125 Mo. 589 | Mo. | 1894
This is an appeal from the decree of the circuit court of Howell county, annulling a mortgage deed executed by the plaintiff, Mary E. Brown. The petition alleges that she and her coplaintiff, James M. Brown, are and were ‘on the eighteenth day of September, 1891, husband and wife; that on that day she executed the mortgage deed in question, whereby she conveyed certain real estate described in the petition to the defendant; that said realty was not her separate estate- and that her husband did not join with her in making such deed, nor was such deed made by her under the protection or by the advice or consent of her husband. Wherefore plaintiff prays that the same be set aside, canceled and for naught held.
The case was tried on the following agreed statement of facts:
“That the plaintiff, Mary E.'Brown, was on the eighteenth day of September, 1891, the owner of the land in question under and by virtue of a general*592 warranty deed in the usual form, but. which contained no words limiting the estate therein conveyed to her sole and separate use; that on the said eighteenth day of September, 1891, she executed and delivered to the said Dressier her sole mortgage deed to the premises in question, which said mortgage deed was in the usual form and regular in every respect, except that her husband did not join in said mortgage deed with her and he never executed and acknowledged the same.” This was all the evidence in the case.
I. It will be observed from the foregoing statement that the real estate in question was not the separate estate of Mrs. Brown nor did it come to her by “bequest or inheritance.” It does not appear that it “belonged to her before her marriage” or that it came to her during coverture by gift, or purchase with her separate money or means. So her estate therein must be taken to be an estate in fee simple as at common law, governed by principles applicable to such estate and not by those applicable to a married woman’s equitable estate, or to her estate in lánds derived as aforesaid, and provided for in section 6869, Revised Statutes, 1889, a discussion of which in this ease would be beside the question.
The power of a married woman to convey her real estate held as at common law is conferred by statute. It is not conferred upon the wife alone, but upon the husband and wife jointly and then only by deed executed by them and acknowledged and' certified in the manner required by the statute. Revised Statutes, 1889, section 2396. The law in this respect is substantially the same now as it has always been. No material change has been made in that law since the organization of the state. It is beyond question that prior to 1889 a married woman in this state could not convey her legal estate in lands, except by deed in
In the revision of 1889 a new section was adopted as a part of the “Married Woman’s Act,” as follows: “Section 6864. A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and. be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party.” The Married Woman’s Act, in which this section appears, was revised in 1889, as was also the act entitled “Conveyance of Real Estate” (R. S. 1889, p. 609). This section must be construed with reference to the other provisions in the formér and to the provisions of the latter act, by none of which was any change made in the power or rights of either husband or wife over the general real estate of the wife, and, being a change in the existing law, and in derogation of the common law, this section must not be presumed to make any change beyond what is expressed in fe provisions and fairly implied from them in order to give them full operation. Endlich on Int. Stat., see. 127..
While this section contains a liberal and widely comprehensive grant of power, it does not purport to grant to a married woman all the powers of a femme
But this section 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,
It seems, from the scope of this legislation, that, while our lawmakers were willing to confer on 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, or to expose them entirely unprotected to the keen edge of self-enforcing mortgages and deeds of trust, but left their contracts of this character to be enforced by, and under the protection of, the courts.
If this is the correct construction of the law, it follows that, although the instrument in question in this case can not operate as a deed, conveying the legal title of Mary E. Brown to her real estate to the defendant, it is not, for that reason, wholly inoperative and void. It may, for aught that appears in apt words, pledge that real estate as security for the payment of a debt or the discharge of a contractual obligation binding upon her under the provisions of section 6864, supra, which the courts would enforce against her and her interest in the real estate described in the petition; or it may be regarded as an equitable mortgage and held to create a lien or trust for the benefit of the defendant which the courts ought to and would enforce. McClurg v. Phillips, 49 Mo. 315; McQuie v. Peay, 58 Mo. 56; Dunn v. Raley, 58 Mo. 134; Jones v. Brewington, 58 Mo. 210; Carter v. Holman, 60 Mo. 498; Blackburn v. Tweedie, 60 Mo. 505; Martin v. Nixon, 92 Mo. 26.