Ryan v. Bradbury
1901 Mo. App. LEXIS 205
Mo. Ct. App.
1901
Check Treatment
SMITH, P. J.

This is an appeal by the defendant from a judgment on a motion to quash an execution. The case presented by the record appears to be this: The plaintiff had a judgment against the defendant on which an execution was issued and levied on a 160-acre tract of land as the property of the latter. The defendant filed a motion to quash the levy on the ground that the legal title to the land was in Kate Bradbury, the wife of the defendant, and that the interest of the defendant therein was not subject to sale under said exe*668cation levy; that said land -was conveyed to the said Kate Bradbury by good and sufficient deed executed to her by Robert C. Smith, who was at the time of the execution of the said deed seized of the legal title therein.

At the hearing on the motion, the defendant, to sustain the allegations thereof, offered in evidence the execution, the sheriff’s return thereon and the deed duly recorded, from Robert O. Smith to Kate Bradbury, purporting to convey to her the land described in the levy, supplemented with an offer to prove that defendant was the husband of Kate Bradbury; that they had living children born of said marriage; that said Kate Bradbury was the person who was named in said deed . as grantee; that defendant and said Kate Bradbury were living on the land levied on and that the only interest the defendant has or claimed therein was that of husband, and none other. The court rejected these offers and properly so, as we think.

Of course no court will permit the abuse of its final process. And where it is made to appear that a levy has been made on property not subject to sale, as for example, where an execution against a county, a courthouse or poorfarm has been levied on —Catron v. County, 125 Mo. 167— such levy will be quashed. But where the execution is against the husband and the levy is on the wife’s realty, the court issuing the execution would not ordinarily quash such a levy. Though as far as is disclosed by the record of land titles, the legal title may appear to be in the wife alone, yet there may be extrinsic evidence in existence showing that the husband has substantial interests therein which the execution creditor would have the right to subject to sale under his execution levy. He would, in such case, have a right to acquire such interest by purchase at a sale under the writ and then go into a court of equity and have it declared and established by a proper decree of that court. No court would undertake to balk or hinder a creditor *669in such an effort except in a case where it was made clear that the execution creditor was seeking to use the writ for a purpose not authorized by law.

In the present case, it appears, from the defendant’s offers of proof, that the title to the subject of the levy was acquired by the wife during coverture. The deed is directly to her; not to her in her maiden name, but to her in that name by which she was known and identified as the wife of the defendant. The defendant’s offer was to show that the person named as the grantee in the deed was his wife. As the name by which the defendant’s wife was known after the marriage was Kate Bradbury, and as the deed conveyed the title to a person by that name, and as both persons were shown by the defendant’s offer to be one and the same person, the inference is irresistible that the title so acquired was during coverture of the grantee.

It is true, there is nothing in the defendant’s offers which tended to show that the consideration or any part thereof, for the transfer of the title from Smith to his wife, was paid by the defendant, but the rule is that where there is an absence of evidence that the wife purchased the property with her own separate means, the presumption is a. violent one that the husband furnished the means of payment. Seitz v. Mitchell, 94 U. S. (loc. cit.) 583, and cases there cited; Garrett v. Wagner, 125 Mo. (loc. cit.) 461; Sloan v. Torry, 78 Mo. 625, and the other cases cited in plaintiff’s brief. Even though it be disclosed by the defendant’s offers that the legal title to the land levied on was in the defendant’s wife, how could the court quash such levy in the face of the unrebutted presumption that the consideration for the transfer of such title was furnished by the defendant % Prima facie, the interest of the defendant in the land was not limited to a bare, an inchoate curtesy. Under the deed a trust resulted in his favor for the *670benefit of Ms creditors. Bobb v. Woodward, 50 Mo. 101; Rankin v. Harper, 23 Mo. 579; Slattery v. Jones, 96 Mo. 216. In equity, tbe land as to creditors was Ms and it was not therefore within the protection provided by section 4339, Revised Statutes 1899.

The defendant objects that there is no allegation in his motion that at the time Mrs. Bradbury ¿cquired the legal title to the land levied on she was Ms wife. It may be that this fact was not specially alleged in the motion, but whether it was or not the defendant himself offered proof of the fact, or proof of other facts, from which it was inferable, so that it is not for him to make that objection here.

While it is likely the execution and the return thereon might have with propriety been received in evidence, yet when coupled with the other offers, as they were, which could not be received since they did not tend to sustain the allegations of the motion, we think the offer in its entirety was properly rejected.

Accordingly, the judgment will be affirmed.

All concur.