Mercier v. West Kansas City Land Co.

Napton, J. The facts in this case are essentially the same with those in the case of Mercier v. Fort Scott & Gulf R. R. Co., decided by this court in January, 1874, (54 Mo. 506.) The questions of law presented by these facts have, however, been argued with great ability, and we are called upon to reconsider our conclusions in that case. The first question presented in 1874, and now, is as to the title of Mrs. Mercier, or her trustee, Gillis, in the land sold, or claimed to be sold to defendant. It is claimed on the side of plaintiffs that this was only a life estate in Mrs. Mercier, with remainder to her children. This claim is based partly on the terms of the decree of 1847, by which Gillis, her trustee, was allowed to convert a part of her money (about $800) into land, for the benefit of herself and family, and principally upon certain rules of equity courts in regard to such decrees. The order of the court which authorized Gillis to invest the money in a home for Mrs. Mercier and family, at the same time required him to hold said land so purchased in trust for the said “Maria Louisa and her heirs,” and ordered the deed to be made to the said Gillis, commissioner for the said Maria Louisa Mercier and her heirs. [489] 1. Wife’s Equity, Rule as to Settlement of: effect of settlement upon her and her heirs. [488] Foi’"myself I concede, that in England, a settlement of the wife’s property upon her, to the exclusion of the husband, [489] always includes the children. It is sufficient,. without any references to numerous cases that have been cited, simply to copy the remarks of Sir Wm. Grant in the case of Murray v. Ld. Ellibank, 13 Ves. Ch. 5, in order to show what has been the uniform practice of the courts of chancery in England r “'With regard to the equitable right which a married woman has in this court to a provision out of her own fortune, before her husband reduces it to possession, it stands upon the peculiar doctrine of this court. It is vain to attempt by general reasoning to ascertain the extent of that doctrine. We must look to the practice of the court itself. It is sufficient to say, the habit of the court has always been, of itself and without any application previously made by the married woman, to direct an inquiry, when money has been carried over to her account, whether any settlement has been made; for the money is carried over subject to that inquiry; and the constant habit has been to direct a settlement, not upon the wife alone, but upon the children also. I am not aware that she has in any case been permitted to say, she claims a settlement for herself but not for her children. She has the option not to have any settlement made; but if a settlement is to be made, it is always directed for the benefit of the wife and the children. When she comes to give up her right to her husband, she is examined whether she wishes any settlement. If she does not, then the money is paid to her husband. If she desires a settlement, the settlement is upon her and her children.” We have not been referred to any case in England conflicting with this statement of Sir Wm. Grant, and I presume none is to be found. In regard to the authorities in the United States, Judge Story, in speaking of the wife’s equity, says : “ It is called the wife’s equity. But in truth it is never limited to the wife; for in all eases where a settlement is decreed, it is the invariable practice to include a provision for the issue of the marriage, through the instrumentality of the equity [490] of the wife. This equity will not only be administered at the instance of the wife and her trustee, but also, where the husband sues in equity for ber property, at the instance of her debtor.” 2 Story, § 1406. In the ease of Helms v. Franciscus, 2 Bland Ch. 544, the reporter in his head notes states, as the substance of the chancellor’s opinion, that in general the court settles only a part of the wife’s fortune upon her, and that in some cases, or with the consent of her husband, the whole may be settled on her; but on examination of the opinion, which reviews the whole subject extensively, it will be found that this was said merely in reference to the conflicting claims of husband and wife, and without any regard to the children. If then this doctrine, prevalent in England and in the old and thickly populated states of the union, was applicable to the purchase of land with the wife’s money, on the far western border of Missouri, more than thirty years ago, when seventy acres or thereabouts were bought for $250, it is clear that the decree of 1847 was erroneous. But the decree was made by a court of competent jurisdiction, with all the facts before them, and upon proper appearance of Mrs. Mercier and her guardian. It is a mistake to suppose that the children are ever made parties to such proceedings. Tbe court proceeds upon the request of the wife, or her trustee, or without any application, or in some eases at the instance of her debtor. Clancy on Rights of Married Women, hook 5, ch. 2. The title was taken in conformity to this decree, and, as was held by this court in 1874, this conveyed an absolute estate in equity to Mrs. Mercier. 2. Married Woman’s Trust Estate: waiver of irregularity in appearance. But it is urged that the decree of 1858 was void because Mrs. Mercier appeared by attorney. Conceding this, it appears that G-illis, ber trustee, received the purchase money, and in the absence of any evidence that he failed to comply with his trust, the presumption is, that Mrs. Mercier acquiesced In the sale and received the purchase money from the' trustee. Would Mrs. Mercier then, if living, be allowed [491] by any court to get a rescission of this conveyance without a return of the purchase money ? Have her heirs, since her death, any better right? We think not, and, therefore, the judgment of the circuit court is affirmed. Sherwood, C. J., Norton and Henry, JJ., concur. Hough, J., dissents.