Duncans in St.Louis Co. MO Court Records Part 6


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised March 26, 2004


"Reports of cases argued and determined in the Supreme Court of the State of Missouri" by Samuel A. Bennett; Missouri Reports, Vol.18, pgs.531 to 557 (California State Law Library, Sacramento, 2/2004) (MAD: see 23 Mo. 151)
      CHAUVIN et al., Plaintiffs in Error, vs. WAGNER & DORSETT, Defendants in Error; Supreme Court of Missouri, St. Louis; 18 Mo. 531; October, 1853, Decided.
      Error to St. Louis Court of Common Pleas.
      This was an action in the nature of ejectment, begun by the plaintiffs in error in 1850, to recover a lot of ground in the city of St. Louis. The cause was submitted below upon an agreed case. The titles of the respective parties are stated in the opinion of the court. The following facts, upon which stress was laid in argument, may be added: In the deed of F. D. Chauvin and wife to Desire, the land conveyed is described as that conveyed to the wife by her brother-in-law, Leduc, in 1816. After the death of her husband in 1835, Mrs. Chauvin lived unmarried in St. Louis county, up to her death in 1849, and for five years next preceding her death, she resided in St. Louis city. After his purchase Desire improved the land. There was a judgment for the defendants below, from which the plaintiffs appealed to this court. The cause was argued at the October term, 1852, by Mr. Haight and Mr. Lord for the plaintiffs in error, and by Mr. Field and Mr. Gantt for the defendants in error, and again at the March term, 1853, by Mr. Lord for the plaintiffs in error, and Mr. Geyer for the defendants in error. Briefs were filed by Messrs. Haight, Lord and Whittelsey for the plaintiffs in error, and Messrs. Spalding and Shepley, Field and Gantt, for the defendants in error.
      (MAD: arguments of counsel not included here)
      [opinion] GAMBLE, Judge, delivered the opinion of the court.
      The plaintiffs are the heirs of Emily Chauvin, wife of Francis D. Chauvin. They are the children of that marriage. The property in controversy was conveyed to their mother in 1816, before her marriage. In 1829 a deed was made by Chauvin and his wife, conveying the property to one Desire, under whom the defendants claim title. This deed was first acknowledged before a justice of the peace in St. Louis county by Chauvin and his wife, upon which the justice made a certificate of acknowledgment, such as he would have made upon a deed, in which the wife relinquished dower to lands in his county. Afterwards it was discovered that the deed had not been so acknowledged as to be effectual as a conveyance of a married woman's estate, and Mrs. Chauvin appeared before the Circuit Court of St. Charles county, to acknowledge the instrument in proper form. The certificate of acknowledgment endorsed on the deed by the clerk is in the following form:
      ["State of Missouri, "County of St. Charles,] ss.
      "Be it remembered that, at a term of the Circuit Court for the county and state aforesaid, began and held at the courthouse in said county, on the fifth day of October, in the year of our Lord eighteen hundred and twenty-nine, before the judge thereof, in open court, personally appeared Emilie Chauvin, wife of Francis Devinz Chauvin, who was proved by Edward Bates and Wm. N. Fulkerson, examined before me, on oath, to be the person whose name is subscribed to the foregoing instrument of writing, as having executed the same, and acknowledged the same to be her act and deed, for the purposes therein mentioned. She, the said Emilie, being by the court first made acquainted with the contents thereof, and examined separate and apart from her husband, whether she executed the said deed, and relinquished her dower to the lands and tenements therein mentioned, voluntarily, freely and without compulsion or undue influence of her said husband, acknowledged and declared that she executed the said deed and relinquished her dower in the said lands and tenements therein mentioned, voluntarily, freely, and without compulsion or undue influence of her said husband.
      "In testimony whereof, I, William Christy, jr., clerk of the Circuit Court, have hereunto caused the seal of said court to be affixed, at St. Charles, the 7th day of October, A. D. eighteen hundred and twenty-nine. [L.S.] W. Christy, jr."
      Desire, the grantee in the deed, took possession of the property conveyed, immediately after the execution of the deed, and he and those claiming under him have ever since continued that possession. Chauvin, the husband, died in 1835, and his widow in 1849. The plaintiffs, as heirs of their father, received assets by descent equal to the value of the property at the time of its conveyance to Desire.
      The act regulating conveyances in the code of 1825, was the law in force at the time the deed from Chauvin and wife to Desire was made, and its effect as a conveyance of the estate of the wife is to be determined by that act. The 12th section of the act is in these words: "Sec. 12. Be it further enacted, That when any husband and wife shall wish to dispose of or convey the real estate of the wife, it shall and may be lawful for the said husband and wife to execute any grant, bargain, sale, lease, release, feoffment, deed, conveyance, or assurance in the law whatsoever, for the conveying of such lands, tenements and hereditaments; and if, after the executing thereof, such wife shall appear before some court of record in this state, to the judges of which, or either of them, she is known or proved by two witnesses to be the person who executes such deed or conveyance, such court or one of the judges thereof shall make her acquainted with and explain to her the contents of such deed or conveyance, and examine her separately and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion or undue influence of her husband; and if such woman shall, upon such examination, acknowledge such deed or conveyance to be her act and deed, that she executed the same voluntarily, freely, and without compulsion or undue influence of her husband, and does not wish to retract, the court shall cause their clerk to make a certificate, endorsed or annexed to such deed, stating that such woman was personally known to the judges, or one of them, or proved by two witnesses (naming them) to be the person who subscribed such deed or conveyance, and setting forth that the contents were made known and explained to her, and the examination and acknowledgment aforesaid, and such deed (being acknowledged or proved according to law as to the husband) shall be as effectual in law as if executed by such woman while sole and unmarried: Provided, that no covenant or warranty, contained in any such deed or conveyance, shall, in any manner, bind or affect such married woman, or her heirs, further than to convey from her and her heirs effectually her right and interest expressed to be granted or conveyed in such deed or conveyance; nor shall any thing therein contained be construed to authorize any husband and wife to convey any real estate granted to the wife and her heirs during coverture."
      It will be seen that this section requires that, after the execution of the conveyance, the wife shall appear before a court of record, and that the court "shall make her acquainted with and explain to her the contents of the deed or conveyance," and "examine her separately and apart from her husband, whether she executed the same voluntarily, freely, and without compulsion or undue influence of her husband." This much of the section prescribes the duty of the court, and then it proceeds to declare "that if such woman shall, upon such examination, acknowledge the deed or conveyance to be her act and deed; that she executed the same voluntarily, freely and without compulsion or undue influence of her husband, and does not wish to retract, the court shall cause the clerk to endorse a certificate on the deed." The certificate is required to contain the evidence of the following facts: 1st, the identity of the person acknowledging the deed as the grantor; 2d, that the contents were made known and explained to her; 3d, that she was examined, as required; 4th, that she acknowledged the conveyance in the manner prescribed. The objection is taken to the certificate in the present case, that it does not show that Mrs. Chauvin was identified by evidence given to the court. It is objected as to the explanation of the contents of the deed, "that the certificate only states that she was made acquainted with the contents of the deed," whereas, the act requires in addition, that the court should "explain the contents of the deed." It is objected to the statement of the privy examination that the whole effect of it is changed from that required by law, by the use of the words "and relinquished her dower to the lands and tenements therein mentioned." She was examined "whether she executed the said deed and relinquished her dower to the lands and tenements therein mentioned voluntarily," &c. It is objected to the acknowledgment, as stated in the certificate, that she "acknowledged and declared that she executed the said deed, and relinquished her dower in the said lands," &c., and that the addition of the words in relation to the relinquishment of dower, gives a totally different character to the acknowledgment from that required by the statute.
      1. The property in controversy was acquired by Mrs. Chauvin before her marriage, and she was married after the introduction of the common law. Under that system, she could make no deed, which would be effectual to pass the title to her property, after her marriage. In June, 1821, the assembly passed an act with this preamble: "Whereas, doubts exist whether, by any laws in force in this state, a husband and wife are authorized to make conveyances of real estate belonging to the wife, therefore, be it enacted," &c. The act provides for a privy examination and acknowledgment, to be certified under the seal of the court and endorsed on the deed. That act continued in force until the revision in 1825, when the act was passed which has before been quoted. It is not doubted that these are to be regarded as enabling statutes, and that they furnish the only law which, after their passage, was to be pursued in conveying the title of a married woman by deed. That they are to be pursued substantially, in order to the conveyance of the title of the feme covert, is the undoubted result of the authorities. That a substantial compliance with the law is sufficient for that purpose, is admitted in all the numerous authorities referred to. In the language used in Gill v. Fauntleroy's heirs, 8 B. Monroe 178, "it is indispensable that the certificate of the clerk or examining officer should state the material facts, either in express terms or in language from which they may be implied." The certificate of acknowledgment cannot be helped by proving that the facts were different, as they actually occurred, from the statement of them in the certificate. ... To these cases might be added a multitude of others, from different states of the Union. If the acknowledgment is substantially defective, the title to the property does not pass, and the deed cannot be made effectual by the aid of a court of chancery.
      2. These positions being assumed, the certificate of acknowledgment in the present case will be examined. The certificate says that Mrs. Chauvin was "made acquainted with the contents of the deed." "Acquainted" means "familiarly known. " The act says that the certificate shall set forth that the contents were "made known and explained to her." The duty enjoined upon the officer is, to see that the woman understands the nature and effect of the instrument she has executed. It would clearly be superfluous for the court to attempt an explanation of the contents of a deed, if the woman should so state her own understanding of its effect as to show that she already understood it perfectly, and the certificate would be false, if it said that the contents of the deed were made known and explained to her, when the court took the acknowledgment upon ascertaining that she already knew and understood the contents. ... Suppose a certificate should state that the woman appeared before the court and presented the deed for acknowledgment, stating that it was a deed for her own property, conveying it to the grantee for a consideration, which she named, (and which was the consideration in the deed,) and that the grantee was to receive the absolute estate in fee simple, and that she described the property just as it was described in the deed. If her statement, thus made to the court, corresponded with the language and legal effect of the deed, it is not doubted that she had already such acquaintance with the contents of the instrument, as would dispense with any attempt on the part of the court to explain the contents to her. The design of the law would be accomplished, although the officer imparted no information to her. It would be a question of casuistry, whether the officer could certify that he made her acquainted with the contents of the deed, or explained the contents to her, when she knew them perfectly before she came before him. The courts and officers entrusted with this duty must be supposed to understand the object of the statute in requiring them to see that the woman knows the effect of her act, and the certificate is only required to show that the duty enjoined upon the officer has been performed.
      In some cases, as where the instrument is in a language with which the woman is not acquainted, it will be necessary to explain the meaning of the words employed in the instrument. In some cases, where there are complicated limitations, there may be a necessity for an explanation of the effect of such parts of the instrument. In such cases, the officer or court would explain the instrument, and the law requires the explanation to be made, unless the woman had the requisite knowledge without the explanation. The certificate in the present case states, that the woman was made acquainted with the contents of the deed, and this may be regarded as a statement that she understood the nature and effect of the instrument. There are many cases in different courts, in which such strictness is required as would render this acknowledgment ineffectual, because the fact is not stated that the contents of the deed were explained to Mrs. Chauvin; but we are not disposed to require any such literal compliance with the statute. It is said in the certificate, that the contents were "familiarly known to her," because that is the meaning of the words that she was made "acquainted with the contents," and we will intend that there was a case before the court taking the acknowledgment, which did not require any explanation to be made to the woman. This question was made and disregarded in McDaniel v. Priest, 12 Mo. 544.
      3. The next question is, whether the certificate is invalid, because it states that the examination of the wife was "whether she executed the deed and relinquished her dower voluntarily," &c., and because it states that the acknowledgment she made upon that examination was, "that she executed the said deed and relinquished her dower voluntarily," &c. The examination embraced the question, whether she executed the deed voluntarily, and the acknowledgment of the wife was, that she did execute it voluntarily; but, in addition, she was examined to the point, whether she relinquished her dower, and she acknowledged that she did relinquish her dower. It will be seen by referring to McDaniel v. Priest, 12 Mo. 544, that the precise point here made was considered and decided, and we are now asked to review that decision. It was admitted in that case that the words in the certificate relating to the relinquishment of dower were superfluous, and if they were stricken out, the certificate would be in exact conformity to the act. It was said that, if those words had no tendency either to limit or extend or control in any manner the language immediately preceding them, there would be no objection to regarding them as mere surplusage. But it was said to be "obvious that the additional clause might well be construed as a limitation upon the effect of the preceding acts, and that the wife had, in executing the deed, merely relinquished her dower, and had not parted with her inheritance."
      The act requires the court to examine the woman "whether she executed the deed voluntarily;" but it does not attempt to prescribe the questions to be asked, or in any manner direct the course of examination, or the form in which the examination shall be certified. The court is not confined to asking her whether she executed the deed voluntarily, but may and ought to ask all questions which may be proper in the given case, to ascertain whether she is acting freely. If she does not appear to be acting freely, the court should not proceed to take the acknowledgment. If she is acting freely, the whole examination is not to be stated in the certificate, but the fact that she was examined as to her freedom of action in executing the instrument is to be certified. The certificate in this case states that she was so examined upon the question, whether her execution of the deed was voluntary, and that she was further examined as to whether she relinquished her dower in the land freely and voluntarily. Now it is observable that this examination succeeds the fact that the woman is made acquainted with the contents of the deed. She is understood to be of sufficient intelligence to comprehend the effect of the instrument in conveying her land, when the court has made her acquainted with and explained its contents. If she does understand its effect in conveying the title, and it appears on examination apart from her husband that she has executed it freely, then she must regard any examination about releasing her dower as superfluous nonsense, or she must consider such examination about relinquishing dower as one of the ceremonies of the law, perfectly incomprehensible in its application to a deed that conveys her entire estate. The only effect of the examination about the relinquishment of dower, when stated in a certificate such as this, is to cast a doubt upon the question, whether the court had not misconceived the nature of the instrument and its operation upon the title to the land, and that therefore, in explaining the contents to the woman, a wrong impression of its effect had been conveyed to her mind. But if we have the idea clearly in our minds, that the court and the woman both understood the effect of the instrument in conveying her title, then the examination about dower, if it ever was made, was merely superfluous and does not vitiate.
      The same remarks apply to the further statement in the certificate, that she acknowledged and declared that she executed the deed and relinquished her dower freely, &c. These words, in the statement of the examination and acknowledgment, upon the supposition that the duty of the court, in making her acquainted with and explaining the contents of the deed to her, had been performed, are entirely without meaning, and could not possibly have misled her.
      4. The next objection made to the certificate is, that Mrs. Chauvin did not acknowledge that "she did not wish to retract." If the statute requires that to be a part of the acknowledgment, the certificate in the present case is entirely silent about the fact. The acknowledgment is to be made after the examination, and the examination, as required, evidently does not embrace the then state of the woman's wishes in relation to the deed. She is to be examined as to whether the deed had been executed by her voluntarily, not whether she wished it to be in force as a conveyance. Still, if the acknowledgment, which she is to make, is to include her present wishes in relation to the deed, it must so appear. The Supreme Court of Illinois, in Hughes v. Lane, 11 Ill. 123, held, under an act precisely like ours, that the fact, that the woman did not wish to retract, was not one about which she was to make an acknowledgment, but the words were inserted in the statute with the design of allowing a married woman to recall the consent to the conveyance which she had freely given. It must be admitted that this reading of the statute, while it may support titles, strains the language of the act very greatly. The whole section is but a single sentence. It opens by allowing husband and wife to convey the real estate of the wife, by any conveyance known to the law, and then prescribes the course to be pursued to make the instrument effectual. It requires that after the execution of the deed, she shall appear before a court, and be made acquainted with the contents of the instrument, and shall be examined apart from her husband as to whether she executed the instrument voluntarily; then comes a statement of what she is to acknowledge: "if such woman shall acknowledge such conveyance to be her act and deed, that she executed the same voluntarily, &c., and without compulsion, &c., and does not wish to retract," the court shall cause the clerk to endorse a certificate, &c. The court of Illinois considers the last words "and does not wish to retract" should be read as if the words "if she" were inserted before the word "does," so that the clause would read "and if she does not wish to retract, the court shall cause the clerk to endorse a certificate." The most natural reading of the whole clause relating to the acknowledgment, requires that the words "that she," which were previously used in respect to the acknowledgment, should be repeated before the word "does," in this clause, relating to retracting, so that it will read "and that she does not wish to retract," and thus be a part of the acknowledgment made by the woman. This reading of the clause relating to the acknowledgment was that understood at the time the code of 1825 was published, and was used in the form of acknowledgment of the conveyance of a married woman's property, published in the appendix to that code, under the direction of the act which provided for printing the code. R. L. 1825, 830. Regarding this as the meaning of the act, it was necessary that it should appear, not only that the woman had originally executed the conveyance with entire freedom, but that, at the time of acknowledgment, she continued in the same mind, and was still willing that the instrument should have effect. Inasmuch then as the certificate does not, in any manner, refer to Mrs. Chauvin's willingness, at the time of the acknowledgment, to give effect to the deed, it is defective, and cannot be helped by any inference to be drawn from the fact that she appeared before the court without her husband, or that she had previously made an acknowledgment before a justice of the peace, or that this second acknowledgment was after a considerable interval.
      An argument has been used against the validity of an acknowledgment, which contains a relinquishment of dower when the conveyance is of the land of the wife, which deserves notice, and which ought to have been noticed when speaking of that objection to the present acknowledgment. It has been said that, to allow a certificate to be valid, which states that the woman "was examined whether she relinquished her dower," and that she acknowledged that "she relinquished her dower," when the conveyance is of her own estate, is to make the acknowledgment required in the case where dower only is relinquished under the 11th section of the act, sufficient for both classes of cases, and in effect repeals the 12th section, so far as it prescribes the form of acknowledgment. But it is to be observed, that the deeds which convey the husband's land (which are more than ninety-nine in a hundred of all conveyances made) may be acknowledged, not only before courts of record, but before judges, clerks and justices of the peace, so that the form for the relinquishment of dower is given for the use of those officers, when the very appearance of the parties before them is sufficient indication that the woman is only to relinquish dower, and when they have no authority to take any other form of acknowledgment. The more solemn acknowledgment made before a court of record, was required to be made when the woman conveyed her own land, and her presence in court was, in general, a sufficient indication that such was the nature of the instrument to be acknowledged. Although the courts have power to take acknowledgments where the husband's land is conveyed, and the wife only relinquishes dower, yet, in point of fact, such power is scarcely ever exercised, because the judge or the clerk can take and certify such acknowledgment with as great effect as the court. It will be seen that the examination and acknowledgment which are to be made when the husband's land is conveyed, are directed to two points, first, whether the woman executed the deed (in the past tense) freely, &c., and, second, whether she relinquishes her dower (in the present tense) freely. The second part of the examination and acknowledgment is to have the evidence of the present willingness of the wife to the consummation of the conveyance, and has the same office with the clause of the acknowledgment when her own land is conveyed "that she does not wish to retract." The directions given in the act, for the purpose of ascertaining a wife's present wishes, are to guide the different officers in ascertaining such wishes, in relation to the deeds which they have authority to certify. To the justices, clerks and judges, who can take acknowledgments of conveyances for the husband's land, the statute says: ask her whether she "relinquishes her dower:" to the courts which alone can take the acknowledgment of a deed for the wife's land, it says: ask her whether she "wishes to retract." As the certificate is prepared after the examination and acknowledgment have been made, it will speak generally in the past tense; "she relinquished her dower;" "she did not wish to retract;" but in the communication between the officer and the wife, the law contemplates the present as the tense used: "she relinquishes;" "she does not wish to retract." To use the question about the relinquishment of dower, where the wife is conveying her own land, and is made to understand the nature of the conveyance, will not vitiate the acknowledgment, if, with such knowledge of the contents of the deed, she declares that she does not wish to retract.
      5. Regarding the conveyance by Chauvin and his wife as ineffectual to convey Mrs. Chauvin's estate, it is necessary to consider whether any covenants in the deed or any acts of Mrs. Chauvin, in her life-time, will bar the present plaintiffs, who claim as her heirs. There are no covenants but those contained in the words "grant, bargain and sell," which, by the statute, contain covenants "that the grantor was, at the date of the conveyance, seized of an indefeasible estate in fee simple in the premises conveyed; that the same was then free from incumbrances done or suffered "from the grantor, his heirs and assigns, and all claiming under him; and also for further assurance thereof, to be made by the bargainor, his heirs and assigns." R. C. 1825, p. 217. In Collier v. Gamble, 10 Mo. 467, it was held that the only one of these covenants which runs with the land, is that for further assurance. It is the only one which imposes an obligation in relation to any thing in the future. The others are broken as soon as made, if, in the one case, there is not an indefeasible seizin, or in the other, there is an incumbrance. A right of action exists in either case upon the appropriate covenant, on the execution of the deed, but the damages to be recovered may be enhanced by subsequent events. A recovery of the land by title paramount is not the breach of the covenant, but evidence of the extent to which the grantee is damnified by the breach, which existed as soon as the covenant was made. The liability on the covenants, arising as soon as the covenants were made, would bind the heirs of the grantor having assets by descent, in just the same manner that they would have been bound by a bond for the payment of money, in which he bound his heirs. The covenants are not connected with, nor do they run with the land. These covenants do not operate as the ancient common law warranty to transmit a subsequently acquired title to the covenantee, nor do they operate as a rebutter against the grantor in respect to their obligation as covenants. In some cases, recitals and admissions contained in deeds are held to estop the grantor and those claiming under him from asserting a title to the land conveyed, when such assertion of title would be contrary to the recital or admission made in the deed. ... The principle in these and similar cases, would warrant the decision that the covenants contained in the words "grant, bargain and sell," and which are to be regarded as if written out in the deed, should, as an assertion of present seizin in the grantor, estop him and those claiming under him, from asserting a title which would involve a denial of seizin at the time of making the conveyance. This principle has been applied to all persons claiming under the grantor who made the recital or admission, either as heirs, or purchasers from him. But in the present case, the principle is of no avail to the defendants, because the plaintiffs do not claim as heirs, or in any other manner, under their father, Francis D. Chauvin.
      6. If the plaintiffs are not estopped by the covenants of seizin or against incumbrances, are they affected by the covenant for further assurance? This covenant runs with the land. If Francis D. Chauvin, the ancestor, had acquired a further or better title to the premises after his conveyance, he would have been compelled specifically to execute the covenant by conveying such title. ... If he had acquired a title subsequent to his conveyance, and such title had descended to his heirs, they would have been compelled to execute the covenant. The present plaintiffs have never acquired any title to the property from their father. In respect to it, there is no privity between them and their father. It was acquired fourteen years after his death. They are responsible as his heirs, upon his covenants as far as they have assets by descent from him. And if in the present case it were shown that the assets by descent were equal to the value of the property, when they acquired the title, their obligation then as his heirs, in respect to the assets descended, might have been held complete to make the assurance. The duty to make an assurance could not devolve on them while the title was in their mother. The covenant provided by the statute, if written in the deed in the form expressed in the act, would simply contain a stipulation "for further assurance thereof to be made by the bargainor, his heirs and assigns." The heirs of the grantor, as such, are bound to make assurance, but certainly not until there is something to be done by which the grantee's title can be secured. But nothing could be done by them until the title came to them by descent from their mother, and they could not be held to convey it then, unless they had assets of equal value from their father. No such fact has been shown in the case. If the plaintiffs are to be held bound to make assurance because of equal assets descended from the father, it must be shown by the defendants.
      Again, it is said that Mrs. Chauvin, having lived in the county of St. Louis for fourteen years after the death of her husband, and for much of that time in the city, where she could have seen those holding the lot under the deed she had executed, erecting improvements and expending their money thereon without disputing their possession or making known her claim, should be held to have ratified her former deed. It may be sufficient to answer, that the deed in the present case is not considered merely voidable, as is the deed of an infant, but entirely inoperative to convey her title to the land. If the deed was void, so that the estate of the wife did not pass, there could be no ratification by which the estate would pass, short of a re-execution of the instrument. She might do acts and make representations by which others, relying on her acts and representations, would be misled to their prejudice, and under such circumstances, she might be estopped from setting up the title that was really in her; but this is entirely a distinct question from that of the ratification of a deed. The authorities cited, which relate to the ratification of deeds by infants, are not considered applicable to the present case.
      Whether, from the facts admitted by the parties, a re-delivery of the deed would be found by a jury, is not within our province to say; but certainly it is neither found by the court nor agreed by the parties, and it is not a presumption of law from the circumstances detailed in the agreed case. It has also been insisted that the conduct of Mrs. Chauvin in relation to the property after she became sole, was such as to estop her and her heirs from claiming it. Yet the agreed case states no act of hers that shows that she ever knew the condition of property, or the acts of the occupants in using and improving it. It is not believed that the mere want of action or claim on her part can have the effect of an estoppel, or be a defence, short of the time in which the statute of limitations would bar her action.
      I have thus, as briefly as possible, considered the questions in the case, and the conclusion at which I have arrived is one unfavorable to the title of the defendants, as presented on the record. It is a conclusion attained by yielding to what I regard as the demands of strict law, against my sense of the justice of the case. But the court has no power to dispense with any requirements which the law, makes. The very able and elaborate arguments and briefs of counsel would have rendered it comparatively easy to present the views of the different courts of the Union on most of the questions involved in the case, and their publication will render the future investigation of those questions easy to those who are to come after us.
      Judge Ryland concurs in reversing the judgment, but does not concur in the views here expressed in relation to the case of McDaniel v. Priest. He adheres to that decision.
      The judgment is reversed and the cause remanded.
      SCOTT, Judge, dissenting. By the common law, a married woman could not, by any act in pais, even with the concurrence of her husband, convey away her lands. Statutes have been enacted, which enable her to convey away her lands and her right to dower, by the observance of certain forms. When the forms have been departed from in making the conveyance, the argument against its validity was, that as the statute is in derogation of the common law, it must be strictly complied with, otherwise the deed of a married woman cannot be valid. This argument, wherever modes of conveying the wife's land similar to our own prevail, has been made and has been resisted. All the courts have abandoned the common law rule, so far as this subject is concerned, that statutes made in derogation of the common law must be strictly pursued. In the determination of questions under these statutes, some courts have been liberal in their departure from the rule, others not so much so. The object of the law is, to obtain the free and unconstrained consent of the wife to the deed alienating her rights. If this is done, the law is satisfied -- its purpose is accomplished. In construing statutes of this kind, the courts must and do have a regard to the circumstances and condition of the country in which they are placed. They look to the officers entrusted with the execution of the laws; they see them entrusted to men honest, but altogether unskilful in the drafting of forms. They may do what is required in a way substantially correct, and yet when compelled to certify in writing the manner in which they have carried it into execution, they will make a failure. It is a task beyond their power from the want of skill. The exigencies of men frequently require the execution of instruments, under circumstances that professional men cannot be consulted. They are not at hand, and the occasion will not admit of delay. We must be aware, that there are men who can do a thing correctly, and yet they will fail to show it, when they attempt to certify the manner of doing it in writing, from their want of skill in such matters. In many portions of our state, men skilled in the forms of the law cannot be found who will undertake the execution of the laws, and yet the convenience of the people requires that officers should be appointed; under such circumstances, it would be hard in courts to exact a rigorous compliance with forms. Such a course would disturb a great many titles, and that, too, in cases where no wrong had been done, and where there had been an entire acquiescence in the acts, conscious of their propriety, until the information of the technicality is found out by some prowling assignee, or some child who would make the mother who bore him sin in her grave. As all courts have departed from the strict rule, and as they have been more or less liberal in their departure, according to circumstances, none can take a survey of the condition of this state, in relation to this matter, without being impressed with the conviction, that justice and true policy both demand an enlarged and liberal construction of the certificates to the deeds of married women, especially as courts lend a willing ear to all complaints of obtaining conveyances from married women by undue means, and as it does not appear that the law on this subject has been wrested to undue or improper purposes, as in none of the cases coming up is there any pretence of any unfair means being used to obtain their consent to the conveyances to which they have become parties.

"Cases Determined in the St. Louis Court of Appeals of the State of Missouri" from November 9, 1879, to April 20, 1880; by A. Moore Berry; Missouri Appeal Reports, Vol.8, pgs.286 to 289 (California State Law Library, Sacramento, 2/2004)
      THOMAS B. DUNCAN, Respondent, v. LORENZ FRANK et al., Appellants; Court of Appeals of Missouri, St. Louis; 8 Mo. App. 286; February 3, 1880, Decided.
      APPEAL from the St. Louis Circuit Court. Affirmed.
      (MAD: arguments of counsel omitted here)
      [opinion] BAKEWELL, J., delivered the opinion of the court.
      This is an action of trespass. It appears that defendant Frank, who was a constable, levied an execution upon certain personal property of plaintiff, who set up that he was the head of a family, and claimed the property as exempt. Frank refused to proceed unless his co-defendants, Thiel and Lange, would indemnify him. They then executed to him an indemnifying bond with defendant Sennewald as surety. Frank then seized and sold the property, and it was lost to plaintiff. There was a verdict and judgment for plaintiff for $321.
      Defendants filed a joint general denial. Defendant Frank afterwards filed an amended answer, in which he sets up as a defence that he was a constable, and seized and sold the goods under execution. Plaintiff replied that he had claimed as head of a family, and that defendant Frank refused to appraise or release the same, acting in this under the direction of his co-defendants. Appellants contend that there is here a departure in pleading. There is no departure in this, because there is no dereliction of the antecedent ground of complaint for another, distinct from, and not fortifying the former. Where one sued in trespass, defendant justified taking the cattle damage feasant by distress, and plaintiff replied that defendant drove them out of the county. Here was a departure, because plaintiff's only right of action was under the statute which gave damages for driving cattle taken damage feasant out of the hundred. Gould's Pl. 8, 3, 70. But here plaintiff's action is not upon the statute, and he could not have set out the provisions of the statute without anticipating plaintiff's defence, which he ought not to do. It was sufficient for him to make out his case, and when defendant attempted to shelter himself behind the writ, to show why the writ was no protection. Defendant's action is founded on the common law and not on any statute, and the replication does not depart from the petition by attempting to ground the action on any statute. It needed no statute to give a right of action against one who, without warrant of law, carries off and sells the goods of another. The objection seems to be founded on a misapprehension of some of the cases cited in the elementary writers on common-law pleading as instances of departure, where one declaring on a common-law right, and being unable to maintain his position, attempts to make sure his ground by abandoning his first standing-place and taking position upon a statute. This, of course, is a fault in all pleading, for the obvious reason that, if either party might thus shift about and abandon one cause of action or defence for another, the great object of pleading, which is to bring parties to an issue, would be lost, and there would be no end of such shuffling. The demurrer to the reply was properly overruled.
      It was further objected that the reply should have stated the facts constituting plaintiff the head of a family. The ultimate fact that plaintiff was the head of a family was stated plainly enough. The evidential facts, and the law applicable to those facts, had no proper place in the pleading. Evidence should never be pleaded, but only issuable facts.
      The evidence showed that plaintiff kept house in Carondelet with two sisters and a brother, aged respectively twenty, eight, and seven years; that he rented the house and paid expenses, the elder sister acting as house-keeper; that his mother lived across the river, in the old family homestead, with the rest of her children; that the elder sister was not dependent on plaintiff; that the other children were expected to return to their mother when they had finished their schooling; that all contributed something to keep up the household, and that the mother occasionally visited the Carondelet family, and brought money and clothing.
      A family is the collective body of persons who live in one house, under one head or manager. The relations between them must be of a permanent and domestic character, not that of those abiding temporarily together as strangers. There can be no doubt that one who, with his sister, keeps house for his younger brothers and sisters, thus partly contributing to their support, is the head of a family under the exemption laws, though neither a husband nor a father, and though the children be not wholly dependent upon him. Wade v. Jones, 20 Mo. 75. The instructions, in this respect, were warranted by the evidence, and were not erroneous.
      It is immaterial that plaintiff may have had other property. He had a right to select as exempt any property he chose, up to the exemption limit. If the constable claims that the defendant in his execution has other property, it is for the constable to find it, and to make it available towards the satisfaction of the execution in his hands. 2 Mo. App. 335; 44 Mo. 99; 21 Mo. 161, 510.
      The co-defendants of the constable, by directing and encouraging him to commit the illegal act complained of, became liable with him.
      On the pleadings and evidence, the judgment was for the right party. The finding was not excessive. We see no error to the prejudice of appellants, and the judgment will be affirmed. Judge LEWIS is absent; Judge HAYDEN concurs.

"Cases Determined in the St. Louis Court of Appeals of the State of Missouri" from April 20, 1880, to February 15, 1881; by A. Moore Berry; Missouri Appeal Reports, Vol.9, pgs.417 to 424 (California State Law Library, Sacramento, 2/2004)
      MICHAEL JODD et al., Respondents, v. THOMAS B. DUNCAN et al., Appellants; Court of Appeals of Missouri, St. Louis; 9 Mo. App. 417; December 7, 1880, Decided.
      APPEAL from the St. Louis Circuit Court, WICKHAM, J. Affirmed.
      (MAD: arguments of counsel omitted here)
      [opinion] BAKEWELL, J., delivered the opinion of the court.
      This is an action by contractor against owner, to establish a mechanic's lien. The petition alleges that defendants Dentman and Ibers claim an interest in the premises, adverse to defendant Duncan, with whom, as owner, the contract was made.
      There was a default as to Duncan. Defendants Dentman and Ibers deny generally all the allegations of the petition. They specifically deny that Duncan ever owned the premises described, and that he had any right or permission to erect any building thereon; they further say that the work was done under a written contract, the terms of which were not complied with. Plaintiffs reply that there was a waiver of the terms of the contract; that Duncan knowingly accepted the work and materials, and that the same was of value to him. They claim their reasonable value.
      Judgment was rendered against Duncan, and that the claim is a lien upon the building described.
      It appeared from the testimony that one Henry Doering owned a lot of ground in St. Louis, on which he had borrowed money, secured by a deed of trust. After the execution of the deed of trust, he made an agreement with defendant Duncan to sell him the lot for $2,282, of which $10 was paid in cash, and the remainder was to be paid in sixty days. This agreement was dated July 9, 1877. A warranty deed was to be delivered on payment of the purchase-money, and in default the agreement was to be void, the $10 paid was to be forfeited, and Duncan to be liable to Doering for all the damages sustained by non-fulfilment of the agreement.
      Under this agreement Duncan went into possession. On August 8, 1877, Duncan contracted in writing with plaintiffs for the brick and stone work of a building which he proposed to erect on the premises. This brick and stone work was to be done according to certain plans and specifications drawn by the architect. The price agreed upon was $1,095; the work to be completed on October 1, 1877. This agreement was signed by Duncan and his mother. Before beginning the work, plaintiffs had a conversation with Doering, in which he told them that Duncan did not own the lot, but had an agreement for a conveyance on paying the purchase-money. Plaintiffs said to Doering that Duncan's mother had property in Illinois, and that they thought they would be all right. Plaintiffs then proceeded to do the brick and stone work, with the knowledge of, and without any opposition from Doering. Almost all the work was done by October 30, 1877. Some of the brick-work then remained unfinished, because defendants Dentman and Ibers, who had the contract for the carpenter-work, had the plans and specifications, and neglected to go on with their work. This occasioned an interval of four months, during which no brick-work was done. The last brick-work was done on March 23, 1878, and the lien was filed on September 14, 1878. On May 2, 1878, the deed of trust of Doering was foreclosed; and the property was purchased at that sale by one Plass, who, on August 1, 1878, conveyed the same to defendants Dentman and Ibers.
      It is contended by appellants that, on this state of facts, Duncan was not the owner of the premises, and had no interest in them to which a lien could attach.
      One who has entered into possession under a contract to purchase, and who has erected buildings, may be regarded as an owner within the meaning of the mechanics' lien law, and as such, might, under the law, bind his equitable interest in the land. If the contract to purchase the land was not carried out, the expectation of title would fall; and the fact, that the owner knew that the building was being erected, and did not dissent, ought not to be construed into an assent that the land should be chargeable with the lien. Ph. on Liens, sects. 69-72, and cases. The existing law under which this lien was filed provides, however (Rev. Stats. sect. 3174), that the lien shall attach to the buildings in preference to any prior lien on the land, and any person enforcing such a lien may have such buildings or improvements sold, and the purchaser may remove the same within a reasonable time. Such purchaser gets, of course, no interest in the land. This right of enforcement is not confined to leasehold property, as has been expressly held in Kansas City Hotel Company v. Sauer, 65 Mo. 279. In every instance the improvements are regarded as the primary objects which confer the lien, and the land is added thereto where it belongs to the owner or proprietor. It seems to have been the intention of the Legislature, as is said by Judge Napton in Smith v. Phelps, 63 Mo. 588, to protect the title of the mechanic to a reimbursement for his expenditure in money or labor on the house he builds, by giving him a right to the house if all other means fail. We think that the contract in the present case, having been made by one who erected the buildings under a contract to purchase the land, was made with the owner, within the meaning of the law; and though under the evidence no lien could be established against the land, since the contract of purchase was not carried out, the lien upon the buildings was not therefore lost, and the mechanic, on obtaining his judgment, might have sold them under execution, the purchaser, if other than the owner of the land, being obliged to remove then within a reasonable time. So, where land was sold under an encumbrance, and subsequently sold under a mechanic's lien for work begun subsequently to the origin of the encumbrance, the first sale was held to release the land from the encumbrance of the mechanic's lien; but it was nevertheless held that the purchaser at the execution sale under the mechanics' lien might have bought the erections free from all liens. Crandall v. Cooper, 62 Mo. 478. In earlier cases (Squires v. Fithian, 27 Mo. 134; Porter v. Tooke, 35 Mo. 107; Bridwell v. Clark, 39 Mo. 170) it was held that the contract must be made with one having an estate in the land, and that one owning a mere equity of redemption could not make a contract with a mechanic or material-man that would give to a lien filed by a mechanic priority to the mortgage or trust-deed. But these cases were decided under a different law from the one now under consideration; and if a legitimate conclusion from them is, that under the now existing law there can be no remedy by the material-man against the building in case he fails to establish a lien against the land, or that the remedy against the improvements alone is given only in case of a lease, they are, so far, expressly disapproved by the Supreme Court in later cases. Kansas City Hotel Co. v. Sauer, supra.
      The declaration in the present case is upon a quantum meruit or quantum valebant, and it is objected that, a written contract having been shown, there was a variance between the allegations and the proof, and that the court improperly admitted evidence, against the objection of appellants, as to the reasonable value of the work.
      The lien is not created by contract, but by furnishing the materials and doing the work. In the present case there was no claim for extra work, but the evidence was that the provision of the contract as to time was waived, and that there were some variations from the original contract in immaterial particulars. Duncan remained in possession of the premises for more than six months after the work was begun, and for four months after the work was substantially completed. He assented to the variations in the contract and to the extension of time. The amount recovered is somewhat less than the contract price, and, for the purpose of establishing a lien against the building, we regard it as immaterial that the action was not upon the written contract. There is no question that the work and materials went into the building, that they were worth the amount recovered, and that Duncan agreed to pay at least that price for them. Nor is it pretended that any damage was occasioned to him or to the defendants Ibers and Dentman, the present owners of the land, by any delay of plaintiffs in completing their work. The testimony is that that delay was occasioned partly by the breach of contract on Duncan's part in not making payments according to the certificates of the architect, and partly by the wrongful act of appellants, who were the contractors for the woodwork and had possession of the plans and specifications, in refusing to allow plaintiffs to have these papers, which they needed to complete the work.
      There was a period of about four months from the time that plaintiffs had nearly finished their work during which nothing was done by them on the houses, for the reasons just stated. They then finished the job by putting some courses of brick on the top of the walls, bricking in the lookouts, and walling up the privy. This work was worth about $35, and is the last work that saves the lien. It appears to have been required by the contract, and the architect and many other witnesses swear that it was necessary to complete the job; and that as to the brick-work, it could not be done until the carpenters put up the lookouts, which was not done until a few days before this last brick-work was put in. The witnesses for defendants testify that this work was unnecessary to the making of a good job; but there can be no doubt, under the evidence, that it was done by the direction of Duncan.
      Appellants contend that, as the contract of Duncan to purchase the lot was to be void by its terms if he did not pay the purchase-money to Doering within sixty days, -- that is, by September 8, 1877, -- and as he did not make his payment, he was thereafter a mere trespasser, and could have no further interest in the buildings or the lot. As we have said, it appears that he remained in possession for an indefinite time -- not less than six months -- after this, without any opposition from Doering; and Doering, after the time for payment had elapsed, still looked to him to fulfil his contract, and tendered him a deed. He cannot be regarded as a mere trespasser, or as having no interest in the buildings at the time the work of plaintiffs was almost completed, and was temporarily suspended in October. If Doering had any rights in the matter, he seems to have been careless of asserting them; nor, if he had put Duncan out, could he have retained the buildings without paying such mechanics and material-men as had taken proper steps to secure a lien against the building for materials and work actually furnished and performed. Nor, except that he asked for his money and tendered Duncan a deed, is there any evidence that Doering ever notified Duncan to leave, or that he interested himself in the matter at all, after the contract between himself and Duncan was executed, in July.
      We do not regard the fact that the contract for the building of the house was signed by the mother of Duncan, and that plaintiffs knew that she had property in Illinois, as being evidence of a waiver of the lien. The lien is expressly given by law, and ought not to be considered waived unless the intention to waive is plainly manifested. Nothing is shown in the conduct of the parties from which a waiver by implication could fairly be inferred. It does not appear that plaintiffs said anything or did anything to induce defendants to believe that they did not look to the improvements for their pay. The statement by them to Doering that Mrs. Duncan had property, and that they thought they were safe, was not in itself enough to constitute a waiver. Nor does it appear that appellants knew of this statement before their purchase; so that there can be no question of estoppel in the case.
      It is not necessary to comment upon the instructions. They are, perhaps, not entirely consistent; but it does not appear that appellant could have been prejudiced thereby.
      On the evidence, the plaintiffs were clearly entitled to a lien against the improvements, and no sufficient reason appears for disturbing the judgment. It will therefore be affirmed. All the judges concur.

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      St. Louis County MO Courts
      VINCENT (a man of color,) v. DUNCAN; Supreme Court of Missouri, St. Louis District; 2 Mo. 214; September, 1830, Decided.
      RALPH (a man of color) v. DUNCAN; Supreme Court of Missouri, St. Louis District; 3 Mo. 194; May, 1833, Decided.
      GORDON v. DUNCAN; Supreme Court of Missouri, St. Louis District; 3 Mo. 385; June, 1834, Decided.

Go to the St. Louis Co. MO Court Records Part 2
      DOGGETT et al. v. LANE et al; Supreme Court of Missouri; 12 Mo. 215; October, 1848, Decided.
      DICKSON & GANTT, Plaintiffs in Error, v. DESIRE'S Administrator, Defendant in Error; Supreme Court of Missouri, St. Louis; 23 Mo. 151; March, 1856, Decided.

Go to the St. Louis Co. MO Court Records Part 3 - Robert Duncan's land
      BERNARDER v. LANGHAM; Supreme Court of Missouri, Third Judicial District; 7 Mo. 476; May, 1842, Decided.
      OTT v. SOULARD; Supreme Court of Missouri; 9 Mo. 581; October, 1845, Decided.

Go to the St. Louis Co. MO Court Records Part 4 - Robert Duncan's land
      EVANS & RIEHL vs. LABADDIE; Supreme Court of Missouri; 10 Mo. 425; March, 1847, Decided.
      JACOB KISSELL, Plaintiff in error, v. THE BOARD OF THE PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS; Supreme Court of the United States; 59 U.S. 19; 15 L. Ed. 324; 18 HOW 19; January 23, 1856, Decided; December 1855 Term.
      BRADDOCK JONES, Pltff. in Er., v. JAMES G. SOULARD; Supreme Court of the United States; 65 U.S. 41; 16 L. Ed. 604; 24 HOW 41; January 7, 1861, Decided; December 1860 Term.

Go to the St. Louis Co. MO Court Records Part 5 - Robert Duncan's land
      GEORGE EBERLE v. THE BOARD OF PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS; Supreme Court of Missouri; 11 Mo. 247; March, 1848, Decided.

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