Woodward v. Woodward

• Decision Date: 21 February 1899
• Citation: Woodward v. Woodward, 148 Mo. 241, 49 S.W. 1001 (Mo. 1899)
• Parties: Woodward v. Woodward et al., Appellants
• Court: Missouri Supreme Court

49 S.W. 1001

148 Mo. 241

Woodward v. Woodward et al., Appellants

Supreme Court of Missouri, Second Division

February 21, 1899

Appeal from Greene Circuit Court.-- Hon. James T. Neville, Judge.

Affirmed.

H. E Howell for appellants.

(1) A wife is bound to follow the fortunes of her husband and to live where he chooses to live, and in the style which he may adopt until death part.Messenger v. Messenger,56 Mo. 329;Kaster v. Kaster,43 Mo.App. 118;Thompson on Homesteads(1 Ed.), sec. 74;Schoulerv. Dom Rel. 293.(2) Injunction will not lie.R. S. 1889, sec 5510.Injunction will not lie to restrain a trespasser unless he is insolvent or the injury is irreparable.James v. Dixon,20 Mo. 79.It must permanently impair the enjoyment of property in future.Echelkamp v. Schraider,45 Mo. 505;Weigel v. Walsh,45 Mo. 560.Relief in equity by injunction can only be granted when there is plain danger.Railroad v. Schneider,30 Mo.App. 620.As to defendant, Thompson, he was doing nothing but trying to raise a crop of corn for himself and his landlord.(3) The land was purchased with their joint means and therefore they have interests in the land according to the investment of each therein and she can not in equity take from him the possession of the whole land.Baggs v. Baggs,55 Ga. 590.(4) The husband is entitled to an estate for his own life and in his own right as tenant by curtesy initiate.1 Bright on Husb. and Wife, pp. 112 and 126.After issue born alive capable of inheriting, he is seized of a separate freehold estate for his life in his own right in wife's estate of inheritance, and during his life he may sue in his own name for any injury to the usufruct.Kelley's Contracts of Married Women, p. 88;1 Wash. on Real Prop.(3 Ed.), secs. 49 and 51;Clay v. Mayr,144 Mo. 376;Acts 1895, p. 35;Dyer v. Wittler,89 Mo. 81;Meriwether v. Howe,48 Mo.App. 154;R. S. 1889, secs. 2396, 6865 and 7132;Brown v. Dressler,125 Mo. 589.(5) Even if the court should believe that curtesy is destroyed by section 6869, yet that section does not apply to this case, for that section only reaches real estate purchased with her separate money or means, that is wholly so purchased.

G. A. Watson and George Pepperdine for respondent.

(1) This land came to her by purchase with her own separate money, during coverture, and is her separate property and under her sole control.R. S. 1889, sec. 6869;Ilgenfritz v. Ilgenfritz,49 Mo.App. 137.(2) Neither this statute nor any other gives the wife the right to sue her husband at law.Ilgenfritz v. Ilgenfritz,49 Mo.App. 138.If she can not sue her husband for possession, she surely has some recourse; and must resort to a court of equity, and injunction is the proper and only remedy.It affords adequate relief and its application to such cases was approved in Ilgenfritz v. Ilgenfritz,49 Mo.App. 127.(3) The property would have been the wife's, even had the husband paid for it with his own money and had it deeded to her.The clearly settled rule in this State is that the husband is presumed to have intended it as a provision for, and settlement upon her, for her benefit, and not as a resulting trust for himself.Ilgenfritz v. Ilgenfritz,116 Mo. 429;Schuster v. Schuster,93 Mo. 438;Seibold v. Christman,75 Mo. 308;Price v. Kane,112 Mo. 412;Kinzey v. Kinzey, 115 Mo. 496.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

The plaintiff is the wife of the defendantJames Woodward.They were married in June, 1889.

At the time of her marriage, she had about $ 1,000 which she had inherited from her father.

At the solicitation of her husband, she invested $ 500 of this money in January, 1891, in a tract of land containing eighteen acres, in Greene county.

For a balance of $ 295 she executed her note in which her husband joined her.On this note the defendant, her husband, has paid $ 241.75, out of his own means and earnings.The tract adjoined a small farm of twenty acres owned by the husband, and after the purchase he cultivated and used it in common with his own land.He also set out an apple orchard on it.

In 1895plaintiff sued defendant Woodward, for a divorce and was defeated in the action.Since then she has lived apart from her husband and supported herself and two children born of this marriage.

Thompson, the other defendant, is a tenant of defendant Woodward in charge of the whole thirty-eight acres.There is no dwelling house on the eighteen acres in which plaintiff could live with her children.In her petition she charges the above facts and that her husband collected all the rents and profits of the land for 1895, and is assuming and exercising control of said tract; that she has never authorized him so to do; that the said tenant is cultivating and occupying said lands without plaintiff's consent, and against her protest, asserts that he is bound to pay the rents to plaintiff's husband; that said rents and profits are her sole reliance for the support of herself and children.That she is without remedy at law, wherefore she prays that James Woodward be required to account to her for said rents and profits by him received from her said lands, and that both defendants, their servants and agents be forever enjoined and restrained from using or exercising control over plaintiff's said land, and that plaintiff be put in possession and control of the same.

Defendant in his answer somewhat amplified the foregoing facts, and relied upon the fact that plaintiff had left him without just cause, had sued him for divorce, and failed to obtain it; that he afterwards invited plaintiff to return to his home but she refused to do so, wherefore he says she has no equity and put herself in a position that a court of equity will not aid her.The circuit court granted a perpetual injunction restraining defendants from interfering with plaintiff in the use and control of said tract.

Defendants appeal and assign numerous errors.

I.The mode of procedure is challenged.It is urged that plaintiff's remedy is at law, by unlawful detainer or ejectment.

That a wife may resort to a court of chancery in a suit against her husband, to protect her separate estate there can be no doubt.[Walter v. Walter,48 Mo. 140;Story'sEq. Pl., sec. 61;Sackman v. Sackman,143 Mo. 576, 45 S.W. 264.]But it is assumed by counsel that section 6869 creates a legal estate in the wife, and that she should sue her husband at law for a conversion of her estate, or where, as in this case, it is land, she should bring ejectment or unlawful detainer.While the act is very broad and comprehensive as to the wife's property rights, it will be observed that it does not in express terms at least authorize her to sue her husband at law.

In Ilgenfritz v. Ilgenfritz,49 Mo.App. 127, it was ruled that the statute did not abrogate the common law rule that a wife could not sue her husband at law, as has been held by this court in Walter v. Walter,48 Mo. 140;Rieper v. Rieper,79 Mo. 352.

But conceding that the statute has conferred upon the wife the right to sue her husband directly at law, it by no means follows that she may not still sue in equity as she could prior to the enactment of the statute.

It is a most familiar rule that when a remedy exists in equity a subsequent grant of a remedy at law, will not oust a court of equity of its jurisdiction unless the remedy is extinguished by a direct and positive prohibitory provision in the statute.[1 Story'sEq. Jur., secs. 64 and 80;Stewart v. Caldwell,54 Mo. 536.]Section 6869 in no manner restricts or deprives a married woman of any remedy which she possessed before its enactment, and we hold the action is properly brought on the chancery side of the court.[Ilgenfritz v. Ilgenfritz, 116 Mo. 429, 22 S.W. 786.]

Defendant admits that his wife's separate estate to the amount of $ 500 was employed in paying the cash payment for the land, and that she signed the note for the balance of $ 295 and the deed was made to her -- but insists that because he paid $ 240 out of his earnings, and labor, that she is not the sole owner.In the absence of proof to the contrary, the making of the deed to plaintiff in her own name raises a strong presumption that it was intended as a provision for and settlement upon the wife for her own benefit, and not as a resulting trust for the husband.[Ilgenfritz v. Ilgenfritz,116 Mo. 429, 22 S.W. 786;2 Pom. Eq. (2 Ed.), sec. 1039;Schuster v. Schuster,93 Mo. 438, 6 S.W. 259;Seibold v. Christman,75 Mo. 308.]

When in addition to this presumption the fact is conceded that the bulk of the purchase money was paid out of her separate estate, and she gave her own obligation for the balance, the presumption would be almost conclusive.It certainly is not rebutted by the fact that the husband paid out of his earnings on this tract and his own the $ 240 of the purchase money.Nor can he claim compensation for improving the land under such circumstances.[Boynton v. Miller,144 Mo. 681, 46 S.W. 754;2 Bish. Mar.Women, sec. 300;14 Am. and Eng. Ency.Law, 579 et seq.]

The trial court found against the claim that there was any agreement that the husband was to have any...