67 S.W. 240 (Mo. 1902), Needles v. Ford

Citation:67 S.W. 240, 167 Mo. 495
Opinion Judge:ROBINSON, J.
Party Name:NEEDLES v. FORD, Administrator, et al., Appellants
Attorney:Lander, Johnson & Lander for appellants. J. A. Arbuthnot and A. W. Mullins for respondent.
Judge Panel:ROBINSON, J. Valliant, J., absent.
Case Date:March 12, 1902
Court:Supreme Court of Missouri

Page 240

67 S.W. 240 (Mo. 1902)

167 Mo. 495



FORD, Administrator, et al., Appellants

Supreme Court of Missouri, First Division

March 12, 1902

Appeal from Linn Circuit Court. -- Hon. Jno. P. Butler, Judge.

Reversed and remanded.

Lander, Johnson & Lander for appellants.

(1) It is submitted, whether or not the decree of the trial court, upon a fair construction of the same, has in law, set aside the deed from John T. Needles to his wife, Sylvia J. Needles, of date July 6, 1891. If it has not been set aside, then the decree rendered can not stand on any grounds whatever, for in that case the widow as purchaser was entitled to possession, and all rents and profits of the land. (2) Mary Needles of Ohio, plaintiff's mother, being dead, and John Ford, administrator, being an opposite party, plaintiff Enoch Needles was not a competent witness to prove the agreement between himself and mother Mary, that the consideration for the transfer of the $ 1,000 note sued on, was that he, Enoch, should pay to Charles and Daisy, children of John T. Needles by his first wife, $ 500 each, out of the note when collected. Sec. 8918, R. S. 1889; Chapman v. Daugherty, 87 Mo. 617; Sitton v. Shipp, 65 Mo. 305. (3) The trial court had no power to do more than to establish the demand in favor of plaintiff Enoch Needles against the estate of John T. Needles, the same then to be certified to the probate court to be classified and paid in due course of administration; certainly had no power to order the sheriff to sell the land and make distribution of the proceeds to Enoch Needles, or any other creditor. R. S. 1889, sec. 190. (4) The $ 1,060 paid by the widow, Sylvia, was insurance money under policy for her benefit, and was her separate property, freed from all debts of her husband, John T. Needles. Sec. 5854, R. S. 1889. To the extent of this $ 1,060, her own separate funds, she should in equity be protected by charging it on the land, or by some other proper order. But the trial court applied the $ 1,060 as a payment pro tanto, on the $ 1,000 note sued on, as a credit, thereby taking the money of Sylvia J. Needles to pay the debt of her husband. (5) As to Enoch Needles' title and interest in the note sued on. Under the evidence plaintiff Enoch Needles paid nothing to his mother for the note sued on, only held it for collection. The note was and is the property of the estate of his mother, Mary Needles, of Dayton, Ohio. It might have been recalled at the pleasure of Mary Needles in her lifetime, or by her executor or administrator after her death. 1 Daniels, Negot. Inst., sec. 699; Tied. on Com. Paper, sec. 268, p. 447. What right the trial court had to apply $ 1,060 of Mrs. Sylvia J. Needles' money as part payment on that note, is the mystery. (6) The $ 200 claimed to have been paid by plaintiff Enoch Needles to Charles Needles and charged on the land in question, was either the money of the estate of Mary Needles advanced by Enoch, or the money of Enoch loaned to Charles; in either case, the trial court had no power to charge it on the land, or as a matter of law, anything to do with it whatever. (7) The pleadings do not call for any accounting of rents and profits, and no evidence was before the court on the subject of amounts of rents, taxes, etc. Bender v. Zimmerman, 122 Mo. 201. Again, until the mortgagee (in this case Mrs. Jane E. Nast) takes possession for condition broken, the mortgagor (Mrs. Sylvia J. Needles in this case) is entitled to the rents and profits. 1 Jones on Mort. (3 Ed.), secs. 670, 671; 2 Jones on Mort. (3 Ed.), sec. 1120. The mortgagee has no claim or lien on the rents, but is entitled to interest only, on the debt. 1 Jones on Mort. (3 Ed.), sec. 772. (8) The deed from the husband to his wife, Sylvia, conveying his equity of redemption, being set aside for fraud against the creditor, Enoch Needles, the land remains the property of the estate of John T. Needles, deceased, and her dower attaches to the land, or at least to any surplus after satisfaction of the Wilson & Toms incumbrance now held by Mrs. Nast, assignee. Bohannon v. Combs, 97 Mo. 446; 2 Jones on Mort. (3 Ed.), sec. 1933 and note 1; 2 Jones on Mort. (3 Ed.), secs. 1933-4; 1 Jones on Mort. (3 Ed.), 314. The mortgage property is the primary fund to pay the secured debt; and the probate court alone has the power to dispose of any surplus after payment of the secured debt. Tucker v. Wells, 111 Mo. 399; sec. 190, R. S. 1889. Assuming, as the trial court did, that the widow, Sylvia J. Needles, is the real party in interest; that she furnished all the money paid for the assignment of the Wilson & Toms trust deed, and, if you please, took the assignment of that incumbrance in her own name; then to protect her dower she had the right so to do. 2 Jones on Mort. (3 Ed.), sec. 1067; Bray v. Conrad, 101 Mo. 331. Even if she had actually paid the incumbrance, would she not be subrogated to save her dower in the surplus? Allen v. Dermott, 80 Mo. 56; Bray v. Conrad, supra. Under the facts in the case, Sylvia J. Needles is clearly entitled to dower in the equity of redemption, or surplus after payment of the Wilson & Toms incumbrance. 1 Sharswood, Leading Cases, p. 314; 1 Jones on Mort. (3 Ed.), sec. 666; 2 Jones on Mort. (3 Ed.), secs. 1933, 1934. (9) The dower of the widow in the surplus has precedence over the claim of the creditor, Enoch Needles, or any other creditor.

J. A. Arbuthnot and A. W. Mullins for respondent.

(1) The deed from John T. Needles to his wife, Sylvia J. Needles, did not convey the legal title to the land in question, and it is immaterial whether the decree of the court formally set the same aside or not. "A husband could not, at common law, convey by deed directly to his wife so as to pass the legal title, nor is he authorized to do so by statute." Crawford v. Whitmore, 120 Mo. 144; Turner v. Shaw, 96 Mo. 22; Frissell v. Rozier, 19 Mo. 448. (2) The said deed from John T. Needles to his wife was and is fraudulent and void as to his creditors, both at law and in equity, because without consideration and merely voluntary. Lander v. Ziehr, 150 Mo. 403; Bartels v. Kinnenger, 144 Mo. 370; Lionberger v. Baker, 88 Mo. 447; Snyder v. Free, 114 Mo. 360; Bump on Fraudulent Conveyances (4 Ed.), secs. 253, 254. (3) The suit was rightly brought for judgment on the note and to set aside the deeds alleged to be fraudulent, as to plaintiff as a creditor, and for the sale of the land. Case v. Beauregard, 101 U.S. 690; Turner v. Adams, 46 Mo. 95; Lionberger v. Baker, supra; Bobb v. Woodward, 50 Mo. 95; Zoll v. Soper, 75 Mo. 460. (4) Whether or not the plaintiff was competent to testify to all the matters about which he gave evidence, is not a question open for review on this appeal. The motion for a new trial did not present that matter to the court for reconsideration, nor in anywise complain of the court's ruling on the admission of evidence, or the competency of the plaintiff or other witness to testify. Vineyard v. Matney, 68 Mo. 165; Pitts v. Sheriff, 108 Mo. 110. Besides, the evidence of the plaintiff, complained of in the defendants' brief, was mostly brought out by counsel for defendant on cross-examination, and, therefore, as to such evidence, they can not now be heard to complain. Nichols v. Nichols, 147 Mo. 402; Hume v. Hopkins, 140 Mo. 65. (5) The evidence shows conclusively that the plaintiff was the owner of the note in his own right and not the mere holder of it as agent for his mother. He had sued on it long prior to his mother's death. (6) It is contended by counsel for defendants that the circuit court erred in not providing that the defendant, Sylvia J. Needles, should have dower in the surplus, after the payment of the mortgage debt, in case the deed to her from her husband was set aside. There is, however, no such relief, or any relief, asked in her answer; but on the contrary, it is entirely inconsistent therewith. Her joint answer with that of the defendant, John E. Nast...

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