Bedsworth v. Bowman

• Decision Date: 10 May 1888
• Parties: LOUISA BEDSWORTH and LAMAR BEDSWORTH, Respondents, v. JOSEPH BOWMAN, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 116

LOUISA BEDSWORTH and LAMAR BEDSWORTH, Respondents, v. JOSEPH BOWMAN, Appellant.

Court of Appeals of Missouri, Kansas City.

May 10, 1888

Appeal from Lafayette Circuit Court, HON. RICHARD FIELD, Judge.

Affirmed.

Certified to Supreme Court.

The case is stated in the opinion.

WALLACE & CHILES, LESLIE OREAR, and G. M. SEBREE, for the appellant.

I. The court erred in giving the declaration of law numbered one asked for by plaintiffs and objected to by defendant, and in refusing to give the declaration of law numbered one as prayed by defendant. Session Acts 1875, p. 61; Woodford v. Stephens, 51 Mo. 443; Barnes v. Bangert, 16 Mo.App. 22; Alexander v. Lydick, 80 Mo. 341; Rev Stat., 1879, secs. 3296, 3295; Sallie v. Arnold, 32 Mo. 532; Fisher v. Anchor Line, 15 Mo.App. 577; Conrad v. Howard, 89 Mo. 217.

II. The court erred in overruling defendant's motion in arrest of judgment. Rev. Stat., 1879, secs. 3854, 3856; State ex rel. v. Dunn, 60 Mo. 64, and cases cited.

III. Prior to the passage of the act of 1875 (Sess. Acts, 1875, p 61) declaring that " 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, etc., * * * shall, together with the income and profits thereof, be and remain her separate property, and under her sole control and shall not be taken by any process of law for the debts of her husband," the husband could by simply taking possession or bringing under his control the personal property of the wife become the owner thereof, and render it liable for his debts. Woodford v. Stephens, 51 Mo. 443; Salles v. Arnold, 32 Mo. 532, 547. And property so under the control of the husband that he might at any time take manual possession of it was such a reduction to possession as gave him the title. Barnes v. Bangert, 16 Mo.App. 22; Alexander v. Lydick, 80 Mo. 341. And even such act of 1875 and section 3296, Revised Statutes, provide that the same shall not affect the title of the husband to any personal property reduced to his possession; under that act the husband has the right to reduce such personal property to his possession, the modification of his right being that such reduction to possession by him must be with the express assent of the wife in writing--including authority " to sell, encumber, or otherwise dispose of the same." It must be conceded that but for the provisions of the act of 1875, the common law would operate to vest the title to the wife's personalty in possession in the husband absolutely, and in construing this statute the court will not depart further from the common law than the language of the statute requires.

IV. The modifications and conditions of the wife's right to a separate estate in personal property under this act are embraced in these words at the end of the section, viz., " but such property shall be subject to execution for the payment of the debts of the wife contracted before marriage, and for any debt or liability of her husband created for necessaries for the wife or family." The separate property of the wife by virtue of the act of 1875, and section 3296, Revised Statutes, 1879, is not a complete separate property, or estate as defined and treated of in equity jurisprudence, but a statutory and qualified separate property, and the legislature had the power to subject it to execution, as it did. Fisher v. Anchor Line, 15 Mo.App. 577.

V. This species of legislation is not new in this state. Sess. Acts, 1849, p. 67; Rev. Stat., 1855, chap. 63, p. 754; Phelps v. Tappan, 18 Mo. 393, 395. That case arose out of a levy of an execution on the husband's property for debt of wife. Cunningham v. Gray, 20 Mo. 170; Tally v. Thompson, 20 Mo. 277; Harvey v. Wickham, 23 Mo. 112; Hockaday v. Sallee, 26 Mo. 219; Barbee v. Winer, 27 Mo. 140. The case of Alexander v. Lydick, 80 Mo. 341, fully sustains the position of appellant in this case. See also Rev. Stat., 1879, sec. 3295; Conrad v. Howard, 89 Mo. 217. The case of State ex rel. v. Armstrong, 25 Mo.App. 532, relied on by respondents, and upon which the court below relied in making its finding for plaintiffs in this case, when properly considered, we submit is not in point, and in no wise affects the case at bar.

VI. The Supreme Court, in Alexander v. Lydick, supra, clearly asserts the validity of the statute and these proceedings, and that is the last controlling decision of that court on this subject, and must prevail over the interpretation given by the court below.

J. D. SHEWALTER and S. N. WILSON, for the respondents.

I. The property being the separate property of the wife, admitted by the pleadings and shown by the evidence, she could not be deprived of it without due process of law, and judgment and execution thereon against her husband, was no process against her or her property. State ex rel. v. Armstrong, 25 Mo.App. 532; Gitchell v. Messmer, 14 Mo.App. 83; O'Fallon v. Clopton, 14 Mo.App. 582; Dogge v. Stumpe, 73 Mo. 533; Const. Mo., art. 2, sec. 30; 52 Mo. 44.

II. While, under the statute, the separate personal property of a married woman is liable " for any debt or liability of her husband created for necessaries," yet the title to the property is in the wife; and the sheriff, being a mere executive officer, has no power to go behind the execution and the judgment and determine the consideration of the judgment, and to settle the judicial question of the existence or non-existence of the exceptional fact which makes the property subject to the payment of the debt which is the foundation of the judgment. The wife is entitled to her day in court, and the only manner in which her separate personal estate can be reached is in equity, or possibly by a suit against both, a judgment against the husband and a judicial determination of the fact by the judgment that it is for necessaries. Kimball v. Silvers, 22 Mo.App. 520; State ex rel. v. Armstrong, 25 Mo.App. 532; Kimm v. Weipple, 46 Mo. 532; Whitesides v. Cannon, 23 Mo. 457; Gage v. Gates, 62 Mo. 412; Martin v. Colburn, 88 Mo. 229; Bachman v. Lewis, 27 Mo.App. 81.

III. There was no evidence in this case that the judgment was for necessaries; the judgment being on a promissory note, the consideration of the note (though for necessaries) was merged in the note.

IV. The court did not err in overruling defendant's motion in arrest of judgment. The property in controversy was in possession of plaintiffs under their replevin bond, as was shown by the evidence. Rev. Stat., sec. 3857.

V. The case of State ex rel. v. Armstrong, 25 Mo.App. 532, is decisive of this.

WALLACE & CHILES, et al., in reply.

I. The question involved in this case is more a question of the power of the legislature than one of the form of proceeding. The facts set out in the petition are admitted or not controverted.

II. The only question is, whether the legislature could, and did, by the act of 1875 (Sess. Acts 1875, p. 61), and Revised Statutes 1879, section 3296, in changing the law as to a married woman's personal property, and in making it her " separate property," and in exempting it from liability, " to be taken by any process of law for the debts of her husband," so qualify such exemption, by a proviso, as to make such statutory separate property " subject to execution * * * for any debt or liability of her husband created for necessaries for the wife or family; " --for this is what the legislature purports to do, and we submit, could do, and have done. There is nothing unconstitutional in the act.

III. If the legislature could create a separate property in personal property, in a married woman--it certainly could prescribe the conditions, and require the married woman to take it, cum onere. Under section 2353, Revised Statutes, 1879, the Supreme Court have repeatedly held, that " personal property" is " subject to execution," on a judgment " for the purchase price thereof," against the purchaser, " even in the hands of a third person" --" except in the hands of an innocent purchaser for value without notice." Parker v. Rodes, 79 Mo. 88. And in this case, it was even held error to join the third party in the suit. See also, Norris to use v. Brunswick, 73 Mo. 256, where section 2353, Revised Statutes, is held to have " a much broader scope" than the act of 1874. In Milling Co. v. Turner, 23 Mo.App. 103, this court not only reaffirms the doctrine of Parker v. Rodes, supra, but holds that the claim of a plaintiff in a judgment for the purchase price of personal property is superior to, and overrides prior attachments by other creditors, and this court there say, " it is clear that the Supreme Court entertains the opinion, that this statute should be so construed as to carry out the object for which it was enacted; " and if so, why should not the statute be so " construed as to carry out the object for which it was enacted?"

IV. The statute must be taken altogether, and a married woman cannot claim the benefit of a part of it, and ignore the balance; if so, why may she not ignore the part thereof, giving title to the husband, of personal property of the wife,...