Ennis v. Eager

BEOADDUS, P. J. This is a suit by plaintiff tr recover of defendant his commission under a contract with defendant to procure a lessee for ninety-nine years upon certain real estate owned by her as her separate property for certain specified annual payments of rents. The contract was reduced to writing. The plaintiff negotiated with Edgar' B. Giles, a responsible party, and procured him to agree, in writing endorsed on said contract, to accept a lease of the property upon the terms [496] and conditions set out therein, and thereafter defendant endorsed her acceptance of said lessee in writing upon said contract below the signature of said Giles. Thereafter a formal lease was prepared which was acceptable to both defendant and Giles, which required, that as defendant was a married woman, her husband would also sign the lease. It was shown that the husr band refused to execute the instrument, and Giles would not accept it without his signature. Afterwards defendant leased the property to another person on more advantageous terms. Mrs. Eager was sixty-seven years of age and had never borne any children. The matter was submitted to the court and the finding and judgment were for the plaintiff from which defendant appealed. The only question for decision is whether the plaintiff procured a lessee for the property upon the terms and conditions provided in the contract of employment. Under the facts the question is one of law. If defendant was obligated to tender a lease executed by herself and husband the judgment should be affirmed, otherwise the plaintiff has failed to establish his claim to compensation under the contract. It is contended that the defendant being the owner of the property in her own right and as she could con■vey it without her husband joining with her in such conveyance, that her tender to the prospective lessee a lease executed by herself alone was a compliance on her part of the contract, and that therefore the plaintiff did not procure a lessee who was willing to accept a lease such as was contemplated by said contract. Section 4340, R. S. 1899, provides that: “All real estate . . . belonging to any woman at her marriage, or which may come to her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means . . . shall, together with all increase and profits thereof, be and remain her sep [497] arate property and under her sole control.” It has been decided construing this statute that a married woman may convey or encumber her separate real property without her husband joining therein. [Farmers Exchange Bank v. Hageluken, 165 Mo. 443; Kirkpatrick v. Pease, 202 Mo. 471.] And it is also held that such married woman “can contract and be contracted with, entirely without exception, with her husband, just as she can with other persons.” [O’Day v. Meadows, 194 Mo. 588; Rice, Stix & Co. v. Sally, 176 Mo. 107.] Notwithstanding the construction put upon the Married Woman’s Act and her right to convey or encumber her separate property the courts still hold that the statute did not have the effect of depriving the husband of his right of curtesy in such estate. [Myers v. Hansbrough, 202 Mo. 495; Donovan v. Griffith, 114 S. W. 621.] The husband having the right of curtesy in the property in controversy, a lease made by the wife without joining the husband would not therefore affect such right. Such conclusion would inevitably follow and has been so expressed in a late decision of the St. Louis Court of Appeals. [Rutledge v. Rutledge, 119 S. W. l. c. 491.] As we view the case the plaintiff having procured a prospective lessee who was willing to lease the property upon the terms and conditions of the contract, it became the duty of the defendant to tender such a lease of the property as would vest in the lessee a complete or merchantable title thereto, as it cannot be said that a lease in which the husband did not join constituted such a title. And the fact that the wife had no issue born alive of the marriage and her age being sixty-seven years and past that period in the life of woman during which they do not bear children, is immaterial as the law is that so long as the marital relation continues the possibility of [498] ' such issue still exists. [Rozier v. Graham, 146 Mo. l. c. 352.] It follows that the judgment should be. affirmed. All concur.