46 Mo. App. 28 | Mo. Ct. App. | 1891
This suit was brought in the circuit court of Audrain county by the plaintiff to have the amount of two judgments declared a lien and charge upon 1 ‘ the crop of oats, hay, corn and other crops upon the lands” of the defendant, M. J. Graham, a married woman, and the wife of the other defendant. The petition alleged that on the ninth of July, 1884, plaintiff was a corporation, and that the defendants, husband and wife, were residing and engaged in farming on one hundred and sixty acres of land in Audrain county belonging to the wife; and that on the said date defendant, C. L. Graham, bought of plaintiff one Osborne reaper and binder and one mower for $250, and executed his two promissory notes therefor, each for $125, one of which was made payable on September 1, 1884, and the other on January 1, 1886 ; that neither of said notes being paid at maturity the same were put in judgment; that one of said judgments was entitled to a credit of $70 ; that said machinery was bought for the use, cultivation and improvement of the said farm and was so used by defendants thereon; that “defendants have now upon said land crops consisting of oats, hay, corn and other crops,” of the value of $500; that defendant, O. L. Graham, is, and has been, insolvent at all times since the rendition of said judgment. Judgment was prayed that a lien on said crops be declared
The bill of exceptions shows that the evidence adduced at the trial was in substance, “that Margaret J. Graham is now, and at all dates, as in the petition set forth, was the owner of a farm of one hundred and eighty acres of land in Audrain county, Missouri and that said husband and wife lived thereon, and that it was inherited from her father.” C. M. Dyson, being called upon the part of the plaintiff, testified as follows: “I knew defendants in the year 1884, and when defendant, O. L. Graham, bought the binder and mower, I was living at their house at the time. Graham had in that year on his wife’s farm thirty-five or forty acres in oats and fifteen acres in meadow. He used this Osborne binder to cut and bind those oats and the mower to cut the grass with. He tended and cultivated the farm that year and did before and has since, except parts that have been rented out to, farmers of the neighborhood. Before he cut the oats on his wife’s farm he had used the binder in cutting some wheat for Gideon Mallory, some oats for Mrs. Duly and some wheat for John Meyers. He cut about eight acres of wheat for Mallory, ten or fifteen acres for Mrs. Duly and a like amount for Meyers. When Mr. Graham bought the machine he brought it and set it up at Mallory’s. He used the mower only on his wife’s place.” JeffersonD. Sims testified that he did defendant Graham’s threshing the year of 1884 and that the oats had been bound by a binding machine with twine. G. L. Ferris testified on the part of plaintiff that he was the agent of D. M. Osborne & Co., the year 1884, for the sale of binders, reapers and mowers, and that in the year 1884 he sold and delivered to defendant, C. L. Graham, a binding machine which both reaps and binds the grain, and also
I. The petition of the plaintiff is assailed on the ground that it does not state facts sufficient to entitle the plaintiff to the relief that it has in its petition demanded. This is, it is perceived, a proceeding to subject the statutory separate property of the wife to a lien of a debt contracted by the husband. The statute, Revised Statutes, section 3295, provides Chat, “the rents, issues and products of the real estate of a married woman * * * during coverture shall 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 necessaries for the wife and family, and for debts for labor or materials furnished, upon or for the cultivation or improvement of such real estate.”’ Does the petition state the facts necessary to authorize
Hence it is, that it has been judicially determined, that the separate property sought to be charged must be described in the petition, and the separate estate being an indispensable element of the proceeding, it must %exist when the contract is made, out of which the liability arises; and its existence must continue to the institution of the suit. If, when the contract is made,
It is suggested that the requirements of these rules frustrate and defeat the purpose of the statute ; that they render it impossible for a creditor of the husband to avail himself of the benefits of the statute in securing a lien upon, and satisfying his debt out of, the product of the wife’s real estate. We answer this objection by stating that, in cases of this kind when it is sought to subject the annual product of the wife’s real estate to a lien for a debt of the husband under the proviso of section 3295, Revised Statutes, that it would be a proper practice for the creditor in order to continue the existence of the res, so that the same may be subjected to a lien for his debt, to invoke in his petition for the lien either the appointment of a receiver, or the aid of the injunctive process of the court. In this way a proceeding like, the one here attempted could be made effectual. We, therefore, are of the opinion that the plaintiff’s petition is subject to the objection that has been lodged against it.
II. An examination of the evidence has not convinced our mind that the plaintiff is entitled to the relief which he seeks. If the plaintiff’s debt was the sole debt of the husband, then the product of the wife’s real estate was, under the statute, exempt from levy of execution against the husband therefor. If however the debt was created for materials furnished upon, or for the cultivation of, the real estate of the wife, then the annual products of her real estate are liable for such debt. Was the debt in this case the sole debt of the husband? The evidence is somewhat conflicting, but we think that by a great preponderance it supports the conclusion that it was the sole debt of the husband.