Hart v. Leete

Citation15 S.W. 976,104 Mo. 315
PartiesHart, Appellant, v. Leete et al., Appellants
Decision Date23 March 1891
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis City Circuit Court. -- Hon. J. A. Seddon Judge.

Affirmed.

Boyle Adams & McKeighan and John D. Davis for plaintiff, appellant.

(1) The will of James Harrison, deceased, did not create a separate estate in his unmarried daughter, Cordelia Harrison, now Cordelia H. Leete. Garner v. Jones, 52 Mo. 68; Paul v. Leavitt, 53 Mo. 595; Morrison v. Thistle, 67 Mo. 596; Bank v. Taylor, 53 Mo. 450-455; 2 Rapalje & Lawrence's Law Dictionary, p. 1132. (2) Section 19 chapter 115, General Statutes of 1865, did not make the greater part or any part of the money coming to Mrs. Leete, under the will of her father, her separate estate, or exempt from the debts of her husband. Collier Will Case, 40 Mo. 287; G. S. 1865, sec. 14, chap. 115; Peck v. Walton, 26 Vt. 86; Clark v. Bank, 47 Mo. 1. (3) The rights of Mrs. Leete, under her father's will, to one-fifth of the entire estate, was a chose in action within the meaning of the law, and as such entitled Dr. Leete jure mariti to take possession thereof, and appropriate the same for his own use and behoof. Collier Will Case, 40 Mo. 287; Leakey v. Maupin, 10 Mo. 368; Watervelt v. Gregg, 12 N.Y. 202; 2 Kent's Com. [12 Ed.] p. 135. (4) The money invested by Dr. Leete in the premises in controversy, having been secured to him by the exercise of his marital right to reduce his wife's legacy to possession, became and was Dr. Leete's own money; therefore, no resulting trust arose in Mrs. Leete to the premises in controversy, purchased and improved with such money. Rogers v. Rogers, 87 Mo. 259; Modrell v. Riddell, 82 Mo. 31; Terry v. Wilson, 63 Mo. 499; Whitmore v. Learned, 70 Me. 276; Hyden v. Hyden, 6 Bax. 407; Boyd v. McLean, 1 John Ch. 590; Burns v. Bangert, 16 Mo.App. 26. (5) As payment of the purchase money was not made by Mrs. Leete, when the title was taken, and as no obligation to pay was incurred by her at the time of the purchase, no subsequent payment, however clearly proved, would create any resulting trust in her favor to the premises in controversy. A resulting trust must arise, if at all, at the time the legal title is taken. Perry on Trusts, sec. 133; Bottsford v. Burr, 2 John. Ch. 408; 2 Pomeroy's Eq. Jur., sec. 1037; White v. Carpenter, 2 Paige, 217; 51 Am. Dec. 755, note. (6) There was no agreement between Mr. Leete and Mrs. Leete that the title to the premises in controversy should be taken in her name. There was, therefore, no trust created in favor of Mrs. Leete, when Dr. Leete took the title in his own name. Kidwell v. Kirkpatrick, 70 Mo. 214; Ream v. Karnes, 90 Ind. 171; Wiley v. Basil, 4 Md. Ch. 327. (7) Augustus B. Hart having without any notice of Mrs. Leete's alleged rights loaned a large sum of money on the faith of Dr. Leete's apparent ownership of the property in controversy, his right, or the right of a purchase under his judgment, should be enforced in preference to the wife's claim to a resulting trust in the property so apparently owned by Dr. Leete. Zimmer v. Dansby, 56 Ga. 79; Brooks v. Shelby, 54 Miss. 353; McCoy v. Hyatt, 80 Mo. 130. (8) The deed of December 9, 1884, cannot be upheld under the equitable doctrine of "equity to a settlement." 3 Pomeroy's Eq. Jur., secs. 1114, 1115, 1116; Dold's Adm'r v. Geiger's Adm'r, 2 Gratt. 98-110; 1 White & Tudor's L. C. in Eq. 674, and cases cited. (9) The deed of December 9, 1884, was not intended to be in consideration of any debt due by Dr. Leete to his wife, and cannot be upheld on any such theory. First. Such theory is not pleaded. Second. If it were, it is not true in fact. Third. There was no mistake of law or fact, and none claimed by the parties. Fourth. The rule permitting explanation of consideration has no application to this case. Fifth. There is no data for reforming the contract, no evidence on which to do it. State v. Frank, 51 Mo. 98; Modrell v. Riddell, 82 Mo. 31; Brohammer v. Hoss, 17 Mo.App. 1. Sixth. There was no issue at the trial concerning the existence of any debt to Mrs. Leete, and, if there was, it was not proved. (10) The married woman's act of March 25, 1875, is not retrospective, and cannot be held to exempt any money or property secured by Dr. Leete prior to its passage, in the exercise of his marital rights, from the payment of his own debts. Richardson v. Lowry, 67 Mo. 411; Hitz v. Bank, 111 U.S. 722; Roberts v. Walker, 82 Mo. 208; Moses v. Dock Co., 84 Mo. 242; Terry v. Wilson, 63 Mo. 493. (11) The existence of a homestead right in Dr. Leete to $ 3,000 worth of the property in controversy does not screen the balance of the property, in the neighborhood of $ 30,000, from the just demands of Dr. Leete's creditors. Crisp v. Crisp, 86 Mo. 630; Bunn v. Lindsay, 95 Mo. 250; Thompson v. Newberry, 93 Mo. 18. (12) If Mrs. Leete has thirty-seven-hundredths of the premises in controversy, as found by the court below, the homestead right is left to the family, and should not be taken out of the sixty-three-hundredths of the property decreed to belong to the plaintiff. The husband and wife, both, are not entitled to the homestead. Willis v. Matthews, 46 Texas, 478-484; Tourville v. Pierson, 39 Ill. 447; Gambette v. Brock, 41 Cal. 78; Thompson on Homesteads, secs. 220-226. (13) As the circuit court never found that there was a valuable consideration for the deed to Mrs. Leete's trustee, and as the circuit court never found that there was a mutual mistake in respect to the consideration recited in the deed of December 9, 1884, and as such were not the facts, and were not supported by any evidence in the case, we do not argue, except incidentally in discussing the testimony, defendant's point 8, or subdivision 5 of their point 1. (14) There was no error in the refusal of the defendant's application to file an amended answer at the time, and under the circumstances attending the application. Shields v. Powell, 29 Mo. 315; Gott v. Powell, 41 Mo. 416; Jones v. Hart, 60 Mo. 364; Vogler v. Montgomery, 54 Mo. 577. (15) On the theory that Mrs. Leete has any interest in the premises in controversy, the referee adopted the correct method of apportioning the respective interests of Dr. and Mrs. Leete thereto. Bowen v. McKean, 82 Mo. 594; Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514. (16) Dr. Leete's right to reduce his wife's choses in action to possession and have and enjoy them and their proceeds as his own property was conferred upon him by the marriage contract between himself and wife in 1871. This right was not impaired or affected by the married woman's act of 1875. Accordingly, it is immaterial whether he exercised the right before or after the passage of the act. First. Concerning the character of the marriage contract. Reeves' Domestic Relations [4 Ed.] p. 251; State to use v. Fry, 4 Mo. 182. Second. What constitutes retrospective legislation or impairment of the obligation of the contract within the meaning of the constitutional prohibition? State ex rel. v. Hayes, 52 Mo. 578; State ex rel. v. Grant, 79 Mo. 113; Green v. Biddle, 8 Wheat. 84; Sedgwick on Construction of Stat. and Const. Law [2 Ed.] p. 160; Ins. Co. v. Flynn, 38 Mo. 484; St. Louis v. Clemens, 52 Mo. 144. Third. The right of the husband to reduce the choses in action of the wife to possession and have the fruits thereof as his absolute property was a recognized and valuable right at common law; also an assignable right and one which could be reached by the husband's creditors. Abington v. Travis, 15 Mo. 243; Wood v. Simmons, 20 Mo. 363-380; Croft v. Bolton, 31 Mo. 360; Hockaday v. Sallee, 26 Mo. 220; Schuyler v. Hoyle, 5 Johns. Ch. R. 196; Reeves' Domestic Relations [4 Ed.] p. 5, note. Fourth. The act of March 25, 1875, does not by its terms necessarily relate to the husband's rights in choses in action acquired by a wife before its passage. Fifth. If it was so intended to relate to such rights it is unconstitutional and void because it impairs the obligation of the contract, and is retrospective in its operation. Dartmouth College Case, 4 Wheat., p. 518; Wells on Separate Property of Married Women, pp. 93-95; O'Connor v. Harris, 81 N.C. 284-5; Sherry v. Niles, 57 Ga. 512; Dunn v. Sergeant, 101 Mass. 336; Jackson v. Sublette, 10 B. Mon. 467; Ryder v. Hulse, 24 N.Y. 372. Sixth. It is not necessary that the right, in order to be protected from invasion by the constitutional safeguards, should be either a right or an estate in property; a right to secure the property is equally protected by the constitution. Warner v. Veitch, 2 Mo.App. 463; Gunn v. Barry, 15 Wall. 610; Phillips v. Schall, 21 Mo.App. 44; State ex rel. v. Greer, 78 Mo. 193.

Edmund T. Allen, N. Oscar Gray and C. B. Allen for defendants, appellants.

(1) Mrs. Leete, having the legal title to the property in her trustee, and having been at the date of the deed a creditor of her husband for more than the value of the property, her trustee can hold that title against any other creditor. First. She was such a creditor as to all money collected by her husband from Edwin Harrison after March 25, 1875, and lost by him in loans to, or indorsements for, the Harrison Wire Company. Broughton v. Brand, 94 Mo 169; Gilliland v. Gilliland 96 Mo. 522; Cooper v. Standley, 40 Mo.App. 138; Harrison v. Smith, 83 Mo. 210. Second. Dr. Leete's right to have preferred his wife as a creditor, and her right to have accepted the preference, cannot be questioned. Mere equitable obligations of like character have been held to be valid considerations for deeds. Bump on Fraudulent Conveyances, 316; Bump on Fraudulent Conveyances, 219; Cole v. Shea, 45 N.J.Eq. 786; Kennedy v. Powell, 34 Kan. 22; Savage v. O'Neal, 44 N.Y. 298; Rudershausen v. Atwood, 19 Bradwell, 58; ...

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