89 Mo. 217 | Mo. | 1886
On April 10, 1880, plaintiff filed his petition, in equity, against defendants, and charged therein in substance, as follows :
That W. D, Howard and Martha J. Blanton (a single woman) on April 1,1875, executed their joint promissory note to H. L. Holland, plaintiff’s intestate, for $3,000. That when said note was executed W. D. Howard was insolvent, but Martha J. Blanton owned a large property, both real and personal, and that the credit was-wholly given to her. That after the making of said note said W. D. Howard and Martha J. Blanton were-married. Default being made in the payment, this plaintiff, as administrator of Holland, brought suit in the Vernon circuit court against Mr. and Mrs. Howard on the note and recovered judgment against them for $3,199.34, which has not been paid, but is still in full force. That before plaintiff obtained said judgment de
That the said mortgage sale took place and deed ■was made to said McAfee on the tenth day of July, 1877, •and filed for record May 7, 1879. That said McAfee did not pay any consideration for said deed to him. That afterwards, on the thirteenth day of May, 1878, at the instance and request of said Martha J. Howard, the said McAfee deeded said real estate to the other defendants, children of said Martha J. Howard by her former marriage with Blanton. That said conveyance was voluntary and without consideration and made or caused to be made by said Martha J. Howard with the fraudulent purpose, and intent of covering up said property in the names of her children, and with a view to cheating and defrauding plaintiff as such administrator, out. of his debt. That at the time of signing said notes said Martha J. Howard owned certain other described real estate in the town of Nevada and in Yernon county, Missouri, of the value of $2,000, which she •owned and possessed at the time of the rendition of said judgment in plaintiff’s favor against her and W. D. Howard, and that since the rendition thereof said Martha J. Howard and her husband, W. D. Howard, {makers of said note to plaintiff’s intestate), have made and executed a deed for said land to her said children
The petition asks and prays that said deeds 1ae set aside and held for naught and that the court order the same, or so much thereof as may be necessary, to be sold, to pay and satisfy plaintiff’s judgment, and for such other relief as may be necessary and proper in the-premises. The separate answer of Mr. and Mrs. Howard is a denial of the material allegations of the petition, and further sets up that the money loaned out and real, estate described, and which stood in the name of Martha J. Howard (formerly Blanton) was a trust property, the proceeds of a policy of insurance taken out by said Blanton, her first husband, on his life and payable to said wife, Martha, in trust for herself and his children (the other-defendants) and that the deeds mentioned in the petition were not fraudulent, but made to secure to said children what belonged to them under the terms of said policy. The answers of her children, who were made defendants, are substantial repetitions of Mrs. Howard’s answer. The new matter set up in all the answers is denied by plaintiff in his reply.
When the case was called for trial plaintiff offered to make proof of all the allegations in his petition. The defendant objected to the court hearing any testimony whatever in support of plaintiff ’ s action, for the reason that the petition showed on its face “that this cause is a proceeding to enforce a judgment against a married woman possessed of a general or legal estate only and
In the consideration and determination of the question, therefore, the petition and the facts therein stated, .are, for the purposes of this case, to be taken and ad■mitted as true. Is it true, therefore, as ruled by the trial court on the objection of defendants, that the petition does not state a cause of action ? Under the facts and the law, and especially in view of recent statutes of this state in force at the date of the transaction, we think this ruling of the trial court was clearly erroneous. At the outset, it must be borne in mind that the promissory note in question, for the payment of which the property in question is sought to be subjected, was the joint and several note of both the defendants, Martha J. Howard and her husband, W. D. Howard, executed by each of them while single, and prior to their intermarriage with each other, and after the enactment of the statutes heretofore referred to, to-wit, sections 3296 and 3295 of the Revised Statutes, 1879.
At common law, it will be remembered, that the personal property of the wife, which she had in possession at the time of the marriage, such as money, goods and chattels and movables, vest immediately and absolutely in the husband, by the marriage, and he could dispose of them as he pleased, and on his death they went to his representatives, as being entirely his.
Section 3295 (R. S., 1879), provides that, “The-rents, issues and products of the real estate of any married woman, and all moneys and obligations arising from the sale of such real estate, and the interest of her husband in her right in any real estate which belonged to her before marriage, or which she may have acquired by gift, grant, devise or inheritance during coverture,, shall, during coverture, be exempt from attachment or levy of execution,'for the sole debts of her husband, * * * provided, such annual products may be attached or levied upon for any debt or liability of her husband, created for nécessaries for the wife and family,, and for debts for labor or materials furnished upon, or for the cultivation or improvement of such real estate.’? Of course if the wife was seized of the land, anterior to the time section 3295 took effect, neither the rights of the husband or the wife would be affected by that section. Wilson v. Albert, post, —. It thus appears, from the averments of the petition, admitted to be true, for the purpose of the case, that much the larger portion.
Upon a fair construction, also, of section 3295, we are of opinion that the husband’s common law marital interest in the wife’s said real estate, under the facts of this case, was not exempt from liability to this joint and several ante-nuptial debt of both husband and wife, since the debts contemplated by that section, from which the husband’s said interest should be exempt, are the sole debts of the husband. In our opinion, the debt in question is not of that sort, and, therefore, his said marital interest might be subject to sale to satisfy such a debt as the one in question, being, as it was, the joint and several ante-nuptial debt of both husband and Avife.
But whether we are right in this proposition or not, the court erred for the reason before stated.. Such a judgment as the one mentioned in the petition is not, in our opinion, a nullity, within the common law rule, as to judgment against married women. It was the foundation, at least, of the creditor’s right to enforce the husband’s common law liability, for his Aviie’s ante-nuptial debt, and as such, and to that extent, and for that purpose, at least, Avas not void, although the wife might not be personally liable thereon; and this proceeding does not contemplate any personal liability of the wife; yet her said separate property, which they sought to
For these reasons the ruling and judgment of the trial court is reversed and the cause remanded for further proceeding in conformity herewith.