Clifton v. Anderson , 47 Mo. App. 35 ( 1891 )

Rombauer, P. J.

Three of the plaintiffs are children of Sarah Clifton, deceased, and they join with their father, the plaintiff, Daniel W. Clifton, in this action to set aside a judgment of the circuit court, which decreed that an advance of $500, made by the defendant Anderson to their mother Sarah, for the purpose of paying off an incumbrance on her land, was a charge upon that land, which they claim by descent.

• The first trial of the case resulted in a judgment in defendant’s favor. That judgment was reversed upon appeal upon the sole ground, that the first decree had been rendered in an action by John Anderson against Daniel W. Clifton as administrator of Sarah Clifton, and hence, regardless of the character of the title of Sarah Clifton, was ineffectual to affect the title of her children in the land charged with .the decree. We remanded the case in order to enable the defendant to assert his equities, if he had any, independent of the decree. The decree itself under the facts shown was bound to be vacated, and we so decided upon the former appeal. Clifton v. Anderson, 40 Mo. App. 616.

Before the retrial of the cause the defendant filed a cross-bill. He denied the allegations of the plaintiffs’ petition, and, as a ground for independent relief, averred that the property in question was the separate property of Sarah Clifton. He' further averred that, the property being incumbered by the lien of a deed of trust, he advanced $500 to Sarah Clifton to remove the incumbrance upon the joint promise of herself and her husband to execute a deed of trust on the property to secure to him the repayment of the $500 thus advanced, and that the $500 were actually used in removing the incumbrance. He also avers that the parties failed to execute such new deed of trust, owing to the unexpected death of Sarah Clifton (which the petition states occurred more than eight months after the promise), and that he thus failed to obtain the promised security. The cross-bill prays for a decree making the advance a charge upon the land, and also for further relief. The prayer for general relief seems to be inserted with a view of claiming subrogation to the right of the first mortgagee to the extent of $500 and interest, should the facts disclosed by the evidence warrant it. The cross-bill contains no express averments, that Sarah Clifton by her promise intended to charge the land. The allegations of the cross-bill were denied.

Upon these pleadings the case was tried, the trial resulting in a decree in favor of the plaintiffs both upon the bill and cross-bill. The defendant now complains that the court erred in not granting to him the relief prayed for in his cross-bill, as he was legally entitled to it under the evidence.

There are two kinds of estates of married women in this state possessing to some extent the immunities of her separate estate in equity. One is her estate created by the statute of 1875 (R. S. 1879, sec. 8296); the other is her well-known separate estate in equity. These two estates are essentially' different in their character and incidents, and, therefore, it necessarily follows that, in a case which turns on the proposition whether the estate belongs to the one class or the other, the first inquiry must be to which of these two classes the estate sought to be affected belongs.

A married woman, under the statutes as they existed prior to the revision of 1889, could charge her separate estate in equity by her contracts, either written or oral, and that estate was not subject to her husband’s control, disposition or debts in any sense. Even his estate by the curtesy therein could be cut off by the terms of the conveyance to her. Her statutory estate, on the other hand, could not be charged by herself alone, but only by the joint act of herself and husband, and then only in a prescribed manner, and its annual products could be seized for the husband’s debts contracted for necessaries for herself and family, as well as for debts contracted by him for the improvement of it. It was logically impossible, therefore, that the same estate should belong to both classes, since their character and incidents were different. Some slight confusion has arisen in the decisions in this state, because judges, in discussing individual cases, have not always kept this fact clearly in view; but it will appear upon a comparison of the decisions that, when considering the point in judgment only, there is little, if any, contradiction between them.

The first and most prominent condition in determining whether the estate is purely a statutory estate, or one in equity, is the instrument itself which creates it. If that instrument does not in apt terms create a separate estate in the wife, then prima facie she has no such estate, and it is incumbent upon the person who claims the contrary, to establish the fact by competent written evidence, or at least, if it can be done, by showing a state of facts wholly inconsistent with the conclusion that the. wife’s estate was a mere statutory estate. We have gone over this subject very fully in Edwards v. Burns, 26 Mo. App. 44, and so has the Kansas City Court of Appeals in Nicholson v. Flynn, 24 Mo. App. 574. All the decisions in Missouri up to that date were examined in those cases, including Martin v. Colburn, 88 Mo. 229, on which the defendant now mainly relies. The conclusion arrived at was as above stated. It is true that, in Martin v. Colburn, supra, it was held that an instrument executed by the husband in the nature of a declaration of trust was proper written evidence, to be considered in connection with the deed, to determine the character of the wife’s estate. But, in the absence of fraud, such evidence would have been competent for that purpose, even if the title had been conveyed to the husband instead of the wife ; and why, then, should it not bp competent for the purpose of simply divesting the husband’s marital rights, the question in that case being, whether the wife’s deed, without joinder of her husband, was effectual to convey the title. As the court in that case decided that, in that regard, there was no difference between a statutory estate and a separate estate, the entire discussion as to whether the estate was statutory or separate was outside of the point in judgment.

Now, in the case at bar, the deed creating the estate in the wife uses no apt words to create in her a separate estate in equity. The property was acquired subsequent to 1875 and prior to 1889. There is no written declaration by the husband, as there was in the Martin case to supply this omission. The joint declaration of husband and wife in the deed of trust given for the purchase money, that any surplus which might arise in case of a sale under the deed of trust should be paid to the wife, simply makes that disposition of the surplus which the law would have made without such declaration. All other evidence which bears upon the case is simply evidence tending to show that the property was bought with means of the wife, and hence was '¡her statutory estate. Upon a careful examination of the record we can find no evidence whatever, which has a tendency to show that this property was the separate property in equity of Sarah Clifton, and not her property under the statute.

It was decided in Gwin v. Smurr, 101 Mo. 552, that the only way that the land of a wife, held by the terms of the act aforesaid (act of 1875), can be conveyed, charged or affected is by the joint deed of husband and wife. Here the land is sought to be charged by the oral promise of the husband and wife. It is self-evident that this cannot be done, whether the relief sought is a charge in equity of the debt created upon the land, or subrogation pro tanto to the rights of the prior mortgagee. It thus appears that, giving the defendant’s cross-bill and evidence their greatest probative force, the defendant has failed to make out a case entitling him to the relief prayed for. The judgment is affirmed.

All the judges concur.