Leete v. State Bank of St. Louis.

• Decision Date: 30 November 1897
• Citation: 42 S.W. 1074,141 Mo. 574
• Parties: Leete, Appellant, v. State Bank of St. Louis. (No. 1)
• Court: Missouri Supreme Court

42 S.W. 1074

141 Mo. 574

Leete, Appellant, v. State Bank of St. Louis. (No. 1)

Supreme Court of Missouri, Second Division

November 30, 1897

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

E. T. & C. B. Allen for appellant.

(1) The judgments should be reversed on the authority of Gabriel v. Mullen, 111 Mo. 119; Scrutchfield v. Sauter, 119 Mo. 615; Brown v. Brown, 124 Mo. 79; Bank v Winn, 33 S.W. 457; Owings v. Wiggins, 34 S.W 877; Bains v. Bullock, 129 Mo. 117, which cases follow Hart v. Leete, 104 Mo. 305; which last named case was in effect overruled by Leete v. State Bank, 115 Mo. 184. (2) The matters decided in these cases, on the former appeal, as stated in Leete v. State Bank, 115 Mo. 184, are not necessarily conclusive on the appellant. Wernse v. McPike, 100 Mo. 476; Spohn v. Railroad, 87 Mo. 74; S. C., 101 Mo. 417; S. C., 116 Mo. 617; S. C., 122 Mo. 1; Bird v. Sellers, 122 Mo. 23; S. C., 113 Mo. 580; Rutledge v. Railroad, 123 Mo. 131. (3) Leete v. State Bank, supra, is not in harmony with any prior decision of this court regarding the principal points it undertakes to decide. This court has construed the act of March 25, 1875, as applying to the property rights of parties then married in Richardson v. Lowry, 67 Mo. 411, and the statute was thereafter re-enacted without change as section 3296, Revised Statutes 1879. The same construction was given to section 3296 in Bettes v. Magoon, 85 Mo. 580; Bartlett v. Umfried, 94 Mo. 530, and Gilliland v. Gilliland, 96 Mo. 522, and thereafter re-enacted, without substantial change, as section 6869, Revised Statutes 1889. (4) When a court of last resort construes a statute, and that statute is afterward re-enacted or continued in force, without any change in its terms, it is presumed that the legislature adopted the construction given to it by the court. Handlin v. Morgan County, 57 Mo. 114; Easton v. Courtwright, 84 Mo. 34; Reed v. Painter, 129 Mo. 674, 686; State v. County Court, 128 Mo. 439; Venable v. Railroad, 112 Mo. 125. (5) The unconstitutionality of a statute must appear beyond a reasonable doubt, before the courts will pronounce it void. State ex rel. v. Ransom, 73 Mo. 78; State v. Addington, 77 Mo. 110; State v. Able, 65 Mo. 357; Ewing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; Phillips v. Railroad, 86 Mo. 540; State v. Pond, 93 Mo. 606; State v. Hope, 100 Mo. 347. (6) The right of a husband to reduce to his possession the choses in action of the wife, is not a vested interest in property. Hart v. Leete, 104 Mo. 315; Leakey v. Maupin, 10 Mo. 368; Pickett v. Everett, 11 Mo. 568; Gillet v. Camp, 19 Mo. 404; Walker v. Walker, 25 Mo. 367; Coughlin v. Ryan, 43 Mo. 99; Hunt v. Thompson, 61 Mo. 148; Wood v. Simmons, 20 Mo. 365; Paige v. Sessions, 4 How. (U.S.) 122; Clarke v. McCreary, 20 Miss. 354; Ewing v. Hoblitzelle, 85 Mo. 64; Kelly v. Meeks, 87 Mo. 396; Alexander v. Alexander, 85 Va. 352; Allen v. Hanks, 136 U.S. 300; White v. Waite, 47 Vt. 502; Taylor v. Taylor, 12 Lea (Tenn.), 490; Rugh v. Ottenheimer, 6 Ore. 231; Witte Bros. v. Clarke, 17 S.C. 327; Deck v. Smith, 12 Neb. 389; Kilpatrick v. Holmes, 108 N.C. 206; Noel v. Ewing, 9 Ind. 37; Trapnell v. Conklin, 37 W.Va. 256; Cherokee Lodge v. White, 63 Ga. 742. (7) Curtesy before birth of issue is not a vested in terest in property. Hill v. Chambers, 30 Mich. 422; Hathorn v. Lyon, 2 Mich. 95; Brown v. Clark, 44 Mich. 311; Breeding v. Davis, 77 Va. 639; Billings v. Baker, 28 Barb. 346; Denny v. McCabe, 35 Ohio St. 580; Mellinger v. Bausman, 45 Pa. St. 529. (8) Curtesy initiate is not a vested interest in property. Thurber v. Townsend, 22 N.Y. 517; In re Curtis' Will, 61 Hun. 372; Rugh v. Ottenheimer, 6 Ore. 231; Gitchell v. Messmer, 87 Mo. 131. (9) Whether or not the act of 1875 effected any change in the property relations of parties then married, it exempted from the sole debt of the husband thereafter incurred and not created for necessaries for the wife or family, all personal property thereafter accruing to the wife. 2 Bishop on the Law of Married Women, 100, quoting from White v. Dorris, 35 Mo. 181; Schouler on Husband and Wife, sec. 206. (10) The by-law of respondent bank could not impress upon the stock a lien for its claim against Dr. Leete, in view of appellant's claims thereto under the act of 1875. Murray v. Pinkett, 12 Clark & Fin. 764; Stickney v. Stickney, 8 So. (Ala.) 568; Bank v. Durfee, 118 Mo. 431; Trust Co. v. Lumber Co., 118 Mo. 447.

Noble & Shields and George R. Lockwood for respondents.

(1) That the plaintiff has no title to the stock in question as against the defendant bank is res adjudicata in this case. Leete v. State Bank, 115 Mo. 184 (which is this case now on hearing in this court); Dowling v. Allen, 102 Mo. 213; Keith v. Johnson, 109 Mo. 130; Hickman v. Link, 116 Mo. 127; "The Law of the Case," 42 Cent. L. J. (January 31, 1896). (2) The defendant bank, under its charter and by-laws, has a lien on the stock in question for Dr. Leete's debt to it. Ins. Co. v. Good ellow, 9 Mo. 149; Bank v. Bank, 45 Mo. 513; Spurlock v. Railroad, 61 Mo. 319; Bank v. Bank, 105 U.S. 217; Bank v. Laird, 2 Wheat. 390; Neal v. Jenney, 2 Cranch, C. C. 188; Pierson v. Bank, 3 Cranch, C. C. 363; Morgan v. Bank, 8 Serg. & R. 73; Bank v. McNeal, 10 Bush. 54; Ang. & Ames Corp. [10 Ed.], sec. 359; 2 Thompson on Corp., secs. 2317-2744. (3) This court has held that the clause as to exemptions in section 6869 (3296, R. S., 1879 with amendments) applies to the separate property of the wife, and not that which the husband has acquired through his common law marital rights. Gabriel v. Mullen, 111 Mo. 119. (4) The act of March 25, 1875 (R. S. 1879, sec. 3296), if applicable to the legacy of plaintiff under the will of her father, he having died, and she having married before the act, would be in conflict with article 2, section 15, of the Constitution, forbidding retrospective legislation, and void. Ex parte Bethurum, 66 Mo. 550; State ex rel. v. Greer, 78 Mo. 188; Linz v. Ins. Co., 8 Mo.App. 363; St. Louis v. Clemens, 52 Mo. 143; Ins. Co. v. Flynn, 38 Mo. 483; Cooley, Const. Lim. 362; Sedgwick, Stat. & Const. Law, pp. 188, 202. (5) The act of March 25, 1875, was not intended to take away the right of a husband, theretofore married, to reduce to his possession choses in action previously accruing to his wife. The act can not be construed as retrospective unless no other construction is possible. State ex rel. v. Hays, 52 Mo. 580; State ex rel. v. Auditor, 41 Mo. 25; State ex rel. v. Greer, 78 Mo. 188; State ex rel. v. Ferguson, 62 Mo. 77; Thompson v. Smith, 8 Mo. 73; State v. Grant, 79 Mo. 119; State ex rel. v. Walker, 80 Mo. 613; State ex rel. v. Finn, 87 Mo. 310; Ely v. Holton, 15 N.Y. 595; Newland v. Marsh, 19 Ill. 384; Seamans v. Carter, 15 Wis. 548; Kidd v. Montague, 19 Ala. 625; Cooley, Const. Lim. 76, 185. (6) If the act of March 25, 1875, be construed as taking away the husband's right then existing, to reduce his wife's choses in action then in existence to his possession, it would so interfere with his vested rights of property as not to come within the proper limits of the law-making power; would deprive him of property without due process of law, and be unconstitutional and void. Westerveldt v. Gregg, 12 N.Y. 202; Barnes v. Underwood, 47 N.Y. 356; McCahill v. Hamilton, 20 Hun. 393; Berley v. Rampacher, 5 Duer. 189; Dunn v. Sargeant, 101 Mass. 336; Jackson v. Sublett, 10 B. Mon. 467; Stearns v. Weathers, 30 Ala. 712; O'Connor v. Harris, 81 N.C. 284; Sperry v. Haslin, 57 Ga. 412; Dold v. Geiger's Adm'r, 2 Gratt. 110; Gunn v. Barry, 15 Wall. 622; Moreau v. Detchemendy, 18 Mo. 522; Williams v. Courtney, 77 Mo. 588; Abington v. Travis, 15 Mo. 243; Croft v. Bolton, 31 Mo. 355; Hockaday v. Sallee, 26 Mo. 220; Schuyler v. Hoyt, 5 Johns. Ch. 196; 2 Kent's Com., p. 157; Reeve's Dom. Rel. [4 Ed.], p. 5, note; Schouler, Dom. Rel. [3 Ed.] 173; Scribner on Dower, 21.

Sherwood J. Gantt, Macfarlane, Burgess, Robinson and Brace, JJ., concurring with Judge Sherwood in the said opinion and judgment. Barclay, C. J., dissents.

OPINION

Sherwood, J.

This cause has been here before (115 Mo. 184).

It is an equitable proceeding, instituted in 1889, by which plaintiff sought to compel the defendant bank to transfer to her fifteen shares of its stock then standing on its books in the name of her husband James M. Leete, defendant, and also to account to her for dividends declared thereon, alleging that such shares were purchased by defendant Leete with money which came to her by the bequest of her father in July, 1876, and January, 1877, and that with some of the money thus bequeathed to her, her said husband in February, 1877, bought said stock for plaintiff, but, without her consent in writing, caused the certificate thereof to be made out in his own name. These were the allegations of the original petition.

After the reversal ordered by this court upon the appeal of defendant bank, plaintiff amended her petition, whereby she further alleged that when this stock was purchased by her husband, neither she nor her husband was indebted to defendant bank, and that long subsequent to the payment of money to the husband, which it is stated was to him as plaintiff's agent and trustee, and to the purchasing of stock, the husband became indebted to the bank, by reason of which the bank refuses a transfer of the stock on its books, and that said indebtedness was not created for necessaries for his wife or family; and it is then averred that the stock is not liable to be taken by any process of law for the debts of the husband, and plaintiff avers she is the owner of this stock, and that the dividends, as well as said stock, are not liable to be taken as just stated.

The answer of defendant bank was the...