Farmers' Exch. Bank v. Hageluken

• Citation: 65 S.W. 728,165 Mo. 443
• Parties: FARMERS' EXCH. BANK et al. v. HAGELUKEN et al.
• Decision Date: 03 December 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 728

165 Mo. 443

FARMERS' EXCH. BANK et al. v. HAGELUKEN et al.

Supreme Court of Missouri.

December 3, 1901.

MARRIED WOMEN — CONVEYANCE OF REAL ESTATE — VALIDITY.

Under Rev. St. 1889, § 6864, vesting a married woman with power to transact business on her own account and to make contracts, and section 6869, providing that real estate belonging to a married woman shall be her separate property, a married woman may convey the legal title by her deed of trust, without her husband joining therein, of lands acquired by her since the passage of such laws, to secure her notes.

Brace, Valliant, and Gantt, JJ., dissenting.

In banc. Appeal from circuit court, Scotland county; E. R. McKee, Judge.

Action by the Farmers' Exchange Bank and others against Isabella Hageluken and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

The following is the opinion in division:

SHERWOOD, J.

This proceeding was instituted against Isabella Hageluken and her husband to foreclose a certain deed of trust, given to secure certain promissory notes in suit, which notes and deed were executed by Isabella while covert. Her husband did not join in executing such deed, and upon this ground she resisted the suit of foreclosure, asserting that her husband did not join with her in the execution of the trust deed, and for this reason she was incompetent to convey the land mentioned in the deed aforesaid. The title to the land in suit accrued to Isabella in 1891, by reason of a conveyance to her in that year. At the close of the evidence on part of plaintiffs, defendants asked of the court a declaration of law in the nature of a demurrer to the evidence, and contending for the same point made in defendant Isabella's answer. All the evidence being closed, judgment went for plaintiffs. Hence this appeal.

The record thus shows that the only dominant feature in this cause is whether Isabella, under statutes in existence at the time, was capable of making the litigated contract. In Blair v. Railroad Co., 89 Mo. 383, 1 S. W. 350, one of the main questions to be determined was whether a married woman could, without joining her husband, execute a valid release for personal injuries inflicted upon her. In determining this point, section 3296 of the married woman's act, in Rev. St. 1879, was passed upon, the language of that section then being, "Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase, and profits thereof, be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife: provided, that said personal property shall not be deemed to have been reduced to possession by the husband by use, occupancy, care or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband, to sell, incumber, or otherwise dispose of the same for his own use and benefit," etc. And upon the language thus employed it was ruled that the words, "her separate property and under her sole control," made her, so far as concerned the personal property and rights in action in that section mentioned, a feme sole, since it clothed her with the jus disponendi of that property, thereby making her sui juris with regard thereto; and, this being the case, the release by the wife of personal injuries, though executed by her alone, was valid, and juncture of her husband unnecessary. This case has since met with frequent approval. Brown v. Bowen, 90 Mo. 184, 2 S. W. 398; Broughton v. Brand, 94 Mo. 169, 7 S. W. 119; Gilliland v. Gilliland, 96 Mo. 522, 10 S. W. 139. Subsequent to the ruling made in Blair's Case, there have been several additions made to section 3296. Thus in 1883 (Laws 1883, p. 113) these words were added at the bottom of that section: "And any such married woman may, in her own name and without joining her husband as a party plaintiff, institute and maintain any action, in any of the courts of this state having jurisdiction, for the recovery of any such personal property, including rights in action, as aforesaid, with the same force and effect as if such married woman was a feme sole: provided, any judgment for costs in any such proceedings, rendered against any such married woman, may be satisfied out of any separate property of such married woman subject to execution." And in 1889, at the so-called revising session, at the beginning of section 3296 were added the words, "all real estate." Rev. St. 1889, § 6869. Not only did the legislature, at said revising session, make the addition just mentioned, — that of including real estate among the property placed under a married woman's sole control and made her separate property, — but further advancement at the same session was made in the same liberal direction, by the enactment of an entirely new section (section 6864), which reads as follows: "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 and against her, and may sue and be sued at law or in equity, with or without her husband being joined as a party: provided, a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property." If, under section 3296 as it originally stood, the personal property and rights in action became a married woman's separate property and under her sole control, and if as to such property she became a feme sole, and could execute alone a valid release for injuries done her, it is difficult to see why larger and more comprehensive rights did not accrue to and become hers by reason of the broad provisions of section 6864 aforesaid. We hold that they did, and that under that section she had full power to contract with and to deal with strangers, or, indeed, with any one else, to the full extent of the property rights mentioned in that ...