Wood & Houston Bank v. Read

33 S.W. 176, 131 Mo. 553, 1895 Mo. LEXIS 101

• Court: Supreme Court of Missouri
• Decided: December 11, 1895
• Status: Published

Opinion

Brace, P. J.

The defendants are husband and wife. The wife’s name prior to her marriage was Helen Smith. They were married in the state of Illinois on the twenty-eighth of October, 1891. This action is to set aside a deed executed by the said L. R. Read, dated September 15, 1891, conveying to the said Helen Smith certain lots in Webb City in Jasper county, described in the petition, which deed was filed for record on the twenty-sixth of February, 1892.

On the eighteenth of April, 1892, the plaintiff recovered judgment in the Jasper county circuit court against the said defendant L. R. Read for the sum of $1,800, on which judgment execution was issued and levied upon said real estate, and at the sale in pursuance thereof plaintiff became the purchaser and received a sheriff’s deed therefor. Afterward this suit was instituted returnable to the March term, 1893, of the said circuit court, the plaintiff alleging in its petition that said deed from the 'Said L. R. Read to the said Helen Smith was voluntary, without consideration, and made for the purpose of' defrauding the creditors of said Read.

It appears that the liability upon which plaintiff’s said judgment was recovered was as a stockholder in a bank in the state of Kansas, against which the plaintiff had recovered a judgment in that state in January, 1891, and that the Jasper county suit was instituted in February, 1892.

In August, 1891, the said defendant Helen was a widow residing in Elburn, Illinois, knowing nothing about defendant’s property, or his liabilities, to whom the said L. R. Read, then residing in Webb City, proposed marriage, agreeing that if she would marry him he would deed her certain property which he owned, without describing it. . In pursuance of this agreement the deed in question was afterward, on the fifteenth of September, 1891, and before the marriage, drawn, signed, sealed, and acknowledged by the said L. R. Read, but was not delivered to the said Helen until a few days after their marriage, on the twenty-eighth of October, and after their return to Webb City on the last day of that, or the first day of the next, month. When it was delivered to the said Helen she put it in a box in the cupboard, where it remained in her possession until filed for record on the twenty-sixth of February, 1892, before plaintiff’s judgment was obtained. The lots in question seem to be the residence property of the defendants.

There is nothing in the evidence to show that Mrs. Read did not act in entire good faith throughout this whole transaction, and the trial court could not have found, so far as she was concerned, that the deed was made to hinder, delay, or defraud creditors of the sard L. R. Read, as charged in the petition. So that if plaintiff’s action can be maintained at all it is only on the ground that the deed was voluntary and without consideration.

Upon the evidence in the case there can be no doubt that the chancellor was well warranted in finding that the consideration of the* deed was the marriage which was agreed upon before the deed was drawn; and which was consummated after it was duly signed, sealed, and acknowledged. It needs no citation of authorities to show that marriage is not only a good, but a valuable, consideration. How, then, can it be said that this deed is voluntary and without consideration? How can the fact that the deed was not delivered until after the’marriage impair the value of the consideration, which the wife gave for the land? It is true that until the deed was delivered the title to the land did not pass to her, and she did not until then receive the consideration which she was to receive for the marriage. But the moment the ‘marriage was consummated the husband received the full consideration for the deed. The wife became a purchaser for value and having paid the whole of the purchase price was immediately entitled to the deed, and it became the legal duty of the husband to deliver it, a duty that a court of equity would have compelled him to perform, the case being relieved from the operation of the statute of fraud by the fact that the contract was entirely executed on the part of the wife; the whole of the consideration paid, by the marriage, and the deed itself signed by the husband in the most solemn form, sufficiently evidencing the contract to convey in writing.

The delivery of the deed, therefore, by the husband after the marriage in discharge of his legal duty, can in no legal sense be called voluntary, and having been executed for a valuable consideration paid by Mrs. Bead, and accepted by her in good faith, and spread upon the public land records before the plaintiff’s judgment was obtained, it acquired no title by the sale made, and the deed executed in pursuance of such judgment, and can not maintain this action. The judgment of the circuit court is affirmed.

All concur except Bobinson, J., not sitting.