66 Mo. App. 125 | Mo. Ct. App. | 1896
This is a controversy as to the ownership of $484.83, which was a surplus left after the foreclosure of a deed of trust covering certain real estate in St. Joseph. Plaintiff Bartlett was the trustee who made the sale under the deed of trust; and as the amount left after paying the secured debt was claimed by Mrs. Roberts and by Kirtpatrick, assignee of Commercial Bank, he, Bartlett, filed a bill of interpleader, and the court required said claimants to come in and interplead. In the contest between interpleaders Mary E. Roberts and Kirkpatrick, assignee, the circuit court decided in favor of the former, and the latter appealed.
The material facts upon which the litigation is based, are these: Prior to July 1, 1892, the real estate was owned by Miller. On that day Miller conveyed the same by an ordinary warranty deed to Mrs. Mary E. Roberts. The purchase was made by George L. Roberts (acting for his wife), who paid Miller $2,300 in cash, and took the property subject to a deed of trust of $3,000; and it was under this incumbrance the property was subsequently sold by Bartlett, trustee. It seems that the greater part of this cash payment was money that came from the estate of Mrs. Roberts’
The decisive question in this case is, what effect should be given the deed from Mrs. Roberts to Ogden, dated February, 1893, and in the execution of which the grantor’s husband did not join. If that instrument was noneffective to transfer Mrs. Roberts’ title, then it would seem clear that she is entitled to the fund in dispute. If the Commercial Bank’s assignee has any right to the money, it must necessarily rest on the validity of the conveyance of Mary E. Roberts to Nathan P. Ogden. The circuit court, it seems, held that deed void, and in that decision we concur. The case is this: Can a married woman, under the laws of this state, make a valid conveyance of real estate, to which she has a general legal title, by a deed signed by her alone — her husband not joining therein! It has been repeatedly decided by the courts of this state' that she can not; and for the very satisfactory reason, that the statute law of the state has so restricted her powers in that regard.
In the very early history of the state, there was no law authorizing husband or wife, or both together, to convey the wife’s general real estate, during the existence of the marriage. Garnier v. Barry, 28 Mo. 438; Dunn v. Miller, 75 Mo. 260. But for a long time the statute
It is true that when the courts came to deal with the equitable separate landed estates of the wife, they held the wife competent to convey the same by her sole deed. Though this was at one time denied. Martin v. Colburn, 88 Mo. 229. However., this case has been overruled, and the law may be considered as settled to the contrary, as declared in Turner v. Shaw, 96 Mo. 22. The supreme court there, through Judge Sherwood, answering an objection to the sufficiency of the wife’s deed, to convey her equitable separate estate, because the husband had not joined in its execution, says: “However this may be as to mere statutory estates, which require a joinder of husband and wife in ■order to their valid execution, it will not hold as to separate estates in equity, which the wife may charge, mortgage, or convey without let or hindrance from her husband.” But while this has been allowed as to the equitable separate estate of the wife, the courts of this state have uniformly held that the ordinary legal estate of the wife can only be conveyed in the manner pointed out by the statute — that is, by the joint deed of herself and husband. The authorities will be found cited in briefs of counsel.
But it has been urged here by appellant’s counsel, in a very able and plausible argument, oral and printed, that the law has been materially modified by the addition of a new section to the married women’s chapter
“But this section (6864) does not authorize her to convey her real estate as a femme sole,' nor is such power to be fairly implied from its terms. On the contrary, the fair implication is that when she undertakes to convey her real estate, she shall do it in the manner required of a married woman by the statute, that is, by a joint deed with her husband. This seems to be not only a fair construction of the terms of the section itself, but when that section is read in connection with the other provisions of the same act, and of the act on conveyances of real estate, revised at the same session, it would seem to be absolutely necessary, in order to harmonize, give meaning to, and render operative all the terms of these revised acts. It seems from the scope of this legislation that, while our lawmakers were willing to confer upon married women power to make contracts binding on their real estate, they were unwilling to confer upon them the power of alienating the same absolutely by deed, without the knowledge or acquiescence of their husbands.”
This samé argument may be well used in reference to the provisions of section 6869. While that statute has enlarged the exclusive rights of the wife in her real estate and denied the husband any control or interest
Since, then, Mrs. Roberts’ deed was void because not joined by her husband in the execution thereof, it is clear that she was entitled to the surplus proceeds arising from a sale by the trustee, Bartlett. Nor can she be denied this on any claim of estoppel. “An estoppel in pais can never operate to prejudice the rights of the person estopped, except when the sole deed of such person would have a similar operative effect.” Brown v. Miller, 46 Mo. App. 1, and cases cited.
The judgment is for the right party and will be affirmed.