Cockrill v. Hutchinson

• Decision Date: 16 June 1896
• Parties: Cockrill et al., Appellants, v. Hutchinson et al
• Court: Missouri Supreme Court

36 S.W. 375

135 Mo. 67

Cockrill et al., Appellants, v. Hutchinson et al

Supreme Court of Missouri, Second Division

June 16, 1896

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Affirmed.

James W. Coburn and Roland Hughes for appellants.

(1) The quality of the estate conveyed to a married woman must be determined by the deed vesting title in her; and if it contain no words excluding the marital rights of the husband and apt to describe a separate estate, it is not separate property. Paul v. Leavitt, 53 Mo. 595; Klenke v Koeltze, 75 Mo. 243; Martin v. Colburn, 88 Mo 230; Lakeman v. McIlhaney, 17 Mo.App. 413; Allen v. DeGroodt, 98 Mo. 160; Nicholson v. Flynn, 24 Mo.App. 571; Powell v. Scott, 43 Mo.App. 206. (2) Even if the property was her separate estate her husband would have his curtesy just as if it was not separate estate. McTigue v. McTigue, 116 Mo. 138. (3) The note given by Mrs. McFarland was void as she had no separate estate; and the signature of Houston McFarland to the mortgage given and signed by his wife gave it validity and made it his debt. (4) It is a general rule that a tenant in common can not purchase an outstanding title or incumbrance on the common property and then set it up as against his covenants. Allen v DeGroodt, 105 Mo. 452; Jones v. Stanton, 11 Mo. 433; Hickman v. Link, 97 Mo. 494; Picot v. Page, 26 Mo. 398. (5) "And these rules apply as between a tenant for life in possession and a remainder-man, so that a purchase of an incumbrance will be deemed to have been made for the benefit of himself and those in remainder, if the remainder-men see fit to pay their share." Allen v. DeGroodt, 105 Mo. 452. (6) The tenant of a life estate, who has made permanent and valuable improvements, has no claim for reimbursement on the remainder-men. Wilson v. Parker, 14 So. Rep. 264. (7) Purchasers from one who was charged with a trust in favor of her heirs, are not entitled to charge the land for money paid by them for permanent improvements and for taxes, since they are in no better position than their grantor, who, as a tenant for life, was obliged to pay the taxes, and had no right to charge the reversionary estate with the cost of improvements. Hagan v. Varney, 35 N.E. 219. (8) Section 4645, Revised Statutes, 1889, provides that an occupying claimant can only recover for improvements made in good faith and prior to notice of an adverse title. Defendant's evidence admits such notice. The terms "without notice" and "in good faith" are equivalent. Coover v. Johnson, 86 Mo. 540; Lee v. Bowman, 55 Mo. 400. Notice and good faith can not coexist. Notice in this connection, does not mean direct and positive information, but anything calculated to put a man of ordinary prudence on the alert, is notice. Lee v. Bowman, 55 Mo. 403; Brown v. Baldwin, 121 Mo. 114.

Kagy & Bremermann for respondents.

(1) That the note though void does not affect the validity of the mortgage made to secure it, when conforming to the requirements of the law relating to the conveyance of legal estate of a married woman, is no longer an open question in this jurisdiction. Wilcox v. Todd, 64 Mo. 388; Thornton v. Bank, 71 Mo. 221; Hagerman v. Sutton, 91 Mo. 519; Brandt v. Robertson, 16 Mo. 143; Rines v. Mansfield, 96 Mo. 394; Meads v. Hutchinson, 111 Mo. 520; Ferguson v. Soden, 111 Mo. 208. (2) The real estate mortgage was, as a matter of law, the separate property of Mrs. McFarland. She said so in her deed and the notary who took her acknowledgment said she so declared before him and to this he certifies in his certificate. Klenke v. Koeltze, 75 Mo. 239; Brandt v. Robertson, 16 Mo. 143; Smith v. Munroe, 84 N.Y. 354; Kilbourn v. Brown, 56 Conn. 150; Treadwell v. Archer, 76 N.Y. 189. (3) These are solemn declarations made by her as to the character of her interests in the land upon which subsequent purchasers had a right to and did rely, and it does not lie in the mouth of her heir to say that these solemn declarations were not true. Greenleafs' Eq. [14 Ed.], sec. 211, p. 273; McCullough v. Wilson, 21 Pa. St. 438; Smith v. Munroe, 84 N.Y. 354; Bigelow on Estoppel, sec. 443. (4) Though the general rule is that a married woman is not estopped by matters in pais this does not license her to commit a fraud to the injury of others. Her acts and representations, made to deceive others, and which do deceive others to their injury, will preclude her from asserting her claim against those who have acted on her representation and admissions. Reed v. Hall, 57 N.H. 482; Hammond v. Corbett, 51 N.H. 311; Nixon v. Halley, 78 Ill. 611; Allen v. Allen, 108 Mass. 402; O'Brien v. Hilburn, 9 Texas, 297. (5) "In case of estoppels by deed, the parties transact the whole business themselves and agree between themselves upon the facts that shall thenceforward be unquestioned." This she did. Big. on Estop. [4 Ed.], p. 320. (6) If appellant ever had any claim on this property she has lost it by her laches. Burgess v. Railroad, 99 Mo. 508; Schradski v. Albright, 93 Mo. 93; Kline v. Vogel, 90 Mo. 248; Stamper v. Roberts, 90 Mo. 688; Reel v. Ewing, 71 Mo. 29; Ferguson v. Soden, 111 Mo. 208.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

On the third day of June, 1872, Houston McFarland and Sue B. McFarland were husband and wife, living together as such at Weston, Platte county, Missouri. On that day she borrowed from one John E. McFarland the sum of $ 450, for which she executed her personal note payable in three years from its date with interest at ten per cent per annum. On the twenty-fifth day of June, 1872, Sue B. McFarland purchased from George G. Rounds the land in controversy and received a deed therefor conveying to her the fee simple title thereto. On June 28, 1872, she mortgaged said property, her husband joining with her, to John E. McFarland to secure the payment of said note. By the mortgage, power of sale was vested in the mortgagee, John E. McFarland.

There is recited on the face of the mortgage with respect to the land the following, to wit: "The same being the sole and separate estate of the said Sue B. McFarland." And in the certificate of acknowledgment the following, to wit: "And the said Sue B. McFarland, being by me first made acquainted with the contents of said instrument, upon an examination separate and apart from her said husband, acknowledged that she executed the same freely and without fear, compulsion, or undue influence of her said husband, and desires to convey her separate estate therein."

There were born to Houston McFarland and wife two children only, Mary and Maggie, who were fourteen and sixteen years of age, respectively, in 1872. On March 8, 1877, Sue B. McFarland died, leaving her husband tenant by the curtesy and said daughters surviving her, her only heirs at law.

On June 13, 1878, John E. McFarland, the mortgagee in said mortgage deed, sold said property under the power of sale therein contained authorizing him to sell, at which sale Houston McFarland became the purchaser at the price of $ 300, and on said day he received a deed for said land from said mortgagee. On September 6, 1879, Houston McFarland conveyed said land to Charles A. Hazen, who, on February 15, 1887, conveyed the land to the defendant, M. W. Hutchinson. Houston McFarland died June 8, 1888.

Maggie McFarland married Arthur G. Meads and died prior to the institution of this suit without having issue born alive, leaving her sister, Mary F. Cockrill, who intermarried with C. B. Cockrill, her only heir at law.

When Hutchinson bought the property he had no knowledge of any claim by plaintiffs thereto. It was then practically vacant, no improvements being on it except a house of but little value. Since then he has put lasting and valuable improvements thereon, of the aggregate value of about $ 10,000.

On the thirty-first day of December, 1892, plaintiffs instituted this suit to redeem from the sale under said mortgage, on the ground that the title acquired by Houston McFarland by virtue of his purchase and deed under said mortgage sale was for the benefit of himself and his two daughters then living, he being tenant for life in possession, and his daughters remainder-men.

The court below dismissed the bill, and rendered final judgment against plaintiffs in favor of defendants for costs. From the judgment plaintiffs appealed.

There is nothing in the deed from Rounds to Mrs. McFarland, which can be construed as creating in her a separate estate to the land in question; nor is any such contention made by defendants. Nor could she by any act of her own, or by any statement made in the mortgage, create a separate estate in the land in herself. The same is true with respect of the recital in the certificate of acknowledgment to the mortgage in which it is stated, "and she desires to convey her separate estate therein," that is, in the mortgage. Such recitals were inoperative to create a separate estate in her.

At the time she executed the note to John E. McFarland she did not own the land, nor does it appear that she owned any separate property; but notwithstanding such was the case, the subsequent acquirement by her by purchase of the land, the mortgage executed by her and her husband Houston McFarland thereon, to secure the payment of her debt, was a valid and binding mortgage. It has been repeatedly held by this court that a mortgage executed by a married woman, her husband joining with her, although on land not her separate estate, is valid and binding, notwithstanding the note, the payment of which is secured by the mortgage, is void because of her coverture. Comings v. Leedy, 114 Mo. 454, 21 S.W. 804; Hagerman v. Sutton, 91 Mo. 519, 4 S.W. 73; Wilcox v. Todd, 64 Mo. 388; Meads v. Hutchinson, 111 Mo. 620,...