Bell v. Bell

• Decision Date: 16 November 1908
• Citation: 133 Mo. App. 570,113 S.W. 667
• Parties: BELL v. BELL et al.
• Court: Missouri Court of Appeals

113 S.W. 667

133 Mo. App. 570

BELL v. BELL et al.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. HUSBAND AND WIFE (§ 171)—CONTRACTS OF WIFE—MORTGAGE OF REALTY.

A married woman, by conforming to the requirements of the statute, may make a valid mortgage upon her realty not held to her separate use, though the debt or liability secured thereby be that of her husband.

2. HUSBAND AND WIFE (§ 171)—VALIDITY— CONSIDERATION—PRE-EXISTING DEBT.

A mortgage given by a wife to secure the payment of a pre-existing debt of her husband, supported by no new consideration, neither a benefit to the wife nor detriment to the mortgagee or a third person, is invalid.

Appeal from Circuit Court, Cedar County; L. W. Shafer, Judge.

Foreclosure suit by J. S. Bell against Charles C. Bell and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Silvers & Dawson, for appellant. Thos. J. Smith, for respondents.

JOHNSON, J.

This is a suit to foreclose a mortgage on real estate. Defendants prevailed in the trial court, where the cause was tried without a jury. Plaintiff appealed.

On October 6, 1887, defendant Charles C. Bell borrowed $502.75 from his brother, the plaintiff, and delivered to his brother his negotiable promissory note for that sum, payable July 1, 1888, and bearing 10 per cent. interest per annum from date. On November 1, 1887, said defendant borrowed $1,305.77 from plaintiff, and gave his note due July 1, 1889, for that amount, with interest at 10 per cent. per annum from date. December 13th of the same year, defendant Charles C. Bell and his wife, Mary R. Bell, joined in the execution of a mortgage on land owned by the wife in Cedar county, Mo. The instrument contains the recital: "This grant is intended as a mortgage to secure the payment of one thousand eight hundred eight and 54-100 dollars, according to the terms of tow certain promissory notes executed by the said C. C. Bell to the party of the second part, Jas. S Bell, date Oct. 6, 1887, due July 1, 1888, amount $502.75; second note dated Nov. 1, 1887, due July 1, 1889." The mortgage was delivered to plaintiff, and was recorded in the office of the recorder of deeds of Cedar county, June 11, 1889. No payment of either principal or interest was made on the first-described note. Two payments were made and indorsed on the larger note, one of $500 on July 14, 1890, and one of $62.60 on November 3, 1892. This suit was brought in the circuit court of Cedar county the 26th day...