Bedsworth v. Bowman

• Decision Date: 31 March 1891
• Citation: 104 Mo. 44,15 S.W. 990
• Parties: BEDSWORTH et ux. v. BOWMAN.
• Court: Missouri Supreme Court

15 S.W. 990

104 Mo. 44

BEDSWORTH et ux. v. BOWMAN.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

HUSBAND AND WIFE — WIFE'S SEPARATE ESTATE — LIABILITY FOR NECESSARIES.

Under Rev. St. Mo. 1879, § 3296, which provides that the wife's personal property shall be her separate property, and shall not be liable to be taken for the debts of the husband, but such property shall be subject to execution for any debt of her husband for necessaries for the wife or family, a wife's separate property cannot be seized on execution under a judgment against the husband alone, even though the judgment was for necessaries.

Appeal from Kansas City court of appeals.

Wallace & Chiles, L. O'Rear, and G. M. Sebree, for appellant. J. D. Shewalter and S. N. Wilson, for respondents.

MACFARLANE, J.

This is an action of replevin brought by plaintiffs, who are husband and wife, to recover from defendant the possession of certain personal property, which is alleged to be the separate property of the wife. The facts, so far as they affect the question in issue, are briefly as follows: Plaintiff Louisa Bedsworth is the wife of her co-plaintiff, Lamar Bedsworth, and the property in dispute is the separate property of the wife, as defined under section 3296, Rev. St. 1879. The husband created an indebtedness for necessaries for his wife and the family. A note was afterwards given for the amount of such indebtedness, which was executed by both husband and wife. Suit was instituted on the note against the husband, and judgment rendered against him alone. Upon this judgment an execution was issued, and placed in the hands of defendant, who was sheriff of the county of Lafayette, who levied it upon this property. This replevin suit was in the interest of the wife for the possession of the property. These facts appearing upon the trial, the court directed a verdict for plaintiffs, and judgment was entered accordingly. An appeal was taken by defendant to the Kansas City court of appeals, where the judgment was affirmed; but, one of the judges of said court being of the opinion that the decision was in conflict with the decision in the case of Alexander v. Lydick, 80 Mo. 341, the record was certified to this court for its determination of the case. Waiving altogether the fact that the note was made by both husband and wife, the question for decision is whether the statutory separate personal property of the wife can be subjected to the satisfaction of a judgment against the husband alone, when the debt for which it was rendered was created by the husband for necessaries for the wife and family. The statute (section 3296, Rev. St. 1879) provides that the personal property of the wife shall "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 the husband." Language more simple, explicit, and unambiguous could hardly have been used to express the intention of the legislature. To this part of the act, which defines the rights secured to the wife in this character of property, no room is left for interpretation. Every right of the husband previously existing, not only of disposal, but of control, is excluded. This property, then, having been made the separate property of the wife, she became clothed with all the rights and subject to all the liabilities attending a married woman who held like property to her separate use before the enactment of the statute. Among these rights was that of obtaining credit on the faith of her separate estate, and among the liabilities was that of having the property charged by a proceeding in equity with the debts thus created, and sold for their satisfaction. That the wife was a necessary party to such a suit, and that a judgment against the husband alone would not bind her or her property, has never been questioned. The proceeding was directed against the property, and designed to divest the wife of her estate therein. Story, Eq. Jur. § 1397; Whitesides v. Cannon, 23 Mo. 457; Kimm v. Weippert, 46 Mo. 532; Davis v. Smith, 75 Mo. 225. Indeed, the proposition is not questioned in this case, but counsel for defendant contends that the subsequent portion of the statute qualifies and limits the estate of the wife to such an extent that it does not become a separate estate in its technical common-law sense, but is simply a statutory estate, in which the husband has such an interest as enables him to charge it for necessaries without the consent of the wife, and enables the creditor to subject it to the payment of his debt under legal process against the husband alone. So much of the statute as need be quoted is as follows: The personal property of the wife shall "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 the husband; * * * but such property shall be subject to execution * * * for any debt or liability of her husband created for necessaries for the wife or family." I am unable to observe any inconsistency between the absolute control of the wife over her property given in the former clause of the section and her obligation to contribute of her means to the support of herself and family in the latter. Prior to this statute the duty of the entire support of the family was imposed upon the husband. To compensate for this exclusive burden, he was entitled to the personal property of the wife absolutely. When he is excluded from all right and interest in the property of the wife it is but just that the property should be subject to the necessary support of the family. It is very clear that the provision of the statute making the separate property of the wife subject to executions for debts contracted by the husband for necessaries was not designed to qualify or limit the rights of the wife, or to enlarge those of the husband, but simply to impose on the wife the legal, in addition to the moral, duty of contributing to the family support. The legislature unquestionably intended to vest in the wife the absolute and unqualified right to the use and control of her own property in all respects as other owners, — as the husband himself. In respect to property rights the unity growing out of the matrimonial relation was destroyed. The wife was given the same ownership, possession, and enjoyment of her property as she would have were she sole and unmarried....