Harding v. Cobb

| Miss. | Apr 15, 1873

Simba ll, J.:

W. H. Edrington, Joseph T. Cobb and Emma J., his wife, brought a bill in chancery against R. J. Harding and Agnes E., his wife, to foreclose an equitable mortgage.

In January, 1870, Cobb and wife sold and conveyed to Agnes E. Harding certain lands, reserving in the deed a lien to secure the deferred payments of $1,000 each, evidenced by the promissory notes of Harding and wife, one due • 1st of January, 1871, the other the 1st day of January, A. D. 1872. These notes were payable to Mrs. Emma J. Cobb. The last one was transferred to Edrington for value, by indorsement, Mrs. Cobb writing her name across the face of the note.

To the bill, Harding and wife demurred, which demurrer was overruled. The error complained of is that decision of the chancellor. Several special causes of demurrer were assigned.

1. That Mrs. Cobb alone could not indorse and negotiate the note; it must be the concurrent act of herself , •and husband. In Blodgett v. Elbing, 24 Miss. 245" court="Miss. Ct. App." date_filed="1852-04-15" href="https://app.midpage.ai/document/bodgett-v-ebbing-7983758?utm_source=webapp" opinion_id="7983758">24 Miss. 245, if was held, that a promissory note payable to the wife was prima facie her separate property. The require-, ment of the statute relating to the separate property of married women, that the husband should.be joined with the wife in suits affecting such property, was intended to give her the benefit of his counsel and assistance in vindicating her rights. This in nowise abridges or limits her power of disposition. That subject has been several times carefully considered in this court. It may be assumed, as the principle deducible from the cases, that unless the statute, or the deed or other instrument under which she takes and holds the property, prescribes a mode of disposition, she is to be regarded as having the “ absolute dominion, and deals with it as a feme sole.” Garrett v. Dabney, 27 Miss. 343 ; Black v. Cross, 36 ib. 558 ; Bank of Louisiana v. Williams et ux. 46 ib. 633.

There is a distinction between her authority to bind' her estate by incurring debts, and her power over the property itself; and then again, her power of alienation, by sale and transfer, is different, as the property may be real or personal estate. If she signs the note of her ^ husband as surety, she creates no obligation, yet she may, to a certain extent, incumber her estate for the husband’s debt. If she makes a mortgage, or an absolute conveyance, the husband must join with her in the deed. Yet she alone may lease for a term of years or make contracts for the use of real estate. So, too, she may loan her money and take securities therefor in her own name. The statute does not restrict or prescribe how she shall dispose of her.personal property, whether goods and effects, money or choses in action. Her title under the statute is legal, exclusive of all interest in the husband, and she may deal with it as though not, under coverture. As payee of a promissory note, she! may assign it by indorsement, and thereby completely’ transfer the title. She may give a receipt for property or an obligation to herself, which is a good acquittance. Billingslea et ux v. Young, 33 Miss. 95" court="Miss." date_filed="1857-04-15" href="https://app.midpage.ai/document/billingslea-v-young-8257169?utm_source=webapp" opinion_id="8257169">33 Miss. 95. We are of opinion, that Edrington acquired a legal title to the note by Mrs. Cobb’s indorsement to him.

^ 2. It is further objected that there is a misjoinder of parties plaintiff. Mrs. Cobb’s indorsement having passed to Edrington the legal title to the paper, and also the entire beneficial interest, Cobb and wife represented no claim or pretension of any sort to the subject of the suit. It follows, therefore, that they were improperly joined as complainants. If Edrington took but an equity in the note, the legal title continuing in Mrs. Cobb, then she and her husband might have been co-complainants. The assignor of a chose in action may unite as complainant with the assignee who takes but an equitable title.

The doctrine upon this subject is, that in a joint suit, the want of interest in either of the plaintiffs is as fatal as the want of interest in a sole plaintiff. 1 Story Eq. PL ; Clarkson v. DePeyster, 3 Paige Ch. 336" court="None" date_filed="1831-05-28" href="https://app.midpage.ai/document/clarkson-v-de-peyster-5547972?utm_source=webapp" opinion_id="5547972">3 Paige Ch. 336 ; Griffith v. Ricketts, 3 Hare, 476. The misjoinder of such parties plaintiff may, if it appears on the bill, be taken advantage of by demurrer, if it does not so appear by plea. 1 Story Eq. PL, § 283. If not excepted to in either mode, it may not avail at the hearing, but the court may, if justice can be done, proceed to make decree. Ib.

3. Another ground was, that the note was not stamped as required by the revenue laws; but the deed was. We are not aware that the revenue laws require a double stamp on deeds because they retain a lien for the purchase money. Be this as it may, this objection is met and obviated by Morris v. McMorris, 44 Miss. 441" court="Miss." date_filed="1870-10-15" href="https://app.midpage.ai/document/morris-v-mcmorris-7983976?utm_source=webapp" opinion_id="7983976">44 Miss. 441 ; Richardson & May v. Davis, 45 ib.

For the misjoinder of Cobb and wife, as plaintiffs, the decree of the chancery court will be reversed and cause remanded, with leave for Edrington to amend his bill by striking out their names as plaintiffs, and for further proceedings.

It is necessary, if practicable, to make the holder of the other note party to the suit, as the lien reserved operates for the equal benefit of the holders of both the unpaid notes.