Brown v. Dressler

• Decision Date: 22 December 1894
• Citation: 29 S.W. 13,125 Mo. 589
• Parties: BROWN et al. v. DRESSLER.
• Court: Missouri Supreme Court

29 S.W. 13

125 Mo. 589

BROWN et al. v. DRESSLER.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

MORTGAGE BY MARRIED WOMAN — VALIDITY.

Under Rev. St. 1889, § 6864, which enables a married woman to contract, a mortgage by a married woman on land which she owned, but which was not her separate property, as defined by section 6869, though void as a conveyance, because her husband did not join therein, as provided by section 2396, is good as a contract to convey or an equitable mortgage.

Appeal from circuit court. Howell county; W. N. Evans, Judge.

Action by Mary E. Brown and husband against Charles Dressler to declare a mortgage deed void. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Olden & Orr, for appellant. Livingston & Green, for appellees.

BRACE, J.

This is an appeal from the decree of the circuit court of Howell county annulling a mortgage deed executed by the plaintiff Mary E. Brown. The petition alleges that she and her coplaintiff, James M. Brown, are, and were on the 18th day of September, 1891, husband and wife; that on that day she executed the mortgage deed in question, whereby she conveyed certain real estate described in the petition to the defendant; that said realty was not her separate estate, and that her husband did not join with her in making such deed, nor was such deed made by her under the protection or by the advice or consent of her husband. Wherefore plaintiff prays that the same be set aside, canceled, and for naught held. The case was tried on the following agreed statement of facts: "That the plaintiff Mary E. Brown was on the 18th day of September. 1891, the owner of the land in question under and by virtue of a general warranty deed in the usual form, but which contained no words limiting the estate therein conveyed to her sole and separate use; that on the said 18th day of September, 1891, she executed and delivered to the said Dressler her sole mortgage deed to the premises in question, which said mortgage deed was in the usual form and regular in every respect, except that her husband did not join in said mortgage deed with her, and he never executed and acknowledged the same." This was all the evidence in the case.

1. It will be observed from the foregoing statement that the real estate in question was not the separate estate of Mrs. Brown, nor did it come to her by "bequest or inheritance." It does not appear that it "belonged to her before her marriage," or that it came to her during coverture by gift, or purchase with her separate money or means. So her estate therein must be taken to be an estate in fee simple, as at common law, governed by principles applicable to such estate, and not by those applicable to a married woman's equitable estate, or to her estate in lands derived as aforesaid, and provided for in section 6869, Rev. St. 1889, a discussion of which in this case would be beside the question. The power of a married woman to convey her real estate held as at common law is conferred by statute. It is not conferred upon the wife alone, but upon the husband and wife jointly, and then only by deed executed by them, and acknowledged and certified in the manner required by the statute. Section 2396, Rev. St. 1889. The law in this respect is substantially the same now as it has always been. No material change has been made in that law since the organization of the state. It is beyond question that prior to 1889 a married woman in this state could not convey her legal estate in lands, except by deed in which her husband joined, executed and acknowledged in accordance with the requirements of the statute, nor could she make a valid contract for the sale of such estate, or bind the same, in law or equity, by any contract of hers. Huff v. Price, 50 Mo. 229; Wannell v. Kem, 51 Mo. 150; Shroyer v. Nickell, 55 Mo. 264; Bartlett v. O'Donoghue, 72 Mo. 563; Hord v. Taubman, 79 Mo. 104; City of Marshall v. Anderson, 78 Mo. 85; Shaffer v. Kugler, 107 Mo. 58, 17 S. W. 698. In the revision of 1889, a new section was adopted as a part of the married woman's act, as follows: "Sec. 6864. A married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued; and to enforce and have enforced against her property such judgments as may be rendered for or against her; and may sue and be sued at law or in equity with or...