Conrey v. Pratt

OPINION. I. BOND, J. Appellate Jurisdiction. (After stating the facts as above).— Respondent’s brief suggests a question of our jurisdiction to determine this appeal. - Where a deed of trust is alleged to have been procured by fraud and is sought to be annulled for that reason —which is the defense made in this case — ■ the title.to land is put in issue directly, and the appellate jurisdiction is exclusively vested in this court by the Constitution. [Vandeventer v. Bank, 232 Mo. l. c. 625; Loewenstein v. Insurance Co., 227 Mo. 100.] The appeal, therefore, was rightfully taken. The equitable defense set out in the answer, cou — 583 — pled with the prayer for affirmative relief, converted this into an equitable action which the court might have tried without the aid of a jury. [Wolff v. Ward, 104 Mo. l. c. 146; Trust Co. v. McDonald, 146 Mo. l. c. 479.] 11. Deed of Married woman: After Acquired Title. The decisive question as to so much of th¿ decree as adjudged that the title of defendant passed under the deed of trust exhibited with plaintiff’s petition and directing a foreclosure thereof, is whether, under the statutes and decisions of Missouri, the fee simple title which defendant acquired about four years after her joinder deed °f trust, inured by operation of law to the trustee therein and for the purposes thereof; although at the time of its execution both plaintiff and defendant had actual knowledge that no such title was then vested in defendant and could not have been intended to be conveyed, and that she was a married woman. The common law doctrine on this subject and its origin and basis are discussed with clearness and logic as declared in the American decisions, in a work of much authority. [Rawle on Covenants for Title (5 Ed.), chap. 11, and especially sections 264 and 265.] In Missouri, however, the law governing this subject is embodied in statutes and our interpretative decisions. The general applicatory statute is, to-wit: “Where a grantor, by the terms of his deed, undertakes to convey, to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance.” [R. S. 1909, sec. 2871, Gr. S. 1865, p. 442, sec. 3, as amend — 584 — ed from R. S. 1855, p. 355, sec. 3; Hendricks v. Musgrove, 183 Mo. l. c. 309; Wilson v. Fisher, 172 Mo. l. c. 15 et seq.; Ford v. Unity Church Society, 120 Mo. 498; Brawford v. Wolfe, 103 Mo. 391; State National Bank of St. Joseph v. Robidoux, 57 Mo. l. c. 450.] The foregoing decisions except from the operation of the above statute all deeds not strictly within its terms. In the first case, supra, it was held that a married woman’s deed purporting to convey the fee and executed prior to the passage of the Married Woman’s Act of 1889 would not transfer property acquired by her subsequent to the'making of the deed — this being the fact in that case. In the second case cited, it was ruled that a sheriff’s deed will not pass an after-acquired title of the defendant in the execution, since such a deed is only a conduit of the interest and estate of the defendant' at the time of the execution sale. In the third case cited above, it was ruled that the foregoing statute would not operate to transfer a subsequently-acquired fee simple title of the grantor to a voluntary grantee, where it was shown the grantor made a second conveyance to a purchaser without actual notice, although the first deed appeared of record. That case contained a review of the antecedent cases construing the above statute and held arguendo that neither under that statute nor at common law could the doctrine of inurement be applied to the deed of a married woman, which it was held only operated to pass all her existing right, title and.interest; and cited in support of this statement the other cases cited above. In the fourth case cited above, the widow of an intestate, who died childless, remarried, and with her second husband executed a deed of general warranty to the lands left by her first husband. At the time of the making of this deed no dower had been assigned the widow. For some reason administration — 585 — was not had upon his estate for several years. After it was taken out, the widow elected in due time, in writing, to take one-half of the real estate in lieu of dower. The question was whether this subsequently acquired title and estate of the widow passed by inurement under the deed made by her and her second husband, whereby she undertook to convey an indefeasible estate in fee simple to the land. In solving that question the court called attention to the statutory provision with reference to the power of a husband and wife to convey the real estate of the- wife, which has been a part of the law of this State and included in all the revisions of the statutes from 1879 to 1899, inclusive, in which latter revision it was section 901, and which continued in full force until it was substituted by the Act of 1905. [Laws 1905, p. 94; R. S. 1909, sec. 2788.] The former act was in full force and effect and'governed the’rights and powers of parties to the deed of trust sought to be enforced in the case at bar, which was executed on the 12th day of May, 1904. The old act contained the following clause in reference to the conveyance of real estate of a married woman: “But no covenant expressed or implied in such deed shall bind the wife or the 'heirs, except so far as may be necessary effectually to convey from her and her heirs all right, title and interest expressed to be conveyed therein.” [R. S. 1899, sec. 901.] The court construed this statute during its existence to intend that the deed of a married woman simply conveyed “from her and her heirs all her right, title and interest in the land at the time the deed was made;” that it had no other effect than a quit-claim of her “existing right, title and interest.” And, hence, fell within the logic of the rule that there was no inurement of after-acquired title or estate under a quit-claim deed. [Brawford v. Wolfe, 103 Mo., supra, l. c. 397-398.] In the case last cited above the same construe — 586 — tion. 'of the above quoted language of the old statute was made by Judge Napton, where he held that the deed in fee of a married woman and her husband containing statutory warranties did not make the wife responsible on those covenants with reference to land which she did not own at the time of such joint conveyance. Under the authority of these cases and the statute in force at the time of the execution of the trust deed by appellant and her husband, our conclusion is that no other estate or interest in the land in question passed than that vested in her at the time; and as she did not then have any right or interest in the land described in said trust deed, nothing passed thereunder, and that the estate which she acquired four years thereafter was not divested when it came into being under the doctrine of inurement, either at common law or our statute declaratory thereof. [Supra.] Whatever may be the powers of a married woman under the Act of 1889, they were not such as to create a liability against her contrary to the express provisions of the statute (R. S. 1899, sec. 901) in existence at the time of the Married Woman’s Act. We are not'impressed with the argument of counsel for respondent, that the act giving married women many of the rights of femme sole was intended to take away from her the protection as to covenants in the conveyances of her land afforded by the former statute (R. S. 1899, sec. 901) prior to its repeal in 1905. It follows that so much of the judgment of the trial court as undertook to establish and enforce the lien of the alleged deed of trust on the land described in this record was erroneous, and must be vacated. HI. witness: One party Dead. Other errors are assigned by appellant. One of these relates to the rulings of the trial court as to competency of the plaintiff as a witness. The court vacillated in its rulings on this — 587 — point. The statute disabling a witness to testify under certain circumstances where the other party to the cause of action or contract is dead, was intended to exclude such persons as a witness on his own behalf or those in privity with him against the objection of the adverse party. If his testimony is not objected to or he is called by the other side, the statute has no application, and his testimony must be judged as to competency like that of any other witness. The judgment in this case is reversed and the cause remanded for disposition according to this opinion. Woodson, P. J., Lamm and Graves, JJ., concur.