Parsons v. Denis

7 F. 317 | U.S. Circuit Court for the District of Eastern Missouri | 1881

Treat, D. J.

This is an action of ejectment in the ordinary form. To it several defences affirmatively are interposed. To all of those special defences except one a demurrer is presented:

1. The first defence is substantially that a married woman cannot mortgage her estate (her husband joining) to secure the payments of his debts.

Reference is made to the Missouri Statutes on this subject, as changed from time to time, and to the precise meaning of the term “deed,” it being contended that even if a married woman could convey absolutely (her husband joining) she could not mortgage. The distinction attempted to be drawn from the doctrine of mortgages is a subtle one; but, in the opinion of the court, a morgtage is a deed, within the meaning of the statute, and operative as such. Hence, the demurrer as to said defence is well taken.

2. The second defence is as to the inadequacy of the price at which the property was sold under foreclosure.

Equitable defences, though admissible under the state practice, are not admissible in United States courts.

3. The third defence stated is that the same cause of action pending is before the supreme court of Missouri, during the pendency of which a transfer of the alleged title was made to this plaintiff.

If the allegations were of a collusive transfer, in fraud of jurisdiction, that question, it is contended, should be raised in abatement. Even if that were the rule, strictly, the averment is not sufficient to raise the question. It is not averred that there was a collusive transfer, or that the plaintiff was not, at institution of this suit, the owner in fee.

The demurrer is sustained.