Alexander v. Lydick

• Citation: 80 Mo. 341
• Parties: ALEXANDER et al., Appellants, v. LYDICK.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 341

ALEXANDER et al., Appellants,

v.LYDICK.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

R. R. Kitt for appellants.

The evidence shows conclusively that the property in dispute was that of plaintiff, Elizabeth Alexander, when the constable seized it. Admitting that the property became the husband's by right of marriage, yet he has the right, when not in fraud of creditors, to make a gift of any personal property to the wife. Richardson v. Lowry, 67 Mo. 417. The judgment being a general one against a married woman, is a nullity. Gage v. Gates, 62 Mo. 412; Lincoln v. Rowe, 64 Mo. 138; Caldwell v. Stephens, 57 Mo. 352; Long v. Cockrell, 55 Mo. 93. The judgment being void as to one, is void as to all, and if reversed as to one, it should be reversed as to all. Cov. Mut. Ins. Co. v. Clover, 36 Mo. 392; Dickerson v. Crisman, 28 Mo. 135; St. Joseph Ins. Co. v. Hauck, 71 Mo. 465.

O. J. Chapman and L. A. Chapman for respondent.

Prior to the act of the legislature of 1875, the wife's personal property vested eo instanti in the husband, and the rule was the same as to all such property which she acquired or became beneficially possessed of after the marriage. Kelley on Cont. of Married Women, 27; Sallee v. Arnold, 32 Mo. 532; Walker v. Walker, 25 Mo. 367; Woodford v. Stephens, 51 Mo. 443; Clark v. Bank, 47 Mo. 17; Boyce v. Cayce, 17 Mo. 47; Hunt v. Thompson, 6 Mo. 148. The wheat was liable in the attachment suit because based on a claim for necessaries--medical services being necessaries. R. S., § 3295; Bevier v. Galloway, 71 Ill. 517; Cochran v. Lee, 24 Ala. 380; Grace v. Hall, 2 Humph. (Tenn.) 29. The coverture of Elizabeth Alexander could not operate to discharge the sureties on the appeal bond. Weed, etc., v. Maxwell, 63 Mo. 486; Foxworth v. Bullock, 44 Miss. 457; Stilwell v. Bertrand, 22 Ark. 375.

MARTIN, C.

This was an action for the claim and delivery of personal property, consisting of some wheat, household furniture, wagon, sewing machine, books, bookcase, etc., and was brought before a justice of the peace by whom judgment was rendered for plaintiff. On an appeal to the circuit court, judgment was given for the defendant against the plaintiffs and their sureties, for return of the property or payment of the value thereof, which was assessed at $70.

In the amended statement it is alleged that the plaintiffs are husband and wife, but that the property sued for belongs to the wife. It appears from the evidence that the property was levied upon by the defendant, as constable, in obedience to the command of an attachment against Simeon Alexander, the husband, by his creditors. As ground for their attachment, they alleged that defendant was about to move out of the state for the purposes of changing his domicile. These attachment suits were sustained upon trial before the justice.

In the trial of this case the testimony consisted almost entirely of the statements of Mrs. Alexander. She was married in 1874 to Simeon Alexander, her present husband. At that time she was the widow of John V. Curl, deceased, who died in 1872. After his death a part of his land was set apart by the probate court as the homestead of his widow, where she was residing at the time of her second marriage. All the property claimed in the suit, except the wheat, wagon and sewing machine, she acquired from her former husband's estate. The wagon she purchased with her own money in 1872. The sewing machine she bought in 1876 with wood and apples from the homestead and proceeds of the sale of a colt foaled by a mare she had acquired from her first husband's estate. The wheat was the product of the said homestead in 1879. It appears that in September, 1878, the wife and husband separated, the husband intending to leave her. She testified that he then gave to her all his interest in the personal property possessed by her before marriage with him or purchased since with her own money, and that this included all the property excepting the wheat. About two months after he left her he changed his mind and returned again, and they were residing together on the same homestead where all the property was found at the time of the attachment. Simeon Alexander never owned any property of his own, but was insolvent at the date of his marriage and continued so until the time of the trial. The debt on which the attachment was sued out and upon which judgment was rendered consisted of an obligation of Simeon Alexander incurred in favor of Dr. Bottom, plaintiff in the attachment, for medical attendance and services rendered by him in behalf of George Curl, son of Mrs. Alexander, by her first husband, and who at the time of his sickness was a member of the family and residing with Mr. and Mrs. Alexander. The obligation was incurred in 1875.

I do not think the plaintiff was entitled to recover on this evidence. As to the property acquired by her from her former husband's estate prior to her second marriage, it consisted of chattels in possession. This property prior to the act of 1875 vested absolutely in the husband and became subject to his debts. Sallee v. Arnold, 32 Mo. 532; Woodford v. Stephens, 51 Mo. 443. There is no evidence in the case tending to prove that she ever had or was recognized by her husband as having a separate estate in this property. McCoy v. Hyatt, 80 Mo. 130. The wagon which she purchased in 1872 would go to her husband upon her marriage along with the property acquired from her first husband's estate. She could not lawfully claim the sewing machine purchased in 1876. The evidence shows that it was purchased in part with the proceeds of a colt belonging to her husband and in part with wood and apples coming from the farm. After, as well as before, the act of 1875, the husband was entitled to enjoy the rents, issues and products of his wife's lands. The General Statutes of 1865 exempted them from execution for most of his debts and prohibited him from alienating them without joining with her in a deed. R. S. 1879, § 3,295. This machine, although acquired after the act of 1875, was clearly not acquired “with her separate money or means,” so as to give her an independent title within the provisions of said act. R. S. 1879, § 3,296. The wheat being the product of the land, and vesting in him subject to the General Statutes of 1865, could not lawfully be claimed by her as against the process and debt in this case. The General Statutes of 1865 expressly subject such issues and products to attachment and execution for necessaries for the family. R. S. 1879, § 3,295. Medical attendance seems to fall within the designation of necessaries. Bevier v. Galloway, 71 Ill. 517; Cothran v. Lee, 24 Ala. 380; Grace v. Hale, 2 Hump. (Tenn.) 29. The title to the whole or any of this property which she claims by virtue of a gift from her second husband is not in my opinion sustained by...