Schafroth v. Ambs

CurribR, Judge, delivered the opinion of the court. The petition in this cause shows that the defendant, Mrs. Catherine Ambs, prior to her intermarriage with the other defendant, Peter Ambs, acquired the premises in question in her own right; that she has ever since occupied, used, and enjoyed the same, and the 'rents, issues, and profits, as her separate estate; that her after-taken husband, Peter Ambs, assented to, approved, and acquiesced in such separate use, holding, and enjoyment; and that both the defendants, at all times, at and after said marriage, treated said premises as the sole and separate estate of said Catherine Ambs. The petition is framed upon the theory that such separate holding, use, and treatment of said premises, and the rents, issues, and profits, had the effect to change the character of the estate created by the deed, and to convert it into a technical separate estate, released and discharged from the marital rights of said Peter Ambs. The correctness of this theory is brought in issue by a demurrer to the petition. Since this case was here on a former occasion {ante, p. 114) the petition has been radically changed by amendment. Tt was averred in the original petition not only that Mrs. Ambs used and enjoyed the property as her separate estate, but also that a separate estate was created and vested in her by the original deed. And it was held that a separate estate might be vested in a femme sole by a deed of purchase, without the intervention of [583] trustees; and that was tbe extent of the decision on this point, although it was remarked that in the particular case then under consideration the subsequent holding, as shown bj the pleadings, was in conformity to the terms of the deed, and apparently with the husband’s consent. This circumstance was adverted to as showing a practical recognition and confirmation of Mrs. Ambs’ separate rights under the deed, and not as fixing in her any rights in opposition to it. The deed was the essential thing; the rest was circumstantial. The plaintiff now, however, founds himself not upon the deed, but upon facts^e/tors the deed. He no longer pretends that the deed vested a separate estate in Mrs. Ambs, or that it was designed to have that effect. He claims, in substance, that Ambs lost his, marital rights in the property in virtue of the alleged use and treatment of it subsequent to the marriage, coupled with his assent to and acquiescence in such use and treatment. In Bradish v. Gibbs, 3 Johns. Ch. 523, it was decided that a mere agreement entered into before marriage, between the intended wife and the after-taken husband, that the former should have the power to dispose of her real and personal estate during coverture, would enable her to do so. In that case the disposition was by will, and the decision rests upon the fact that the ante-nuptial agreement conferred upon the woman the power to make such disposal. And it has been decided by this court (Coughlin v. Ryan, 43 Mo. 99) that where a wife held a leasehold at the time of her marriage, and her husband permitted her to hold and enjoy the property and collect and apply the rents and profits to her own use, the accumulation of such rents and profits would become her separate property, and descend to her heirs in opposition to the marital rights of her husband. But it does not appear ever to have been held that the marital rights of the husband in the real estate of his wife could be alienated or defeated in that way, or that the wife could in that way acquire a separate property in such estate. The demurrer was properly sustained, and the judgment will be affirmed. The other judges concur.