declare) the marital rights of the husband, in the wife's real estate, as they existed at common law, disregarding the statutory provision, which materially modifies the common law in this respect, and should have been refused. They are erroneous, also, in declaring that if Mrs. Dorris acquired the fee in the real estate purchased, her husband thereby acquired a right of possession during his natural life. He only could acquire in such case, even at common law, a...