Bachman v. Lewis

• Decision Date: 06 June 1887
• Citation: 27 Mo.App. 81
• Parties: C. F. W. BACHMAN ET AL., Appellants, v. SARAH E. LEWIS ET AL., Respondents.
• Court: Kansas Court of Appeals

27 Mo.App. 81

C. F. W. BACHMAN ET AL., Appellants, v. SARAH E. LEWIS ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Daviess Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.

Affirmed.

The case is stated in the opinion.

GILLIHAN & BROSIUS, for the appellants.

I. The mortgage to Harriet C. Northup being given upon a stock of goods and furniture, the mortgageor remaining in possession after its execution, and disposing of same for her own use with the knowledge and consent of the mortgagee is a fraud upon the creditors of the mortgageor. Brooks v Wimer, 20 Mo. 503; Walter v. Wimer, 24 Mo. 63; Zeigler v. Madox, 26 Mo. 575; Stanley v Bruce, 27 Mo. 269; S. C., 28 Mo. 547; Voullair v Tasker, 31 Mo. 445.

II. The mortgage permits the mortgageor to remain in possession until default be made. The note being long past due when the mortgage was given it is fraudulent in our opinion, but if not fraudulent on its face is certainly made so by the agreed statement of facts, which admits that the mortgageors were to remain in possession and dispose of the same for their own use with the knowledge and consent of the mortgagee, and if this fact appears aliunde it is sufficient. Voullaire v. Tasker, supra, Webber v. Armstrong, 70 Mo. 217; Hewson v. Tootle, 72 Mo. 632.

III. There are fourteen grounds for attachment under the Revised Statutes, and it will be observed that the " intent" of the party liable is not a necessary ingredient, except for the grounds enumerated in the fifth and sixth clauses of the first section, page 61. There is no " intent" necessary under the seventh clause of said secion. It simply reads " has fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors." The constructive fraud raised by the law is, therefore, sufficient. Rev. Stat., sect. 398, p. 61; Reed v. Pelletier, 28 Mo. 173; Potter v. McDowell, 31 Mo. 62.

IV. The giving, therefore, of the mortgage on the goods and furniture in evidence, with the understanding that the defendant was to continue in the possession and sell in the ordinary course of business, under the agreed statement of facts and evidence, is a fraud and sufficient to support the attachment under the seventh clause of the first section of the attachment act. Reed v. Pelletier, 28 Mo. 173.

V. The agreed statement of facts admits that defendant had a separate estate, and did business as a sole trader with her husband's knowledge and consent. The fact that she was a married woman does not prevent an attachment. Frank v. Seigle, 9 Mo.App. 497; 1 Waples on Attach. 158.

VI. The statutes authorizing attachment in this state give the remedy to the plaintiff in any civil action. Rev. Stat., sect. 398. There is but one form of civil action in this state. Rev. Stat., sect. 3461; United States v. Cigars, 1 Woolw. 123; Rison v. Cribbs, 1 Dillon 181. The case of Gates v. Gates (62 Mo. 412), is not in point here and what was there said on this point is obiter dicta.

VII. A married woman with respect to her separate estate is to be regarded as a feme sole. She has the jus disponendi over her separate estate and the same power with respect to it that a feme sole has with respect to her property; and the same power to commit a fraud upon her creditors that a feme sole has. Why should she not be subject to the same law? Section 3296, Revised Statutes, gives a feme covert separate estate in personal property, and by necessary implication the power to contract with respect to it. Her contracts may be either express or implied, written or verbal, and if made with reference to her separate estate are binding. Hulme v. Tennant, 1 Leading Cases in Equity, 507 to 543.

WILLIAM A. WOOD and JAMES MCMILLAN, for the respondents.

I. It is conceded by appellants, and the law is well settled in this state, that a suit in equity, to charge the separate estate of Sarah E. Lewis with the payment of the debts sued for, was plaintiffs' proper action. Kimball v. Silvers, 22 Mo.App. 520; Martin v. Colburn, 88 Mo. 229; Davis v. Smith, 75 Mo. 219; Jaques v. M. E. Church, 17 Johns. (N. Y.) 538; Gardner v. Gardner, 22 Wend. (N. Y.) 526.

II. Attachment is a special remedy belonging exclusively to a court of law, and can only be invoked in aid of such causes of action as will sustain a suit at law. Equitable debts, therefore, of the nature of the plaintiffs' demand against the defendants, are not sufficient to ground an attachment upon. Drake on Attachment [5 Ed.] sects. 4 a and 9, pp. 4 and 9; Lackland v. Garesché , 56 Mo. 267; Ebner v. Bradford, 3 Abbott's N.Y. Prac. Rep. 3, p. 202; Lehman v. Warner, 61 Ala. 455.

III. Attachment is a personal action and not a proceeding in rem. The property is in no sense a party to the suit, but is brought before the court as ancillary, or in aid of the remedy against the person who is presumed to be the owner of it. The cause of action and the condition of the parties must be such as will authorize a valid personal judgment. Especially does this rule apply when there has been personal service on the defendants, and an appearance by them to the action, as in the case at bar. Bray v. McClury, 55 Mo. 128; Drake on Attach. [5 Ed.] sect. 5; Payne v. O'Shea, 84 Mo. 129; Borum v. Reed, 73 Mo. 461; Jones v. Hart, 60 Mo. 357.

IV. A personal judgment, at law, against a married woman is void; and a judgment for plaintiffs on the attachment here, would be such a judgment, and, therefore, void.

V. The separate estate of the wife cannot be reached in proceedings by attachment, either for the debts of the husband, or those of the wife. Gage v. Gates, 62 Mo. 412.

VI. The power of a married woman to charge her separate estate is not based on the jus disponendi. In fact, she does not charge it, but equity charges it for her. No proceeding at law will lie to charge the separate estate of a married woman with her debt, or to aid the enforcing of an executory contract made by her. Kimball v. Silvers, 22 Mo.App. 520; Martin v. Colburn, 88 Mo. 229; Davis v. Smith, 75 Mo. 219.

OSCAR SAYLOR, also, for the respondents.

I. The contract of a married woman is void, both at law and in equity, but a court of equity will, if she possess a separate estate, take hold of it, and in connection with it treat her so-called obligation as of sufficient force to be the foundation of a decree against her separate estate. This is the full limit of her power to contract in this state, and a court of equity alone gives it that force and standing. Davis v. Smith, 75 Mo. 219; Whiteside v. Cannon, 23 Mo. 457.

II. The married woman's acts have only had the effect of making her equitable separate estate a legal separate estate, and the remedy against her, in equity, is unchanged. King v. Mittleberger, 50 Mo. 182; Kimm v. Weippert, 46 Mo. 532; Bauer v. Bauer, 46 Mo. 61; Yale v. Dederer, 18 N.Y. 265.

III. A court of equity, with its enlarged powers and adaptability, cannot interfere with her separate estate before judgment; and after judgment, only by a writ, in the nature of an equitable execution. High on Injunction, 1403; Wiggins v. Armstrong, 2 Johns. Ch. 143; Kelly's Contracts of Married Women, 284-5; Holdridge v. Gwynn, C. and E. Green, 26.

IV. If authorities were wanting, which they are not, it would require no argument to prove that, under the well-known rule requiring the strict construction of statutes, in derogation of common law, the several married woman's acts of this state could not be construed as removing her common-law disability to contract. That was not their purpose, and it would be tortuous to so construe them. Hence we must conclude a married woman absolutely has no power, either in law or in equity, to make a valid contract. Davis v. Smith, Whiteside v. Cannon, and Yale v. Dederer, supra. When we consider that no other court than a court of chancery ever made pretense of considering her contracts otherwise than void, in all proceedings, and that, in a court of chancery, the reason for giving them such force as heretofore explained was questionable and fallacious, it becomes very difficult to understand how any other or greater force could be claimed for them, without direct legislation.

V. The remedy by attachment is purely legal, and not equitable, and the statute governing it has, with few modifications, been in force since the organization of the state, and is not affected by our practice act. Lockwood v. Garesché , 26 Mo. 207; Pratt v. Scott, 19 Mo. 625; Wood v. Edgar, 13 Mo. 451; Lee v. Faber, 8 Mo. 322; Van Winkle & Randall v. McKee, 7 Mo. 435.

VI. The proceedings by attachment are between individual persons. Bray v. McClury, 55 Mo. 296. The judgment, when personal service is had, or when defendant appears to the suit, as in this case, must be a general personal one. The court has no discretion in the matter. Huxly v. Harold, 62 Mo. 516; Jones v. Hart, 60 Mo. 51; Bray v. McClury, supra; Kritzer v. Smith, 21 Mo. 296.

VII. It is fundamental that attachments are never equitable. Text writers also state, and from the reading of Pratt v. Scott, and Wood v. Edgar, supra, it will be observed that it cannot be mingled with proceedings in equity. That the proceedings in those cases were by garnishment, and were decided under the statutes governing garnishments, makes no difference. The same objections would exist in attachments, and the same doctrine would obtain. That proceedings by attachment against a married woman's separate estate could not be sustained, would never have been seriously questioned, respondents presume, but for the decision of the St. Louis court of appeals in the case of Frank v. Seigle (9 Mo.App. 467), cited by appellants.

ELLISON J.

This was an action to charge the separate estate of Sarah...